Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-22533 February 9, 1967

PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners, vs. PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES BONIFACIO, respondents. Placido B. Ramos and Renato L. Ramos for petitioners. Trinidad & Borromeo for respondents. BENGZON, J.P., J.: On June 30, 1958 Placido and Augusto Ramos sued Pepsi-Cola Bottling Co. of the P.I.1 and Andres Bonifacio in the Court of First Instance of Manila as a consequence of a collision, on May 10, 1958, involving the car of Placido Ramos and a tractor-truck and trailer of PEPESI-COLA. Said car was at the time of the collision driven by Augusto Ramos, son and co-plaintiff of Placido. PEPSI-COLA's tractor-truck was then driven by its driver and co-defendant Andres Bonifacio. After trial the Court of First Instance rendered judgment on April 15, 1961, finding Bonifacio negligent and declaring that PEPSI-COLA had not sufficiently proved its having exercised the due diligence of a good father of a family to prevent the damage. PEPSI-COLA and Bonifacio, solidarily, were ordered to pay the plaintiffs P2,638.50 actual damages; P2,000.00 moral damages; P2,000.00 as exemplary damages; and, P1,000.00 attorney's fees, with costs. Not satisfied with this decision, the defendants appellee to the Court of Appeals. Said Court, on January 15, 1964, affirmed the trial court's judgment insofar as it found defendant Bonifacio negligent, but modified it by absolving defendant PEPSI-COLA from liability, finding that, contrary to the plaintiffs' contention, PEPSI-COLA sufficiently proved due diligence in the selection of its driver Bonifacio. Plaintiffs thereupon appealed to Us through this petition for review of the Court of Appeals' decision. And appellants would argue before this Court that defendant PEPSI-COLA's evidence failed to show that it had exercised due diligence in the selection of its driver in question. Said point, as stated, was resolved by the Court of Appeals in PEPSI-COLA's favor, thus: The uncontradicted testimony of Juan T. Anasco, personnel manager of defendant company, was to the effect that defendant driver was first hired as a member of the bottle crop in the production department; that when he was hired as a driver, 'we had size [sic] him by looking into his background, asking him to submit clearances, previous experience, physical examination and later on, he was sent to the pool house to take the usual driver's examination, consisting of: First, theoretical examination and second, the practical driving examination, all of which he had undergone, and that the defendant company was a member of the Safety Council. In view hereof, we are of the sense that defendant company had exercised the diligence of a good father of a family in the choice or selection of defendant driver'. In the case of Campo vs. Camarote No. L-9147 (1956), 53 O.G. 2794, cited in appellee's brief, our Supreme Court had occasion to put it down as a rule that "In order that the defendant may be considered as having exercised all the diligence of a good father of a family, he should not have been satisfied with the mere possession of a professional driver's license; he should have carefully examined the applicant for employment as to his qualifications, his experiences and record of service." Defendant Company has taken all these steps.2 Appellants herein seek to assail the foregoing portion of the decision under review by taking issue with the testimony of Anasco upon which the findings of due diligence aforestated are rested. Thus, it is now contended that Aasco being PEPSI-COLA's employee, is a biased and interested witness; and that his testimony is not believable.

It is rather clear, therefore, that appellants would raise herein an issue of fact and credibility, something as to which this Court has consistently respected the findings of the Court of Appeals, with some few exceptions, which do not obtain herein.3 Stated differently, Aascos credibility is not for this Court now to re-examine. And said witness having been found credible by the Court of Appeals, his testimony, as accepted by said Court, cannot at this stage be assailed. As We said in Co Tao vs. Court of Appeals, L-9194, April 25, 1957, assignments of error involving the credibility of witnesses and which in effect dispute the findings of fact of the Court of Appeals, cannot be reviewed in these proceedings. For a question to be one of law it must involve no examination of the probative value of the evidence presented by the litigants or any of them. 4 And the distinction is well-known: There is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of alleged facts.5 From all this it follows that for the purposes of this appeal, it must be taken as established that, as testified to by Aasco, PEPSI-COLA did in fact carefully examine the driver-applicant Bonifacio as to his qualifications, experiences and record of service, taking all steps mentioned by the Court of Appeals in its decision already quoted.1wph1.t Such being the case, there can be no doubt that PEPSI-COLA exercised the required due diligence in the selection of its driver. As ruled by this Court in Campo vs. Camarote 53 O.G. 2794, 2797: "In order that the defendant may be considered as having exercised all diligence of a good father of a family, he should not be satisfied with the mere possession of a professional driver's license; he should have carefully examined the applicant for employment as to his qualifications, his experience and record of service."

