Picart v.

Smith
In this action the plaintiff, Amado
Picart, seeks to recover of the
defendant, Frank Smith, jr., the sum of
P31,000, as damages alleged to have
been caused by an automobile driven
by the defendant. From a judgment of
the Court of First Instance of the
Province of La Union absolving the
defendant from liability the plaintiff
has appealed.
The occurrence which gave rise to the
institution of this action took place on
December 12, 1912, on the Carlatan
Bridge, at San Fernando, La Union. It
appears that upon the occasion in
question the plaintiff was riding on his
pony over said bridge. Before he had
gotten half way across, the defendant
approached from the opposite
direction in an automobile, going at
the rate of about ten or twelve miles
per hour. As the defendant neared the
bridge he saw a horseman on it and
blew his horn to give warning of his
approach. He continued his course and
after he had taken the bridge he gave
two more successive blasts, as it
appeared to him that the man on
horseback before him was not
observing the rule of the road.
The plaintiff, it appears, saw the
automobile coming and heard the
warning signals. However, being
perturbed by the novelty of the
apparition or the rapidity of the
approach, he pulled the pony closely
up against the railing on the right side
of the bridge instead of going to the
left. He says that the reason he did
this was that he thought he did not
have sufficient time to get over to the
other side. The bridge is shown to
have a length of about 75 meters and
a width of 4.80 meters. As the
automobile approached, the defendant
guided it toward his left, that being the

proper side of the road for the

machine. In so doing the defendant
assumed that the horseman would
move to the other side. The pony had
not as yet exhibited fright, and the
rider had made no sign for the
automobile to stop. Seeing that the
pony was apparently quiet, the
defendant, instead of veering to the
right while yet some distance away or
slowing down, continued to approach
directly toward the horse without
diminution of speed. When he had
gotten quite near, there being then no
possibility of the horse getting across
to the other side, the defendant
quickly turned his car sufficiently to
the right to escape hitting the horse
alongside of the railing where it as
then standing; but in so doing the
automobile passed in such close
proximity to the animal that it became
frightened and turned its body across
the bridge with its head toward the
railing. In so doing, it as struck on the
hock of the left hind leg by the flange
of the car and the limb was broken.
The horse fell and its rider was thrown
off with some violence. From the
evidence adduced in the case we
believe that when the accident
occurred the free space where the
pony stood between the automobile
and the railing of the bridge was
probably less than one and one half
meters. As a result of its injuries the
horse died. The plaintiff received
contusions which caused temporary
unconsciousness and required medical
attention for several days.
The question presented for decision is
whether or not the defendant in
maneuvering his car in the manner
above described was guilty of
negligence such as gives rise to a civil
obligation to repair the damage done;
and we are of the opinion that he is so
liable. As the defendant started across
the bridge, he had the right to assume

that the horse and the rider would

pass over to the proper side; but as he
moved toward the center of the bridge
it was demonstrated to his eyes that
this would not be done; and he must in
a moment have perceived that it was
too late for the horse to cross with
safety in front of the moving vehicle.
In the nature of things this change of
situation occurred while the
automobile was yet some distance
away; and from this moment it was
not longer within the power of the
plaintiff to escape being run down by
going to a place of greater safety. The
control of the situation had then
passed entirely to the defendant; and
it was his duty either to bring his car
to an immediate stop or, seeing that
there were no other persons on the
bridge, to take the other side and pass
sufficiently far away from the horse to
avoid the danger of collision. Instead
of doing this, the defendant ran
straight on until he was almost upon
the horse. He was, we think, deceived
into doing this by the fact that the
horse had not yet exhibited fright. But
in view of the known nature of horses,
there was an appreciable risk that, if
the animal in question was
unacquainted with automobiles, he
might get exited and jump under the
conditions which here confronted him.
When the defendant exposed the
horse and rider to this danger he was,
in our opinion, negligent in the eye of
the law.
The test by which to determine the
existence of negligence in a particular
case may be stated as follows: Did the
defendant in doing the alleged
negligent act use that person would
have used in the same situation? If
not, then he is guilty of negligence.
The law here in effect adopts the
standard supposed to be supplied by
the imaginary conduct of the discreet
paterfamilias of the Roman law. The

existence of negligence in a given

case is not determined by reference to
the personal judgment of the actor in
the situation before him. The law
considers what would be reckless,
blameworthy, or negligent in the man
of ordinary intelligence and prudence
and determines liability by that.
The question as to what would
constitute the conduct of a prudent
man in a given situation must of
course be always determined in the
light of human experience and in view
of the facts involved in the particular
case. Abstract speculations cannot
here be of much value but this much
can be profitably said: Reasonable
men govern their conduct by the
circumstances which are before them
or known to them. They are not, and
are not supposed to be, omniscient of
the future. Hence they can be
expected to take care only when there
is something before them to suggest
or warn of danger. Could a prudent
man, in the case under consideration,
foresee harm as a result of the course
actually pursued? If so, it was the duty
of the actor to take precautions to
guard against that harm. Reasonable
foresight of harm, followed by ignoring
of the suggestion born of this
prevision, is always necessary before
negligence can be held to exist. Stated
in these terms, the proper criterion for
determining the existence of
negligence in a given case is this:
Conduct is said to be negligent when a
prudent man in the position of the
tortfeasor would have foreseen that an
effect harmful to another was
sufficiently probable to warrant his
foregoing conduct or guarding against
its consequences.
Applying this test to the conduct of the
defendant in the present case we
think that negligence is clearly

established. A prudent man, placed in

the position of the defendant, would in
our opinion, have recognized that the
course which he was pursuing was
fraught with risk, and would therefore
have foreseen harm to the horse and
the rider as reasonable consequence
of that course. Under these
circumstances the law imposed on the
defendant the duty to guard against
the threatened harm.
It goes without saying that the plaintiff
himself was not free from fault, for he
was guilty of antecedent negligence in
planting himself on the wrong side of
the road. But as we have already
stated, the defendant was also
negligent; and in such case the
problem always is to discover which
agent is immediately and directly
responsible. It will be noted that the
negligent acts of the two parties were
not contemporaneous, since the
negligence of the defendant
succeeded the negligence of the
plaintiff by an appreciable interval.
Under these circumstances the law is
that the person who has the last fair
chance to avoid the impending harm
and fails to do so is chargeable with
the consequences, without reference
to the prior negligence of the other
party.
The decision in the case of Rkes vs.
Atlantic, Gulf and Pacific Co. (7 Phil.
Rep., 359) should perhaps be
mentioned in this connection. This
Court there held that while
contributory negligence on the part of
the person injured did not constitute a
bar to recovery, it could be received in
evidence to reduce the damages
which would otherwise have been
assessed wholly against the other
party. The defendant company had
there employed the plaintiff, as a
laborer, to assist in transporting iron
rails from a barge in Manila harbor to

the company's yards located not far

away. The rails were conveyed upon
cars which were hauled along a narrow
track. At certain spot near the water's
edge the track gave way by reason of
the combined effect of the weight of
the car and the insecurity of the road
bed. The car was in consequence
upset; the rails slid off; and the
plaintiff's leg was caught and broken.
It appeared in evidence that the
accident was due to the effects of the
typhoon which had dislodged one of
the supports of the track. The court
found that the defendant company
was negligent in having failed to repair
the bed of the track and also that the
plaintiff was, at the moment of the
accident, guilty of contributory
negligence in walking at the side of
the car instead of being in front or
behind. It was held that while the
defendant was liable to the plaintiff by
reason of its negligence in having
failed to keep the track in proper
repair nevertheless the amount of the
damages should be reduced on
account of the contributory negligence
in the plaintiff. As will be seen the
defendant's negligence in that case
consisted in an omission only. The
liability of the company arose from its
responsibility for the dangerous
condition of its track. In a case like the
one now before us, where the
defendant was actually present and
operating the automobile which
caused the damage, we do not feel
constrained to attempt to weigh the
negligence of the respective parties in
order to apportion the damage
according to the degree of their
relative fault. It is enough to say that
the negligence of the defendant was in
this case the immediate and
determining cause of the accident and
that the antecedent negligence of the
plaintiff was a more remote factor in
the case.

A point of minor importance in the

case is indicated in the special
defense pleaded in the defendant's
answer, to the effect that the subject
matter of the action had been
previously adjudicated in the court of
a justice of the peace. In this
connection it appears that soon after
the accident in question occurred, the
plaintiff caused criminal proceedings
to be instituted before a justice of the
peace charging the defendant with the
infliction of serious injuries (lesiones
graves). At the preliminary
investigation the defendant was
discharged by the magistrate and the
proceedings were dismissed.
Conceding that the acquittal of the
defendant at the trial upon the merits
in a criminal prosecution for the
offense mentioned would be res
adjudicata upon the question of his
civil liability arising from negligence -a point upon which it is unnecessary to
express an opinion -- the action of the
justice of the peace in dismissing the
criminal proceeding upon the
preliminary hearing can have no
effect. (See U. S. vs. Banzuela and
Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that
the judgment of the lower court must
be reversed, and judgment is her
rendered that the plaintiff recover of
the defendant the sum of two hundred
pesos (P200), with costs of other
instances. The sum here awarded is
estimated to include the value of the
horse, medical expenses of the
plaintiff, the loss or damage
occasioned to articles of his apparel,
and lawful interest on the whole to the
date of this recovery. The other
damages claimed by the plaintiff are
remote or otherwise of such character
as not to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo,
Avancea, and Fisher, JJ., concur.

Johnson, J., reserves his vote.

Separate Opinions
MALCOLM, J., concurring:
After mature deliberation, I have
finally decided to concur with the
judgment in this case. I do so because
of my understanding of the "last clear
chance" rule of the law of negligence
as particularly applied to automobile
accidents. This rule cannot be invoked
where the negligence of the plaintiff is
concurrent with that of the defendant.
Again, if a traveler when he reaches
the point of collision is in a situation to
extricate himself and avoid injury, his
negligence at that point will prevent a
recovery. But Justice Street finds as a
fact that the negligent act of the
interval of time, and that at the
moment the plaintiff had no
opportunity to avoid the accident.
Consequently, the "last clear chance"
rule is applicable. In other words,
when a traveler has reached a point
where he cannot extricate himself and
vigilance on his part will not avert the
injury, his negligence in reaching that
position becomes the condition and
not the proximate cause of the injury
and will not preclude a recovery. (Note
especially Aiken vs. Metcalf [1917],
102 Atl., 330.)
Air France v. Carrascoso
The Court of First Instance of Manila 1
sentenced petitioner to pay
respondent Rafael Carrascoso
P25,000.00 by way of moral damages;
P10,000.00 as exemplary damages;
P393.20 representing the difference in
fare between first class and tourist
class for the portion of the trip
Bangkok-Rome, these various amounts
with interest at the legal rate, from the
date of the filing of the complaint until
paid; plus P3,000.00 for attorneys'
fees; and the costs of suit.

