G.R. No. L-23733 October 31, 1969 HERMINIO L. NOCUM, plaintiff-appellee, vs. LAGUNA TAYABAS BUS COMPANY, defendant-appellant. Fernando M. Mangubat and Felimon H. Mendoza for plaintiff-appellee. Domingo E. de Lara and Associates for defendant-appellant. BARREDO, J.: Appeal of the Laguna Tayabas Bus Co., defendant in the Court below, from a judgment of the said court (Court of First Instance of Batangas) in its Civil Case No. 834, wherein appellee Herminio L. Nocum was plaintiff, sentencing appellant to pay appellee the sum of P1,351.00 for actual damages and P500.00 as attorney's fees with legal interest from the filing of the complaint plus costs. Appellee, who was a passenger in appellant's Bus No. 120 then making a trip within the barrio of Dita, Municipality of Bay, Laguna, was injured as a consequence of the explosion of firecrackers, contained in a box, loaded in said bus and declared to its conductor as containing clothes and miscellaneous items by a co-passenger. The findings of fact of the trial court are not assailed. The appeal is purely on legal questions. Appellee has not filed any brief. All that We have before Us is appellant's brief with the following assignment of errors: I BASED ON THE FACTS THE LOWER COURT FOUND AS ESTABLISHED, IT ERRED AS A MATTER OF LAW IN NOT ABSOLVING APPELLANT FROM LIABILITY RESULTING FROM THE EXPLOSION OF FIRECRACKERS CONTAINED IN A PACKAGE, THE CONTENTS OF WHICH WERE MISREPRESENTED BY A PASSENGER. II THE LOWER COURT ERRED, AS A MATTER OF LAW, IN AWARDING DAMAGES WITH LEGAL INTEREST IN FAVOR OF THE APPELLEE. III THE LOWER COURT ERRED IN NOT DISMISSING THE COMPLAINT, WITH COSTS AGAINST THE APPELLEE. Upon consideration of the points raised and discussed by appellant, We find the appeal to be well taken.
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G.R. No. L-23733 October 31, 1969
HERMINIO L. NOCUM, plaintiff-appellee, vs.LAGUNA TAYABAS BUS COMPANY, defendant-appellant.
Fernando M. Mangubat and Felimon H. Mendoza for plaintiff-appellee. Domingo E. de Lara and Associates for defendant-appellant.
BARREDO, J.:
Appeal of the Laguna Tayabas Bus Co., defendant in the Court below, from a judgment of the said court (Court of First Instance of Batangas) in its Civil Case No. 834, wherein appellee Herminio L. Nocum was plaintiff, sentencing appellant to pay appellee the sum of P1,351.00 for actual damages and P500.00 as attorney's fees with legal interest from the filing of the complaint plus costs. Appellee, who was a passenger in appellant's Bus No. 120 then making a trip within the barrio of Dita, Municipality of Bay, Laguna, was injured as a consequence of the explosion of firecrackers, contained in a box, loaded in said bus and declared to its conductor as containing clothes and miscellaneous items by a co-passenger. The findings of fact of the trial court are not assailed. The appeal is purely on legal questions.
Appellee has not filed any brief. All that We have before Us is appellant's brief with the following assignment of errors:
I
BASED ON THE FACTS THE LOWER COURT FOUND AS ESTABLISHED, IT ERRED AS A MATTER OF LAW IN NOT ABSOLVING APPELLANT FROM LIABILITY RESULTING FROM THE EXPLOSION OF FIRECRACKERS CONTAINED IN A PACKAGE, THE CONTENTS OF WHICH WERE MISREPRESENTED BY A PASSENGER.
II
THE LOWER COURT ERRED, AS A MATTER OF LAW, IN AWARDING DAMAGES WITH LEGAL INTEREST IN FAVOR OF THE APPELLEE.
III
THE LOWER COURT ERRED IN NOT DISMISSING THE COMPLAINT, WITH COSTS AGAINST THE APPELLEE.
Upon consideration of the points raised and discussed by appellant, We find the appeal to be well taken.
The main basis of the trial court's decision is that appellant did not observe the extraordinary or utmost diligence of a very cautious person required by the following articles of the Civil Code:
ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.
ART 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755.
Analyzing the evidence presented by the parties, His Honor found:
According to Severino Andaya, a witness for the plaintiff, a man with a box went up the baggage compartment of the bus where he already was and said box was placed under the seat. They left Azcarraga at about 11:30 in the morning and when the explosion occurred, he was thrown out. PC investigation report states that thirty seven (37) passengers were injured (Exhibits "O" and "2").
The bus conductor, Sancho Mendoza, testified that the box belonged to a passenger whose name he does not know and who told him that it contained miscellaneous items and clothes. He helped the owner in loading the baggage which weighed about twelve (12) kilos and because of company regulation, he charged him for it twenty-five centavos (P0.25). From its appearance there was no indication at all that the contents were explosives or firecrackers. Neither did he open the box because he just relied on the word of the owner.
Dispatcher Nicolas Cornista of defendant company corroborrated the testimony of Mendoza and he said, among other things, that he was present when the box was loaded in the truck and the owner agreed to pay its fare. He added that they were not authorized to open the baggages of passengers because instruction from the management was to call the police if there were packages containing articles which were against regulations.
xxx xxx xxx
There is no question that Bus No. 120 was road worthy when it left its Manila Terminal for Lucena that morning of December 5, 1960. The injuries suffered by the plaintiff were not due to mechanical defects but to the explosion of firecrackers inside the bus which was loaded by a co-passenger.
... Turning to the present case, it is quite clear that extraordinary or utmost diligence of a very cautious person was not observed by the defendant company. The service manual, exhibits "3" and "3-A," prohibits the employees to allow explosives, such as dynamite and firecrackers to be transported on its buses. To implement this particular rule for 'the safety of passengers, it was therefore incumbent upon the employees of the company to make the proper inspection of all the baggages which are carried by the passengers.
But then, can it not be said that the breach of the contract was due to fortuitous event? The Supreme Court in the case of Lasam vs. Smith, 45 Phil. 657, quoted Escriche's definition of caso fortuito as "an unexpected event or act of God which could neither be foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning, compulsions, insurrections, destructions of buildings by unforeseen accidents and other occurrences of a similar nature." In other words, the cause of the unexpected event must be independent of the will of man or something which cannot be avoided. This cannot be said of the instant case. If proper and rigid inspection were observed by the defendant, the contents of the box could have been discovered and the accident avoided. Refusal by the passenger to have the package opened was no excuse because, as stated by Dispatcher Cornista, employees should call the police if there were packages containing articles against company regulations. Neither was failure by employees of defendant
company to detect the contents of the packages of passengers because like the rationale in the Necesito vs. Paras case (supra), a passenger has neither choice nor control in the exercise of their discretion in determining what are inside the package of co-passengers which may eventually prove fatal.
We cannot agree. No doubt, the views of His Honor do seem to be in line with the reasons that the Code Commission had for incorporating the above-quoted provisions in its draft of the Civil Code. Indeed, in approving the said draft, Congress must have concurred with the Commission that by requiring the highest degree of diligence from common carriers in the safe transport of their passengers and by creating a presumption of negligence against them, the recklessness of their drivers which is a common sight even in crowded areas and, particularly, on the highways throughout the country may, somehow, if not in a large measure, be curbed. We are not convinced, however, that the exacting criterion of said provisions has not been met by appellant in the circumstances of this particular case.
It is undisputed that before the box containing the firecrackers were allowed to be loaded in the bus by the conductor, inquiry was made with the passenger carrying the same as to what was in it, since its "opening ... was folded and tied with abaca." (Decision p. 16, Record on Appeal.) According to His Honor, "if proper and rigid inspection were observed by the defendant, the contents of the box could have been discovered and the accident avoided. Refusal by the passenger to have the package opened was no excuse because, as stated by Dispatcher Cornista, employees should call the police if there were packages containing articles against company regulations." That may be true, but it is Our considered opinion that the law does not require as much. Article 1733 is not as unbending as His Honor has held, for it reasonably qualifies the extraordinary diligence required of common carriers for the safety of the passengers transported by them to be "according to all the circumstances of each case." In fact, Article 1755 repeats this same qualification: "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."
In this particular case before Us, it must be considered that while it is true the passengers of appellant's bus should not be made to suffer for something over which they had no control, as enunciated in the decision of this Court cited by His Honor,1 fairness demands that in measuring a common carrier's duty towards its passengers, allowance must be given to the reliance that should be reposed on the sense of responsibility of all the passengers in regard to their common safety. It is to be presumed that a passenger will not take with him anything dangerous to the lives and limbs of his co-passengers, not to speak of his own. Not to be lightly considered must be the right to privacy to which each passenger is entitled. He cannot be subjected to any unusual search, when he protests the innocuousness of his baggage and nothing appears to indicate the contrary, as in the case at bar. In other words, inquiry may be verbally made as to the nature of a passenger's baggage when such is not outwardly perceptible, but beyond this, constitutional boundaries are already in danger of being transgressed. Calling a policeman to his aid, as suggested by the service manual invoked by the trial judge, in compelling the passenger to submit to more rigid inspection, after the passenger had already declared that the box contained mere clothes and other miscellaneous, could not have justified invasion of a constitutionally protected domain. Police officers acting without judicial authority secured in the manner provided by law are not beyond the pale of constitutional inhibitions designed to protect individual human rights and liberties. Withal, what must be importantly considered here is not so much the infringement of the fundamental sacred rights of the particular passenger herein involved, but the constant threat any contrary ruling would pose on the right of privacy of all passengers of all common carriers, considering how easily the duty to inspect can be made an excuse for mischief and abuse. Of course, when there are sufficient indications that the representations of the passenger regarding the nature of his baggage may not be true, in the interest of the common safety of all, the assistance of the police authorities may be solicited, not necessarily to force the passenger to open his baggage, but to conduct the needed investigation consistent with the rules of propriety and, above all, the constitutional rights of the passenger. It is in this sense that the mentioned service manual issued by appellant to its conductors must be understood.
Decisions in other jurisdictions cited by appellant in its brief, evidently because of the paucity of local precedents squarely in point, emphasize that there is need, as We hold here, for evidence of circumstances indicating cause or causes for apprehension that the passenger's baggage is dangerous and that it is failure of the common carrier's employee to act in the face of such evidence that constitutes the cornerstone of the common carrier's liability in cases similar to the present one.
The principle that must control the servants of the carrier in a case like the one before us is correctly stated in the opinion in the case of Clarke v. Louisville & N.R. Co. 20 Ky L. Rep. 839, 49 S.W. 1120. In that case Clarke was a passenger on the defendant's train. Another passenger took a quantity of gasoline into the same coach in which Clarke was riding. It ignited and exploded, by reason of which he was severely injured. The trial court peremptorily instructed the jury to find for the defendant. In the opinion, affirming the judgment, it is said: "It may be stated briefly, in assuming the liability of a railroad to its passengers for injury done by another passenger, only where the conduct of this passenger had been such before the injury as to induce a reasonably prudent and vigilant conductor to believe that there was reasonable ground to apprehend violence and danger to the other passengers, and in that case asserting it to be the duty of the conductor of the railroad train to use all reasonable means to prevent such injury, and if he neglects this reasonable duty, and injury is done, that then the company is responsible; that otherwise the railroad is not responsible."
The opinion quotes with approval from the case of Gulf, C. & S. F. R. Co. vs. Shields, 9 Tex. Civ. App. 652, 29 S. W. 652, in which case the plaintiff was injured by alcohol which had been carried upon the train by another passenger. In the opinion in that case it is said: "It was but a short period of time after the alcohol was spilt when it was set on fire and the accident occurred, and it was not shown that appellant's employees knew that the jug contained alcohol. In fact, it is not shown that the conductor or any other employee knew that Harris had a jug with him until it fell out of the sack, though the conductor had collected ... (his) fare, and doubtless knew that he had the sack on the seat with him. ... It cannot be successfully denied that Harris had the right as a passenger to carry baggage on the train, and that he had a right to carry it in a sack if he chose to do so. We think it is equally clear that, in the absence of some intimation or circumstance indicating that the sack contained something dangerous to other passengers, it was not the duty of appellant's conductor or any other employee to open the sack and examine its contents." Quinn v. Louisville & N. R. Co. 98 Ky. 231, 32 S. W. 742; Wood v. Louisville & N. R. Co. 101 Ky. 703, 42 S. W. 349; Louisville & N. R. Co. v. Vincent, 29 Ky. L. Rep. 1049, 96 S. W. 898; Louisville & N. R. Co. v. Renfro, 142 Ky. 590, 33 L. R. A. (N. S.) 133, 135 S. W. 266.2 (Emphasis supplied)
Explosive or Dangerous Contents. — A carrier is ordinarily not liable for injuries to passengers from fires or explosions caused by articles brought into its conveyances by other passengers, in the absence of any evidence that the carrier, through its employees, was aware of the nature of the article or had any reason to anticipate danger therefrom. (Bogard v. Illinois C. R Co. 144 Ky. 649, 139 S. W. 855, 36 L. R. A.[N. S.] 337; Clarke v. Louisville & N. R. Co. 101 Ky. 34, 39 S. W. 840, 36 L. R. A. 123 [explosion of can of gasoline]; East Indian R. Co. v. Mukerjee [1901] A. C. [Eng.] 396, 3 B. R. C. 420 — P. C. [explosion of fireworks]; Annotation: 37 L. R. A. [N. S.] 725.)3
Appellant further invokes Article 1174 of the Civil Code which relieves all obligors, including, of course, common carriers like appellant, from the consequence of fortuitous events. The court a quo held that "the breach of contract (in this case) was not due to fortuitous event and that, therefore, the defendant is liable in damages." Since We hold that appellant has succeeded in rebutting the presumption of negligence by showing that it has exercised extraordinary diligence for the safety of its passengers, "according to the circumstances of the (each) case", We deem it unnecessary to rule whether or not there was any fortuitous event in this case.
ACCORDINGLY, the appealed judgment of the trial court is reversed and the case is dismissed, without costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Fernando, JJ., concur.Castro, J., concurs in the result. Teehankee, J., reserves his vote.
RAFAEL ZULUETA, ET AL., plaintiffs-appellees, vs.PAN AMERICAN WORLD AIRWAYS, INC., defendant-appellant.
Jose W. Diokno for plaintiffs-appellees.
Ross, Salcedo, Del Rosario, Bito and Misa for defendant-appellant.
CONCEPCION, C.J.:p
Appeal, taken by defendant Pan American World Airways, Inc., from a decision of the Court of First Instance of Rizal, sentencing said defendant to pay herein plaintiffs — Rafael Zulueta, Telly Albert Zulueta and Carolinda Zulueta — "the sum of P5,502.85, as actual damages; plus the further sum of P1,000,000.00 as moral damages; the further sum of P400,000.00 as exemplary damages; and attorney's fees in the sum of P100,000.00" with the costs against said defendant, hereinafter referred to as PANAM for the sake of brevity.
It is not disputed that, on October 23, 1964, the spouse Rafael Zulueta and Telly Albert Zulueta — hereinafter referred to as plaintiff and Mrs. Zulueta, respectively — as well as their daughter, Carolinda Zulueta — hereinafter referred to as Miss Zulueta — were passengers aboard a PANAM plane, on Flight No. 841-23, from Honolulu to Manila, the first leg of which was Wake Island. As the plane landed on said Island, the passengers were advised that they could disembark for a stopover of about 30 minutes. Shortly before reaching that place, the flight was, according to the plaintiffs, "very rough." Testifying for PANAM its purser, Miss Schmitz, asserted, however, that it was "very calm"; but her notes, Exhibit 7 — prepared upon the request of Captain Zentner, on account of the incident involved in this case — state that there was "unusually small amount of roughness," which His Honor, the Trial Judge, considered properly as "an admission that there was roughness, only the degree thereof is in dispute." In any event, plaintiff testified that, having found the need to relieve himself, he went to the men's comfort room at the terminal building, but found it full of soldiers, in view of which he walked down the beach some 100 yards away.