It should perhaps be stated that in the instant case no question is raised as to due diligence in the supervision by PEPSI-COLA of its driver. Article 2180 of the Civil Code provides inter alia: ... The owners and managers of an establishment or enterprise are likewise 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. xxx xxx xxx

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. And construing a similar provision of the old Civil Code, this Court said in Bahia vs. Litonjua, 30 Phil. 624, 627: From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after the selection, or both; and (2) that the presumption is juris tantum and not juris et de jure, and consequently may be rebutted. It follows necessarily that if the employer shows to the satisfaction of the court that in selection and supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability. As pointed out, what appellants here contend as not duly proved by PEPSI-COLA is only due diligence in the selection of its driver. And, parenthetically, it is not surprising that appellants thus confine their arguments to this aspect of due diligence, since the record as even appellants' brief (pp. 13-17) reflects in quoting in part the testimony of PEPSI-COLA's witness would show sufficient evidence to establish due diligence in the supervision by PEPSI-COLA of its drivers, including Bonifacio. Appellants' other assignment of errors are likewise outside the purview of this Court's reviewing power. Thus, the question of whether PEPSICOLA violated the Revised Motor Vehicle Law and rules and regulations related thereto, not having been raised and argued in the Court of Appeals, cannot be ventilated herein for the first time. 6 And the matter of whether or not PEPSI-COLA did acts to ratify the negligent act of its driver is a factual issue not proper herein. Wherefore, the decision of the Court of Appeals is hereby affirmed, with costs against appellants. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

RESOLUTION ON MOTION FOR RECONSIDERATION May 16, 1967 BENGZON, J.P., J.: Petitioners seek a reconsideration1 of Our decision2 in the instant case affirming in toto the challenged decision of the Court of Appeals absolving respondent PEPSI-COLA from liability. In Our decision, We refrained from passing on the merits of the question whether PEPSI-COLA, in operating the tractor-truck and trailer, violated the Rev. Motor Vehicle Law3 and the rules and regulations related thereto, for the procedural reason that it did not appear to have been raised before the Court of Appeals. It now appears, however, that said question was raised in a motion to reconsider filed with the Court of Appeals which resolved the same against petitioners. Due consideration of the matter on its merits, convinces Us that the decision of the Court of Appeals should still be affirmed in toto. Petitioners impute to PEPSI-COLA the violation of subpars. 1 and 4(d), par. (a), Sec. 27 of M.V.O. Administrative Order No. 1, dated Sept. 1, 1951, in that at the time of the collision, the trailer-truck, which had a total weight of 30,000 kgms., was (a) being driven at a speed of about 30 k.p.h. or beyond the 15 k.p.h. limit set and (b) was not equipped with a rear-vision mirror nor provided with a helper for the driver. The cited provisions read: SECTION 27. Registration, operation, and inspection of truck-trailer combinations, semi-trailers, and tractors. (a) No trailer or semi-trailer having a gross weight of more than 2,000 kilograms and is not equipped with effective brakes on at least two opposite wheels of the rear axle and are so controlled that the brakes will act in unison with or preceding the effective action of the brakes of the tractor-truck shall be registered for operation on public highways of the Philippines; provided, that the trialers without brakes may be registered from year to year for operation under the following conditions: 1. No such trailer shall be operated at any time at a speed in excess of 15 kilometers per hour in conjunction with a tractor-truck, the actual gross weight of which is less than twice the weight of the trailer. xxx xxx xxx