On appeal,2 the Court of Appeals

slightly reduced the amount of refund
on Carrascoso's plane ticket from
P393.20 to P383.10, and voted to
affirm the appealed decision "in all
other respects", with costs against
petitioner.
The case is now before us for review
on certiorari.
The facts declared by the Court of
Appeals as " fully supported by the
evidence of record", are:
Plaintiff, a civil engineer, was a
member of a group of 48 Filipino
pilgrims that left Manila for Lourdes on
March 30, 1958.
On March 28, 1958, the defendant, Air
France, through its authorized agent,
Philippine Air Lines, Inc., issued to
plaintiff a "first class" round trip
airplane ticket from Manila to Rome.
From Manila to Bangkok, plaintiff
travelled in "first class", but at
Bangkok, the Manager of the
defendant airline forced plaintiff to
vacate the "first class" seat that he
was occupying because, in the words
of the witness Ernesto G. Cuento,
there was a "white man", who, the
Manager alleged, had a "better right"
to the seat. When asked to vacate his
"first class" seat, the plaintiff, as was
to be expected, refused, and told
defendant's Manager that his seat
would be taken over his dead body; a
commotion ensued, and, according to
said Ernesto G. Cuento, "many of the
Filipino passengers got nervous in the
tourist class; when they found out that
Mr. Carrascoso was having a hot
discussion with the white man
[manager], they came all across to Mr.
Carrascoso and pacified Mr.
Carrascoso to give his seat to the
white man" (Transcript, p. 12, Hearing

of May 26, 1959); and plaintiff

reluctantly gave his "first class" seat in
the plane.3
1. The trust of the relief petitioner now
seeks is that we review "all the
findings" 4 of respondent Court of
Appeals. Petitioner charges that
respondent court failed to make
complete findings of fact on all the
issues properly laid before it. We are
asked to consider facts favorable to
petitioner, and then, to overturn the
appellate court's decision.
Coming into focus is the constitutional
mandate that "No decision shall be
rendered by any court of record
without expressing therein clearly and
distinctly the facts and the law on
which it is based". 5 This is echoed in
the statutory demand that a judgment
determining the merits of the case
shall state "clearly and distinctly the
facts and the law on which it is
based"; 6 and that "Every decision of
the Court of Appeals shall contain
complete findings of fact on all issues
properly raised before it". 7
A decision with absolutely nothing to
support it is a nullity. It is open to
direct attack. 8 The law, however,
solely insists that a decision state the
"essential ultimate facts" upon which
the court's conclusion is drawn. 9 A
court of justice is not hidebound to
write in its decision every bit and
piece of evidence 10 presented by one
party and the other upon the issues
raised. Neither is it to be burdened
with the obligation "to specify in the
sentence the facts" which a party
"considered as proved". 11 This is but
a part of the mental process from
which the Court draws the essential
ultimate facts. A decision is not to be
so clogged with details such that
prolixity, if not confusion, may result.
So long as the decision of the Court of

Appeals contains the necessary facts

to warrant its conclusions, it is no error
for said court to withhold therefrom
"any specific finding of facts with
respect to the evidence for the
defense". Because as this Court well
observed, "There is no law that so
requires". 12 Indeed, "the mere failure
to specify (in the decision) the
contentions of the appellant and the
reasons for refusing to believe them is
not sufficient to hold the same
contrary to the requirements of the
provisions of law and the
Constitution". It is in this setting that
in Manigque, it was held that the mere
fact that the findings "were based
entirely on the evidence for the
prosecution without taking into
consideration or even mentioning the
appellant's side in the controversy as
shown by his own testimony", would
not vitiate the judgment. 13 If the
court did not recite in the decision the
testimony of each witness for, or each
item of evidence presented by, the
defeated party, it does not mean that
the court has overlooked such
testimony or such item of evidence. 14
At any rate, the legal presumptions
are that official duty has been
regularly performed, and that all the
matters within an issue in a case were
laid before the court and passed upon
by it. 15
Findings of fact, which the Court of
Appeals is required to make, maybe
defined as "the written statement of
the ultimate facts as found by the
court ... and essential to support the
decision and judgment rendered
thereon". 16 They consist of the
court's "conclusions" with respect to
the determinative facts in issue". 17 A
question of law, upon the other hand,
has been declared as "one which does
not call for an examination of the
probative value of the evidence
presented by the parties." 18

2. By statute, "only questions of law

may be raised" in an appeal by
certiorari from a judgment of the Court
of Appeals. 19 That judgment is
conclusive as to the facts. It is not
appropriately the business of this
Court to alter the facts or to review
the questions of fact. 20
With these guideposts, we now face
the problem of whether the findings of
fact of the Court of Appeals support its
judgment.
3. Was Carrascoso entitled to the first
class seat he claims?
It is conceded in all quarters that on
March 28, 1958 he paid to and
received from petitioner a first class
ticket. But petitioner asserts that said
ticket did not represent the true and
complete intent and agreement of the
parties; that said respondent knew
that he did not have confirmed
reservations for first class on any
specific flight, although he had tourist
class protection; that, accordingly, the
issuance of a first class ticket was no
guarantee that he would have a first
class ride, but that such would depend
upon the availability of first class
seats.
These are matters which petitioner
has thoroughly presented and
discussed in its brief before the Court
of Appeals under its third assignment
of error, which reads: "The trial court
erred in finding that plaintiff had
confirmed reservations for, and a right
to, first class seats on the "definite"
segments of his journey, particularly
that from Saigon to Beirut". 21
And, the Court of Appeals disposed of
this contention thus:

Defendant seems to capitalize on the

argument that the issuance of a firstclass ticket was no guarantee that the
passenger to whom the same had
been issued, would be accommodated
in the first-class compartment, for as
in the case of plaintiff he had yet to
make arrangements upon arrival at
every station for the necessary firstclass reservation. We are not
impressed by such a reasoning. We
cannot understand how a reputable
firm like defendant airplane company
could have the indiscretion to give out
tickets it never meant to honor at all.
It received the corresponding amount
in payment of first-class tickets and
yet it allowed the passenger to be at
the mercy of its employees. It is more
in keeping with the ordinary course of
business that the company should
know whether or riot the tickets it
issues are to be honored or not.22
Not that the Court of Appeals is alone.
The trial court similarly disposed of
petitioner's contention, thus:
On the fact that plaintiff paid for, and
was issued a "First class" ticket, there
can be no question. Apart from his
testimony, see plaintiff's Exhibits "A",
"A-1", "B", "B-1," "B-2", "C" and "C-1",
and defendant's own witness, Rafael
Altonaga, confirmed plaintiff's
testimony and testified as follows:
Q. In these tickets there are marks
"O.K." From what you know, what does
this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx

xxx

xxx

Defendant tried to prove by the

testimony of its witnesses Luis
Zaldariaga and Rafael Altonaga that
although plaintiff paid for, and was
issued a "first class" airplane ticket,
the ticket was subject to confirmation
in Hongkong. The court cannot give
credit to the testimony of said
witnesses. Oral evidence cannot
prevail over written evidence, and
plaintiff's Exhibits "A", "A-l", "B", "B-l",
"C" and "C-1" belie the testimony of
said witnesses, and clearly show that
the plaintiff was issued, and paid for, a
first class ticket without any
reservation whatever.
Furthermore, as hereinabove shown,
defendant's own witness Rafael
Altonaga testified that the reservation
for a "first class" accommodation for
the plaintiff was confirmed. The court
cannot believe that after such
confirmation defendant had a verbal
understanding with plaintiff that the
"first class" ticket issued to him by
defendant would be subject to
confirmation in Hongkong. 23
We have heretofore adverted to the
fact that except for a slight difference
of a few pesos in the amount refunded
on Carrascoso's ticket, the decision of
the Court of First Instance was
affirmed by the Court of Appeals in all
other respects. We hold the view that
such a judgment of affirmance has
merged the judgment of the lower
court. 24 Implicit in that affirmance is
a determination by the Court of
Appeals that the proceeding in the
Court of First Instance was free from
prejudicial error and "all questions
raised by the assignments of error and
all questions that might have been
raised are to be regarded as finally
adjudicated against the appellant". So
also, the judgment affirmed "must be
regarded as free from all error". 25 We
reached this policy construction

because nothing in the decision of the

Court of Appeals on this point would
suggest that its findings of fact are in
any way at war with those of the trial
court. Nor was said affirmance by the
Court of Appeals upon a ground or
grounds different from those which
were made the basis of the
conclusions of the trial court. 26
If, as petitioner underscores, a firstclass-ticket holder is not entitled to a
first class seat, notwithstanding the
fact that seat availability in specific
flights is therein confirmed, then an air
passenger is placed in the hollow of
the hands of an airline. What security
then can a passenger have? It will
always be an easy matter for an airline
aided by its employees, to strike out
the very stipulations in the ticket, and
say that there was a verbal agreement
to the contrary. What if the passenger
had a schedule to fulfill? We have long
learned that, as a rule, a written
document speaks a uniform language;
that spoken word could be notoriously
unreliable. If only to achieve stability
in the relations between passenger
and air carrier, adherence to the ticket
so issued is desirable. Such is the case
here. The lower courts refused to
believe the oral evidence intended to
defeat the covenants in the ticket.
The foregoing are the considerations
which point to the conclusion that
there are facts upon which the Court
of Appeals predicated the finding that
respondent Carrascoso had a first
class ticket and was entitled to a first
class seat at Bangkok, which is a
stopover in the Saigon to Beirut leg of
the flight. 27 We perceive no "welter
of distortions by the Court of Appeals
of petitioner's statement of its
position", as charged by petitioner. 28
Nor do we subscribe to petitioner's
accusation that respondent Carrascoso
"surreptitiously took a first class seat

to provoke an issue". 29 And this

because, as petitioner states,
Carrascoso went to see the Manager
at his office in Bangkok "to confirm my
seat and because from Saigon I was
told again to see the Manager". 30
Why, then, was he allowed to take a
first class seat in the plane at
Bangkok, if he had no seat? Or, if
another had a better right to the seat?
4. Petitioner assails respondent court's
award of moral damages. Petitioner's
trenchant claim is that Carrascoso's
action is planted upon breach of
contract; that to authorize an award
for moral damages there must be an
averment of fraud or bad faith;31 and
that the decision of the Court of
Appeals fails to make a finding of bad
faith. The pivotal allegations in the
complaint bearing on this issue are:
3. That ... plaintiff entered into a
contract of air carriage with the
Philippine Air Lines for a valuable
consideration, the latter acting as
general agents for and in behalf of the
defendant, under which said contract,
plaintiff was entitled to, as defendant
agreed to furnish plaintiff, First Class
passage on defendant's plane during
the entire duration of plaintiff's tour of
Europe with Hongkong as starting
point up to and until plaintiff's return
trip to Manila, ... .
4. That, during the first two legs of the
trip from Hongkong to Saigon and from
Saigon to Bangkok, defendant
furnished to the plaintiff First Class
accommodation but only after
protestations, arguments and/or
insistence were made by the plaintiff
with defendant's employees.
5. That finally, defendant failed to
provide First Class passage, but
instead furnished plaintiff only Tourist
Class accommodations from Bangkok

to Teheran and/or Casablanca, ... the

plaintiff has been compelled by
defendant's employees to leave the
First Class accommodation berths at
Bangkok after he was already seated.
6. That consequently, the plaintiff,
desiring no repetition of the
inconvenience and embarrassments
brought by defendant's breach of
contract was forced to take a Pan
American World Airways plane on his
return trip from Madrid to Manila.32
xxx