Meanwhile, the flight was called and when the passengers had boarded the plane, plaintiff's absence was noticed. The take-off was, accordingly, delayed and a search for him was conducted by Mrs. Zulueta, Miss Zulueta and other persons. Minutes later, plaintiff was seen walking back from the beach towards the terminal. Heading towards the ramp of the plane, plaintiff remarked, "You people almost made me miss your flight. You have a defective announcing system and I was not paged." At this point, the decision appealed from has the following to say:
(1) Plaintiffs were on their way to the plane in order to board it, but defendant's employees — Kenneth Sitton, defendants airport manager, according to plaintiffs; Wayne Pendleton, defendant's airport customer service supervisor, according to defendant — stopped them at the gate. This is what the report of Wayne Pendleton the airport customer service supervisor, says:
...I made no comment to the passenger but turned and led the group toward the ramp. Just as we reached the boarding gate, Mr. Zulueta spoke to me for the first time saying, `You people almost made me miss your flight. You have a defective announcing system and I was not paged."
I was about to make some reply when I noticed the captain of the flight standing on the ramp, midway between the gate and the aircraft, and talking with the senior maintenance supervisor and several other persons. The captain motioned for me to join him which I did, indicating to the Zulueta family that they should wait for a moment at the gate.
-- Exh. 5 .
(2) Thereafter, one of defendant's employees — Mr. Sitton, according to plaintiffs; Mr. Pendleton according to defendants — asked plaintiffs to turn over their baggage claim checks. Plaintiffs did so, handing him four (4) claim checks.
(3) However, only three (3) bags were located and segregated from the rest of the passenger's luggage. The items hand-carried by plaintiffs, except for plaintiff's overcoat, were also brought down. These hand-carried items, however, were not opened or inspected; later, plaintiffs Mrs. Zulueta and Miss Zulueta were permitted to reboard the plane with their hand-carried luggage; and when the plane took off, about two and a half hours later, it carried plaintiff's fourth bag, his overcoat and the hand-carried luggage.
(4) Once three bags had been identified, and while the search was going on for the fourth bag, Mr. Sitton, defendant's airport manager, demanded that plaintiffs open the bags (actually, they were closed, but not locked) and allow defendant's employees to inspect them. Plaintiff Rafael Zulueta refused and warned that defendant could open the bags only by force and at its peril of a law suit.
(5) Mr. Sitton, defendant's manager, then told plaintiff that he would not be allowed to proceed to Manila on board the plane and handed Zulueta the following letters:
We are forced to off-load you from flight 84123 due to the fact that you have refused to open your checked baggage for Inspection as requested.
During your stay on Wake Island, which will be for a minimum of one week, you will be charged $13.30 per day for each member of your party.
K. SittonAirport Manager, Wake IslandPan American World Airways, Inc."
— Exh. D
(6) All this happened in plain view and within earshot of the other passengers on the plane, many of whom were Filipinos who knew plaintiffs;
The departure of the plane was delayed for about two hours
(7) Though originally all three plaintiffs had been off loaded, plaintiff requested that his wife and daughter be permitted to continue with the flight. This was allowed but they were required to leave the three bags behind. Nevertheless, the plane did fly with the Plaintiff's fourth bag; it was found among all other passengers' luggage flown to Manila upon the plane's arrival here.
(8) Upon arrival at Manila, Mrs. Zulueta demanded of defendant's Manila office that it re-route plaintiff Rafael Zulueta to Manila at the earliest possible time, by the fastest route, and at its expense; defendant refused; so plaintiffs were forced to pay for his ticket and to send him money as he was without funds.
(9) On October 27, 1964, plaintiff Zulueta finally arrived at Manila, after spending two nights at Wake, going back to Honolulu, and from Honolulu flying thru Tokyo to Manila.
(10) On December 21, 1964, plaintiffs demanded that defendant reimburse them in the sum of P1,505,502.85 for damages but defendants refused to do so; hence this action.
In its brief, PANAM maintains that the trial court erred: (1) "in not granting defendant additional hearing dates (not a postponement) for the presentation of its other witnesses"; (2) "in assuming it to be true that the reason plaintiff Rafael Zulueta did not come aboard when the passengers were reboarded was that he had gone to the beach to relieve himself"; (3) "in not holding that the real reason why plaintiff Rafael Zulueta did not reboard the plane, when the announcement to do so was made, was that he had a quarrel with his wife and after he was found at the beach and his intention to be left behind at Wake was temporarily thwarted he did everything calculated to compel Pan American personnel to leave him behind"; (4) "in accepting as true plaintiff Rafael Zulueta's claim of what occurred when; he arrived at the terminal after he was found at the beach"; (5) "in not holding that the captain was entitled to an explanation for Zulueta's failure to reboard and not having received a reasonable explanation and because of Zulueta's irrational behavior and refusal to have his bags examined, the captain had the right and duty to leave Zulueta behind"; (6) "in condemning the defendant to pay plaintiffs P5,502.85 as actual damages plus the further sum of P1,000,000.00 as moral damages, and the further sum of P400,000.00 as exemplary damages, and attorneys' fees in the sum of P100,000.00"; and (7) "in not granting defendant's counterclaim of attorney's fees and expenses of litigation." .
PANAM's first assignment of error refers to the denial of its motion, dated October 20, 1966, that it "be granted other hearing dates about two months from today so as to be able to present defendant's other witnesses or their depositions."
It appears that the complaint in this case was filed on September 30, 1965. It was amended on December 1, 1965, and again on April 14, 1966. PANAM answered the second amended complaint on May 6, 1966. After a pre-trial conference, held on May 28, 1966, the case was set for hearing on June 1, 2 and 3, 1966. By subsequent agreement of the parties, the hearing was, on June 3, 1966, reset for August 1, 2 and 3, 1966. Plaintiffs rested their case on August 2, 1966, whereupon it was agreed that PANAM's witnesses would be presented "at a later date," months later, because they would "come from far-flung places like Wake Island, San Francisco, Seattle and it will take time to arrange for their coming here." Accordingly the case was reset for October 17, 18 and 19, 1966, at 8:30 a.m. On motion of the plaintiffs, the trial scheduled for October 17 was cancelled, without any objection on the part of PANAM but, to offset said action, additional hearings were set for October 18 and 19, in the afternoon, apart from those originally
set in the morning of these dates. Before the presentation of PANAM's evidence, in the morning of October 18, 1966, plaintiffs' counsel asked for the names of the former's witnesses, so that those not on the witness stand could be excluded from the courtroom. PANAM's counsel announced that his witnesses were Marshall Stanley Ho, Kenneth Sitton, Michael Thomas, Wayne S. Pendleton, Capt. Robert Zentner and Miss Carol Schmitz.
The defense then proceeded to introduce the testimony of said witnesses, and consumed therefor the morning and afternoon of October 18 and the morning of October 19. Upon the conclusion, that morning, of the testimony of the last witness for the defense, its counsel asked that it "be given an opportunity to present our other witnesses who are not present today, at the convenience of the Court." The motion was denied, but, said counsel sought a reconsideration and the court gave PANAM a last chance to present its "other witnesses" the next day, October 20. Instead of doing so, PANAM filed a written motion reiterating its prayer for "other hearing dates about two months from today so as to be able to present defendant's other witnesses or their depositions." Upon denial of this motion, PANAM made an offer of the testimony it expected from one Edgardo Gavino, an unnamed meteorologist, either Sue Welby and/or Helga Schley, and John C. Craig, Ida V. Pomeroy, Herman Jaffe, Gerry Cowles and Col. Nilo de Guia.
His Honor, the Trial Judge, did not commit a reversible error in denying said motion of October 20, 1966. PANAM knew, as early as August 2, 1966, that its turn to present evidence would take place, as agreed upon, about two (2) months and a half later, or on October 17, 18 and 19, 1966. PANAM has not offered any valid excuse for its failure to bring to court the witnesses mentioned in said motion, despite the assurance given by its counsel, on August 2, 1966, that the defense would "spare no effort to bring them here," or, if they could not be brought due to circumstances beyond PANAM's control, to "submit their deposition." The records do not show that any such effort to bring the aforementioned witnesses had been exerted. The defense has not even tried to explain why the deposition of said witnesses was not taken. What is worse, the proffered explanation — that the six (6) persons who testified for the defense 1 were believed, by defense counsel, to be enough for the three (3) days of October set for the reception of his evidence 2 — indicates that no effort whatsoever had been made either to bring the "other witnesses" 3or to take and submit their depositions.
Besides, the testimony allegedly expected of said other witnesses for the defense — namely: (1) that there was, according to official records, no turbulence in the flight from San Francisco to Honolulu, on which the testimony of Carol Schmitz had touched; (2) that Ida V. Pomeroy and John C. Craig would say that the passengers were advised not to go beyond the terminal and that the stopover would be for about 30 minutes only, on which duration of the stopover Miss Schmitz had, also testified, as she could have similarly testified on said advice, had it been given; (3) that either Helga Schley or Sue Welby would narrate the sympathy with which Mrs. Zulueta was allegedly treated during the flight from Wake Island to Manila, which is not particularly relevant or material in the case at bar; (4) that Herman Jaffe, Gerry Cowles and Nilo de Guia were, also, expected to corroborate the testimony of Capt. Zentner; and (5) that Edgardo Gavino was expected to corroborate Michael Thomas regarding the remarks made by the plaintiff to Mrs. Zulueta and Miss Zulueta when they and other members of the searching party found him in the early morning of October 23, 1964 -- were merely cumulative in nature
Then, again, PANAM did not comply with section 4 of Rule 22 of the Rules of Court, reading:
SEC. 4. Requisites of motion to postpone trial for absence of evidence. — A motion to postpone a trial on the ground of absence can be granted only upon affidavit showing the materiality of evidence expected to be obtained, and that due diligence has been used to procure it. But if the adverse party admits the facts to be given in evidence, even if he objects or reserves the right to object to their admissibility, the trial must not be postponed." .
Although this provision refers to motions "to postpone trial," it applies with equal force to motions like the one under consideration, there being no plausible reason to distinguish between the same and a motion for postponement owing to the "absence of evidence."
The second, third and fourth assignments of error are interrelated. They refer to the question whether the reason why plaintiff went to the beach was to relieve himself, as testified to by him, or to remain in Wake Island because he had quarreled with his wife, as contended by PANAM's counsel.
The latter contention however, is utterly devoid of merit. To begin with, plaintiff's testimony about what he did upon reaching the beach is uncontradicted. Secondly, other portions of his testimony — such as, for instance, that the flight was somewhat rough, shortly before reaching Wake Island; that there were quite a number of soldiers in the plane and, later, in the terminal building; that he did not voluntarily remain in Wake Island, but was "off-loaded" by PANAM's agent therein — are borne out by the very evidence for the defense. Thirdly, PANAM's efforts to show that plaintiff had decided to remain in the Island because he had quarreled with Mrs. Zulueta — which is ridiculous — merely underscores the artificious nature of PANAM's contention.
Fourthly, there is absolutely no direct evidence about said alleged quarrel. Nobody testified about it. Counsel for the defense has, in effect, merely concluded that there must have been such quarrel because, when the searching party located plaintiff, he — according to Stanley Ho — was "shouting in a loud tone of voice" — not athis wife, but — "towards his wife and daughter," who headed said party and to which the words spoken were addressed, according to plaintiff. Capt. Zentner said that plaintiff was "angry with them" — Mrs. Zulueta and Miss Zulueta — who Michael Thomas affirmed — were saying "I am sorry, I am sorry"; whereas, Wayne S. Pendleton declared that Gavino told him that this "seems to stem from a domestic issue" between Mr. and Mrs. Zulueta. Surely, this alleged surmise, not even by Pendleton but by Gavino — who was not placed on the witness stand — cannot be taken as competent evidence that plaintiff had quarreled with his wife, apart from the circumstance that such quarrel — if it took place and there is absolutely no evidence or offer to prove that anything had transpired between husband and wife before reaching Wake Island which may suggest a misunderstanding between them — does not warrant jumping at the conclusion that plaintiff had decided to remain in the Island, for he would gain nothing thereby.
Needless to say, if plaintiff's purpose in going to the beach was to hide from Mrs. and Miss Zulueta and PANAM's personnel, so that he may be left in the Island, he, surely, would not have walked back from the beach to the terminal, before the plane had resumed its flight to Manila, thereby exposing his presence to the full view of those who were looking for him.
Then, again, the words uttered by him as he saw the search party and approached the plane — "You people almost made me miss your flight. You have a defective announcing system and I was not paged" — and the "belligerent" manner — according to Captain Zentner — in which he said it revealed his feeling of distress at the thought that the plane could have left without him. 4
The second, third and fourth assignments of error are thus clearly untenable.
In connection with the fifth assignment of error, PANAM's witness, Captain Zentner, testified that, while he was outside the plane, waiting for the result of the search, a "man" approached him and expressed concern over the situation; that the "man" said he was with the State Department; that he, his wife and their children, who were on board the aircraft, would not want to continue the flight unless the missing person was found; that the "man" expressed fear of a "bomb," a word he used reluctantly, because he knew it is violative of a Federal law when said at the wrong time; that when plaintiff came, Zentner asked him: "why did you not want to get on the airplane?"; that plaintiff then became "very angry" and spoke to him "in a way I have not been spoken to in my whole adult life"; that the witness explained: "I am Captain of the aircraft and it is my duty to see to the flight's safety"; that he (Zentner) then told Wayne Pendleton — PANAM's Customer Service Supervisor — to get plaintiff's "bags off the plane to verify ... about the bomb"; that PANAM's airport manager (K. Sitton) "got three bags of Mr. Zulueta"; that his fourth bag could not be located despite a thorough search; that believing that it must have been left behind, in Honolulu, "we took off"; and that he (Zentner) would not have done so had he thought it was still aboard.
The lower court did not err in giving no credence to this testimony.
Indeed, Captain Zentner did not explain why he seemingly assumed that the alleged apprehension of his informant was justified. He did not ask the latter whether he knew anything in particular about plaintiff herein, although some members of the crew would appear to have a notion that plaintiff is an impresario. Plaintiff himself intimated to them that he was well known to the U.S. State Department. Apparently, Captain Zentner did not even know the informant's name. Neither did the captain know whether the informant was really working for or in the State Department. In other words, there was nothing — absolutely nothing — to justify the belief that the luggage of the missing person should be searched, in order to ascertain whether there was a bomb in it; that, otherwise, his presence in the aircraft would be inimical to its safety; and that, consequently, he should be off-loaded.
In fact, PANAM has not given the name of that "man" of the State Department. Neither has the defense tried to explain such omission. Surely, PANAM's records would have disclosed the identity of said "man," if he were not a mere figment of the imagination. The list of passengers has been marked as Exh. A, and yet PANAM has not pointed out who among them is the aforementioned "man".
The trial court did not believe the testimony of Captain Zentner and rejected the theory of the defense, for the following reasons:
(1) The defendant had contracted to transport plaintiff from Honolulu to Manila. It was its legal obligation to do so, and it could be excused from complying with the obligation only, if the passenger had refused to continue with the trip or it had become legally or physically impossible without the carrier's fault, to transport him.
(2) In this case, it is plain that Zulueta was desirous of continuing with the trip. Although defendant's witnesses claim that Zulueta refused to board the plane, its own evidence belies this claim. The letter, Exh. "D", shows that it was defendant who off-loaded Zulueta; not Zulueta who resisted from continuing the trip. In his testimony before the Court, Capt. Zentner, defendant's pilot, said that if a passenger voluntarily left the plane, the term used would be `desistance' but the term "off-load" means that it is the decision of the Captain not to allow the passenger or luggage to continue the flight. However, Capt. Zentner admitted on his testimony that "his drunkenness... was of no consequence in my report; (it) ... had nothing to do with his being belligerent and unfriendly in his attitude towards me and the rest of the members of the crew." The written report of Capt. Zentner made in transit from Wake to Manila "intimated he might possibly continue;" but "due to drinking, belligerent attitude, he was off-loaded along with his locked bags." (Exh. 10). In a later report, Zentner admitted, "The decision to leave Mr. Zulueta and his locked luggage in Wake was mine and alone." (Exh. 9). Defendant's airport customer service supervisor, W.S. Pendleton, reported that:
"After the search for Mr. Zulueta had continued almost 20 minutes and it was apparent that he was not be found in the terminal building or immediate vicinity, I proceeded to the parking lot and picked up my jeep continue the search in more remote areas. Just as I was getting underway, a small group of persons approach from the direction of the beach and a voice called out the passenger had been found. Having parked the jeep again, I walked toward the group and was met by PAA fleet-serviceman E. Gavino who was walking somewhere ahead of the others. Mr. Gavino remarked to me privately that the trouble seemed to have stemmed from some domestic difference between the Passenger and his wife who was not at his side and returning with him to the gate.