4(d) Tractor-trucks shall be either equipped with rear-vision mirror to enable the driver to see vehicles approaching mirror the rear or shall carry a helper who shall be so stationed on the truck or trailer that he will constantly have a view of the rear. He shall be provided with means of effectively signalling to the driver to give way to overtaking vehicles. 4(e) No truck and trailer combination shall be operated at a speed greater than 30 kilometers per hour. It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refers only to trailers or semi-trailers having a gross weight of more than 2,000 kgms., AND which are "not equipped with effective brakes on at least two opposite wheels, of the rear axle and are so controlled that the brakes will act in unison with or preceding the effective action of the brakes of the tractor-truck..." This is the condition set in the proviso in par. (a), supra, wherein "trailers without [such] brakes may be registered from year to year for operation ..." i.e., they should not "be operated at any time at a speed in excess of 15 kilometers per hour in conjunction with a tractor-truck ...". But there was no finding by the Court of Appeals that the truck-trailer here did not have such brakes. In the absence of such fact, it is subpar. 4(e), supra, that will apply. And petitioners admit that the truck-trailer was being driven at about 30 k.p.h.

It is a fact that driver Bonifacio was not accompanied by a helper on the night of the collision since he was found to be driving alone. However, there is no finding that the tractor-truck did not have a rear-vision mirror. To be sure, the records disclose that Pat. Rodolfo Pahate, the traffic policeman who went to the collision scene, testified that he saw the tractor-truck there but he does not remember if it had any rear vision mirror.4 This cannot prove lack of rear-vision mirror. And the cited provision subpar. 4(d) is complied if either of the two alternatives, i.e., having a rear-vision mirror or a helper, is present. Stated otherwise, said provision is violated only where there is a positive finding that the tractor-truck did not have both rear-vision mirror and a helper for the driver. Petitioners also charge PEPSI-COLA with having violated par. (b) of Sec. 8-A of the Rev. Motor Vehicle Law, providing that: No motor vehicle operating as a single unit shall exceed the following dimensions: Overall width ................ 2.5 meters. xxx xxx xxx

since there was an express finding that the truck-trailer was 3 meters wide. However, Sec. 9 (d) of the same law, as amended, providing that SEC. 9. Special permits, fees for.-The chief of the Motor Vehicles Office with the approval of the Secretary of Public Works and Communications shall establish regulations and a tariff of additional fees under which special permits may be issued in the discretion of the Chief of the Motor Vehicles Office or his deputies, for each of the following special cases, and without such special permit, no such motor vehicles shall be operated on the public highways. xxx xxx xxx

(d) For registration or use of a motor vehicle exceeding the limit of permissible dimensions specified in subsections (b) and (c) of section eight-A hereof. (Emphasis supplied) xxx xxx xxx

expressly allows the registration, or use of motor vehicles exceeding the limits of permissible dimensions specified in subsec. (b) of Sec. 8-A. So, to conclude that there was a violation of law which undisputably constitutes negligence, at the very least it is not enough that the width of the tractor-truck exceed the limit in Sec. 8-A; in addition, it must also appear that there was no special permit granted under Sec. 9. Unfortunately for petitioners, that vital factual link is missing. There was no proof much less any finding to that effect. And it was incumbent upon petitioners-appellants to have proved lack of such permit since the tractor-truck and the trailer were registered.5 Compliance with law and regularity in the performance of official duty in this case, the issuance of proper registration papers are presumed6 and prevail over mere surmises. Having charged a violation of law, the onus of substantiating the same fell upon petitioners-appellants. Hence, the conclusion that there was a violation of the law lacks factual basis. Petitioners would also have Us abandon the Bahia ruling.7 In its stead, We are urged to apply the Anglo-American doctrine of respondent superior. We cannot however, abandon the Bahia ruling without going against the explicit mandate of the law. A motor vehicle owner is not an absolute insurer against all damages caused by its driver. Article 2180 of our Civil Code is very explicit that the owner's responsibility shall cease once it proves that it has observed the diligence of a good father of a family to prevent damage. The Bahia case merely clarified what that diligence consists of, namely, diligence in the selection and supervision of the driver-employee. Neither could We apply the respondent superior principle. Under Article 2180 of the Civil Code, the basis of an employer's liability is his own negligence, not that of his employees. The former is made responsible for failing to properly and diligently select and supervise his erring employees. We do not and have never followed the respondent superior rule.8 So, the American rulings cited by petitioners, based as they are on said doctrine, are not authoritative here. In view of the foregoing, the motion for reconsideration is hereby denied.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12245 August 31, 1959