xxx

xxx

2. That likewise, as a result of

defendant's failure to furnish First
Class accommodations aforesaid,
plaintiff suffered inconveniences,
embarrassments, and humiliations,
thereby causing plaintiff mental
anguish, serious anxiety, wounded
feelings, social humiliation, and the
like injury, resulting in moral damages
in the amount of P30,000.00. 33
xxx

xxx

xxx

The foregoing, in our opinion,

substantially aver: First, That there
was a contract to furnish plaintiff a
first class passage covering, amongst
others, the Bangkok-Teheran leg;
Second, That said contract was
breached when petitioner failed to
furnish first class transportation at
Bangkok; and Third, that there was
bad faith when petitioner's employee
compelled Carrascoso to leave his first
class accommodation berth "after he
was already, seated" and to take a
seat in the tourist class, by reason of
which he suffered inconvenience,
embarrassments and humiliations,
thereby causing him mental anguish,
serious anxiety, wounded feelings and
social humiliation, resulting in moral
damages. It is true that there is no
specific mention of the term bad faith

in the complaint. But, the inference of

bad faith is there, it may be drawn
from the facts and circumstances set
forth therein. 34 The contract was
averred to establish the relation
between the parties. But the stress of
the action is put on wrongful
expulsion.
Quite apart from the foregoing is that
(a) right the start of the trial,
respondent's counsel placed petitioner
on guard on what Carrascoso intended
to prove: That while sitting in the
plane in Bangkok, Carrascoso was
ousted by petitioner's manager who
gave his seat to a white man; 35 and
(b) evidence of bad faith in the
fulfillment of the contract was
presented without objection on the
part of the petitioner. It is, therefore,
unnecessary to inquire as to whether
or not there is sufficient averment in
the complaint to justify an award for
moral damages. Deficiency in the
complaint, if any, was cured by the
evidence. An amendment thereof to
conform to the evidence is not even
required. 36 On the question of bad
faith, the Court of Appeals declared:
That the plaintiff was forced out of his
seat in the first class compartment of
the plane belonging to the defendant
Air France while at Bangkok, and was
transferred to the tourist class not only
without his consent but against his
will, has been sufficiently established
by plaintiff in his testimony before the
court, corroborated by the
corresponding entry made by the
purser of the plane in his notebook
which notation reads as follows:
"First-class passenger was forced to go
to the tourist class against his will, and
that the captain refused to intervene",
and by the testimony of an eyewitness, Ernesto G. Cuento, who was a

co-passenger. The captain of the plane

who was asked by the manager of
defendant company at Bangkok to
intervene even refused to do so. It is
noteworthy that no one on behalf of
defendant ever contradicted or denied
this evidence for the plaintiff. It could
have been easy for defendant to
present its manager at Bangkok to
testify at the trial of the case, or yet to
secure his disposition; but defendant
did neither. 37
The Court of appeals further stated
Neither is there evidence as to
whether or not a prior reservation was
made by the white man. Hence, if the
employees of the defendant at
Bangkok sold a first-class ticket to him
when all the seats had already been
taken, surely the plaintiff should not
have been picked out as the one to
suffer the consequences and to be
subjected to the humiliation and
indignity of being ejected from his seat
in the presence of others. Instead of
explaining to the white man the
improvidence committed by
defendant's employees, the manager
adopted the more drastic step of
ousting the plaintiff who was then
safely ensconsced in his rightful seat.
We are strengthened in our belief that
this probably was what happened
there, by the testimony of defendant's
witness Rafael Altonaga who, when
asked to explain the meaning of the
letters "O.K." appearing on the tickets
of plaintiff, said "that the space is
confirmed for first class. Likewise,
Zenaida Faustino, another witness for
defendant, who was the chief of the
Reservation Office of defendant,
testified as follows:
"Q How does the person in the ticketissuing office know what reservation
the passenger has arranged with you?

A They call us up by phone and ask for

the confirmation." (t.s.n., p. 247, June
19, 1959)
In this connection, we quote with
approval what the trial Judge has said
on this point:
Why did the, using the words of
witness Ernesto G. Cuento, "white
man" have a "better right" to the seat
occupied by Mr. Carrascoso? The
record is silent. The defendant airline
did not prove "any better", nay, any
right on the part of the "white man" to
the "First class" seat that the plaintiff
was occupying and for which he paid
and was issued a corresponding "first
class" ticket.
If there was a justified reason for the
action of the defendant's Manager in
Bangkok, the defendant could have
easily proven it by having taken the
testimony of the said Manager by
deposition, but defendant did not do
so; the presumption is that evidence
willfully suppressed would be adverse
if produced [Sec. 69, par (e), Rules of
Court]; and, under the circumstances,
the Court is constrained to find, as it
does find, that the Manager of the
defendant airline in Bangkok not
merely asked but threatened the
plaintiff to throw him out of the plane
if he did not give up his "first class"
seat because the said Manager
wanted to accommodate, using the
words of the witness Ernesto G.
Cuento, the "white man".38
It is really correct to say that the Court
of Appeals in the quoted portion first
transcribed did not use the term "bad
faith". But can it be doubted that the
recital of facts therein points to bad
faith? The manager not only prevented
Carrascoso from enjoying his right to a
first class seat; worse, he imposed his
arbitrary will; he forcibly ejected him

from his seat, made him suffer the

humiliation of having to go to the
tourist class compartment - just to
give way to another passenger whose
right thereto has not been established.
Certainly, this is bad faith. Unless, of
course, bad faith has assumed a
meaning different from what is
understood in law. For, "bad faith"
contemplates a "state of mind
affirmatively operating with furtive
design or with some motive of selfinterest or will or for ulterior purpose."
39
And if the foregoing were not yet
sufficient, there is the express finding
of bad faith in the judgment of the
Court of First Instance, thus:
The evidence shows that the
defendant violated its contract of
transportation with plaintiff in bad
faith, with the aggravating
circumstances that defendant's
Manager in Bangkok went to the
extent of threatening the plaintiff in
the presence of many passengers to
have him thrown out of the airplane to
give the "first class" seat that he was
occupying to, again using the words of
the witness Ernesto G. Cuento, a
"white man" whom he (defendant's
Manager) wished to accommodate,
and the defendant has not proven that
this "white man" had any "better
right" to occupy the "first class" seat
that the plaintiff was occupying, duly
paid for, and for which the
corresponding "first class" ticket was
issued by the defendant to him.40
5. The responsibility of an employer
for the tortious act of its employees
need not be essayed. It is well settled
in law. 41 For the willful malevolent act
of petitioner's manager, petitioner, his
employer, must answer. Article 21 of
the Civil Code says:

ART. 21. Any person who willfully

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.
In parallel circumstances, we applied
the foregoing legal precept; and, we
held that upon the provisions of Article
2219 (10), Civil Code, moral damages
are recoverable. 42
6. A contract to transport passengers
is quite different in kind and degree
from any other contractual relation. 43
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
attended 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 entitled to
be protected against personal
misconduct, injurious language,
indignities and abuses from such
employees. So it is, that any rule or
discourteous conduct on the part of
employees towards a passenger gives
the latter an action for damages
against the carrier. 44
Thus, "Where a steamship company
45 had accepted a passenger's check,
it was a breach of contract and a tort,
giving a right of action for its agent in
the presence of third persons to falsely
notify her that the check was
worthless and demand payment under
threat of ejection, though the

language used was not insulting and

she was not ejected." 46 And this,
because, although the relation of
passenger and carrier is "contractual
both in origin and nature"
nevertheless "the act that breaks the
contract may be also a tort". 47 And in
another case, "Where a passenger on
a railroad train, when the conductor
came to collect his fare tendered him
the cash fare to a point where the
train was scheduled not to stop, and
told him that as soon as the train
reached such point he would pay the
cash fare from that point to
destination, there was nothing in the
conduct of the passenger which
justified the conductor in using
insulting language to him, as by
calling him a lunatic," 48 and the
Supreme Court of South Carolina there
held the carrier liable for the mental
suffering of said
passenger.1awphl.nt

And I also said, "You are not going to

note anything there because I am
protesting to this transfer".

Petitioner's contract with Carrascoso is

one attended with public duty. The
stress of Carrascoso's action as we
have said, is placed upon his wrongful
expulsion. This is a violation of public
duty by the petitioner air carrier a
case of quasi-delict. Damages are
proper.

I move to strike out the last part of the

testimony of the witness because the
best evidence would be the notes.
Your Honor.

7. Petitioner draws our attention to

respondent Carrascoso's testimony,
thus
Q You mentioned about an attendant.
Who is that attendant and purser?
A When we left already that was
already in the trip I could not help
it. So one of the flight attendants
approached me and requested from
me my ticket and I said, What for? and
she said, "We will note that you
transferred to the tourist class". I said,
"Nothing of that kind. That is
tantamount to accepting my transfer."

Q Was she able to note it?

A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close
that you feel uncomfortable and you
don't have enough leg room, I stood
up and I went to the pantry that was
next to me and the purser was there.
He told me, "I have recorded the
incident in my notebook." He read it
and translated it to me because it
was recorded in French "First class
passenger was forced to go to the
tourist class against his will, and that
the captain refused to intervene."
Mr. VALTE

COURT
I will allow that as part of his
testimony. 49
Petitioner charges that the finding of
the Court of Appeals that the purser
made an entry in his notebook reading
"First class passenger was forced to go
to the tourist class against his will, and
that the captain refused to intervene"
is predicated upon evidence
[Carrascoso's testimony above] which
is incompetent. We do not think so.
The subject of inquiry is not the entry,
but the ouster incident. Testimony on
the entry does not come within the
proscription of the best evidence rule.
Such testimony is admissible. 49a