"On hearing Mr. Gavino's remark, I made no comment to the passenger but turned and led the group toward the ramp. Just as we reached the boarding gate, Mr. Zulueta spoke
to me for the first time saying, "You people almost made me miss your flight. You have a defective announcing system and I was not paged."
— Exh. 5
Evidently, these could not have been the words of a man who refused to board the plane.
(3) There was no legal or physical impossibility for defendant to transport plaintiff Zulueta from Wake to Manila as it had contracted to do. Defendant claims that the safety of its craft and of the other passengers demanded that it inspect Zulueta's luggage and when he refused to allow inspection that it had no recourse but to leave him behind. The truth that, knowing that of plaintiff's four pieces of luggage, one could still have been — as it was — aboard, defendant's plane still flew on to Manila. Surely, if the defendant's pilot and employees really believed that Zulueta had planted a bomb in one of the bags they would not have flown on until they had made sure that the fourth bag had been left behind at Honolulu until enough time had lapsed for the bomb to have been exploded, since presumably it had to have been set to go off before they reached Manila.
"At any rate, it was quite evident that Zulueta had nothing to hide; for the report of defendant's witness, Mr. Stanley E. Ho, U.S. Marshall on Wake, has this to say: "
"About twenty minutes later while an attempt was being made to locate another piece of Mr. Zulueta's luggage his daughter, Carolinda approached her father and wanted to get some clothes from one of the suitcases. Mr. Zulueta asked the undersigned if it was alright if he opened the suitcases and get the necessary clothes. To this I stated he was free to open his luggage and obtain whatever he needed. Mr. Zulueta opened a suitcase and took the dress for her then boarded the aircraft."
— Exh. 2B .
(4) What is evident to the Court is that defendant — acted in a manner deliberately calculated to humiliate and shame plaintiffs. Although the plane was held up to wait for plaintiff — for, as the Captain admitted in his testimony, he did so because he knew that it would be a week before another plane would come in for Manila (t.s.n., 18 Oct. 1966, pp. 59-62) when plaintiff did come, he was met and treated roughly by defendant's manager Sitton. Here is what Zulueta testified to:
"Q. — When you saw your wife and daughter what happened? A. — Then I started going towards the airplane. At the ramp, I do not know what they call it, as soon as they arrived there, there was a man who subsequently identified himself as Kenneth Sitton. He identified himself as the Airport Manager of Wake Island. He did not ask me what happened, was I sick, he looked at me and said, what in the hell do you think you are? Get on that plane. Then I said, what right have you to talk to me that way, I am a paying passenger. Do not treat me this way. And this started the altercation, and then he said, do you know you held up the plane? And I answered, this is not my fault, I was sick. Did it not occur to you to ask me how I feel; then he said get on that plane.
"Q. — What happened? A. — we started discussing kept saying, "You get on that plane" and then I said, "I don't have to get on that plane." After a prolonged discussion, he said, give me your baggage tags and I gave him four baggage tickets or tags. I did not realize what he was up to until finally, I saw people coming down the airplane and police cars
arrived and people were coming down the ramp. I gave him the four baggage tags and a few minutes late, he brought three baggages and said, open them up. I said, to begin with, there is one baggage missing and that missing bag is my bag. Then I said you cannot make me open these baggages unless you are United States customs authorities and when I arrive in the Philippines they can be opened by the Philippine Customs authorities. But an Airport Manager cannot make me open my bags unless you do exactly the same thing to all the passengers. Open the bags of all the other passengers and I will open my bag.
"Q. — What did he say: A. — He just kept on saying open your bag, and I drew up my hands and said, you want, you open yourself or give me a search warrant I shall open this bag but give me a search warrant and then I asked, who is the Chief of Police, and he said, "I am Chief of Police," then I said how can you be the Chief Police and Airport Manager and then he started to talk about double compensation and by this time we were both quarreling and he was shouting and so with me. Then there was a man who came around and said `open the bag' and I said, show the warrant of arrest and do all the checking and the discussion kept on going, and finally I said look, my fourth bag is missing and he said, "I don't give damn." People at the time were surrounding us and staring at us and also the passengers. My wife and daughter all along had been made to sit on a railing and this man screaming and looking at my wife and daughter. Then he said, will you pull these three monkeys out of here? then I said, will you send my wife and daughter up the plane which he did. However, they have come down in their slippers and when they were allowed to return to the plane none of the defendant's personnel who had brought down the overcoats, shoes and handcarried items of my wife and daughter ever offered to bring back the items to the plane, until I demanded that one of the defendants should help my wife and daughter which he did. And then one man told me, because you refused to open your bag, "we shall hold you here in Wake Island." then I asked, are we under arrest? and the man answered, no. And further stated, your wife and daughter can continue their flight but you will not go to this flight an we will charge you $13.30 a day. Then I said, who are you to tell all these things, and he answered, I am the manager. I said, put it in writing, then left and in few minutes he came back and handed me this letter (witness referring to Exhibit D)." .
— t.s.n., August 1, 1966, pp. 15-21
Anyone in Zulueta's position would have reached the same way if he had had a sense of dignity. Evidently, angered by Zulueta's reaction, irked by the delay he had caused them, defendant's employees decided to teach him a lesson by forcing him to open his bags when there was no justifiable reason to do so:
(a) Defendant did not make any attempt to inquire from any passenger or even the crew who knew Mr. Zulueta what his character and reputation are, before demanding that he open the bags; if it had done so, Miss Schmitz, the purser, and Col. Villamor would have vouched for plaintiffs; for Miss Schmitz believed she had flown before with the Zulueta's and they had been very nice people.
(b) Worse, defendant's manager Sitton admits that Zulueta had told him who he was and his social position in Manila; still he insisted that the bags be opened. Moreover, some
passengers had informed the supervisor that Zulueta was "the impresario"; but they persisted in their demands.
(c) Defendant never identified the alleged State Department men who reportedly approached the Captain and expressed fear about a bomb, nor did they confront him — if he existed with Mr. Zulueta despite Mr. Zulueta's request.
(d) Defendant did not take any steps to put the luggage off-loaded far from its passengers and plane, a strange procedure if it really believed the luggage contained a bomb;
(e) Defendant continued with the flight knowing one bag -- Zulueta's bag himself — had not been located and without verifying from Honolulu if the bag had been found there, nor even advising Honolulu that a bag possibly containing a bomb had been left there, again an inexplicable procedure if they sincerely believed that Zulueta had planted a bomb;
(f) Defendant's manager himself took Zulueta and his off-loaded bags, in his own car, from the terminal building to the hotel, which is also inconsistent with a serious belief that the luggages contained a bomb;
(g) Defendant knew that while Zulueta's bags were on the ground, he had opened one of them with the permission and in the presence of the U. S. Marshall in order to enable his daughter to get a dress from the bag; nothing suspicious was seen; still, defendant insisted on refusing to allow Zulueta to continue unless he opened and allowed inspection of the bags by them; .
(h) Defendant completely changed his tone and behavior towards the Zulueta's after the plane had arrived at Manila and the Captain learned that its Manila manager, Mr. Oppenheimer, was a friend of Zulueta;
(i) Meantime, the attitude of Pan American towards the Zulueta's caused other passengers to resent Zulueta (See reports of Stewardesses and of Captain Zentner, Exhs. 7, 8, 9 and 10). "Many passengers were angry towards the `missing passenger," says Miss Schmitz's report. "A few inquisitive PA (passengers) — one woman quite rudely stared once we were airborne and left Mr. Zulueta behind ... anyway I told the woman to sit down — so did Helga — so did the man near her," say Miss Schmitz's personal notes. This confirms the testimony of plain plaintiffs that, all the while the search and discussions were going on, they were the subject of stares, remarks and whisper comments from the passengers and other persons around the plane.
(j) Defendant did not allow plaintiff Zulueta to board the plane at all, even though it was aware that some of his personal belongings, such as his overcoat were on the plane. Plaintiffs so testified; and though defendant's witness Mr. Sitton denied it, claiming that plaintiff was always free to board the plane, this denial is belied by the report of defendant's own witness, U.S. Marshall Ho, who said that:
"Ten minutes later, Mr. Zulueta asked if he could talk to his wife who was aboard the aircraft. I then accompanied him and as we got to the ramp, we met Mr. Sitton who stated he would summon Mrs. Zulueta from the aircraft. Mr. Sitton summoned Mrs. Zulueta and she met her husband at the foot of the ramp. Mr. Zulueta then asked his wife and himself to which I replied I was not concerned what he had to say."
— Exh. 2-B
(k) Finally, to add further humiliation and heap indignity on plaintiffs, when Mrs. Zulueta arrived at Manila and appealed to defendant's Manila manager, Mr. Oppenheimer, to see to it that her husband got back as soon as possible and was made as comfortable as possible, at defendant's expense, Mr. Oppenheimer refused to acknowledge any obligation to transport Mr. Zulueta back to Manila and forcing Mrs. Zulueta to send her husband $100.00 for pocket money and pay for his fare from Wake to Manila, thru Honolulu and Tokyo.
Upon a review of the record, We are satisfied that the foregoing findings of His Honor, the Trial Judge, are supported by a preponderance of the evidence.
The last two (2) assignments of error are mere consequences of those already disposed of, and, hence, need no extended discussion.
It is urged, however, that plaintiff is, at most, entitled to actual damages only, because he was the first to commit a breach of contract, for having gone over 200 yards away from the terminal, where he could not expect to be paged. But, PANAM has not pointed out what part of the contract has been violated thereby, apart from the fact that the award for damages made in the decision appealed from was due, not to PANAM's failure to so page the plaintiff, but to the former's deliberate act of leaving him at Wake Island, and the embarrassment and humiliation caused to him and his family in the presence of many other persons. Then, also, considering the flat nature of the terrain in Wake Island, and the absence of buildings and structures, other than the terminal and a modest "hotel," as well as plaintiff's need of relieving himself, he had to find a place beyond the view of the people and near enough the sea to wash himself up before going back to the plane.
It is next argued that plaintiff was, also, guilty of contributory negligence for failure to reboard the plane within the 30 minutes announced before the passengers debarked therefrom. This might have justified a reduction of the damages, had plaintiff been unwittingly left by the plane, owing to the negligence of PANAM personnel, or even, perhaps, wittingly, if he could not be found before the plane's departure. It does not, and cannot have such justification in the case at bar, plaintiff having shown up before the plane had taken off, and he having been off-loaded intentionally and with malice aforethought, for his "belligerent" attitude, according to Captain Zentner; for having dared — despite his being one of "three monkeys," — the term used by Captain Zentner to refer to the Zulueta family — to answer him back — when he (Captain Zentner) 5 said: "what in the hell do you think you are ?" — in a way he had "not been spoken to" in his "whole adult life," in the presence of the passengers and other PANAM employees; for having responded to a command of either Zentner or Sitton to open his (plaintiff's) bags, with a categorical refusal and a challenge for Zentner or Sitton to open the bags without a search warrant therefor, thereby making manifest the lack of authority of the aforementioned representative of PANAM to issue said command and exposing him to ridicule before said passengers and employees. Besides, PANAM's own witness and employee, Wayne Pendleton, testified the plane could not take off at 4:30, as scheduled, because "we were still waiting for two (2) local passengers."
Article 2201 of our Civil Code reads:
In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could 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.
This responsibility applies to common carriers. Pursuant to Article 1759 of the same Code:
ART. 1759. Common carriers are liable for the death or injuries to passengers through the negligence or wilful 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.
This liability of the common carriers does not cease proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees.
Referring now to the specific amounts to damages due to plaintiffs herein, We note that the sum of P5,502.85 awarded to them as actual damages is not seriously disputed by PANAM.
As regards the moral and exemplary damages claimed by the plaintiffs, our Civil Code provides:
ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.
ART. 2217. 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.
ART. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate liquidated or compensatory damages.
ART. 2232. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner.
The records amply establish plaintiffs' right to recover both moral and exemplary damages. Indeed, the rude and rough reception plaintiff received at the hands of Sitton or Captain Zentner when the latter met him at the ramp ("what in the hell do you think you are? Get on that plane"); the menacing attitude of Zentner or Sitton and the supercilious manner in which he had asked plaintiff to open his bags ("open your bag," and when told that a fourth bag was missing, "I don't give a damn"); the abusive language and highly scornful reference to plaintiffs as monkeys by one of PANAM's employees (who turning to Mrs. Zulueta and Miss Zulueta remarked, "will you pull these three monkeys out of here?"); the unfriendly attitude, the ugly stares and unkind remarks to which plaintiffs were subjected, and their being cordoned by men in uniform as if they were criminals, while plaintiff was arguing with Sitton; the airline officials' refusal to allow plaintiff to board the plane on the pretext that he was hiding a bomb in his luggage and their arbitrary and high-handed decision to leave him in Wake; Mrs. Zulueta's having suffered a nervous breakdown for which she was hospitalized as a result of the embarrassment, insults and humiliations to which plaintiffs were exposed by the conduct of PANAM's employees; Miss Zulueta's having suffered shame, humiliation and embarrassment for the treatment received by her parents at the airport 6 — all these justify an award for moral damages resulting from mental anguish, serious anxiety, wounded feelings, moral shock, and social humiliation thereby suffered by plaintiffs.
The relation between carrier and passenger involves special and peculiar obligations and duties, differing in kind and degree, from those of almost every other legal or contractual relation. On account of the peculiar situation of the parties the law implies a promise and imposes upon the carrier the corresponding duty of protection and courteous treatment. Therefore, the carrier is under the absolute duty of protecting his passengers from assault or insult by himself or his servants. 7
A contract to transport passengers is quite different in kind and degree from any other contractual relation. And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation tended with a public duty. Neglect or malfeasance of the carrier's employees naturally could give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with kindness, respect, courtesy and due consideration. They are titled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rude or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. 8
A carrier of passengers is as much bound to protect them from humiliation and insult as from physical injury .. It is held in nearly all jurisdictions, if not universally, that a carrier is liable to a passenger for humiliation and mental suffering caused by abusive or insulting language directed at such passenger by an employee of the carrier. 9
Where a conductor uses language to a passenger which is calculated to insult, humiliate, or wound the feelings of a person of ordinary feelings and sensibilities, the carrier is liable, because the contract of carriage impliedly stipulates for decent, courteous, and respectful treatment, at hands of the carrier's employees. 10
The general rule that a carrier owes to a passenger highest degree of care has been held to include the duty to protect the passenger from abusive language by the carrier's agents, or by others if under such circumstances that the carrier's agents should have known about it and prevented it. Some of the courts have mentioned the implied duty of the carrier, arising out of the contract of carriage, not to insult the passenger, or permit him to be insulted, and even where no mention is made of this basis for liability, it is apparent that it is the ground upon which recovery is allowed. 11
The question is whether the award of P1,000,000 as moral damages was proper and justified by the circumstances. It has been held that the discretion in fixing moral damages lies in the trial court. 12 Among the factors courts take into account in assessing moral damages are the professional, social, political and financial standing of the offended parties on one hand, and the business and financial position of the offender on the other. 13
In comparatively recent cases in this jurisdiction, also involving breach of contract of air carriage, this Court awarded the amount of P25,000, where plaintiff, a first-class passenger in an Air France plane from Manila to Rome was, in Bangkok, forced by the manager of the airline company to leave his first class accommodation after he was already seated because there was a white man who, the manager alleged, had a "better right" to the seat14 ;the amount of P200,000, where plaintiffs, upon confirmation of their reservation in defendant airline's flight from Tokyo to San Francisco were issued first class tickets, but upon arrival in Tokyo were informed that there was no accommodation for them in the first class compartment and told they could not go unless they took the tourist class 15 — in both of which cases the Court found the airline companies to have acted in bad faith, or in a wanton, reckless and oppressive manner, justifying likewise the award of exemplary damages.