FELICIDAD FRANCISCO, plaintiff-appellant, vs. CARMELINO DE LA SERNA AND SOUTHERN MOTORS, INC., defendants-appellees. Tupas, del Castillo, Torres and Tupas for appellant. Hilado and Hilado for appellee Southern Motors, Inc. LABRADOR, J.: This is an appeal from a judgment of the Court of First Instance of Negros Occidental, Hon. Jose F. Fernandez, presiding, dismissing the action that plaintiff-appellant instituted to recover from the defendants-appellees damages alleged to have been caused to her, in the sum of P5,000, for branch of contract of carriage, plaintiff-appellant alleging in her complaint that while embarked in a truck operated by defendant-appellee Carmelino de la Serna, the said truck met with an accident or collided with a truck owned by the Southern Motors, Inc., by reason of which collisions he suffered physical injuries. The court below found after trial that the truck of Carmelino de la Serna in which plaintiff-appellant was riding was already at a complete stop when another truck bearing plate No. A-59, driven by Vicente Fernandez, came zigzagging along and then hit the front part of the truck in which plaintiff-appellant was embarked. The court also found that the plate of the truck, No. A-659, was issued to the Southern Motors, Inc., in 1956. The truck was sold by defendant-appellee Southern Motors Inc., to Roberto Bolneo, on installment basis, and the latter thereafter mortgaged the truck to the Southern Motors, Inc., as security for the balance of the purchase price. The court below held that Bolneo owned the truck bearing plate No. A-659 and was the employer of Vicente Fernandez, the driver, at the time of the collision. On this ground the court dismissed the action against the Southern Motors, Inc. As to the other defendant-appellee the court, following the case of Lasam vs. Smith, 45 Phil., 657, and the case of Gillaco vs. Manila Railroad Co.(97 Phil., 884; 51 Off. Gaz., [11] 5596), held that the carrier is responsible only in those cases in which it or its employees fail to exercise reasonable diligence. As the court had found that the truck in which plaintiff-appellant was embarked was parked when it was struck by the other car, it held that the carrier, defendant-appellee Carmelino de la Serna, could not be held responsible. On appeal to this Court, plaintiff-appellant assails the order of dismissal against defendant-appellee Southern Motors, Inc., claiming that at the time of the accident the truck bearing plate No. A-659 was legally owned by the Southern Motors, Inc. The court below found, and it clearly appears from the document submitted, that the truck in question, while bearing plate No. A-659 was sold by the Southern Motors, Inc., Bacolod Branch, to Roberto Bolneo on August 8, 1955 (Annex "A" attached to Answer), and mortgaged by the vendee to the Southern Motors, Inc. on the same date (Annex "B" attached to Answer). It also appears that the Southern Motors, Inc. reported the sale of the vehicle in question to the Motor Vehicles Office on August 31, 1955, but Bolneo failed to register it in his name, continuing to use vendor's plate. It is true that we have held in several cases that the registered owner of a certificate of public convenience is liable for injuries suffered by passengers even though the same has been transferred to third persons. (Montoya vs. Ignacio, 94, Phil., 182; 50 Off. Gaz., 108; Roque vs. Malibay Transit, Inc. L-8561, Nov. 18, 1955; Vda. de Medina vs. Cresencia, 99 Phil., 506; 52 Off. Gaz. No. 10, 4606; Rayos vs. Aquino and Rayos vs. Tamayo, 105 Phil., 949; 56 Off. Gaz. [36] 5617.) The said decisions, however, are not applicable in the case at bar, because Southern Motor, Inc. was not the owner, although the plate of the truck belonged to it. Under the provisions of the Revised