Besides, from a reading of the

transcript just quoted, when the
dialogue happened, the impact of the
startling occurrence was still fresh and
continued to be felt. The excitement
had not as yet died down. Statements
then, in this environment, are
admissible as part of the res gestae.
50 For, they grow "out of the nervous
excitement and mental and physical
condition of the declarant". 51 The
utterance of the purser regarding his
entry in the notebook was
spontaneous, and related to the
circumstances of the ouster incident.
Its trustworthiness has been
guaranteed. 52 It thus escapes the
operation of the hearsay rule. It forms
part of the res gestae.
At all events, the entry was made
outside the Philippines. And, by an
employee of petitioner. It would have
been an easy matter for petitioner to
have contradicted Carrascoso's
testimony. If it were really true that no
such entry was made, the deposition
of the purser could have cleared up
the matter.
We, therefore, hold that the
transcribed testimony of Carrascoso is
admissible in evidence.
8. Exemplary damages are well
awarded. The Civil Code gives the
court ample power to grant exemplary
damages in contracts and quasicontracts. The only condition is that
defendant should have "acted in a
wanton, fraudulent, reckless,
oppressive, or malevolent manner." 53
The manner of ejectment of
respondent Carrascoso from his first
class seat fits into this legal precept.
And this, in addition to moral
damages.54
9. The right to attorney's fees is fully
established. The grant of exemplary

damages justifies a similar judgment

for attorneys' fees. The least that can
be said is that the courts below felt
that it is but just and equitable that
attorneys' fees be given. 55 We do not
intend to break faith with the tradition
that discretion well exercised as it
was here should not be disturbed.
10. Questioned as excessive are the
amounts decreed by both the trial
court and the Court of Appeals, thus:
P25,000.00 as moral damages;
P10,000.00, by way of exemplary
damages, and P3,000.00 as attorneys'
fees. The task of fixing these amounts
is primarily with the trial court. 56 The
Court of Appeals did not interfere with
the same. The dictates of good sense
suggest that we give our imprimatur
thereto. Because, the facts and
circumstances point to the
reasonableness thereof.57
On balance, we say that the judgment
of the Court of Appeals does not suffer
from reversible error. We accordingly
vote to affirm the same. Costs against
petitioner. So ordered.
Ronquillo v. Singson
This is a petition to review the
Resolution dated June 30, 1980 of the
then Court of Appeals (now the
Intermediate Appellate Court) in CAG.R. No. SP-10573, entitled "Ernesto V.
Ronquillo versus the Hon. Florellana
Castro-Bartolome, etc." and the Order
of said court dated August 20, 1980,
denying petitioner's motion for
reconsideration of the above
resolution.
Petitioner Ernesto V. Ronquillo was one
of four (4) defendants in Civil Case No.
33958 of the then Court of First
Instance of Rizal (now the Regional
Trial Court), Branch XV filed by private
respondent Antonio P. So, on July 23,
1979, for the collection of the sum of
P17,498.98 plus attorney's fees and

costs. The other defendants were

Offshore Catertrade Inc., Johnny Tan
and Pilar Tan. The amount of
P117,498.98 sought to be collected
represents the value of the checks
issued by said defendants in payment
for foodstuffs delivered to and
received by them. The said checks
were dishonored by the drawee bank.
On December 13, 1979, the lower
court rendered its Decision 1 based on
the compromise agreement submitted
by the parties, the pertinent portion of
which reads as follows:
1.
Plaintiff agrees to reduce its
total claim of P117,498-95 to only
P11,000 .00 and defendants agree to
acknowledge the validity of such claim
and further bind themselves to initially
pay out of the total indebtedness of
P10,000.00 the amount of P55,000.00
on or before December 24, 1979, the
balance of P55,000.00, defendants
individually and jointly agree to pay
within a period of six months from
January 1980, or before June 30, 1980;
(Emphasis supplied)
xxx

xxx

xxx

During the hearing of the Motion for

Execution and the Opposition thereto
on January 16, 1980, petitioner, as one
of the four defendants, tendered the
amount of P13,750.00, as his prorata
share in the P55,000.00 initial
payment. Another defendant, Pilar P.
Tan, offered to pay the same amount.
Because private respondent refused to
accept their payments, demanding
from them the full initial installment of
P 55,000.00, petitioner and Pilar Tan
instead deposited the said amount
with the Clerk of Court. The amount
deposited was subsequently
withdrawn by private respondent. 3

xxx

4.
That both parties agree that
failure on the part of either party to
comply with the foregoing terms and
conditions, the innocent party will be
entitled to an execution of the decision
based on this compromise agreement
and the defaulting party agrees and
hold themselves to reimburse the
innocent party for attorney's fees,
execution fees and other fees related
with the execution.
xxx

initial payment of P55,000.00 on or

before December 24, 1979 as
provided in the Decision. Said motion
for execution was opposed by herein
petitioner (as one of the defendants)
contending that his inability to make
the payment was due to private
respondent's own act of making
himself scarce and inaccessible on
December 24, 1979. Petitioner then
prayed that private respondent be
ordered to accept his payment in the
amount of P13,750.00. 2

xxx

On December 26, 1979, herein private

respondent (then plaintiff filed a
Motion for Execution on the ground
that defendants failed to make the

On the same day, January 16, 1980,

the lower court ordered the issuance
of a writ of execution for the balance
of the initial amount payable, against
the other two defendants, Offshore
Catertrade Inc. and Johnny Tan 4 who
did not pay their shares.
On January 22, 1980, private
respondent moved for the
reconsideration and/or modification of
the aforesaid Order of execution and
prayed instead for the "execution of
the decision in its entirety against all
defendants, jointly and severally." 5
Petitioner opposed the said motion
arguing that under the decision of the
lower court being executed which has
already become final, the liability of

the four (4) defendants was not

expressly declared to be solidary,
consequently each defendant is
obliged to pay only his own pro-rata or
1/4 of the amount due and payable.
On March 17, 1980, the lower court
issued an Order reading as follows:
ORDER
Regardless of whatever the
compromise agreement has intended
the payment whether jointly or
individually, or jointly and severally,
the fact is that only P27,500.00 has
been paid. There appears to be a nonpayment in accordance with the
compromise agreement of the amount
of P27,500.00 on or before December
24, 1979. The parties are reminded
that the payment is condition sine qua
non to the lifting of the preliminary
attachment and the execution of an
affidavit of desistance.
WHEREFORE, let writ of execution
issue as prayed for
On March 17, 1980, petitioner moved
for the reconsideration of the above
order, and the same was set for
hearing on March 25,1980.
Meanwhile, or more specifically on
March 19, 1980, a writ of execution
was issued for the satisfaction of the
sum of P82,500.00 as against the
properties of the defendants (including
petitioner), "singly or jointly hable." 6
On March 20, 1980, Special Sheriff
Eulogio C. Juanson of Rizal, issued a
notice of sheriff's sale, for the sale of
certain furnitures and appliances
found in petitioner's residence to
satisfy the sum of P82,500.00. The
public sale was scheduled for April 2,
1980 at 10:00 a.m. 7

Petitioner's motion for reconsideration

of the Order of Execution dated March
17, 1980 which was set for hearing on
March 25, 1980, was upon motion of
private respondent reset to April 2,
1980 at 8:30 a.m. Realizing the actual
threat to property rights poised by the
re-setting of the hearing of s motion
for reconsideration for April 2, 1980 at
8:30 a.m. such that if his motion for
reconsideration would be denied he
would have no more time to obtain a
writ from the appellate court to stop
the scheduled public sale of his
personal properties at 10:00 a.m. of
the same day, April 2, 1980, petitioner
filed on March 26, 1980 a petition for
certiorari and prohibition with the then
Court of Appeals (CA-G.R. No. SP10573), praying at the same time for
the issuance of a restraining order to
stop the public sale. He raised the
question of the validity of the order of
execution, the writ of execution and
the notice of public sale of his
properties to satisfy fully the entire
unpaid obligation payable by all of the
four (4) defendants, when the lower
court's decision based on the
compromise agreement did not
specifically state the liability of the
four (4) defendants to be solidary.
On April 2, 1980, the lower court
denied petitioner's motion for
reconsideration but the scheduled
public sale in that same day did not
proceed in view of the pendency of a
certiorari proceeding before the then
Court of Appeals.
On June 30, 1980, the said court
issued a Resolution, the pertinent
portion of which reads as follows:
This Court, however, finds the present
petition to have been filed
prematurely. The rule is that before a
petition for certiorari can be brought
against an order of a lower court, all

remedies available in that court must

first be exhausted. In the case at bar,
herein petitioner filed a petition
without waiting for a resolution of the
Court on the motion for
reconsideration, which could have
been favorable to the petitioner. The
fact that the hearing of the motion for
reconsideration had been reset on the
same day the public sale was to take
place is of no moment since the
motion for reconsideration of the
Order of March 17, 1980 having been
seasonably filed, the scheduled public
sale should be suspended. Moreover,
when the defendants, including herein
petitioner, defaulted in their obligation
based on the compromise agreement,
private respondent had become
entitled to move for an execution of
the decision based on the said
agreement.
WHEREFORE, the instant petition for
certiorari and prohibition with
preliminary injunction is hereby denied
due course. The restraining order
issued in our resolution dated April 9,
1980 is hereby lifted without
pronouncement as to costs.

restrain implementation of a writ of

execution issued at variance with the
final decision of the lower court filed
barely four (4) days before the
scheduled public sale of the attached
movable properties;
(b)
denying reconsideration of the
Resolution of June 30, 1980, which
declared as premature the filing of the
petition, although there is proof on
record that as of April 2, 1980, the
motion referred to was already denied
by the lower court and there was no
more motion pending therein;
(c)
failing to resolve the legal
issues raised in the petition and in not
declaring the liabilities of the
defendants, under the final decision of
the lower court, to be only joint;
(d)
not holding the lower court's
order of execution dated March 17,
1980, the writ of execution and the
notice of sheriff's sale, executing the
lower court's decision against "all
defendants, singly and jointly", to be
at variance with the lower court's final
decision which did not provide for
solidary obligation; and

SO ORDERED.
Petitioner moved to reconsider the
aforesaid Resolution alleging that on
April 2, 1980, the lower court had
already denied the motion referred to
and consequently, the legal issues
being raised in the petition were
already "ripe" for determination. 8 The
said motion was however denied by
the Court of Appeals in its Resolution
dated August 20, 1980.
Hence, this petition for review,
petitioner contending that the Court of
Appeals erred in
(a)
declaring as premature, and in
denying due course to the petition to

(e)
not declaring as invalid and
unlawful the threatened execution, as
against the properties of petitioner
who had paid his pro-rata share of the
adjudged obligation, of the total
unpaid amount payable by his joint codefendants.
The foregoing assigned errors maybe
synthesized into the more important
issues of
1.
Was the filing of a petition for
certiorari before the then Court of
Appeals against the Order of Execution
issued by the lower court, dated March
17, 1980, proper, despite the
pendency of a motion for

reconsideration of the same

questioned Order?
2.
What is the nature of the
liability of the defendants (including
petitioner), was it merely joint, or was
it several or solidary?
Anent the first issue raised, suffice it
to state that while as a general rule, a
motion for reconsideration should
precede recourse to certiorari in order
to give the trial court an opportunity
to correct the error that it may have
committed, the said rule is not
absolutes 9 and may be dispensed
with in instances where the filing of a
motion for reconsideration would
serve no useful purpose, such as when
the motion for reconsideration would
raise the same point stated in the
motion 10 or where the error is patent
for the order is void 11 or where the
relief is extremely urgent, as in cases
where execution had already been
ordered 12 where the issue raised is
one purely of law. 13
In the case at bar, the records show
that not only was a writ of execution
issued but petitioner's properties were
already scheduled to be sold at public
auction on April 2, 1980 at 10:00 a.m.
The records likewise show that
petitioner's motion for reconsideration
of the questioned Order of Execution
was filed on March 17, 1980 and was
set for hearing on March 25, 1980 at
8:30 a.m., but upon motion of private
respondent, the hearing was reset to
April 2, 1980 at 8:30 a.m., the very
same clay when petitioner's properties
were to be sold at public auction.
Needless to state that under the
circumstances, petitioner was faced
with imminent danger of his properties
being immediately sold the moment
his motion for reconsideration is
denied. Plainly, urgency prompted
recourse to the Court of Appeals and

the adequate and speedy remedy for

petitioner under the situation was to
file a petition for certiorari with prayer
for restraining order to stop the sale.
For him to wait until after the hearing
of the motion for reconsideration on
April 2, 1980 before taking recourse to
the appellate court may already be too
late since without a restraining order,
the public sale can proceed at 10:00
that morning. In fact, the said motion
was already denied by the lower court
in its order dated April 2, 1980 and
were it not for the pendency of the
petition with the Court of Appeals and
the restraining order issued thereafter,
the public sale scheduled that very
same morning could have proceeded.
The other issue raised refers to the
nature of the liability of petitioner, as
one of the defendants in Civil Case No.
33958, that is whether or not he is
liable jointly or solidarily.
In this regard, Article 1207 and 1208
of the Civil Code provides
Art. 1207.
The concurrence of two
or more debtors in one and the same
obligation does not imply that each
one of the former has a right to
demand, or that each one of the latter
is bound to render, entire compliance
with the prestation. Then is a solidary
liability only when the obligation
expressly so states, or when the law or
the nature of the obligation requires
solidarity.
Art. 1208.
If from the law,or the
nature or the wording of the obligation
to which the preceding article refers
the contrary does not appear, the
credit or debt shall be presumed to be
divided into as many equal shares as
there are creditors and debtors, the
credits or debts being considered
distinct from one another, subject to

the Rules of Court governing the

multiplicity of quits.

they are each liable only for one-half

of said amount

The decision of the lower court based

on the parties' compromise
agreement, provides:

The obligation in the case at bar being

described as "individually and jointly",
the same is therefore enforceable
against one of the numerous obligors.