None of the passengers involved in said cases was, however, off-loaded, much less in a place as barren and isolated as Wake Island, with the prospect of being stranded there for a week. The aforementioned passengers were merely constrained to take a tourist or third class accommodation in lieu of the first class passage they were entitled to. Then, also, in none of said cases had the agents of the carrier acted with the degree of malice or bad faith of those of PANAM in the case at bar, or caused to the offended
passengers a mental suffering arising from injuries to feelings, fright and shock due to abusive, rude and insulting language used by the carrier's employees in the presence and within the hearing of others, comparable to that caused by PANAM's employees to plaintiffs herein
To some extent, however, plaintiff had contributed to the gravity of the situation because of the extreme belligerence with which he had reacted on the occasion. We do not over-look the fact that he justly believed he should uphold and defend his dignity and that of the people of this country that the discomfort, the difficulties, and, perhaps, the ordeal through which he had gone to relieve himself — which were unknown to PANAM's agents — were such as to put him in no mood to be understanding of the shortcoming of others; and that said PANAM agents should have first inquired, with an open mind, about the cause of his delay instead of assuming that he was at fault and of taking an arrogant and overbearing attitude, as if they were dealing with an inferior. Just the same, there is every reason to believe that, in all probability, things would not have turned out as bad as they became had he not allowed himself, in a way, to be dragged to the level or plane on which PANAM's personnel had placed themselves.
In view of this circumstance, We feel that the moral and exemplary damages collectible by the plaintiffs should be reduced to one-half of the amounts awarded by the lower court, that is, to P500,000 for moral damages, and P200,000 for exemplary damages, aside from the attorney's fees which should, likewise, be reduced to P75,000.
On April 22, 1971, Mrs. Zulueta filed a motion alleging that she had, for more than two (2) years, been actually living separately from her husband, plaintiff Rafael Zulueta, and that she had decided to settle separately with PANAM and had reached a full and complete settlement of all her differences with said defendant, and praying accordingly, that this case be dismissed insofar as she is concerned, Required to comment on said motion, PANAM expressed no objection thereto.
Upon the other hand, plaintiff prayed that the motion be denied, upon the ground that the case at bar is one for damages for breach of a contract of carriage, owing to the off-loading of plaintiff Rafael Zulueta, the husband and administrator of the conjugal partnership, with the funds of which the PANAM had been paid under said contract; that the action was filed by the plaintiffs as a family and the lower court had awarded damages to them as such family; that, although PANAM had questioned the award of damages, it had not raised the question whether the lower court should have specified what portion of the award should go to each plaintiff; that although Mr. and Mrs. Zulueta had, for sometime, been living separately, this has been without judicial approval; that Mrs. Zulueta may not, therefore, bind the conjugal partnership or settle this case separately; and that the sum given by PANAM to Mrs. Zulueta is believed to be P50,000, which is less than 3-1/2% of the award appealed from, thereby indicating the advisability of denying her motion to dismiss, for her own protection.
Pursuant to a resolution, dated June 10, 1971, deferring action on said motion to dismiss until the case is considered on the merits. We now hold that the motion should be, as it is hereby denied. Indeed, "(t)he wife cannot bind the conjugal partnership without the husband's consent, except in cases provided by law," 16 and it has not been shown that this is one of the cases so provided. Article 113 of our Civil Code, pursuant to which "(t)he husband must be joined in all suits by or against the wife, except: ... (2) If they have in fact been separated for at least one year ..." — relied upon by PANAM — does not warrant the conclusion drawn therefrom by the latter. Obviously the suit contemplated in subdivision (2) of said Article 113 is one in which the wife is the real party — either plaintiff or defendant — in interest, and, in which, without being so, the hush must be joined as a party, by reason only of his relation of affinity with her. Said provision cannot possibly apply to a case, like the one at bar, in which the husband is the main party in interest, both as the person principally grieved and as administrator of the conjugal partnership. Moreover, he having acted in this capacity in entering into the contract of carriage with PANAM and paid the amount due to the latter, under the contract, with funds of conjugal partnership, the damages recoverable for breach of such contract belongs to said partnership.
Modified, as above stated, in the sense that plaintiffs shall recover from defendant, Pan American World Airways, Inc., the sums of P500,000 as moral damages, P200,000 as exemplary damages, and P75,000 as attorney's fees, apart from P5,502.85 as actual damages, and without prejudice to deducting the aforementioned sum of P50,000 already paid Mrs. Zulueta, the decision appealed from is hereby affirmed in all other respects, with the costs against said defendant.
PHILIPPINE AIR LINES, INC., Petitioner, vs. THE COURT OF APPEALS and JESUS V. SAMSON, Respondents.
D E C I S I O N
GUERRERO, J.:
This is a petition for review on Certiorari of the decision of the Court of Appeals 1 dated April 18, 1977, affirming with modification the decision of the Court of First Instance of Albay in Civil Case No. 1279, entitled “Jesus V. Samson, plaintiff, vs. Philippine Air Lines, Inc., defendant,” for damages.
The dispositive portion of the trial court’s decision reads:
“WHEREFORE, for all the foregoing considerations, judgment is hereby rendered in favor of the plaintiff and against the defendant ordering the defendant to pay the plaintiff, the following sums: P1988,000.00 as unearned income or damages; P50,000.00 for moral damages; P20,000.00 as attorney’s fees and P5,000.00 as expenses of litigation, or a total of P273,000.00. Costs against the defendant.”
The appellate court modified the above decision, to wit:
“However, Plaintiff-Appellee, who has been deprived of his job since 1954, is entitled to the legal rate of interest on the P198,000.00 unearned income from the filing of the complaint cranad(Sec. 8, Rule 51, Rules of Court).
WHEREFORE, with the modification indicated above, the judgment appealed from is affirmed, with costs against defendant-appellant.”
The complaint filed on July 1, 1954 by plaintiff Jesus V. Samson, private respondent herein, averred that on January 8, 1951, he flew as co-pilot on a regular flight from Manila to Legaspi with stops at Daet, Camarines Norte and Pili, Camarines Sur, with Captain Delfin Bustamante as commanding pilot of a C-47 plane belonging to defendant Philippine Air Lines, Inc., now the herein petitioner; that on attempting to land the plane at Daet airport, Captain Delfin Bustamante due to his very slow reaction and poor judgment overshot the airfield and as a result, notwithstanding the diligent efforts of the plaintiff co-pilot to avert an accident, the airplane crashlanded beyond the runway; that the jolt caused the head of the plaintiff to hit and break through the thick front windshield of the airplane causing him
severe brain concussion, wounds and abrasions on the forehead with intense pain and sufferingcranad(par. 6, complaint).:onad
The complaint further alleged that instead of giving plaintiff expert and proper medical treatment called for by the nature and severity of his injuries, defendant simply referred him to a company physician, a general medical practitioner, who limited the treatment to the exterior injuries without examining the severe brain concussion of plaintiff cranad(par. 7, complaint); that several days after the accident, defendant Philippine Air Lines called back the plaintiff to active duty as co-pilot, and inspite of the latter’s repeated request for expert medical assistance, defendant had not given him any cranad(par. 8, complaint); that as a consequence of the brain injury sustained by plaintiff from the crash, he had been having periodic dizzy spells and had been suffering from general debility and nervousness cranad(par. 9, complaint); that defendant airline company instead of submitting the plaintiff to expert medical treatment, discharged the latter from its employ on December 21, 1953 on grounds of physical disability, thereby causing plaintiff not only to lose his job but to become physically unfit to continue as aviator due to defendant’s negligence in not giving him the proper medical attention cranad(pars. 10-11, complaint). Plaintiff prayed for damages in the amount of P180,000.00 representing his unearned income, P50,000.00 as moral damages, P20,000.00 as attorney’s fees and P5,000.00 as expenses, or a total of P255,000.00.
In its answer filed on July 28, 1954, defendant PAL denied the substantial averments in the complaint, alleging among others, that the accident was due solely and exclusively to inevitable unforeseen circumstances whereby plaintiff sustained only superficial wounds and minor injuries which were promptly treated by defendant’s medical personnel cranad(par. 5, answer); that plaintiff did not sustain brain injury or cerebral concussion from the accident since he passed the annual physical and medical examination given thereafter on April 24, 1951; that the headaches and dizziness experienced by plaintiff were due to emotional disturbance over his inability to pass the required up-grading or promotional course given by defendant companycranad(par. 6, answer), and that, as confirmed by an expert neuro-surgeon, plaintiff was suffering-from neurosis and in view of this unfitness and disqualification from continuing as a pilot, defendant had to terminate plaintiff’s employment cranad(pars. 7, 9, answer).
Further, defendant alleged that by the very nature of its business as a common carrier, it is bound to employ only pilots who are proficient and in good mental, emotional and physical condition; that the pilot, Captain Delfin Bustamante, was a competent and proficient pilot, and although he was already afflicted with a tumor of the nasopharynx even before the accident of January 8, 1951, the Civil Aeronautics Administration, in passing upon the fitness of pilots, gave Capt. Bustamante a waiver of physical standards to enable him to retain his first class airman certificate since the affliction had not in the least affected his proficiency cranad(pars. 16-17, answer). By way of counterclaim, defendant prayed for P10,000.00 as expenses for the litigation.
On March 25, 1958, defendant filed a Motion to Dismiss on the ground that the complaint is essentially a Workmen’s Compensation claim, stating a cause of action not cognizable within the general jurisdiction of the court. The Motion to Dismiss was denied in the order of April 14, 1958. After the reception of evidence, the trial court rendered on January 15, 1973 the decision, the dispositive portion of which has been earlier cited.
The defendant Philippine Air Lines, Inc. appealed the decision to the Court of Appeals as being contrary to law and unsupported by the evidence. It raised as errors of the trial court cranad(a) the holding that the damages allegedly suffered by plaintiff are attributable to the accident of January 8, 1951 which was due to the negligence of defendant in having allowed Capt. Delfin Bustamante to continue flying despite his alleged slow reaction and poor judgment; cranad(b) the finding that defendant was negligent in not having given plaintiff proper and adequate expert medical treatment and assistance for the injuries
allegedly sustained in the accident of January 8, 1951; and cranad(c) in ordering defendant to pay actual or compensatory damages, moral damages and attorney’s fees to the plaintiff.
On April 18, 1977, the Court of Appeals rendered its decision affirming the judgment of the lower court but modified the award of damages by imposing legal rate of interest on the P198,000.00 unearned income from the filing of the complaint, citing Sec. 8, Rule 51 of the Rules of Court.
Its motion for reconsideration of the above judgment having been denied, Philippine Air Lines, Inc. filed this instant petition for Certiorari on the ground that the decision is not in accord with law or with the applicable jurisprudence, aside from its being replete with findings in the nature of speculation, surmises and conjectures not borne out by the evidence on record thereby resulting to misapprehension of facts and amounting to a grave abuse of discretion cranad(p. 7, Petition).
Petitioner raises the fundamental question in the case at bar as follows: Is there a causal connection between the injuries suffered by private respondent during the accident on 8 January 1951 and the subsequent “periodic dizzy spells, headache and general debility” of which private respondent complained every now and then, on the one hand, and such “periodic dizzy spells, headache and general debility” allegedly caused by the accident and private respondent’s eventual discharge from employment, on the other? PAL submits that respondent court’s award of damages to private respondent is anchored on findings in the nature of speculations, surmises and conjectures and not borne out by the evidence on record, thereby resulting in a misapprehension of facts and amounting to a grave abuse of discretion.
Petitioner’s submission is without merit.
As found by the respondent court, the following are the essential facts of the case:
“It appears that plaintiff, a licensee aviator, was employed by defendant a few years prior to January 8, 1951 as a regular co-pilot on a guaranteed basic salary of P750.00 a month. He was assigned to and/or paired with pilot Delfin Bustamante.
Sometime in December 1950, he complained to defendant through its authorized official about the slow reaction and poor judgment of pilot Delfin Bustamante. Notwithstanding said complaint, defendant allowed the pilot to continue flying.
On January 8, 1951, the two manned the regular afternoon flight of defendant’s plane from Manila to Legaspi, with stops at Daet, Camarines Norte, and Pili, Camarines Sur. Upon making a landing at Daet, the pilot, with his slow reaction and poor judgment, overshot the airfield and, as a result of and notwithstanding diligent efforts of plaintiff to avert an accident, the airplane crash-landed beyond the runway into a mangrove. The jolt and impact caused plaintiff to hit his head upon the front windshield of the plane thereby causing his brain concussions and wounds on the forehead, with concomittant intense pain.
Plaintiff was not given proper medical attention and treatment demanded by the nature and severity of his injuries. Defendant merely referred him to its clinic attended by general practitioners on his external injuries. His brain injury was never examined, much less treated. On top of that negligence, defendant recalled plaintiff to active duty as a co-pilot, completely ignoring his plea for expert medical assistance.
Suffering periodic dizzy spells, headache and general debility, plaintiff every now and then complained to defendant. To make matters worst for plaintiff, defendant discharged him from his employment on December 21, 1953. In consequence, plaintiff has been beset with additional worries, basically financial. He is now a liability instead of a provider, of his family.
On July 1, 1954, plaintiff filed a complaint for damages. Defendant vainly sought to dismiss the complaint after filing an answer. Then, the judgment and this appeal.”
Continuing, the respondent Court of Appeals further held:
“There is no question about the employment of plaintiff by defendant, his age and salary, the overshooting by pilot Bustamante of the airfield and crashlanding in a mangrove, his hitting his head on the front windshield of the plane, his intermittent dizzy spells, headache and general debility for which he was discharged from his employment on December 21, 1953. As the lower court aptly stated:
‘From the evidence adduced by the parties, the Court finds the following facts to be uncontroverted: That the plaintiff Jesus V. Samson, on January 8, 1951 and a few years prior thereto, December 21, 1953, was a duly licensed pilot employed as a regular co-pilot of the defendant with assignment in its domestic air service in the Philippines; that on January 8, 1951, the defendant’s airplane met an accident in crashlanding at the Daet Airport, Camarines Norte by overshooting the runway and reaching the mangroves at the edge of the landing strip; that the jolt caused plaintiff’s head to hit the front windshield of the airplane causing him to suffer wounds and abrasion on the forehead; that the defendant, instead of giving the plaintiff expert and proper medical treatment called for by the nature and severity of the injuries of the plaintiff, simply referred him to the clinic of the defendant’s physicians who are only general medical practitioners and not brain specialists; that the defendant’s physicians limited their treatment to the exterior injuries on the forehead of the plaintiff and made no examination of the severe concussion of the brain of the plaintiff; that the Medical Director and Flight Surgeon of the defendant were not able to definitely determine the cause of the complaint of the plaintiff as to the periodic attack of dizziness, spells and headache; that due to this laxity of the defendant’s physician and the continuous suffering of the ailment of the plaintiff complained of, he demanded for expert medical assistance for his brain injury and to send him to the United States, which demand was turned down and in effect denied by the defendant; that instead the defendant referred the plaintiff to a neurologist, Dr. Victor Reyes; that from the time that said accident occurred on January 21, 1953, he was ordered grounded on several occasions because of his complaint of dizzy spells and headache; that instead of submitting the plaintiff to expert medical treatment as demanded by him and denied by the defendant, he was discharged from its employment on December 21, 1953 on the ground of physical disability, and that the plaintiff, at the time when the defendant’s plane met the accident, up to the time he was discharged, was regularly employed as a co-pilot and receiving a basic salary of P750.00 a month plus extra pay for flying time, and bonuses amounting to P300.00 a month.’
Even defendant-appellant itself admits as not controverted the following facts which generally admit what have been stated above as not controverted.
“In the case at bar, the following facts are not the subject of controversy:
‘(1) First, that from July 1950 to 21 December 1953, plaintiff was employed with defendant company as a first officer or co-pilot and served in that capacity in defendant’s domestic services.
(2) Second, that on January 1951, plaintiff did fly on defendant’s PI-C 94, as first officer or co-pilot, with the late Capt. Delfin Bustamante in command as pilot; that while making a landing at the Daet airport on that date, PI-C 94 did meet an accident as stated above.
(3) Third, that at or about the time of the discharge from defendant company, plaintiff had complained of “spells of dizziness,” “headaches” and “nervousness”, by reason of which he was grounded from flight duty. In short, that at that time, or approximately from November 1953 up to the date of his discharge on 21 December 1953, plaintiff was actually physically unfit to discharge his duties as pilot.