Motor Vehicle Law, Act No. 3992, the vendee is required to register the motor vehicle purchased by him (Sec. 5[a] and Sec. 6 [a], Act No. 3992) and is prohibited from displaying the dealer's plate number on said truck (Sec. 20, Ibid.). In spite of this prohibition the purchaser of the truck, Bolneo, continued using the dealer's plate number and did not have it registered in his name. This failure on the part of Bolneo to register the truck in his name and securing a plate for himself, a clear violation of the provisions of the revised Motor Vehicle Law, is imputable to Bolneo alone, and cannot be a legal ground for holding the vendor liable, because the defendant Southern Motors, Inc. was no longer the owner of the truck and had complied strictly with the provisions of the law regarding registration. Finding no error in the decision appealed from, we hereby affirm it, with costs against plaintiff-appellant.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 52159 December 22, 1989 JOSE PILAPIL, petitioner, vs. HON. COURT OF APPEALS and ALATCO TRANSPORTATION COMPANY, INC., respondents. Martin Badong, Jr. for petitioner. Eufronio K. Maristela for private respondent. PADILLA, J.: This is a petition to review on certiorari the decision* rendered by the Court of Appeals dated 19 October 1979 in CA-G.R. No. 57354-R entitled "Jose Pilapil, plaintiff-appellee versus Alatco Transportation Co., Inc., defendant-appellant," which reversed and set aside the judgment of the Court of First Instance of Camarines Sur in Civil Case No. 7230 ordering respondent transportation company to pay to petitioner damages in the total sum of sixteen thousand three hundred pesos (P 16,300.00). The record discloses the following facts: Petitioner-plaintiff Jose Pilapil, a paying passenger, boarded respondent-defendant's bus bearing No. 409 at San Nicolas, Iriga City on 16 September 1971 at about 6:00 P.M. While said bus No. 409 was in due course negotiating the distance between Iriga City and Naga City, upon reaching the vicinity of the cemetery of the Municipality of Baao, Camarines Sur, on the way to Naga City, an unidentified man, a bystander along said national highway, hurled a stone at the left side of the bus, which hit petitioner above his left eye. Private respondent's personnel lost no time in bringing the petitioner to the provincial hospital in Naga City where he was confined and treated. Considering that the sight of his left eye was impaired, petitioner was taken to Dr. Malabanan of Iriga City where he was treated for another week. Since there was no improvement in his left eye's vision, petitioner went to V. Luna Hospital, Quezon City where he was treated by Dr. Capulong. Despite the treatment accorded to him by Dr. Capulong, petitioner lost partially his left eye's vision and sustained a permanent scar above the left eye. Thereupon, petitioner instituted before the Court of First Instance of Camarines Sur, Branch I an action for recovery of damages sustained as a result of the stone-throwing incident. After trial, the court a quo rendered judgment with the following dispositive part: Wherefore, judgment is hereby entered: 1. Ordering defendant transportation company to pay plaintiff Jose Pilapil the sum of P 10,000.00, Philippine Currency, representing actual and material damages for causing a permanent scar on the face and injuring the eye-sight of the plaintiff; 2. Ordering further defendant transportation company to pay the sum of P 5,000.00, Philippine Currency, to the plaintiff as moral and exemplary damages; 3. Ordering furthermore, defendant transportation company to reimburse plaintiff the sum of P 300.00 for his medical expenses and attorney's fees in the sum of P 1,000.00, Philippine Currency; and 4. To pay the costs. SO ORDERED
1