1.
Plaintiff agrees to reduce its
total claim of P117,498.95 to only
P110,000.00 and defendants agree to
acknowledge the validity of such claim
and further bind themselves to initially
pay out of the total indebtedness of
P110,000.00, the amount of P5,000.00
on or before December 24, 1979, the
balance of P55,000.00, defendants
individually and jointly agree to pay
within a period of six months from
January 1980 or before June 30, 1980.
(Emphasis supply)
Clearly then, by the express term of
the compromise agreement and the
decision based upon it, the defendants
obligated themselves to pay their
obligation "individually and jointly".
The term "individually" has the same
meaning as "collectively",
"separately", "distinctively",
respectively or "severally". An
agreement to be "individually liable"
undoubtedly creates a several
obligation, 14 and a "several
obligation is one by which one
individual binds himself to perform the
whole obligation. 15
In the case of Parot vs. Gemora 16 We
therein ruled that "the phrase juntos
or separadamente or in the promissory
note is an express statement making
each of the persons who signed it
individually liable for the payment of
the fun amount of the obligation
contained therein." Likewise in Un Pak
Leung vs. Negorra 17 We held that "in
the absence of a finding of facts that
the defendants made themselves
individually hable for the debt incurred

IN VIEW OF THE FOREGOING

CONSIDERATIONS, the instant petition
is hereby DISMISSED. Cost against
petitioner.
SO ORDERED.
Metro Manila Transit v. Court of
Appeals
On appeal is the decision[1] of the
Court of Appeals promulgated on
August 25, 1999 in CA-G.R. CV No.
45002, which affirmed in toto the
judgment of the Regional Trial Court of
Makati, Branch 62, in Civil Case No.
16062. The trial court found herein
petitioners liable for the death of
Florentina Sabalburo in a vehicular
accident involving a passenger bus
owned by petitioner Metro Manila
Transit Corporation (MMTC) and driven
by petitioner Apolinario Ajoc, and
ordered them to pay damages to
private respondents.
The factual backdrop of this case, as
found by the Court of Appeals, is as
follows:
The eyewitness account of plaintiffs
witness, Maria Zenaida Baylon, tends
to show that in the afternoon of
December 24, 1986, she, her daughter
Maria Zenia and the victim, Florentina
Sabalburo, were on their way to
Baclaran to buy foodstuffs for their
Noche Buena. For some time, they
stood on the island at the intersection
of St. Andrews Street[2] and Domestic
Road, [Pasay City] waiting for the
traffic light to change so they could

cross to the other side of St. Andrews

Street where they intended to take a
ride for Baclaran. When the traffic light
turned red and the vehicles along St.
Andrews Street had stopped, the three
of them stepped off the island. Just as
they started to cross the street, she
(Baylon) saw an MMTC bus coming
from their right (Tramo) which was
moving at a fast speed. The next
moment, the left front portion of the
bus hit the victim on the right side of
her head. The impact was of such
force that the victims right ear was
slashed off and she thereupon fell on
the cement and became unconscious.
The victim was brought by the bus
driver, Apolinario Ajoc and the bus
conductress to the San Juan de Dios
Hospital where she was given medical
attention. Florentina Sabalburo never
regained consciousness and it was on
January 3, 1987 that she succumbed
to her injuries.[3]
On February 16, 1987, private
respondents filed a complaint[4] for
damages against MMTC and its driver,
Ajoc, with the Regional Trial Court of
Makati. Docketed as Civil Case No.
16062, the complaint essentially
alleged that Ajoc drove the MMTC bus
in a wanton and reckless manner, in
gross violation of traffic rules and
regulations, without due regard for the
safety of others, thus causing the
untimely death of the victim.
Petitioners denied the material
allegations of the complaint,
disclaimed any liability for the
incident, and insisted that the accident
was solely due to the victims own
negligence. The appellate court
summed up their version of the
incident as follows:
xxx

That at the time material to this case,

bus no. 033, with defendant Ajoc
driving, then bound towards the
direction of Baclaran proper, was
slowly accelerating speed on the outer
right lane of the road, in response to
the go signal of the traffic light
situated in the intersection of
Domestic Road [and Andrew Avenue],
while the vehicles on the inner right
lane which were going to turn left
towards Domestic Road were at a stop
position, the deceased FLORENTINA G.
SABALBURO, whose stationary
position was then covered from Ajocs
peripheral vision by a big truck then
bound to MIA Road [that] was at a stop
position, suddenly, without regard to
her own safety and in total defiance of
traffic signs designed to protect
pedestrian[s], suddenly darted across
the road; Ajoc, thus caught by
surprise, tried to prevent impact by
releasing his accelerator pedal and
applying his brakes but the time lag
between the deceaseds negligent act
and Ajocs prudent and diligent
reaction to the former made the
impact a certainty.[5]
As special and affirmative defenses,
petitioners also claimed that:
(1) MMTC hires its drivers, conductors
and other employees only after they
have successfully passed rigid and
extensive theoretical and practical
examinations designed to determine
their skills and competenceand
imposes upon its drivers the duty to
undergo regular seminars in defensive
driving techniques and road safety
habits;[6]
(2) MMTC had taken every human care
and foresight possible in carrying their
passengers safely to their respective
place (sic) of destination as well as in
avoiding harm to the life and limbs or

risk against pedestrians so that they

not be held liable;[7] and
(3) [T]he buses of the defendant
corporation, including its bus no. 033
were all properly maintainedbefore the
buses left the garage for their
respective routes on that particular
day, as in all other days, they were
rigidly inspected and examined and
properly certified as roadworthy.[8]
The trial court found private
respondents version more credible and
on August 12, 1993, decided the case
as follows:
WHEREFORE, premises considered,
judgment is hereby rendered in favor
of the plaintiff and against defendants
as follows:
1. Ordering defendants to jointly and
severally pay plaintiff Martin
Sabalburo actual damages in the sum
of P63,943.88 representing the unpaid
expenses of plaintiff in connection with
the death of Florentina Sabalburo;
2. Ordering defendants to jointly and
severally pay plaintiffs the sum of
P180,000.00 for the loss of the earning
capacity of the deceased for a period
of ten (10) years;
3. Ordering defendants to jointly and
severally pay plaintiff Martin
Sabalburo the amount of P500,000.00
as moral damages;
4. Ordering defendants to jointly and
severally pay plaintiff Martin
Sabalburo the sum of P50,000.00 as
exemplary damages;
5. Ordering defendants [to] jointly and
severally pay plaintiff Martin
Sabalburo the sum of P50,000.00 as
attorneys fees;

6. Ordering defendants jointly and

severally to pay plaintiffs the costs of
this suit.
SO ORDERED.[9]
Petitioners seasonably appealed to the
Court of Appeals, which docketed their
appeal as CA-G.R. CV No. 45002.
Before the appellate court, petitioners
insisted that the accident was solely
the fault of the victim since she
suddenly crossed a very busy street
with complete disregard for her safety
and in violation of traffic rules and
regulations designed to protect
pedestrians.
As earlier stated, the appellate court,
in CA-G.R. CV No. 45002, affirmed the
trial courts decision, thus:
IN JUDGMENT, we hold that the appeal
interposed by appellants is not
meritorious and the judgment of the
lower court which we find to be in
accordance with law and the evidence
is therefore AFFIRMED in toto. Costs
against appellants.
SO ORDERED.[10]
Petitioners then moved for
reconsideration, but the appellate
court denied their motion in its
resolution of December 10, 1999.[11]
Hence, the present petition.
Petitioners submit as sole issue for our
resolution the following:
WHETHER OR NOT ARTICLE 2179[12]
AS AN EXCEPTION TO ARTICLE
2176[13] OF THE CIVIL CODE IS
APPLICABLE IN THE INSTANT CASE.
Petitioners insist that a closer look at
the facts established by the trial court
would show that the incident

happened at around 3:30 in the

afternoon of December 24, 1986 or
barely eight (8) hours before
Christmas Eve. Thus, the victims
thoughts were naturally directed
towards the Noche Buena. The victim
then crossed busy Andrew Avenue for
the purpose of getting a ride to
Baclaran to buy food for the Christmas
Eve celebration. Since her thoughts
were on the Christmas Eve feast, she
crossed where there was no
pedestrian lane and while the green
light for vehicular traffic was on.
Petitioner MMTC submits that
petitioner Ajoc cannot be charged with
negligence considering that he cannot
see what is in the mind of a
pedestrian. Considering that the
victims own negligence was the direct
and proximate cause of her injuries
and untimely demise, it was error for
the Court of Appeals not to have
applied Article 2179 of the Civil Code
to the instant case.
Petitioners claim that at the time of
the incident, the victims mind was
preoccupied with the preparations for
the Noche Buena, is naught but pure
conjecture and speculation, with nary
a scintilla of proof to support it,
according to respondents. Both the
trial and appellate courts established
that the immediate and proximate
cause of the victims death was the
negligent and careless driving by
petitioner Ajoc. Therefore, the full
force of Article 2176 of the Civil Code
applies, concluded respondents.
In asking us to apply Article 2179 of
the Civil Code, we note that
petitioners are asking us to make a
finding that the victims own
negligence was the direct and
proximate cause of her death. This we
cannot do. The issue of whether a
person is negligent or not is a question
of fact.[14] The Supreme Court is not a

trier of facts,[15] although it has the

power and authority to review and
reverse the factual findings of lower
courts where these do not conform to
the evidence[16] or where the courts
below came up with contradictory
factual findings.[17]
We have thoroughly perused the
records of this case, and nowhere do
we find evidence to support
petitioners claim that the victim was
so engrossed in thinking about Noche
Buena while crossing a busy street.
Petitioners stance regarding the
victims alleged negligence is non
sequitur. It simply does not follow that
one who is run over by a vehicle on
Christmas Eve (or any other holiday
for that matter) is negligent because
his thoughts were on the holiday
festivities.
Instead, the records support private
respondents claim that the MMTC bus
was being driven carelessly. As found
by the trial court and affirmed by the
Court of Appeals, the victim and her
companions were standing on the
island of Andrew Avenue, waiting for
the traffic light to change so they
could cross. Upon seeing the red light,
the victim and her companions started
to cross. It was then when petitioner
Ajoc, who was trying to beat the red
light, hit the victim. As the court a quo
noted, Ajocs claim that he failed to see
the victim and her companions proves
his recklessness and lack of caution in
driving his vehicle.[18] Findings of fact
of the trial court, especially when
affirmed by the Court of Appeals, are
binding and conclusive on the
Supreme Court.[19] More so, as in this
case, where petitioners have not
adequately shown that the courts
below overlooked or disregarded
certain facts or circumstances of such
import as would have altered the
outcome of the case. Contrary to