(4) Fourth, that plaintiff’s unfitness for flight duty was properly established after a thorough medical examination by competent medical experts.’cralaw cranad(pp. 11-12, appellant’s brief)
hence, there can hardly be an issue, factual, legal or medical.”
Taking exception from “the rest of the essential facts of the case as found by the respondent court” PAL claims said facts are not fully borne out by the evidence on record and insists that the injuries suffered by private respondent during the accident on January 8, 1951 were superficial in nature; that the “periodic spells, headache, and general debility” complaint of every now and then by private respondent subsequent to the Jan. 8, 1951 incident were due to emotional disturbances and that no negligence can be attributed to Capt. Delfin Bustamante much less to PAL for the occurrence on January 8, 1951, hence PAL cannot be held liable for damages.
Petitioner claims absence of any causal connection between private respondent’s superficial injuries and his alleged subsequent “periodic spells, headache and general debility,” pointing out that these subsequent ailments were found by competent physician, including an expert neuro-surgeon, to be due to emotional disturbances insights the conclusions of Dr. Trajano V. Bernardo that respondent’s complaints were “psychosomatic symptoms” on the basis of declarations made by respondent himself, which conclusions are supported by similar diagnosis made by Drs. Damaceno J. Ago and Villaraza stating that respondent Samson was suffering from neurosis as well as the report of Dr. Victor Reyes, a neurological specialist, indicating that the symptoms were probably, most probably due to psychogenic factors and have no organic basis.
In claiming that there is no factual basis for the finding of the respondent court that the crash-landing caused respondent’s “brain concussion . cra ., with concomittant intense pain, for on the contrary, testimonial evidence establish the superficiality of the injuries sustained by respondent during the accident of January 8, 1951,” petitioner quotes portions of the testimony of Dr. Manuel S. Sayas, who declared that he removed the band-aid on the forehead of respondent and that he found out after removal that the latter had two contussed superficial wounds over the supra orbiter regions or just above the eyes measuring one centimeter long and one millimeter deep. He examined and found his blood pressure normal, no discharges from the nose and ears. Dr. Trajano V. Bernardo also testified that when he examined respondent Samson three days after the accident, the wound was already healed and found nothing wrong with his ears, nose and throat so that he was declared fit for duty after the sixth day.
Petitioner goes further. It contends that there is no causal connection between respondent’s superficial injuries sustained during the accident on January 8, 1951 and plaintiff’s discharge from employment with PAL on December 21, 1953. According to PAL, it was the repeated recurrence of respondent’s neurasthenic symptoms cranad(dizzy spells, headache, nervousness) which prompted PAL’s Flight Surgeon, Dr. Bernardo, to recommend that plaintiff be grounded permanently as respondent was “psychologically unfit to resume his duties as pilot.” PAL concludes that respondent’s eventual discharge from employment with PAL was effected for absolutely valid reasons, and only after he was thoroughly examined and found unfit to carry out his responsibilities and duties as a pilot.:onad
We agree with the respondent court in finding that the dizzy spells, headache and general debility of private respondent Samson was an after-effect of the crash-landing and We find
that such holding is supported by substantial evidence, which We quote from the court’s decision, to wit:
“Defendant would imply that plaintiff suffered only superficial wounds which were treated and not brain injury. It would, by the opinion of its company doctors, Dr. Bernardo and Dr. Reyes, attribute the dizzy spells and headache to organic or as phychosomatic, neurasthenic or psychogenic, which we find outlandishly exaggerated.
That plaintiff’s condition as psychosomatic rather than organic in nature is allegedly confirmed by the fact that on six cranad(6) separate occasions after the accident he passed the required CAA physical examination for airman’s certificate. cranad(Exhs. 78, 79, 80, 81, 83 and 92). We noticed, however, that there were other similar physical examinations conducted by the CAA on the person of plaintiff the report on which were not presented in evidence. Obviously, only those which suited defendants cause were hand-picked and offered in evidence.
We hesitate to accept the opinion of the defendant’s two physicians, considering that Dr. Bernardo admittedly referred to Dr. Reyes because he could not determine the cause of the dizzy spells and headache and the latter admitted that ‘it is extremely hard to be certain of the cause of his dizzy spells,’ and suggested a possibility that it ‘was due to postraumatic syndrome, evidently due to the injuries suffered by the plaintiff in hitting the forehead against the windshield of the plane during the accident.’ Judgment are not based on possibilities.
The admitted difficulty of defendant’s doctors in determining the cause of the dizzy spells and headache cannot be a sound basis for finding against the plaintiff and in favor of defendant. Whatever it might be, the fact is that such dizzy spells, headache and general debility was an after-effect of the crash-landing. Be it brain injury or psychosomatic, neurasthenic or psychogenic, there is no gainsaying the fact that it was caused by the crash-landing. As an effect of the cause, not fabricated or concocted, plaintiff has to be indemnified. The fact is that such effect caused his discharge.
We are prone to believe the testimony of the plaintiff’s doctors.
Dr. Morales, a surgeon, found that blood was coming from plaintiff’s ears and nose. He testified that plaintiff was suffering from cerebral concussion as a result of traumatic injury to the brain caused by his head hitting on the windshield of the plane during the crash-landing cranad(Exhibit “G”).
Dr. Conrado Aramil, a neurologist and psychiatrist with experience in two hospitals abroad, found abnormality reflected by the electroencephalogram examination in the frontal area on both sides of plaintiff’s head cranad(Exhibits “K”, “K-1”).
The opinion of these two specialist renders unnecessary that of plaintiff’s wife who is a physician in her own right and because of her relation to the plaintiff, her testimony and opinion may not be discussed here, although her testimony is crystallized by the opinions of Dr. Ador Dionisio, Dr. Marquez, Dr. Jose O. Chan, Dr. Yambao and Dr. Sandico.
Even the doctors presented by defendant admit vital facts about plaintiff’s brain injury. Dr. Bernardo admits that due to the incident, the plaintiff continuously complained of his fainting spells, dizziness and headache everytime he flew as a co-pilot and everytime he went to defendant’s clinic no less than 25 times cranad(Exhibits “15” to “36”), that he complained of the same to Dr. Reyes; that he promised to help send plaintiff to the United States for expert medical assistance provided that whatever finding thereat should not be attributed to the crash-landing incident to which plaintiff did not agree and that plaintiff was
completely ignored by the defendant in his plea for expert medical assistance. They admitted that they could not determine definitely the cause of the fainting spells, dizziness and headache, which justifies the demand for expert medical assistance.”
We also find the imputation of gross negligence by respondent court to PAL for having allowed Capt. Delfin Bustamante to fly on that fateful day of the accident on January 8, 1951 to be correct, and We affirm the same, duly supported as it is by substantial evidence, clearly established and cited in the decision of said court which states as follows:
“The pilot was sick. He admittedly had tumor of the nasopharynx cranad(nose). He is now in the Great Beyond. The spot is very near the brain and the eyes. Tumor on the spot will affect the sinus, the breathing, the eyes which are very near it. No one will certify the fitness to fly a plane of one suffering from the disease.
“. cra . The fact First Pilot Bustamante has a long standing tumor of the Nasopharynx for which reason he was grounded since November 1947 is admitted in the letter cranad(Exh. 69-A) of Dr. Bernardo to the Medical Director of the CAA requesting waiver of physical standards. The request for waiver of physical standards is itself a positive proof that the physical condition of Capt. Bustamante is short of the standard set by the CAA. The Deputy Administrator of the CAA granted the request relying on the representation and recommendation made by Dr. Bernardo cranad(See Exh. 69). We noted, however, that the request cranad(Exh. 69-A) says that ‘it is believed that his continuing to fly as a co-pilot does not involve any hazard.’cralaw cranad(Italics supplied). Flying as a First Officer entails a very different responsibility than flying as a mere co-pilot. Defendant requested the CAA to allow Capt. Bustamante to fly merely as a co-pilot and it is safe to conclude that the CAA approved the request thus allowing Bustamante to fly only as a co-pilot. For having allowed Bustamante to fly as a First Officer on January 8, 1951, defendant is guilty of gross negligence and therefore should be made liable for the resulting accident.
As established by the evidence, the pilot used to get treatments from Dr. Sycangco. He used to complain of pain in the face more particularly in the nose which caused him to have sleepless nights. Plaintiff’s observation of the pilot was reported to the Chief Pilot who did nothing about it. Captain Carbonel of the defendant corroborated plaintiff of this matter. The complaint against the slow reaction of the pilot at least proved the observation. The observation could be disregarded. The fact that the complaint was not in writing does not detract anything from the seriousness thereof, considering that a miscalculation would not only cause the death of the crew but also of the passengers.
One month prior to the crash-landing, when the pilot was preparing to land in Daet, plaintiff warned him that they were not in the vicinity of Daet but above the town of Ligao. The plane hit outside the airstrip. In another instance, the pilot would hit the Mayon Volcano had not plaintiff warned him. These more than prove what plaintiff had complained of. Disregard thereof by defendant is condemnable.
To bolster the claim that Capt. Bustamante has not suffered from any kind of sickness which hampered his flying ability, appellant contends that for at least one or more years following the accident of January 8, 1951, Capt. Bustamante continued to fly for defendant company as a pilot, and did so with great skill and proficiency, and without any further accident or mishap, citing tsn. pp. 756-765, January 20, 1965. We have painstakingly perused the records, particularly the transcript of stenographic notes cited, but found nothing therein to substantiate appellant’s contention. Instead, We discovered that the citation covers the testimony of Dr. Bernardo on the physical condition of Bustamante and nothing about his skills or proficiency to fly nor on the mishaps or accidents, matters which are beyond Dr. Bernardo’s competence anyway.
Assuming that the pilot was not sick or that the tumor did not affect the pilot in managing the plane, the evidence shows that the overshooting of the runway and crash-landing at the mangrove was caused by the pilot for which acts the defendant must answer for damages
caused thereby. And for this negligence of defendant’s employee, it is liable cranad(Joaquin vs. Aniceto, 12 SCRA 308). At least, the law presumes the employer negligent imposing upon it the burden of proving that it exercised the diligence of a good father of a family in the supervision of its employees.
Defendant would want to tie plaintiff to the report he signed about the crash-landing. The report was prepared by his pilot and because the latter pleaded that he had a family too and would have nowhere to go if he lost his job, plaintiff’s compassion would not upturn the truth about the crash-landing. We are for the truth not logic of any argumentation.
At any rate, it is incorrect to say that the Accident Report cranad(Exh. 12 & 12-A), signed by plaintiff, exculpated Capt. Bustamante from any fault. We observed that the Report does not categorically state that Capt. Bustamante was not at fault. It merely relates in chronological sequence what Capt. Bustamante and plaintiff did from the take-off from Manila to the landing in Daet which resulted in an accident. On the contrary, we may infer the negligence of Bustamante from the following portion of the Report, to wit:
“. cra . I felt his brakes strong but as we neared the intersection of the NE-SW runway, the brakes were not as strong and I glanced at the system pressure which indicated 900 lbs. per sq. m.”
It was during the above precise instance that Capt. Bustamante lost his bearing and disposition. Had he maintained the pressure on the brakes the plane would not have overshot the runway. Verily, Bustamante displayed slow reaction and poor judgment.cranad(CA decision, pp. 8-12).
This Court is not impressed by, much less can We accept petitioner’s invocation to calibrate once again the evidence testified to in detail and plucked from the voluminous transcript to support petitioner’s own conclusion. It is not the task of this Court to discharge the functions of a trier of facts much less to enter into a calibration of the evidence, notwithstanding petitioner’s wail that the judgment of the respondent court is based entirely on speculations, surmises and conjectures. We are convinced that respondent court’s judgment is supported by strong, clear and substantial evidence.:onad
Petitioner is a common carrier engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air, for compensation, offering their services to the public, as defined in Art. 1732, New Civil Code. The law is clear in requiring a common carrier to exercise the highest degree of care in the discharge of its duty and business of carriage and transportation under Arts. 1733, 1755 and 1756 of the New Civil Code. These Articles provide:
Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in Articles 1734, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passenger safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.
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 Articles 1733 and 1755.
The duty to exercise the utmost diligence on the part of common carriers is for the safety of passengers as well as for the members of the crew or the complement operating the carrier,
the airplane in the case at bar. And this must be so for any omission, lapse or neglect thereof will certainly result to the damage, prejudice, nay injuries and even death to all aboard the plane, passengers and crew members alike.
Now to the damages. The Court of Appeals affirmed the award of damages made by the trial court, stating that “the damages awarded plaintiff by the lower court are in accordance with the facts, law and jurisprudence.” The court further observed that “defendant-appellant is still fortunate, considering that the unearned income was reckoned with only up to 1968 and not up to the present as plaintiff-appellee is still living. Whatever mathematical error defendant-appellant could show by abstract argumentation, the same must be compensated by such deficiency of the damages awarded to plaintiff-appellee.”
As awarded by the trial court, private respondent was entitled to P198,000.00 as unearned income or compensatory damages; P50,000.00 for moral damages, P20,000.00 as attorney’s fees and P5,000.00 as expenses of litigation, or a total of P273,000.00.
The trial court arrived at the sum of P198,000.00 as unearned income or damages by considering that respondent Samson “could have continued to work as airline pilot for fifteen more years, he being only 38 years at the time the services were terminated by the defendant cranad(PAL) and he would have earned P120,000.00 from 1954 to 1963 or a period of ten cranad(10) years at the rate of one thousand per month cranad(P750.00 basic salary plus P300.00 extra pay for extra flying time and bonuses; and considering further that in 1964 the basic pay of defendant’s pilot was increased to P12,000.00 annually, the plaintiff could have earned from 1964 to 1968 the sum of P60,000.00 in the form of salaries and another P18,000.00 as bonuses and extra pay for extra flying time at the same rate of P300 a month, or a grand total of P198,000.00 for the entire period. This claim of the plaintiff for loss or impairment of earning capacity is based on the provision of Article 2205 of the New Civil Code of the Philippines which provides that “damages may be recovered for loss or impairment of earning capacity in cases of temporary or permanent personal injury.” This provision of law has been construed and interpreted in the case of Aureliano Ropato, et al. vs. La Mallorca General Partnership, 56 O.G., 7812, which rules that law allows the recovery of damages for loss or impairment of earning capacity in cases of temporary or permanent personal injury.” chanroblesvirtualawlibrary(Decision, CFI, pp. 98-99, Record on Appeal)
The respondent appellate court modified the above award by ordering payment of legal interest on the P198,000.00 unearned income from the filing of the claim, citing Sec. 8, Rule 51 of the Rules of Court.
Petitioner assails the award of the total sum of P198,000.00 as unearned income up to 1968 as being tenuous because firstly, the trial court’s finding affirmed by the respondent court is allegedly based on pure speculation and conjecture and secondly, the award of P300.00 a month as extra pay for extra flying time from 1954 to 1968 is likewise speculative. PAL likewise rejects the award of moral damages in the amount of P50,000.00 on the ground that private respondent’s action before the trial court does not fall under any of the cases enumerated in the law cranad(Art. 2219 of the New Civil Code) for which moral damages are recoverable and that although private respondent’s action gives the appearance that it is covered under quasi-delict as provided in Art. 21 of the New Civil Code, the definition of quasi-delict in Art. 2176 of the New Civil Code expressly excludes cases where there is a pre-existing contractual relation between the parties, as in the case under consideration, where an employer-employee relationship existed between PAL and private respondent. It is further argued that private respondent’s action cannot be deemed to be covered by Art. 21, inasmuch as there is no evidence on record to show that PAL “wilfully cause(d) loss or injury to cranad(private respondent) in a manner that is contrary to morals, good customs or public policy . cra .” Nor can private respondent’s action be considered “analogous” to either of the foregoing, for the reasons are obvious that it is not.” chanroblesvirtualawlibrary(Memorandum of petitioner, pp. 418-421, Records)
Having affirmed the gross negligence of PAL in allowing Capt. Delfin Bustamante to fly the plane to Daet on January 8, 1951 whose slow reaction and poor judgment was the cause of the crash-landing of the plane which resulted in private respondent Samson hitting his head against the windshield and causing him injuries for which reason PAL terminated his services and employment as pilot after refusing to provide him with the necessary medical treatment of respondent’s periodic spells, headache and general debility produced from said injuries, We must necessarily affirm likewise the award of damages or compensation under the provisions of Art. 1711 and Art. 1712 of the New Civil Code which provide:
Art. 1711. Owners of enterprises and other employers are obliged to pay compensation for the death or injuries to their laborers, workmen, mechanics or other employees, even though the event may have been purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the course of the employment. The employer is also liable for compensation if the employee contracts any illness or disease caused by such employment or as the result of the nature of the employment. If the mishap was due to the employee’s own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liable for compensation. When the employee’s lack of due care contributed to his death or injury, the compensation shall be equitably reduced.