From the judgment, private respondent appealed to the Court of Appeals where the appeal was docketed as CA-G.R. No. 57354R. On 19 October 1979, the Court of Appeals, in a Special Division of Five, rendered judgment reversing and setting aside the judgment of the court a quo. Hence the present petition. In seeking a reversal of the decision of the Court of Appeals, petitioner contends that said court has decided the issue not in accord with law. Specifically, petitioner argues that the nature of the business of a transportation company requires the assumption of certain risks, and the stoning of the bus by a stranger resulting in injury to petitioner-passenger is one such risk from which the common carrier may not exempt itself from liability. We do not agree. In consideration of the right granted to it by the public to engage in the business of transporting passengers and goods, a common carrier does not give its consent to become an insurer of any and all risks to passengers and goods. It merely undertakes to perform certain duties to the public as the law imposes, and holds itself liable for any breach thereof.

Under Article 1733 of the Civil Code, common carriers are required to observe extraordinary diligence for the safety of the passenger transported by them, according to all the circumstances of each case. The requirement of extraordinary diligence imposed upon common carriers is restated in Article 1755: "A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances." Further, in case of death of or injuries to passengers, the law presumes said common carriers to be at fault or to 2 have acted negligently. While the law requires the highest degree of diligence from common carriers in the safe transport of their passengers and creates a 3 presumption of negligence against them, it does not, however, make the carrier an insurer of the absolute safety of its passengers. Article 1755 of the Civil Code qualifies the duty of extraordinary care, vigilance and precaution in the carriage of passengers by common carriers to only such as human care and foresight can provide. what constitutes compliance with said duty is adjudged with due regard to all the circumstances. Article 1756 of the Civil Code, in creating a presumption of fault or negligence on the part of the common carrier when its passenger is injured, merely relieves the latter, for the time being, from introducing evidence to fasten the negligence on the former, because the presumption stands in the place of evidence. Being a mere presumption, however, the same is rebuttable by proof that the common carrier had exercised extraordinary diligence as required by law in the performance of its contractual obligation, or that the 4 injury suffered by the passenger was solely due to a fortuitous event. In fine, we can only infer from the law the intention of the Code Commission and Congress to curb the recklessness of drivers and operators of common carriers in the conduct of their business. Thus, it is clear that neither the law nor the nature of the business of a transportation company makes it an insurer of the passenger's safety, but that its liability for personal injuries sustained by its passenger rests upon its negligence, its failure to 5 exercise the degree of diligence that the law requires. Petitioner contends that respondent common carrier failed to rebut the presumption of negligence against it by proof on its part that it exercised extraordinary diligence for the safety of its passengers. We do not agree. First, as stated earlier, the presumption of fault or negligence against the carrier is only a disputable presumption. It gives in where contrary facts are established proving either that the carrier had exercised the degree of diligence required by law or the injury suffered by the passenger was due to a fortuitous event. Where, as in the instant case, the injury sustained by the petitioner was in no way due to any defect in the means of transport or in the method of transporting or to the negligent or willful acts of private respondent's employees, and therefore involving no issue of negligence in its duty to provide safe and suitable cars as well as competent employees, with the injury arising wholly from causes created by strangers over which the carrier had no control or even knowledge or could not have prevented, the presumption is rebutted and the carrier is not and ought not to be held liable. To rule otherwise would make the common carrier the insurer of the absolute safety of its passengers which is not the intention of the lawmakers. Second, while as a general rule, common carriers are bound to exercise extraordinary diligence in the safe transport of their passengers, it would seem that this is not the standard by which its liability is to be determined when intervening acts of strangers is to be determined directly cause the injury, while the contract of carriage Article 1763 governs: Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the wilful acts or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission. Clearly under the above provision, a tort committed by a stranger which causes injury to a passenger does not accord the latter a cause of action against the carrier. The negligence for which a common carrier is held responsible is the negligent omission by the carrier's employees to prevent the tort from being committed when the same could have been foreseen and prevented by them. Further, under the same provision, it is to be noted that when the violation of the contract is due to the willful acts of strangers, as in the instant case, the degree of care essential to be exercised by the common carrier for the protection of its passenger is only that of a good father of a family. Petitioner has charged respondent carrier of negligence on the ground that the injury complained of could have been prevented by the common carrier if something like mesh-work grills had covered the windows of its bus. We do not agree. Although the suggested precaution could have prevented the injury complained of, the rule of ordinary care and prudence is not so exacting as to require one charged with its exercise to take doubtful or unreasonable precautions to guard against unlawful acts of strangers. The carrier is not charged with the duty of providing or maintaining vehicles as to absolutely prevent any and all injuries to passengers. Where the carrier uses cars of the most approved type, in general use by others engaged in the same occupation, and exercises a high degree of care in maintaining them in suitable condition, the carrier cannot be charged with negligence in this 6 respect. Finally, petitioner contends that it is to the greater interest of the State if a carrier were made liable for such stone-throwing incidents rather than have the bus riding public lose confidence in the transportation system. Sad to say, we are not in a position to so hold; such a policy would be better left to the consideration of Congress which is empowered to enact laws to protect the public from the increasing risks and dangers of lawlessness in society. WHEREFORE, the judgment appealed from is hereby AFFIRMED. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-22272 June 26, 1967