petitioners insistence, the applicable

law in this case is Article 2176 of the
Civil Code and not Article 2179.
Petitioner MMTC next contends that
the Court of Appeals erred in finding it
solidarily liable for damages with its
driver/employee, Ajoc, pursuant to the
relevant paragraphs of Article
2180[20] of the Civil Code. It argues
that the act of Ajoc in bringing the
victim to a hospital reflects MMTCs
diligence in the selection and
supervision of its drivers, particularly
with regard to safety measures.
Hence, having exercised the diligence
of a good father of a family in the
selection and supervision of its
employees to prevent damage, MMTC
should not be held vicariously liable.
It should be stressed, however, that
whenever an employees negligence
causes damage or injury to another,
there instantly arises a presumption
juris tantum that there was negligence
on the part of the employer, either in
the selection of the employee (culpa in
eligiendo) or the supervision over him
after the selection (culpa in vigilando).
[21] Hence, to escape solidary liability
for a quasi-delict committed by his
employee, an employer must rebut
the presumption by presenting
convincing proof that in the selection
and supervision of his employee, he
has exercised the care and diligence of
a good father of a family.[22] In the
present case, petitioner MMTC failed to
rebut the presumption of negligence
on its part.
The claim that Ajocs act of bringing
the victim to the nearest medical
facility shows adequate supervision by
MMTC over its employees deserves but
scant consideration. For one, the act
was after the fact of negligence on
Ajocs part. For another, the evidence
on record shows that Ajocs act was

neither voluntary nor spontaneous; he

had to be prevailed upon by the
victims companions to render
assistance to his victim.[23] Moreover,
the evidence to show that MMTC had
exercised due diligence in the
selection and supervision of its
employees consisted merely of the
pertinent guidelines for the screening
and selection of its drivers, as well as
periodic seminars on road safety. As
found by the trial court, and affirmed
by the appellate court, petitioner
MMTC failed to show that its driver,
Ajoc, had actually undergone such
screening or had attended said
seminars. As previously held, [t]he
mere formulation of various company
policies on safety without showing that
they were being complied with is not
sufficient to exempt (an employer)
from liability arising from negligence
of its employees. It is incumbent upon
petitioner to show that in recruiting
and employing the erring driver the
recruitment procedures and company
policies on efficiency and safety were
followed.[24] In this case, MMTC has
made no satisfactory showing that it
had paid more than lip service to its
guidelines and policies in hiring and
supervision. Its failure to do so cannot
but warrant the proper sanctions from
this Court, considering that MMTC is a
government-owned public utility
organized for the public welfare.
Having failed to rebut the presumption
of negligence on its part, MMTC is
primarily and directly liable for the
damages caused by its employee, the
erring driver, Ajoc, pursuant to Article
2180 of the Civil Code, which provides
as follows:
ART. 2180. The obligation imposed by
Article 2176 is demandable not only
for ones own acts or omissions-, but
also for those of persons for whom one
is responsible.

The father and, in case of his death or

incapacity, the mother, are
responsible for the damages caused
by the minor children who live in their
company.
Guardians are liable for damages
caused by the minors or incapacitated
persons who are under their authority
and live in their company.
The owners and managers of an
establishment or enterprise are
likewise responsible for damages
caused by their employees in the
service of the branches in which the
latter are employed or on the occasion
of their functions.
Employers shall be liable for the
damages caused by their employees
and household helpers acting within
the scope of their assigned tasks, even
though the former are not engaged in
any business or industry.
The State is responsible in like manner
when it acts through a special agent;
but not when the damage has been
caused by the official to whom the
task done properly pertains, in which
case what is provided in Article 2176
shall be applicable.
Lastly, teachers or heads of
establishments of arts and trades shall
be liable for damages caused by their
pupils and students or apprentices, so
long as they remain in their custody.
The responsibility treated of in this
article shall cease when the persons
herein mentioned prove that they
observed all the diligence of a good
father of a family to prevent damage.
The owners of public utilities fall within
the scope of this article.[25] As earlier
stated, MMTC is a public utility,
organized and owned by the

government for public transport

service. Hence, its liability to private
respondents, for the negligent and
reckless acts of its driver, Ajoc, under
Article 2180 of the Civil Code is both
manifest and clear.
WHEREFORE, the instant petition is
DISMISSED. The assailed decision of
the Court of Appeals in CA-G.R. CV No.
45002 is AFFIRMED. Costs against
petitioners.
SO ORDERED.
St. Francis v. Court of Appeals
This is a petition for review of the
decision * of the Court of Appeals, the
dispositive portion of which reads:
WHEREFORE, the decision under
appeal is hereby affirmed, with the
following modifications: (1) Exemplary
damages in the amount of P20,000.00
are hereby awarded to plaintiffs, in
addition to the actual damages of
P30,000.00, moral damages of
P20,000.00 and attorney's fees in the
amount of P15,000.00 awarded to
plaintiffs in the decision under appeal;
(2) St. Francis High School,
represented by the Spouses Fernando
Nantes and Rosario Lacandula, and
Benjamin Illumin, are hereby held
jointly and severally liable with
defendants Connie Arquio, Tirso de
Chaves, Luisito Vinas and Patria Cadis
for the payment to plaintiffs of the
abovementioned actual damages,
moral damages, exemplary damages
and attorney's fees, and for costs; and
(3) Defendants Yoly Jaro and Nida
Aragones are hereby absolved from
liability, and the case against them,
together with their respective
counterclaims, is hereby ordered
dismissed.
SO ORDERED. (p. 60, Rollo)

The complaint alleged that Ferdinand

Castillo, then a freshman student of
Section 1-C at the St. Francis High
School, wanted to join a school picnic
undertaken by Class I-B and Class I-C
at Talaan Beach, Sariaya, Quezon.
Ferdinand's parents, respondents
spouses Dr. Romulo Castillo and Lilia
Cadiz Castillo, because of short notice,
did not allow their son to join but
merely allowed him to bring food to
the teachers for the picnic, with the
directive that he should go back home
after doing so. However, because of
persuasion of the teachers, Ferdinand
went on with them to the beach.
During the picnic and while the
students, including Ferdinand, were in
the water, one of the female teachers
was apparently drowning. Some of the
students, including Ferdinand, came to
her rescue, but in the process, it was
Ferdinand himself who drowned. His
body was recovered but efforts to
resuscitate him ashore failed. He was
brought to a certain Dr. Luna in
Sariaya, Quezon and later to the Mt.
Cannel General Hospital where he was
pronounced dead on arrival.
Thereupon, respondent spouses filed a
complaint docketed as Civil Case No.
8834, in the Regional Trial Court,
Branch LVIII of Lucena City, against the
St. Francis High School, represented
by the spouses Fernando Nantes and
Rosario Lacandula, Benjamin Illumin
(its principal), and the teachers: Tirso
de Chaves, Luisito Vinas, Connie
Arquio, Nida Aragones, Yoly Jaro, and
Patria Cadiz, for Damages which
respondents allegedly incurred from
the death of their 13-year old son,
Ferdinand Castillo. Contending that
the death of their son was due to the
failure of the petitioners to exercise
the proper diligence of a good father
of the family in preventing their son's
drowning, respondents prayed of

actual, moral and exemplary

damages, attorney's fees and
expenses for litigation.
The trial court found in favor of the
respondents and against petitionersteachers Arquio, de Chaves, Vinas,
Aragones, Jaro and Cadiz, ordering all
of them jointly and severally to pay
respondents the sum of P30,000.00 as
actual damages, P20,000.00 as moral
damages, P15,000.00 as attorney's
fees, and to pay the costs. The court a
quo reasoned:
Taking into consideration the evidence
presented, this Court believes that the
defendant teachers namely: Connie
Arquio, Luisito Vinas, Tirso de Chaves,
Yoly Jaro, Nida Aragones and Patria
Cadiz had failed to exercise the
diligence required of them by law
under the circumstances to guard
against the harm they had foreseen.
(pp. 2930, Rollo)
xxx

xxx

xxx

While it is alleged that when

defendants Yoly Jaro and Nida
Aragones arrived at the picnic site, the
drowning incident had already
occurred, such fact does not and
cannot excuse them from their liability.
In fact, it could be said that by coming
late, they were remiss in their duty to
safeguard the students. (p. 30, Rollo)
The students, young as they were then
(12 to 13 years old), were easily
attracted to the sea without
aforethought of the dangers it offers.
Yet, the precautions and reminders
allegedly performed by the
defendants-teachers definitely fell
short of the standard required by law
under the circumstances. While the
defendants-teachers admitted that
some parts of the sea where the picnic
was held are deep, the supposed

lifeguards of the children did not even

actually go to the water to test the
depth of the particular area where the
children would swim. And indeed the
fears of the plaintiffs that the picnic
area was dangerous was confirmed by
the fact that three persons during the
picnic got drowned at the same time.
Had the defendant teachers made an
actual and physical observation of the
water before they allowed the
students to swim, they could have
found out that the area where the
children were swimming was indeed
dangerous. And not only that, the
male teachers who according to the
female teachers were there to
supervise the children to ensure their
safety were not even at the area
where the children were swimming.
They were somewhere and as testified
to by plaintiffs' witness they were
having a drinking spree. (pp. 55-56,
Rollo)
On the other hand, the trial court
dismissed the case against the St.
Francis High School, Benjamin Illumin
and Aurora Cadorna. Said the court a
quo:
As shown and adverted to above, this
Court cannot find sufficient evidence
showing that the picnic was a school
sanctioned one. Similarly no evidence
has been shown to hold defendants
Benjamin Illumin and Aurora Cadorna
responsible for the death of Ferdinand
Castillo together with the other
defendant teachers. It has been
sufficiently shown that Benjamin
Illumin had himself not consented to
the picnic and in fact he did not join it.
On the other hand, defendant Aurora
Cadorna had then her own class to
supervise and in fact she was not
amongst those allegedly invited by
defendant Connie Arquio to supervise
class I-C to which Ferdinand Castillo
belongs. (p. 30, Rollo)