Art. 1712. If the death or injury is due to the negligence of a fellow-worker, the latter and the employer shall be solidarily liable for compensation. If a fellow-worker’s intentional or malicious act is the only cause of the death or injury, the employer shall not be answerable, unless it should be shown that the latter did not exercise due diligence in the selection or supervision of the plaintiffs fellow-worker.
The grant of compensatory damages to the private respondent made by the trial court and affirmed by the appellate court by computing his basic salary per annum at P750.00 a month as basic salary and P300.00 a month for extra pay for extra flying time including bonus given in December every year is justified. The correct computation however should be P750 plus P300 x 12 months = P12,600 per annum x 10 years = P126,000.00 cranad(not P120,000.00 as computed by the court a quo). The further grant of increase in the basic pay of the pilots to P12,000 annually for 1964 to 1968 totalling P60,000.00 and another P18,000.00 as bonuses and extra pay for extra flying time at the same rate of P300.00 a month totals P78,000.00. Adding P126,000.00 cranad(1964 to 1968 compensation) makes a grand total of P204,000.00 cranad(not P198,000.00 as originally computed).
As to the grant of moral damages in the sum of P50,000.00 We also approve the same. We have noted and considered the holding of the appellate court in the matter of bad faith on the part of PAL, stated hereunder, this wise:
“None of the essential facts material to the determination of the case have been seriously assailed: the overshooting of runway and crash-landing into the mangroves; the hitting of plaintiff’s head to the front windshield of the plane; the oozing of blood out of his ears, nose and mouth; the intermittent dizzy spells, headaches and general debility thereafter for which he was discharged from his employment; the condition of not to attribute the cause of the ailment to the crash-landing imposed in bad faith for a demanded special medical service abroad; and the resultant brain injury which defendant’s doctors could not understand nor diagnose.”
x x x
“The act of defendant-appellant in unjustly refusing plaintiff-appellee’s demand for special medical service abroad for the reason that plaintiff-appellee’s deteriorating physical condition was not due to the accident violates the provisions of Article 19 of the Civil Code on human relations “to act with justice, give everyone his due, and observe honesty and good faith.” chanroblesvirtualawlibrary(CA Resolution, pp. 151-152, Records)
We reject the theory of petitioner that private respondent is not entitled to moral damages. Under the facts found by the trial court and affirmed by the appellate court and under the law and jurisprudence cited and applied, the grant of moral damages in the amount of P50,000.00 is proper and justified.
The fact that private respondent suffered physical injuries in the head when the plane crash-landed due to the negligence of Capt. Bustamante is undeniable. The negligence of the latter is clearly a quasi-delict and therefore Article 2219, cranad(2) New Civil Code is applicable, justifying the recovery of moral damages.
Even from the standpoint of the petitioner that there is an employer-employee relationship between it and private respondent arising from the contract of employment, private respondent is still entitled to moral damages in view of the finding of bad faith or malice by the appellate court, which finding We hereby affirm, applying the provisions of Art. 2220, New Civil Code which provides that willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith.
The justification in the award of moral damages under Art. 19 of the New Civil Code on Human Relations which requires that every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith, as applied by respondent court is also well-taken and We hereby give Our affirmance thereto.
With respect to the award of attorney’s fees in the sum of P20,000.00 the same is likewise correct. As pointed out in the decision of the Court of Appeals, “the plaintiff is entitled to attorney’s fees because he was forced to litigate in order to enforce his valid claim cranad(Ganaban vs. Bayle, 30 SCRA 365; De la Cruz vs. De la Cruz, 22 SCRA 33; and many others); defendant acted in bad faith in refusing plaintiff’s valid claimcranad(Filipino Pipe Foundry Corporation vs. Central Bank, 23 SCRA 1044); and plaintiff was dismissed and was forced to go to court to vindicate his right cranad(Nadura vs. Benguet Consolidated, Inc., 5 SCRA 879).”
We also agree with the modification made by the appellate court in ordering payment of legal interest from the date judicial demand was made by Pilot Samson against PAL with the filing of the complaint in the lower court. We affirm the ruling of the respondent court which reads:
“Lastly, the defendant-appellant claims that the legal rate of interest on the unearned compensation should be computed from the date of the judgment in the lower court, not from the filing of the complaint, citing a case where the issue raised in the Supreme Court was limited to when the judgment was rendered in the lower court or in the appellate court, which does not mean that it should not be computed from the filing of the complaint.
Articles 1169, 2209 and 2212 of the Civil Code govern when interest shall be computed. Thereunder interest begins to accrue upon demand, extrajudicial or judicial. A complaint is a judicial demand cranad(Cabarroguis vs. Vicente, 107 Phil. 340). Under Article 2212 of the Civil Code, interest due shall earn legal interest from the time it is judicially demanded, although the obligation may be silent upon this point.” chanroblesvirtualawlibrary(CA Resolution, pp. 153-154, Records).
The correct amount of compensatory damages upon which legal interest shall accrue from the filing of the complaint is P204,000.00 as herein computed and not P198,000.00.
WHEREFORE, in view of all the foregoing, the judgment of the appellate court is hereby affirmed with slight modification in that the correct amount of compensatory damages is P204,000.00. With costs against petitioner.
SO ORDERED.
Makasiar and De Castro, JJ., concur.
Teehankee and Melencio-Herrera, JJ., concur in the result.
PHILIPPINE AIR LINES, Petitioner, v. HON. COURT OF APPEALS and ISIDRO CO.,Respondents.
Siguion Reyna, Montecillo & Ongsiako for Petitioner.
Carlos R. de Castro for Private Respondent.
SYLLABUS
1. REMEDIAL LAW; SUPREME COURT; NOT A TRIER OF FACTS. — Whether or not the lost luggage was ever retrieved by the passenger, and whether or not the actual and exemplary damages awarded by the court to him are reasonable, are factual issues which we may not pass upon in the absences of special circumstances requiring a review of the evidence.
2. CIVIL LAW; COMMON CARRIER; LIABILITY OF CARRIER FOR THE LOSS, DESTRUCTION OR DETERIORATION OF GOODS TRANSPORTED; GOVERNING LAWS; CASE AT BAR. — Petitioner contends that under the Warsaw Convention, its liability, if any, cannot exceed US $20.00 based on weight as private respondent Co did not declare the contents of his baggage nor pay additional charges before the flight. We find no merit in that contention. In Samar Mining Company, Inc. v. Nordeutscher Lloyd (132 SCRA 529), this Court ruled: "The liability of the common carrier for the loss, destruction or deterioration of goods transported from a foreign country to the Philippines is governed primarily by the New Civil Code. In all matters not regulated by said Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and by Special Laws." Since the passenger’s destination in this case was the Philippines, Philippine law governs the liability of the carrier for the loss of the passenger’s luggage.
3. ID.; EXEMPLARY DAMAGES; JUSTIFIED IN CASE OF FAILURE TO SATISFY JUST AND VALID DEMANDABLE CLAIM. — The award of exemplary damages and attorney’s fees to the private respondent was justified. In the cases of Imperial Insurance, Inc. v. Simon, (122 Phil. 189) and Bert Osmeña and Associates v. CA, (120 SCRA 396), the appellant was awarded attorney’s fees because of appellee’s failure to satisfy the former’s just and valid demandable claim which forced the appellant to litigate. Likewise, in the case of Phil. Surety and Ins. Co., Inc. v. Royal Oil Products, (102 Phil. 326), this Court justified the grant of exemplary damages and attorney’s fees for the petitioner’s failure, even refusal, to pay the private respondent’s valid claim.
D E C I S I O N
GRIÑO-AQUINO, J.:
This is a petition for review of the decision dated July 19, 1989 of the Court of Appeals affirming the decision of the Regional Trial Court of Pasay City which awarded P72,766.02 as damages and attorney’s fees to private respondent Isidro Co for the loss of his checked-in baggage as a passenger of petitioner airline. The findings of the trial court, which were adopted by the appellate court, are:
"At about 5:30 a.m. on April 17, 1985, plaintiff [Co], accompanied by his wife and son, arrived at the Manila International Airport aboard defendant airline’s PAL Flight No. 107 from San Francisco, California, U.S.A. Soon after his embarking (sic), plaintiff proceeded to the baggage retrieval area to claim his nine pieces of checked-in luggage with the corresponding claim checks in his possession. Plaintiff found eight of his luggage, but despite diligent search, he failed to locate the ninth luggage, with claim check number 729113 which is the one in question in this case.
"Plaintiff then immediately notified defendant company through its employee, Willy Guevarra, who was then in charge of the PAL claim counter at the airport. Willy Guevarra, who testified during the trial court on April 11, 1986, filled up a printed form known as a Property Irregularity Report (Exh.’A’), acknowledging one of the plaintiff’s luggages to be missing (Exh.’A-1’), and signed it after asking plaintiff himself to sign the same document (Exh.’A-2’). In accordance with his procedure in cases if this nature, Willy Guevarra asked plaintiff to surrender to him the nine claim checks corresponding to the nine luggages, i.e., including the one that was missing.
"The incontestable evidence further shows that plaintiff’s lost luggage was a Samsonite suitcase measuring about 62 inches in length, worth about US $200.00 and containing various personal effects purchased by plaintiff and his wife during their stay in the United States and similar other items sent by their friends abroad to be given as presents to relatives in the Philippines. Plaintiff’s invoices evidencing their purchases show their missing personal effects to be worth US $1,243.01, in addition to the presents entrusted to them by their friends which plaintiff testified to be worth about US $500.00 to US $600.00 (Exhs.’D,’ ‘D-1,’ to ‘D-17,’ tsn, p. 9, July 11, 1985; pp. 5-14, March 7, 1986).
"Plaintiff on several occasions unrelentingly called at defendant’s office in order to pursue his complaint about his missing luggage but to no avail. Thus, on April 15, 1985, plaintiff through his lawyer wrote a demand letter to defendant company through Rebecca V. Santos, its manager, Central Baggage Services (Exhs.’B’ & ‘B-1’). On April 17, 1985, Rebecca Santos replied to the demand letter (Exh.’B’) acknowledging ‘that to date we have been unable to locate your client’s (plaintiff’s) baggage despite our careful search’ and requesting plaintiff’s counsel to ‘please extend to him our sincere apologies for the inconvenience he was caused by this unfortunate incident’ (Exh.’C’). Despite the letter (Exh.’C’), however, defendants never found plaintiff’s missing luggage or paid its corresponding value. Consequently, on May 3, 1985, plaintiff filed his present complaint against said defendants." (pp. 38-40, Rollo.)
Co sued the airline for damages. The Regional Trial Court of Pasay City found the defendant airline (now petitioner) liable, and rendered judgment on June 3, 1986, the dispositive portion of which reads:jgc:chanrobles.com.ph
"WHEREFORE, judgment is hereby rendered sentencing defendant Philippine Airlines, Inc. to pay plaintiff Isidro Co:jgc:chanrobles.com.ph
"1) P42,766.02 by way of actual damages;
"2) P20,000.00 by way of exemplary damages;
"3) P10,000.00 as attorney’s fees;
all in addition to the costs or the suit.
"Defendants’ counterclaim is hereby dismissed for lack of merit." (p. 40, Rollo.)
On appeal, the Court of Appeals affirmed in toto the trial court’s award.
In his petition for review of the Court of Appeal’s decision, petitioner alleges that the appellate court erred: 1. in affirming the conclusion of the trial court that petitioner’s retrieval baggage report was a fabrication;
2. in not applying the limits of liability under the Warsaw Convention which limits the liability of an air carrier for loss, delay or damage to checked-in baggage to US $20.00 based on weight; and
3. in awarding private respondent Isidro Co actual and exemplary damages attorney’s fees, and costs.
The first and third assignments of error raise purely factual issues which are not reviewable by this Court (Sec. 2, Rule 45, Rules of Court). The Court reviews only questions of law which must be distinctly set forth in the petition. (Hodges v. People, 68 Phil. 178.) The probative value of petitioner’s retrieval report was passed upon by the Regional Trial Court of Pasay City, whose finding was affirmed by the Court of Appeals as
"In this respect, it is further argued that appellee should produce his claim tag if he had not surrendered it because there was no baggage received. It appeared, however, that appellee surrendered all the nine claim checks corresponding to the nine luggages, including the one that was missing, to the PAL officer after accomplishing the Property Irregularity Report. Therefore, it could not be possible for appellee to produce the same in court. It is now for appellant airlines to produce the veracity of their Baggage Retrieval Report by corroborating evidence other than testimonies of their employees. Such document is within the control of appellant and necessarily requires other corroborative evidence. Since there is no compelling reason to reverse the factual findings of the lower court, this Court resolves not to disturb the same." (p. 41, Rollo.)
Whether or not the lost luggage was ever retrieved by the passenger, and whether or not the actual and exemplary damages awarded by the court to him are reasonable, are factual issues which we may not pass upon in the absence of special circumstances requiring a review of the evidence.
In Alitalia v. IAC (192 SCRA 9, 18, citing Pan American World Airways, Inc. v. IAC, 164 SCRA 268), the Warsaw Convention limiting the carrier’s liability was applied because of a simple loss of baggage without any improper conduct on the part of the officials or employees of the airline, or other special injury sustained by the passengers. The petitioner therein did not declare a higher value for his luggage, much less did he pay an additional transportation charge.
Petitioner contends that under the Warsaw Convention, its liability, if any, cannot exceed US $20.00 based on weight as private respondent Co did not declare the contents of his baggage nor pay additional charges before the flight (p. 3, tsn, July 18, 1985).
We find no merit in that contention. In Samar Mining Company, Inc. v. Nordeutscher Lloyd (132 SCRA 529), this Court ruled: "The liability of the common carrier for the loss, destruction or deterioration of goods transported from a foreign country to the Philippines is governed primarily by the New Civil Code. In all matters not regulated by said Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and by Special Laws."
The provisions of the New Civil Code on common carriers are Articles 1733, 1735 and 1753 which provide: "Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case."cralaw virtua1aw library
"Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4 and 5 of the preceding article if the goods are lost, destroyed or deteriorated, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as required in article 1733.
"Art. 1753. The law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction or deterioration." Since the passenger’s destination in this case was the Philippines, Philippine law governs the liability of the carrier for the loss of the passenger’s luggage.
In this case, the petitioner failed to overcome, not only the presumption, but more importantly, the private respondent’s evidence, proving that the carrier’s negligence was the proximate cause of the loss of his baggage. Furthermore, petitioner acted in bad faith in faking a retrieval receipt to bail itself out of having to pay Co’s claim.
The Court of Appeals therefore did not err in disregarding the limits of liability under the Warsaw Convention.
The award of exemplary damages and attorney’s fees to the private respondent was justified. In the cases of Imperial Insurance, Inc. v. Simon, 122 Phil. 189 and Bert Osmeña and Associates v. CA, 120 SCRA 396, the appellant was awarded attorney’s fees because of appellee’s failure to satisfy the former’s just and valid demandable claim which forced the appellant to litigate. Likewise, in the case of Phil. Surety and Ins. Co., Inc. v. Royal Oil Products, 102 Phil. 326, this Court justified the grant of exemplary damages and attorney’s fees for the petitioner’s failure, even refusal, to pay the private respondent’s valid claim.
WHEREFORE, the petition for review is DENIED for lack of merit. Costs against the petitioner.
CORNELIA A. DE GILLACO, ET AL., plaintiffs-appellees, vs.MANILA RAILROAD COMPANY, defendant-appellant.
First Assistant Corporate Counsel Federico C. Alikpala and Attorney Higino R. Francisco for appellant.Restituto Luna for appellees.
REYES, J.B.L., J.:
The Manila Railroad Company has appealed from a judgment of the Court of First Instance of Laguna sentencing it to pay P4,000 damages to the appellees herein, the widow and children of the late Tomas Gillaco, shot by an employee of the Company in April, 1946.