ANTONIA MARANAN, plaintiff-appellant, vs. PASCUAL PEREZ, ET AL., defendants. PASCUAL PEREZ, defendant appellant. Pedro Panganiban for plaintiff-appellant. Magno T. Bueser for defendant-appellant. BENGZON, J.P., J.: Rogelio Corachea, on October 18, 1960, was a passenger in a taxicab owned and operated by Pascual Perez when he was stabbed and killed by the driver, Simeon Valenzuela. Valenzuela was prosecuted for homicide in the Court of First Instance of Batangas. Found guilty, he was sentenced to suffer imprisonment and to indemnify the heirs of the deceased in the sum of P6,000. Appeal from said conviction was taken to the Court of Appeals.1wph1.t On December 6 1961, while appeal was pending in the Court of Appeals, Antonia Maranan, Rogelio's mother, filed an action in the Court of First Instance of Batangas to recover damages from Perez and Valenzuela for the death of her son. Defendants asserted that the deceased was killed in self-defense, since he first assaulted the driver by stabbing him from behind. Defendant Perez further claimed that the death was a caso fortuito for which the carrier was not liable. The court a quo, after trial, found for the plaintiff and awarded her P3,000 as damages against defendant Perez. The claim against defendant Valenzuela was dismissed. From this ruling, both plaintiff and defendant Perez appealed to this Court, the former asking for more damages and the latter insisting on non-liability. Subsequently, the Court of Appeals affirmed the judgment of conviction earlier mentioned, during the pendency of the herein appeal, and on May 19, 1964, final judgment was entered therein. (Rollo, p. 33). Defendant-appellant relies solely on the ruling enunciated in Gillaco v. Manila Railroad Co., 97 Phil. 884, that the carrier is under no absolute liability for assaults of its employees upon the passengers. The attendant facts and controlling law of that case and the one at bar are very different however. In the Gillaco case, the passenger was killed outside the scope and the course of duty of the guilty employee. As this Court there found: x x x when the crime took place, the guard Devesa had no duties to discharge in connection with the transportation of the deceased from Calamba to Manila. The stipulation of facts is clear that when Devesa shot and killed Gillaco, Devesa was assigned to guard the Manila-San Fernando (La Union) trains, and he was at Paco Station awaiting transportation to Tutuban, the starting point of the train that he was engaged to guard. In fact, his tour of duty was to start at 9:00 two hours after the commission of the crime. Devesa was therefore under no obligation to safeguard the passengers of the Calamba-Manila train, where the deceased was riding; and the killing of Gillaco was not done in line of duty. The position of Devesa at the time was that of another would be passenger, a stranger also awaiting transportation, and not that of an employee assigned to discharge any of the duties that the Railroad had assumed by its contract with the deceased. As a result, Devesa's assault can not be deemed in law a breach of Gillaco's contract of transportation by a servant or employee of the carrier. . . . (Emphasis supplied) Now here, the killing was perpetrated by the driver of the very cab transporting the passenger, in whose hands the carrier had entrusted the duty of executing the contract of carriage. In other words, unlike the Gillaco case, the killing of the passenger here took place in the course of duty of the guilty employee and when the employee was acting within the scope of his duties. Moreover, the Gillaco case was decided under the provisions of the Civil Code of 1889 which, unlike the present Civil Code, did not impose upon common carriers absolute liability for the safety of passengers against wilful assaults or negligent acts committed by their employees. The death of the passenger in the Gillaco case was truly a fortuitous event which exempted the carrier from liability. It is true that Art. 1105 of the old Civil Code on fortuitous events has been substantially reproduced in Art. 1174 of the Civil Code of the Philippines but both articles clearly remove from their exempting effect the case where the law expressly provides for liability in spite of the occurrence of force majeure. And herein significantly lies the statutory difference between the old and present Civil Codes, in the backdrop of the factual situation before Us, which further accounts for a different result in the Gillaco case. Unlike the old Civil Code, the new Civil Code of the Philippines expressly makes the common carrier liable for intentional assaults committed by its employees upon its passengers, by the wording of Art. 1759 which categorically states that Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers. The Civil Code provisions on the subject of Common Carriers1 are new and were taken from Anglo-American Law.2 There, the basis of the carrier's liability for assaults on passengers committed by its drivers rests either on (1) the doctrine of respondeat superior or (2) the principle that it is the carrier's implied duty to transport the passenger safely.3 Under the first, which is the minority view, the carrier is liable only when the act of the employee is within the scope of his authority and duty. It is not sufficient that the act be within the course of employment only.4 Under the second view, upheld by the majority and also by the later cases, it is enough that the assault happens within the course of the employee's duty. It is no defense for the carrier that the act was done in excess of authority or in disobedience of the carrier's orders.5 The carrier's liability here is absolute in the sense that it practically secures the passengers from assaults committed by its own employees.6