Both petitioners and respondents

appealed to the Court of Appeals.
Respondents-spouses assigned the
following errors committed by the trial
court:
1.
The lower court erred in not
declaring the defendant St. Francis
High School and its
administrator/principal Benjamin
Illumin as equally liable not only for its
approved co-curricular activities but
also for those which they
unreasonably failed to exercise control
and supervision like the holding of
picnic in the dangerous water of
Talaan Beach, Sariaya, Quezon.
2.
The lower court erred in not
declaring the St. Francis High School
and principal Benjamin Illumin as
jointly and solidarily liable with their
co-defendants-teachers Rosario
Lacandula, et als., for the tragic death
of Ferdinand Castillo in a picnic at
Talaan Beach, Sariaya, Quezon, last
March 20, 1982.
3.
The lower court erred in not
declaring higher amount for actual
and moral damages for the untimely
and tragic death of Ferdinand Castillo
in favor of plaintiffs-appellants against
all the defendants. (pp. 56-57, Rollo)
The Court of Appeals ruled:
We find plaintiffs-appellants'
submission well-taken.
Even were We to find that the picnic in
question was not a school-sponsored
activity, nonetheless it cannot be
gainsaid that the same was held under
the supervision of the teachers
employed by the said school,
particularly the teacher in charge of
Class I-C to whom the victim belonged,
and those whom she invited to help

her in supervising the class during the

picnic. Considering that the court a
quo found negligence on the part of
the six defendants-teachers who, as
such, were charged with the
supervision of the children during the
picnic, the St. Francis High School and
the school principal, Benjamin Illumin,
are liable under Article 2176 taken
together with the 1st, 4th and 5th
paragraphs of Article 2180 of the Civil
Code. They cannot escape liability on
the mere excuse that the picnic was
not an "extra-curricular activity of the
St. Francis High School." We find from
the evidence that, as claimed by
plaintiffs-appellants, the school
principal had knowledge of the picnic
even from its planning stage and had
even been invited to attend the affair;
and yet he did not express any
prohibition against undertaking the
picnic, nor did he prescribe any
precautionary measures to be adopted
during the picnic. At the least, We
must find that the school and the
responsible school officials,
particularly the principal, Benjamin
Illumin, had acquiesced to the holding
of the picnic.
Under Article 2180, supra, the
defendant school and defendant
school principal must be found jointly
and severally liable with the
defendants-teachers for the damages
incurred by the plaintiffs as a result of
the death of their son. It is the rule
that in cases where the above-cited
provisions find application, the
negligence of the employees in
causing the injury or damage gives
rise to a presumption of negligence on
the part of the owner and/or manager
of the establishment (in the present
case, St. Francis High School and its
principal); and while this presumption
is not conclusive, it may be
overthrown only by clear and
convincing proof that the owner and/or

manager exercised the care and

diligence of a good father of a family
in the selection and/or supervision of
the employee or employees causing
the injury or damage (in this case, the
defendants-teachers). The record does
not disclose such evidence as would
serve to overcome the aforesaid
presumption and absolve the St.
Francis High School and its principal
from liability under the above-cited
provisions.
As to the third assigned error
interposed by plaintiffs-appellants,
while We cannot but commiserate with
the plaintiffs for the tragedy that befell
them in the untimely death of their
son Ferdinand Castillo and understand
their suffering as parents, especially
the victim's mother who, according to
appellants, suffered a nervous
breakdown as a result of the tragedy,
We find that the amounts fixed by the
court a quo as actual damages and
moral damages (P30,000.00 and
P20,000.00, respectively) are
reasonable and are those which are
sustained by the evidence and the law.
However, We believe that exemplary
or corrective damages in the amount
of P20,000.00 may and should be, as it
is hereby, imposed in the present case
by way of example of correction for
the public good, pursuant to Article
2229 of the Civil Code. (pp. 57-59,
Rollo)
On the other hand, petitionersteachers assigned the following errors
committed by the trial court:
1.
". . . in finding the defendants
Connie Arquio, Tirso de Chavez, Luisito
Vinas, Nida Aragones, Yoly Jaro and
Patria Cadiz guilty of negligence and
jointly and severally liable for
damages such finding not being
supported by facts and evidence.

2.
". . . in dismissing the
counterclaim interposed by the
defendants. (p. 59, Rollo)
On this score, respondent Court ruled:
The main thrust of defendantsappellants appeal is that plaintiffs, the
parents of the victim Ferdinand
Castillo, were not able to prove by
their evidence that they did not give
their son consent to join the picnic in
question. However, We agree with the
trial court in its finding that whether or
not the victim's parents had given
such permission to their son was
immaterial to the determination of the
existence of liability on the part of the
defendants for the damage incurred
by the plaintiffs-appellants as a result
of the death of their son. What is
material to such a determination is
whether or not there was negligence
on the part of defendants vis-a-vis the
supervision of the victim's group
during the picnic; and, as correctly
found by the trial court, an affirmative
reply to this question has been
satisfactorily established by the
evidence, as already pointed out.
However, We sustain defendantsappellants insofar as two of the
defendants-teachers, Yoly Jaro and
Nida Aragones, are concerned. As to
them, the trial court found:
While it is alleged that when
defendants Yoly Jaro and Nida
Aragones arrived at the picnic site, the
drowning incident had already
occurred, such fact does not and
cannot excuse them from their liability.
In fact, it could be said that by coming
late, they were remiss in their duty to
safeguard the students.
The evidence shows that these two
defendants had satisfactorily

explained why they were late in going

to the picnic site, namely, that they
had to attend to the entrance
examination being conducted by the
school which is part of their duty as
teachers thereof. Since they were not
at the picnic site during the
occurrence in question, it cannot be
said that they had any participation in
the negligence attributable to the
other defendants-teachers who failed
to exercise diligence in the supervision
of the children during the picnic and
which failure resulted in the drowning
of plaintiffs' son. Thus, We may not
attribute any act or omission to the
two teachers, Yoly Jaro and Nida
Aragones, as to make them liable for
the injury caused to the plaintiffs
because of the death of their son
resulting from his drowning at the
picnic. Accordingly, they must be
absolved from any liability.
As to the second assigned error raised
by defendants-appellants, We agree
with the court a quo that the
counterclaim must be dismissed for
lack of merit. (pp. 59-60, Rollo)
Hence, this petition.
The issues presented by petitioners
are:
A)
Whether or not there was
negligence attributable to the
defendants which will warrant the
award of damages to the plaintiffs;
B)
Whether or not Art. 2180, in
relation to Art. 2176 of the New Civil
Code is applicable to the case at bar;
C)
Whether or not the award of
exemplary and moral damages is
proper under the circumstances
surrounding the case at bar. (pp. 8182, Rollo)

In the resolution of January 16, 1989,

We gave due course to the petition
and required the parties to submit
their respective memoranda.

drowned in the picnic came to you, is

that correct?

The petition is impressed with merit.

Q
From 8:00 o'clock in the
morning up to 12:00 o'clock noon of
March 20, 1982, you did not know that
your son join the picnic?

If at all petitioners are liable for

negligence, this is because of their
own negligence or the negligence of
people under them. In the instant case
however, as will be shown hereunder,
petitioners are neither guilty of their
own negligence or guilty of the
negligence of those under them.
Hence, it cannot be said that they are
guilty at all of any negligence.
Consequently they cannot be held
liable for damages of any kind.

Yes, sir.

No, sir, I did not know.

Q
Did you not look for your son
during that time?
A
I am too busy with my
profession, that is why I was not able,
sir.
Q

You did not ask your wife?

At the outset, it should be noted that

respondent spouses, parents of the
victim Ferdinand, allowed their son to
join the excursion.

I did not, sir.

Testimony of Dr. Castillo on cross

exam. by Atty. Flores

Q
Now, when your son asked you
for money to buy food, did you not ask
him where he will bring this?

Q
And neither did your wife tell
you that your son join the picnic?
Later on after 12:00, sir.

Q
And during that time you were
too busy that you did not inquire
whether your son have joined that
picnic?

A
I asked him where he was
going, he answered, I am going to the
picnic, and when I asked him where,
he did not answer, sir.

Q
And after giving the money, you
did not tell him anything more?

The fact that he gave money to his

son to buy food for the picnic even
without knowing where it will be held,
is a sign of consent for his son to join
the same. Furthermore.

No more, sir.

Q
And after that you just learned
that your son join the picnic?
A

Yes, sir.

(TSN, pp. 16-17, hearing of April 2,

1984 witness Romulo Castillo)

Testimony of Dr. Lazaro on cross

examination:

Yes, sir.

Q
And you came to know of it
after the news that your son was

Q
How did you conduct this
mental and physical examination?

A
I have interviewed several
persons and the patient herself She
even felt guilty about the death of her
son because she cooked adobo for him
so he could join the excursion where
her son died of drowning.
Q
Why were you able to say she
was feeling guilty because she was the
one who personally cooked the adobo
for her son?
A
It was during the interview that
I had gathered it from the patient
herself. She was very sorry had she
not allowed her son to join the
excursion her son would have not
drowned. I don't know if she actually
permitted her son although she said
she cooked adobo so he could join.
(Emphasis Supplied) (TSN, p. 19,
hearing of April 30, 1984, Dr. Lazaro
witness).
Respondent Court of Appeals
committed an error in applying Article
2180 of the Civil Code in rendering
petitioner school liable for the death of
respondent's son.
Article 2180, par. 4 states that:
The obligation imposed by article 2176
is demandable not only for one's own
acts or omissions, but also for those of
persons for whom one is responsible.
xxx

xxx

xxx

Employers shall be liable for the

damages caused by their employees
and household helpers acting within
the scope of their assigned tasks, even
though the former are not engaged in
any business or industry.
Under this paragraph, it is clear that
before an employer may be held liable
for the negligence of his employee,
the act or omission which caused

damage or prejudice must have

occurred while an employee was in the
performance of his assigned tasks.
In the case at bar, the
teachers/petitioners were not in the
actual performance of their assigned
tasks. The incident happened not
within the school premises, not on a
school day and most importantly while
the teachers and students were
holding a purely private affair, a
picnic. It is clear from the beginning
that the incident happened while
some members of the I-C class of St.
Francis High School were having a
picnic at Talaan Beach. This picnic had
no permit from the school head or its
principal, Benjamin Illumin because
this picnic is not a school sanctioned
activity neither is it considered as an
extra-curricular activity.
As earlier pointed out by the trial
court, mere knowledge by
petitioner/principal Illumin of the
planning of the picnic by the students
and their teachers does not in any way
or in any manner show acquiescence
or consent to the holding of the same.
The application therefore of Article
2180 has no basis in law and neither is
it supported by any jurisprudence. If
we were to affirm the findings of
respondent Court on this score,
employers wig forever be exposed to
the risk and danger of being hailed to
Court to answer for the misdeeds or
omissions of the employees even if
such act or omission he committed
while they are not in the performance
of their duties.
Finally, no negligence could be
attributable to the petitioners-teachers
to warrant the award of damages to
the respondents-spouses.
Petitioners Connie Arquio the class
adviser of I-C, the section where

Ferdinand belonged, did her best and

exercised diligence of a good father of
a family to prevent any untoward
incident or damages to all the
students who joined the picnic.

Q
Despite the fact that the boy
was no longer responding to your
application of first aid?

In fact, Connie invited co-petitioners

Tirso de Chavez and Luisito Vinas who
are both P.E. instructors and scout
masters who have knowledge in First
Aid application and swimming.
Moreover, even respondents' witness,
Segundo Vinas, testified that "the
defendants (petitioners herein) had
life savers especially brought by the
defendants in case of emergency." (p.
85, Rollo) The records also show that
both petitioners Chavez and Vinas did
all what is humanly possible to save
the child.

Q
You have never been disturbed,
"nababahala" in the process of your
application of the first aid on the body
of Ferdinand Castillo?

Testimony of Luisito Vinas on cross

examination,
Q
And when you saw the boy,
Ferdinand Castillo, you approached the
boy and claim also having applied first
aid on him?
A

Yes, sir.