The judgment was rendered upon the following stipulation of facts:
That at about 7:30 a.m., on the morning of April 1, 1946, Lieut. Tomas Gillaco, husband of the plaintiff, was a passenger in the early morning train of the Manila Railroad Company from Calamba, Laguna to Manila;
That when the train reached the Paco Railroad station, Emilio Devesa, a train guard of the Manila Railroad Company assigned in the Manila-San Fernando, La Union Line, happened to be in said station waiting for the same train which would take him to Tutuban Station, where he was going to report for duty;
That Emilio Devesa had a long standing personal grudge against Tomas Gillaco, same dating back during the Japanese occupation;
That because of this personal grudge, Devesa shot Gillaco with the carbine furnished to him by the Manila Railroad Company for his use as such train guard, upon seeing him inside the train coach;
That Tomas Gillaco died as a result of the would which he sustained from the shot fired by Devesa.
It is also undisputed that Devesa was convicted with homicide by final judgment of the Court of Appeals.
Appellant's contention is that, on the foregoing facts, no liability attaches to it as employer of the killer, Emilio Devesa; that it is not responsible subsidiary ex delicto, under Art. 103 of the Revised Penal Code, because the crime was not committed while the slayer was in the actual performance of his ordinary duties and service; nor is it responsible ex contractu, since the complaint did not aver sufficient facts to establish such liability, and no negligence on appellant's party was shown. The Court below held the Railroad company responsible on the ground that a contract of transportation implies protection of the passengers against acts of personal violence by the agents or employees of the carrier.
There can be no quarrel with the principle that a passenger is entitled to protection from personal violence by the carrier or its agents or employees, since the contract of transportation obligates the carrier to transport a passenger safely to his destination. But under the law of the case, this responsibility extends only to those that the carrier could foresee or avoid through the exercise of the degree of car and diligence required of it.
Discussing the basis of a carrier's liability under the old Civil Code of 1889 (which was in force in 1946, when Gillaco was shot) this Court said in Lasam vs. Smith (45 Phil., 657):
In our opinion, the conclusions of the court below are entirely correct. That upon the facts stated the defendant's liability, if any, is contractual, is well settled by previous decisions of the court, beginning with the case of Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil., 359), and the distinction between extra-contractual liability and contractual liability has been so ably and exhaustively discussed in various other cases that nothing further need here be said upon that subject. (See Cangco vs. Manila Railroad Co., 38 Phil., 768; Manila Railroad vs. Compañia Transatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875; De Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706). It is sufficient to reiterate that the source of the defendant's legal liability is the contract of carriage; that by entering into that contract he bound himself to carry the plaintiff safely and securely to their destination; and that having failed to do so he is liable in damages unless he shows that the failure to fulfill his obligation was due to causes mentioned in article 1105 of the Civil Code, which reads as follows:
"No one shall be liable for events which could not be foreseen or which, even if foreseen, were inevitable, with the exception of the cases in which the law expressly provides otherwise and those in which the obligation itself imposes such liability."
The act of guard Devesa in shooting passenger Gillaco (because of a personal grudge nurtured against the latter since the Japanese occupation) was entirely unforeseeable by the Manila Railroad Co. The latter had no means to ascertain or anticipate that the two would meet, nor could it reasonably foresee every personal rancor that might exist between each one of its many employees and any one of the thousands of eventual passengers riding in its trains. The shooting in question was therefore "caso fortuito" within the definition of article 105 of the old Civil Code, being both unforeseeable and inevitable under the given circumstances; and pursuant to established doctrine, the resulting breach of appellant's contract of safe carriage with the late Tomas Gillaco was excused thereby.
No doubt that a common carrier is held to a very high degree of care and diligence in the protection of its passengers; but, considering the vast and complex activities of modern rail transportation, to require of appellant that it should guard against all possible misunderstanding between each and every one of its employees and every passenger that might chance to ride in its conveyances at any time, strikes us as demanding diligence beyond what human care and foresight can provide.
The lower Court and the appellees both relied on the American authorities that particularly hold carriers to be insurers of the safety of their passengers against willful assault and intentional ill treatment on the part of their servants, it being immaterial that the act should be one of private retribution on the part of the servant, impelled by personal malice toward the passenger (10 Am. Jur. 108; Ed. Note to Gassenheimer vs. Wester R. Co. 40 LRA (NS), p. 999, et seq.) But as can be inferred from the previous jurisprudence of this Court , the Civil Code of 1889 did not impose such absolute liability (Lasam vs. Smith, supra). The liability of a carrier as an insurer was not recognized in this jurisdiction (Government vs. Inchausti & Co., 40 Phil., 219; Oriental Comm. Co. vs. Naviera Filipina, 38 Off. Gaz., 1020).
Another very important consideration that must be borne in mind is that, 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 a.m., two hours after the commission of the crime. Devesa was therefore under no obligation to safeguard the passenger 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 cannot be deemed in law a breach of Gillaco's contract of transportation by a servant or employee of the carrier. We agree with the position taken by the Supreme Court of Texas in a similar case, where it held:
The only good reason for making the carrier responsible for the misconduct of the servant perpetrated in his own interest, and not in that of his employer, or otherwise within the scope of his employment, is that the servant is clothed with the delegated authority, and charge with the duty by the carrier, to execute his undertaking with the passenger. And it cannot be said, we think, that there is any such delegation to the employees at a station with reference to passenger embarking at another or traveling on the train. Of course, we are speaking only of the principle which holds a carrier responsible for wrong done to passenger by servants acting in their own interest, and not in that of the employer. That principle is not the ordinary rule, respondent superior, by which the employer is held responsible only for act or omissions of the employee in the scope of his employment; but the only reason in our opinion for a broader liability arises from the fact that the servant, in mistreating the passenger wholly for some private purpose of his own, in the very act, violates the contractual obligation of the employer for the performance of which he has put the employee in his place. The reason does not exist where the employee who committed the assault was never in a position in which it became his duty to his employer to represent him in discharging any duty of the latter toward the passenger. The proposition that the carrier clothes every employee engaged in the transportation business with the comprehensive duty of protecting every passenger with whom he may in any way come in contact, and hereby makes himself liable for every assault commited by such servant, without regard to the inquiry whether or not the passenger has come within the sphere of duty of that servant as indicated by the employment, is regarded as not only not sustained by the authorities, but as being unsound and oppressive both to the employer and the employee. (Houston & T. C. R. Co. vs. Bush, 32 LRA (NS), p. 1205.)
Wherefore, the judgment appealed from is reversed and the complaint ordered dismissed, without cost. So ordered.
SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants, vs.MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by its owner defendant Mariano Medina under a certificate of public convenience, left the town of Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about eighteen passengers, including the driver and conductor. Among the passengers were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a
canal or ditch on the right side of the road and turned turtle. Some of the passengers managed to leave the bus the best way they could, others had to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan, Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they could not get out of the bus. There is nothing in the evidence to show whether or not the passengers already free from the wreck, including the driver and the conductor, made any attempt to pull out or extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum. These men presumably approach the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the side of the chassis, spreading over and permeating the body of the bus and the ground under and around it, and that the lighted torch brought by one of the men who answered the call for help set it on fire.
That same day, the charred bodies of the four deemed passengers inside the bus were removed and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim in the complaint.
Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their goods. For purposes of reference, we are reproducing the pertinent codal provisions:
ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.
ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755
ART. 1759. 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 order of the common carriers.
This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees.
ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of the willful 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.
We agree with the trial court that the case involves a breach of contract of transportation for hire, the Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also agree with the trial court that there was negligence on the part of the defendant, through his agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding, as testified to by one of the passengers, and as shown by the fact that according to the testimony of the witnesses, including that of the defense, from the point where one of the front tires burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150 meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but because of the velocity at which the bus must have been running, its momentum carried it over a distance of 150 meters before it fell into the canal and turned turtle.
There is no question that under the circumstances, the defendant carrier is liable. The only question is to what degree. The trial court was of the opinion that the proximate cause of the death of Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though he must have suffered physical injuries, perhaps serious, was still alive, and so damages were awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:
. . . '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.
It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death, one might still contend that the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present case under the circumstances obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the men with a lighted torch was in response to the call for help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and that because it was dark (about 2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural area where lanterns and flashlights were not available; and what was more natural than that said rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested from them. In other words, the coming of the men with a torch was to be expected and was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. What is more, the burning of the bus can also in part be attributed to the negligence of the carrier, through is driver and its conductor. According to the witness, the driver and the conductor were on the road walking back and forth. They, or at least, the driver should and must have known that in the position in which the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warn the
rescuers not to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.
As regard the damages to which plaintiffs are entitled, considering the earning capacity of the deceased, as well as the other elements entering into a damage award, we are satisfied that the amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them, the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of merchandise carried by the deceased in the bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the bus changed immediately because they were already old, and that as a matter of fact, he had been telling the driver to change the said tires, but that the driver did not follow his instructions. If this be true, it goes to prove that the driver had not been diligent and had not taken the necessary precautions to insure the safety of his passengers. Had he changed the tires, specially those in front, with new ones, as he had been instructed to do, probably, despite his speeding, as we have already stated, the blow out would not have occurred. All in all, there is reason to believe that the driver operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical injuries to others, and the complete loss and destruction of their goods, and yet the criminal case against him, on motion of the fiscal and with his consent, was provisionally dismissed, because according to the fiscal, the witnesses on whose testimony he was banking to support the complaint, either failed or appear or were reluctant to testify. But the record of the case before us shows the several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect of the said driver was negligent. In the public interest the prosecution of said erring driver should be pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on public utility buses. Let a copy of this decision be furnished the Department of Justice and the Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages awarded by the trial court are increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs.
Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.
JOSE SON, plaintiff-appellee, vs.CEBU AUTOBUS COMPANY, defendant-appellant.
Eriberto Seno for appellee.Francisco E. Romotique for appellant.
PARAS, C.J.:
The plaintiff, Jose Son, instituted in the Court of First Instituted of Cebu Autobus Company, damages in the total sum of P2,660, alleged to have been suffered by the plaintiff as a result of the fact that the defendant's TPU truck No. 312 fell into a canal in the barrio of Macaas, municipality of Catmon, Cebu, on September 18, 1948, due to a defect of its engine or to the negligence of its driver, the plaintiff (then a passenger of the vehicle) having received serious injuries and two of his hogs (loaded therein) having been killed. The defense set up by the defendant is that the accident was caused by events which were unforeseen or, even if foreseen or, even if foreseen, were inevitable. After trial the court rendered a decision, sentencing the defendant to pay to the plaintiff the sum of P2,000 as moral damages, and the sum of P286.80 as plaintiff's actual expenses, together with his loss and unrealized profit in connection with the seven hogs loaded by the plaintiff in defendant's truck. From this decision the defendant has appealed.
As the defendant has elevated the case directly to this Court on questions of law, we are bound by the findings of fact contained in the appealed decision. We quote hereunder the conclusions pertinent to and decisive of the present appeal:
The evidence adduced conclusively shows that TPU-Truck No. 312 of the defendant Cebu Autobus Company left Cebu City on September 17, 1948, at about 10:00 a.m. bound for Maya, municipality of Daan Bantayan, Cebu Province, arriving in the latter place at about 5:00 p.m. of the same day. it passed the night in Maya. It left Maya, Daan Bantayan, Cebu, on its return trip to Cebu City at about 4:00 a.m. September 18, 1948, without having been inspected or examined by the mechanic. The plaintiff boarded defendant's truck in barrio Maya. Daan Bantayan, Cebu, and loaded seven hogs for his home at Yati Liloan, Cebu, paying the usual fare and freight. The plaintiff did not reach his destination safely, because the truck of the defendant fell into a canal at kilometer. No. 56, barrio of Macaas, municipality of Catmon, Cebu. He was pinned down or pressed by the truck on September 18, 1948, and, as a consequence, he suffered complete fractures on his pelvic bone. Because of the shock and pain he lost his consciousness for sometime. He was brought to his house at Yati, municipality of Liloan, Cebu, unconscious on board another truck. Later, on the same day, he was brought in a special wagon to the City of Cebu, and was confined in the Velez Clinic for fourteen days, from September 18, 1948, to October 2, 1948. On October 2, 1948, the plaintiff went out of the Velez Clinic, but according to Dr. Jacinto Velez, physician and proprietor of the Velez Clinic, the plaintiff needed 60 days more of treatment and rest before he could resume his former habitual work, inasmuch as he suffered complete fractures on his pelvic bone.
The evidence further shows that two hogs of the plaintiff loaded on TPU truck No. 312 of the defendant on September 18, 1948 died when the said truck fell into a canal at Macaas, Catmon, Cebu.
x x x x x x x x x
The theory of the defendant is that the accident was unforeseen, or even if foreseen, was inevitable. This theory cannot be sustained. Whether the accident was caused by the defect of the engine of the truck of the defendant, or by the negligence of the driver, or by the breakage of the drag-link spring, the defendant is civilly liable to the plaintiff for the damages suffered by him. The evidence shows the drag-link spring of the truck in question was not inspected or examined when it left Maya, Daan Bantayan, Cebu, on September 1, 1948, for Cebu City. If it were inspected or examined, the accident might have been avoided. The plaintiff had no means of avoiding the danger or escaping the injury. When he boarded at dawn of September 18, 1948, in Maya, Daan Bantayan. Cebu, defendant's TPU Truck No. 312, bound for his home at Yati Liloan, Cebu, and loaded on said truck seven hogs, he had every right to presume the truck perfectly in good condition which could transport him safely and securely to his destination. He paid the regular fare and the freight of the seven hogs.
The plaintiff is suing the defendant upon its contract of carriage which the latter had failed to perform by virtue of its failure to safely carry the plaintiff to his destination at the barrio of Yati, Liloan, Cebu, as distinguished from an action based on culpa acquiliana under which it is necessary, in order to recover damages, to prove fault or negligence on the part of the carrier. The distinction is clearly set out in the case of Castro vs. Acro Taxicab Co.,*46 Off. Gaz., 2023, as follows: "La culpa aquiliana determina y engendra la responsabilidad y por eso es sustantiva, independiente; mientras que la culpa contractual presupone la preexistencia de una obligacion, por tanto es solo incidental — es decir, la infraccion o incumplimiento de esa obligacion es lo que genera la culpa contractual. Una implicacion o consecuencia caracteristica de la diferencia entre ambos conceptos juridicos es que, tratandose de la culpa extracontractual o aquiliana, el demandante que reclame indemnizacion de daños y perjuicios tiene que probar, como requisito indispensable para que prospere su accion, la culpa o negligencia del demandado, mientras que, tratandose de la culpa contractual, es bastante que se prueba la existencia del contrato y que la obligacion resultante del mismo se ha infringido o no se ha cumplido, siguiendose daños de esta infraccion e incumplimiento."
The trial court based its decision in favor of the plaintiff upon the finding that the defendant had defaulted in its contract of carriage due to the accident, regardless of whether it was caused by a defect of the engine of the defendant's truck, by the negligence of its driver, or by the breakage of the drag-link spring; the evidence showing that the said drag-link spring was not inspected or examined when the vehicle left Maya, Daan Bantayan, Cebu, for Cebu City. In other words, the trial court overruled the defense interposed by the defendant that the accident was due to an event (unexpected breakage of the drag-link spring) which could not be foreseen or which, even if foreseen, was inevitable. In our opinion, the trial court was correct. Its express finding as to the cause of the accident in effect blames the defendant for it and logically rejects the defendant's theory that the cause emanated from an unforeseen or inevitable event. In essence, the trial court held that the drag-link spring of the truck in question was defective. In the case of Lazam vs. Smith, 45 Phil., 660, it was already held that an accident cause either by defects in the automobile or through the negligence of its driver is not a caso fortuito.
The conclusion of the trial court with respect to the amount of damages sustained by and award in favor of the plaintiff, is being factual, conclusive herein, since, as hereinbefore noted, the defendant has appealed directly to this court solely on questions of law.
Upon the other hand, plaintiff's claim that the amount of moral damages awarded to him by the trial court should be raised to P300, cannot be sustained, because no appeal was taken by him from the decision a quo.
Wherefore, the appealed decision is affirmed and it is so ordered with costs against the defendant-appellant.