As can be gleaned from Art. 1759, the Civil Code of the Philippines evidently follows the rule based on the second view. At least three very cogent reasons underlie this rule. As explained in Texas Midland R.R. v. Monroe, 110 Tex. 97, 216 S.W. 388, 389-390, and Haver v. Central Railroad Co., 43 LRA 84, 85: (1) the special undertaking of the carrier requires that it furnish its passenger that full measure of protection afforded by the exercise of the high degree of care prescribed by the law, inter alia from violence and insults at the hands of strangers and other passengers, but above all, from the acts of the carrier's own servants charged with the passenger's safety; (2) said liability of the carrier for the servant's violation of duty to passengers, is the result of the formers confiding in the servant's hands the performance of his contract to safely transport the passenger, delegating therewith the duty of protecting the passenger with the utmost care prescribed by law; and (3) as between the carrier and the passenger, the former must bear the risk of wrongful acts or negligence of the carrier's employees against passengers, since it, and not the passengers, has power to select and remove them. Accordingly, it is the carrier's strict obligation to select its drivers and similar employees with due regard not only to their technical competence and physical ability, but also, no less important, to their total personality, including their patterns of behavior, moral fibers, and social attitude. Applying this stringent norm to the facts in this case, therefore, the lower court rightly adjudged the defendant carrier liable pursuant to Art. 1759 of the Civil Code. The dismissal of the claim against the defendant driver was also correct. Plaintiff's action was predicated on breach of contract of carriage7 and the cab driver was not a party thereto. His civil liability is covered in the criminal case wherein he was convicted by final judgment. In connection with the award of damages, the court a quo granted only P3,000 to plaintiff-appellant. This is the minimum compensatory damages amount recoverable under Art. 1764 in connection with Art. 2206 of the Civil Code when a breach of contract results in the passenger's death. As has been the policy followed by this Court, this minimal award should be increased to P6,000. As to other alleged actual damages, the lower court's finding that plaintiff's evidence thereon was not convincing,8 should not be disturbed. Still, Arts. 2206 and 1764 award moral damages in addition to compensatory damages, to the parents of the passenger killed to compensate for the mental anguish they suffered. A claim therefor, having been properly made, it becomes the court's duty to award moral damages.9 Plaintiff demands P5,000 as moral damages; however, in the circumstances, We consider P3,000 moral damages, in addition to the P6,000 damages afore-stated, as sufficient. Interest upon such damages are also due to plaintiff-appellant. 10 Wherefore, with the modification increasing the award of actual damages in plaintiff's favor to P6,000, plus P3,000.00 moral damages, with legal interest on both from the filing of the complaint on December 6, 1961 until the whole amount is paid, the judgment appealed from is affirmed in all other respects. No costs. So ordered.