MAURO GANZON, petitioner, vs.COURT OF APPEALS and GELACIO E. TUMAMBING, respondents.
Antonio B. Abinoja for petitioner.
Quijano, Arroyo & Padilla Law Office for respondents.
SARMIENTO, J.:
The private respondent instituted in the Court of First Instance of Manila 1 an action against the petitioner for damages based on culpa contractual. The antecedent facts, as found by the respondent Court, 2 are undisputed:
On November 28, 1956, Gelacio Tumambing contracted the services of Mauro B. Ganzon to haul 305 tons of scrap iron from Mariveles, Bataan, to the port of Manila on board the lighter LCT "Batman" (Exhibit 1, Stipulation of Facts, Amended Record on Appeal, p. 38). Pursuant to that agreement, Mauro B. Ganzon sent his lighter "Batman" to Mariveles where it docked in three feet of water (t.s.n., September 28, 1972, p. 31). On December 1, 1956, Gelacio Tumambing delivered the scrap iron to defendant Filomeno Niza, captain of the lighter, for loading which was actually begun on the same date by the crew of the lighter under the captain's supervision. When about half of the scrap iron was already loaded (t.s.n., December 14, 1972, p. 20), Mayor Jose Advincula of Mariveles, Bataan, arrived and demanded P5,000.00 from Gelacio Tumambing. The latter resisted the shakedown and after a heated argument between them, Mayor Jose Advincula drew his gun and fired at Gelacio Tumambing (t.s.n., March 19, 1971, p. 9; September 28, 1972, pp. 6-7).<äre||anº•1àw> The gunshot was not fatal but Tumambing had to be taken to a hospital in Balanga, Bataan, for treatment (t.s.n., March 19, 1971, p. 13; September 28, 1972, p. 15).
After sometime, the loading of the scrap iron was resumed. But on December 4, 1956, Acting Mayor Basilio Rub, accompanied by three policemen, ordered captain Filomeno Niza and his crew to dump the scrap iron (t.s.n., June 16, 1972, pp. 8-9) where the lighter was docked (t.s.n., September 28, 1972, p. 31). The rest was brought to the compound of NASSCO (Record on Appeal, pp. 20-22). Later on Acting Mayor Rub issued a receipt stating that the Municipality of Mariveles had taken custody of the scrap iron (Stipulation of Facts, Record on Appeal, p. 40; t.s.n., September 28, 1972, p. 10.)
On the basis of the above findings, the respondent Court rendered a decision, the dispositive portion of which states:
WHEREFORE, the decision appealed from is hereby reversed and set aside and a new one entered ordering defendant-appellee Mauro Ganzon to pay plaintiff-appellant Gelacio E. Tumambimg the sum of P5,895.00 as actual damages, the sum of P5,000.00 as exemplary damages, and the amount of P2,000.00 as attorney's fees. Costs against defendant-appellee Ganzon. 3
In this petition for review on certiorari, the alleged errors in the decision of the Court of Appeals are:
I
THE COURT OF APPEALS FINDING THE HEREIN PETITIONER GUILTY OF BREACH OF THE CONTRACT OF TRANSPORTATION AND IN IMPOSING A LIABILITY AGAINST HIM COMMENCING FROM THE TIME THE SCRAP WAS PLACED IN HIS CUSTODY AND CONTROL HAVE NO BASIS IN FACT AND IN LAW.
II
THE APPELLATE COURT ERRED IN CONDEMNING THE PETITIONER FOR THE ACTS OF HIS EMPLOYEES IN DUMPING THE SCRAP INTO THE SEA DESPITE THAT IT WAS ORDERED BY THE LOCAL GOVERNMENT OFFICIAL WITHOUT HIS PARTICIPATION.
III
THE APPELLATE COURT FAILED TO CONSIDER THAT THE LOSS OF THE SCRAP WAS DUE TO A FORTUITOUS EVENT AND THE PETITIONER IS THEREFORE NOT LIABLE FOR LOSSES AS A CONSEQUENCE THEREOF. 4
The petitioner, in his first assignment of error, insists that the scrap iron had not been unconditionally placed under his custody and control to make him liable. However, he completely agrees with the respondent Court's finding that on December 1, 1956, the private respondent delivered the scraps to Captain Filomeno Niza for loading in the lighter "Batman," That the petitioner, thru his employees, actually received the scraps is freely admitted. Significantly, there is not the slightest allegation or showing of any condition, qualification, or restriction accompanying the delivery by the private respondent-shipper of the scraps, or the receipt of the same by the petitioner. On the contrary, soon after the scraps were delivered to, and received by the petitioner-common carrier, loading was commenced.
By the said act of delivery, the scraps were unconditionally placed in the possession and control of the common carrier, and upon their receipt by the carrier for transportation, the contract of carriage was deemed perfected. Consequently, the petitioner-carrier's extraordinary responsibility for the loss, destruction or deterioration of the goods commenced. Pursuant to Art. 1736, such extraordinary responsibility would cease only upon the delivery, actual or constructive, by the carrier to the consignee, or to the person who has a right to receive them. 5 The fact that part of the shipment had not been loaded on board the lighter did not impair the said contract of transportation as the goods remained in the custody and control of the carrier, albeit still unloaded.
The petitioner has failed to show that the loss of the scraps was due to any of the following causes enumerated in Article 1734 of the Civil Code, namely:
(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;
(2) Act of the public enemy in war, whether international or civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character of the goods or defects in the packing or in the containers;
(5) Order or act of competent public authority.
Hence, the petitioner is presumed to have been at fault or to have acted negligently. 6 By reason of this presumption, the court is not even required to make an express finding of fault or negligence before it could hold the petitioner answerable for the breach of the contract of carriage. Still, the petitioner could have been exempted from any liability had he been able to prove that he observed extraordinary diligence in the vigilance over the goods in his custody, according to all the circumstances of the case, or that the loss was due to an unforeseen event or to force majeure. As it was, there was hardly any attempt on the part of the petitioner to prove that he exercised such extraordinary diligence.
It is in the second and third assignments of error where the petitioner maintains that he is exempt from any liability because the loss of the scraps was due mainly to the intervention of the municipal officials of Mariveles which constitutes a caso fortuito as defined in Article 1174 of the Civil Code. 7
We cannot sustain the theory of caso fortuito. In the courts below, the petitioner's defense was that the loss of the scraps was due to an "order or act of competent public authority," and this contention was correctly passed upon by the Court of Appeals which ruled that:
... In the second place, before the appellee Ganzon could be absolved from responsibility on the ground that he was ordered by competent public authority to unload the scrap iron, it must be shown that Acting Mayor Basilio Rub had the power to issue the disputed order, or that it was lawful, or that it was issued under legal process of authority. The appellee failed to establish this. Indeed, no authority or power of the acting mayor to issue such an order was given in evidence. Neither has it been shown that the cargo of scrap iron belonged to the Municipality of Mariveles. What we have in the record is the stipulation of the parties that the cargo of scrap iron was accilmillated by the appellant through separate purchases here and there from private individuals (Record on Appeal, pp. 38-39). The fact remains that the order given by the acting mayor to dump the scrap iron into the sea was part of the pressure applied by Mayor Jose Advincula to shakedown the appellant for P5,000.00. The order of the acting mayor did not constitute valid authority for appellee Mauro Ganzon and his representatives to carry out.
Now the petitioner is changing his theory to caso fortuito. Such a change of theory on appeal we cannot, however, allow. In any case, the intervention of the municipal officials was not In any case, of a character that would render impossible the fulfillment by the carrier of its obligation. The petitioner was not duty bound to obey the illegal order to dump into the sea the scrap iron. Moreover, there is absence of sufficient proof that the issuance of the same order was attended with such force or intimidation as to completely overpower the will of the petitioner's employees. The mere difficulty in the fullfilment of the obligation is not considered force majeure. We agree with the private respondent that the scraps could have been properly unloaded at the shore or at the NASSCO compound, so that after the dispute with the local officials concerned was settled, the scraps could then be delivered in accordance with the contract of carriage.
There is no incompatibility between the Civil Code provisions on common carriers and Articles 361 8 and 362 9 of the Code of Commerce which were the basis for this Court's ruling in Government of the Philippine Islands vs. Ynchausti & Co.10 and which the petitioner invokes in tills petition. For Art. 1735 of the Civil Code, conversely stated, means that the shipper will suffer the losses and deterioration arising from the causes enumerated in Art. 1734; and in these instances, the burden of proving that damages were caused by the fault or negligence of the carrier rests upon him. However, the carrier must first establish that the loss or deterioration was occasioned by one of the excepted causes or was due to an unforeseen event or to force majeure. Be that as it may, insofar as Art. 362 appears to require of the carrier only ordinary diligence, the same is .deemed to have been modified by Art. 1733 of the Civil Code.
Finding the award of actual and exemplary damages to be proper, the same will not be disturbed by us. Besides, these were not sufficiently controverted by the petitioner.
WHEREFORE, the petition is DENIED; the assailed decision of the Court of Appeals is hereby AFFIRMED. Costs against the petitioner.
SOUTHERN LINES, INC., petitioner, vs.COURT OF APPEALS and CITY OF ILOILO, respondents.
Jose Ma. Lopez Vito, Jr. for petitioner.The City Fiscal for respondents.
DE LEON, J.:
This is a petition to review on certiorari the decision of the Court of Appeals in CA-G.R. No. 15579-R affirming that of the Court of First Instance of Iloilo which sentenced petitioner Southern Lines, Inc. to pay respondent City of Iloilo the amount of P4,931.41.
Sometime in 1948, the City of Iloilo requisitioned for rice from the National Rice and Corn Corporation (hereafter referred to as NARIC) in Manila. On August 24 of the same year, NARIC, pursuant to the order, shipped 1,726 sacks of rice consigned to the City of Iloilo on board the SS "General Wright" belonging to the Southern Lines, Inc. Each sack of rice weighed 75 kilos and the entire shipment as indicated in the bill of lading had a total weight of 129,450 kilos. According to the bill of lading, the cost of the shipment was P63,115.50 itemized and computed as follows: .
Unit Price per bag P36.25 P62,567.50
Handling at P0.13 per bag 224.38
Trucking at P2.50 per bag 323.62
T o t a l . . . . . .. . . . . 63,115.50
On September 3, 1948, the City of Iloilo received the shipment and paid the amount of P63,115.50. However, it was noted that the foot of the bill of lading that the City of Iloilo 'Received the above mentioned merchandise apparently in same condition as when shipped, save as noted below: actually received 1685 sacks with a gross weight of 116,131 kilos upon actual weighing. Total shortage ascertained 13,319 kilos." The shortage was equivalent to 41 sacks of rice with a net weight of 13,319 kilos, the proportionate value of which was P6,486.35.
On February 14, 1951 the City of Iloilo filed a complaint in the Court of First Instance of Iloilo against NARIC and the Southern Lines, Inc. for the recovery of the amount of P6,486.35 representing the value of the shortage of the shipment of rice. After trial, the lower court absolved NARIC from the complaint, but sentenced the Southern Lines, Inc. to pay the amount of P4,931.41 which is the difference between the sum of P6,486.35 and P1,554.94 representing the latter's counterclaim for handling and freight.
The Southern Lines, Inc. appealed to the Court of Appeals which affirmed the judgment of the trial court. Hence, this petition for review.
The only question to be determined in this petition is whether or not the defendant-carrier, the herein petitioner, is liable for the loss or shortage of the rice shipped.
Article 361 of the Code of Commerce provides: .
ART. 361. — The merchandise shall be transported at the risk and venture of the shipper, if the contrary has not been expressly stipulated.
As a consequence, all the losses and deteriorations which the goods may suffer during the transportation by reason of fortuitous event, force majeure, or the inherent nature and defect of the goods, shall be for the account and risk of the shipper.1äwphï1.ñët
Proof of these accidents is incumbent upon the carrier.
Article 362 of the same Code provides: .
ART. 362. — Nevertheless, the carrier shall be liable for the losses and damages resulting from the causes mentioned in the preceding article if it is proved, as against him, that they arose through his negligence or by reason of his having failed to take the precautions which usage his established among careful persons, unless the shipper has committed fraud in the bill of lading, representing the goods to be of a kind or quality different from what they really were.
If, notwithstanding the precautions referred to in this article, the goods transported run the risk of being lost, on account of their nature or by reason of unavoidable accident, there being no time for their owners to dispose of them, the carrier may proceed to sell them, placing them for this purpose at the disposal of the judicial authority or of the officials designated by special provisions.
Under the provisions of Article 361, the defendant-carrier in order to free itself from liability, was only obliged to prove that the damages suffered by the goods were "by virtue of the nature or defect of the articles." Under the provisions of Article 362, the plaintiff, in order to hold the defendant liable, was obliged to prove that the damages to the goods by virtue of their nature, occurred on account of its negligence or because the defendant did not take the precaution adopted by careful persons. (Government v. Ynchausti & Co., 40 Phil. 219, 223).
Petitioner claims exemption from liability by contending that the shortage in the shipment of rice was due to such factors as the shrinkage, leakage or spillage of the rice on account of the bad condition of the sacks at the time it received the same and the negligence of the agents of respondent City of Iloilo in receiving the shipment. The contention is untenable, for, if the fact of improper packing is known to the carrier or his servants, or apparent upon ordinary observation, but it accepts the goods notwithstanding such condition, it is not relieved of liability for loss or injury resulting thereform. (9 Am Jur. 869.) Furthermore, according to the Court of Appeals, "appellant (petitioner) itself frankly admitted that the strings that tied the bags of rice were broken; some bags were with holes and plenty of rice were spilled inside the hull of the boat, and that the personnel of the boat collected no less than 26 sacks of rice which they had distributed among themselves." This finding, which is binding upon this Court, shows that the shortage resulted from the negligence of petitioner.
Invoking the provisions of Article 366 of the Code of Commerce and those of the bill of lading, petitioner further contends that respondent is precluded from filing an action for damages on account of its failure to present a claim within 24 hours from receipt of the shipment. It also cites the cases of Government v. Ynchausti & Co., 24 Phil. 315 and Triton Insurance Co. v. Jose, 33 Phil. 194, ruling to the effect that the requirement that the claim for damages must be made within 24 hours from delivery is a condition precedent to the accrual of the right of action to recover damages. These two cases above-cited are not applicable to the case at bar. In the first cited case, the plaintiff never presented any claim at all before filing the action. In the second case, there was payment of the transportation charges which precludes the presentation of any claim against the carrier. (See Article 366, Code of Commerce.) It is significant to note that in the American case of Hoye v. Pennsylvania Railroad Co., 13 Ann. Case. 414, it has been said: .
... "It has been held that a stipulation in the contract of shipment requiring the owner of the goods to present a notice of his claim to the carrier within a specified time after the goods have arrived at their destination is in the nature of a condition precedent to the owner's right to enforce a recovery, that he must show in the first instance that be has complied with the condition, or that the circumstances were such that to have complied with it would have required him to do an unreasonable thing. The weight of authority, however, sustains the view that such a stipulation is more in the nature of a limitation upon the owner's right to recovery, and that the burden of proof is accordingly on the carrier to show that the limitation was reasonable and in proper form or within the time stated." (Hutchinson on Carrier, 3d ed., par. 44) Emphasis supplied.
In the case at bar, the record shows that petitioner failed to plead this defense in its answer to respondent's complaint and, therefore, the same is deemed waived (Section 10, Rule 9, Rules of Court), and cannot be raised for the first time at the trial or on appeal. (Maxilom v. Tabotabo, 9 Phil. 390.) Moreover, as the Court of Appeals has said: .
... the records reveal that the appellee (respondent) filed the present action, within a reasonable time after the short delivery in the shipment of the rice was made. It should be recalled that the present action is one for the refund of the amount paid in excess, and not for damages or the recovery of the shortage; for admittedly the appellee (respondent) had paid the entire value of the 1726 sacks of rice, subject to subsequent adjustment, as to shortages or losses. The bill of lading does not at all limit the time for filing an action for the refund of money paid in excess.
WHEREFORE, the decision of the Court of Appeals is hereby affirmed in all respects and the petition for certioraridenied.
With costs against the petitioner.
Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, and Dizon, JJ., concur.Bengzon, C.J., Bautista Angelo and Paredes, JJ., took no part.