Q
And while you were applying
the so called first aid, the children
were covering you up or were
surrounding you?
A

Yes, sir.

Q
You were rattled at that time, is
it not?
A

No, sir.

Q
You mean you were in calm and
peaceful condition?
A

Yes, sir.

A
No, sir, because we were
attending to the application of first aid
that we were doing, sir.
Q
After you have applied back to
back pressure and which you claimed
the boy did not respond, were you not
disturb anyway?
A
I was disturbed during that
time, sir.
Q
For how many minutes have
you applied the back to back
pressure?
A

From 9 to 11 times, sir.

Q
You mean 9 to 11 times of
having applied the pressure of your
body on the body of Ferdinand
Castillo?
A

Yes, sir.

Q
Will you please describe how
you applied a single act of back to
back pressure?
A
This has been done by placing
the boy lay first downwards, then the
face was a little bit facing right and
doing it by massaging the back of the
child, sir." (TSN, pp. 32-35, hearing of
July 30, 1984)

Yes, sir.
Testimony of Tirso de Chavez on direct
examination

ATTY. FLORES:
Q
Who actually applied the first
aid or artificial respiration to the child?
A

Myself, sir.

Q
How did you apply the first aid
to the guy?
A
The first step that I took, with
the help of Mr. Luisito Vinas, was I
applied back to back pressure and
took notice of the condition of the
child. We placed the feet in a higher
position, that of the head of the child,
sir.
Q
After you have placed the boy in
that particular position, where the feet
were on a higher level than that of the
head, what did you do next?
A
The first thing that we did,
particularly myself, was that after
putting the child in that position, I
applied the back to back pressure and
started to massage from the waistline
up, but I noticed that the boy was not
responding, sir.
Q
For how long did you apply this
back to back pressure on the boy?
A

About 10 seconds, sir.

What about Mr. Vinas?

A
Almost the same a little longer,
for 15 seconds, sir.
Q
After you noticed that the boy
was not responding, what did you do?
A
When we noticed that the boy
was not responding, we changed the
position of the boy by placing the child
facing upwards laying on the sand
then we applied the mouth to mouth
resuscitation, sir. (pp. 92-93, Rollo)

With these facts in mind, no moral nor

exemplary damages may be awarded
in favor of respondents-spouses. The
case at bar does not fall under any of
the grounds to grant moral damages.
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 the defendant's wrongful act
or omission.
Moreover, as already pointed out
hereinabove, petitioners are not guilty
of any fault or negligence, hence, no
moral damages can be assessed
against them.
While it is true that respondentsspouses did give their consent to their
son to join the picnic, this does not
mean that the petitioners were
already relieved of their duty to
observe the required diligence of a
good father of a family in ensuring the
safety of the children. But in the case
at bar, petitioners were able to prove
that they had exercised the required
diligence. Hence, the claim for moral
or exemplary damages becomes
baseless.
PREMISES CONSIDERED, the
questioned decision dated November
19, 1987, finding petitioners herein
guilty of negligence and liable for the
death of Ferdinand Castillo and
awarding the respondents damages, is
hereby SET ASIDE insofar as the
petitioners herein are concerned, but
the portion of the said decision
dismissing their counterclaim, there
being no merit, is hereby AFFIRMED.

SO ORDERED.
City of Manila v. Teotico
Appeal by certiorari from a decision of
the Court of Appeals.
On January 27, 1958, at about 8:00
p.m., Genaro N. Teotico was at the
corner of the Old Luneta and P. Burgos
Avenue, Manila, within a "loading and
unloading" zone, waiting for a jeepney
to take him down town. After waiting
for about five minutes, he managed to
hail a jeepney that came along to a
stop. As he stepped down from the
curb to board the jeepney, and took a
few steps, he fell inside an uncovered
and unlighted catch basin or manhole
on P. Burgos Avenue. Due to the fall,
his head hit the rim of the manhole
breaking his eyeglasses and causing
broken pieces thereof to pierce his left
eyelid. As blood flowed therefrom,
impairing his vision, several persons
came to his assistance and pulled him
out of the manhole. One of them
brought Teotico to the Philippine
General Hospital, where his injuries
were treated, after which he was taken
home. In addition to the lacerated
wound in his left upper eyelid, Teotico
suffered contusions on the left thigh,
the left upper arm, the right leg and
the upper lip apart from an abrasion
on the right infra-patella region. These
injuries and the allergic eruption
caused by anti-tetanus injections
administered to him in the hospital,
required further medical treatment by
a private practitioner who charged
therefor P1,400.00.
As a consequence of the foregoing
occurrence, Teotico filed, with the
Court of First Instance of Manila, a
complaint which was, subsequently,
amended for damages against the
City of Manila, its mayor, city
engineer, city health officer, city
treasurer and chief of police. As stated
in the decision of the trial court, and

quoted with approval by the Court of

Appeals,
At the time of the incident, plaintiff
was a practicing public accountant, a
businessman and a professor at the
University of the East. He held
responsible positions in various
business firms like the Philippine
Merchandising Co., the A.U. Valencia
and Co., the Silver Swan
Manufacturing Company and the
Sincere Packing Corporation. He was
also associated with several civic
organizations such as the Wack Wack
Golf Club, the Chamber of Commerce
of the Philippines, Y's Men Club of
Manila and the Knights of Rizal. As a
result of the incident, plaintiff was
prevented from engaging in his
customary occupation for twenty days.
Plaintiff has lost a daily income of
about P50.00 during his incapacity to
work. Because of the incident, he was
subjected to humiliation and ridicule
by his business associates and friends.
During the period of his treatment,
plaintiff was under constant fear and
anxiety for the welfare of his minor
children since he was their only
support. Due to the filing of this case,
plaintiff has obligated himself to pay
his counsel the sum of P2,000.00.
On the other hand, the defense
presented evidence, oral and
documentary, to prove that the Storm
Drain Section, Office of the City
Engineer of Manila, received a report
of the uncovered condition of a
catchbasin at the corner of P. Burgos
and Old Luneta Streets, Manila, on
January 24, 1958, but the same was
covered on the same day (Exhibit 4);
that again the iron cover of the same
catch basin was reported missing on
January 30, 1958, but the said cover
was replaced the next day (Exhibit 5);
that the Office of the City Engineer
never received any report to the effect

that the catchbasin in question was

not covered between January 25 and
29, 1968; that it has always been a
policy of the said office, which is
charged with the duty of installation,
repair and care of storm drains in the
City of Manila, that whenever a report
is received from whatever source of
the loss of a catchbasin cover, the
matter is immediately attended to,
either by immediately replacing the
missing cover or covering the
catchbasin with steel matting that
because of the lucrative scrap iron
business then prevailing, stealing of
iron catchbasin covers was rampant;
that the Office of the City Engineer has
filed complaints in court resulting from
theft of said iron covers; that in order
to prevent such thefts, the city
government has changed the position
and layout of catchbasins in the City
by constructing them under the
sidewalks with concrete cement
covers and openings on the side of the
gutter; and that these changes had
been undertaken by the city from time
to time whenever funds were
available.
After appropriate proceedings the
Court of First Instance of Manila
rendered the aforementioned decision
sustaining the theory of the
defendants and dismissing the
amended complaint, without costs.
On appeal taken by plaintiff, this
decision was affirmed by the Court of
Appeals, except insofar as the City of
Manila is concerned, which was
sentenced to pay damages in the
aggregate sum of P6,750.00. 1 Hence,
this appeal by the City of Manila.
The first issue raised by the latter is
whether the present case is governed
by Section 4 of Republic Act No. 409
(Charter of the City of Manila) reading:

The city shall not be liable or held for

damages or injuries to persons or
property arising from the failure of the
Mayor, the Municipal Board, or any
other city officer, to enforce the
provisions of this chapter, or any other
law or ordinance, or from negligence
of said Mayor, Municipal Board, or
other officers while enforcing or
attempting to enforce said provisions.
or by Article 2189 of the Civil Code of
the Philippines which provides:
Provinces, cities and municipalities
shall be liable for damages for the
death of, or injuries suffered by, any
person by reason of defective
conditions of road, streets, bridges,
public buildings, and other public
works under their control or
supervision.
Manila maintains that the former
provision should prevail over the
latter, because Republic Act 409, is a
special law, intended exclusively for
the City of Manila, whereas the Civil
Code is a general law, applicable to
the entire Philippines.
The Court of Appeals, however,
applied the Civil Code, and, we think,
correctly. It is true that, insofar as its
territorial application is concerned,
Republic Act No. 409 is a special law
and the Civil Code a general
legislation; but, as regards the subjectmatter of the provisions above quoted,
Section 4 of Republic Act 409
establishes a general rule regulating
the liability of the City of Manila for:
"damages or injury to persons or
property arising from the failure of"
city officers "to enforce the provisions
of" said Act "or any other law or
ordinance, or from negligence" of the
city "Mayor, Municipal Board, or other
officers while enforcing or attempting
to enforce said provisions." Upon the

other hand, Article 2189 of the Civil

Code constitutes a particular
prescription making "provinces, cities
and municipalities . . . liable for
damages for the death of, or injury
suffered by any person by reason"
specifically "of the defective
condition of roads, streets, bridges,
public buildings, and other-public
works under their control or
supervision." In other words, said
section 4 refers to liability arising from
negligence, in general, regardless of
the object thereof, whereas Article
2189 governs liability due to
"defective streets," in particular. Since
the present action is based upon the
alleged defective condition of a road,
said Article 2189 is decisive thereon.
It is urged that the City of Manila
cannot be held liable to Teotico for
damages: 1) because the accident
involving him took place in a national
highway; and 2) because the City of
Manila has not been negligent in
connection therewith.
As regards the first issue, we note that
it is based upon an allegation of fact
not made in the answer of the City.
Moreover, Teotico alleged in his
complaint, as well as in his amended
complaint, that his injuries were due to
the defective condition of a street
which is "under the supervision and
control" of the City. In its answer to the
amended complaint, the City, in turn,
alleged that "the streets
aforementioned were and have been
constantly kept in good condition and
regularly inspected and the storm
drains and manholes thereof covered
by the defendant City and the officers
concerned" who "have been ever
vigilant and zealous in the
performance of their respective
functions and duties as imposed upon
them by law." Thus, the City had, in
effect, admitted that P. Burgos Avenue

was and is under its control and

supervision.
Moreover, the assertion to the effect
that said Avenue is a national highway
was made, for the first time, in its
motion for reconsideration of the
decision of the Court of Appeals. Such
assertion raised, therefore, a question
of fact, which had not been put in
issue in the trial court, and cannot be
set up, for the first time, on appeal,
much less after the rendition of the
decision of the appellate court, in a
motion for the reconsideration thereof.
At any rate, under Article 2189 of the
Civil Code, it is not necessary for the
liability therein established to attach
that the defective roads or streets
belong to the province, city or
municipality from which responsibility
is exacted. What said article requires
is that the province, city or
municipality have either "control or
supervision" over said street or road.
Even if P. Burgos Avenue were,
therefore, a national highway, this
circumstance would not necessarily
detract from its "control or
supervision" by the City of Manila,
under Republic Act 409. In fact Section
18(x) thereof provides:
Sec. 18. Legislative powers. The
Municipal Board shall have the
following legislative powers:
xxx

xxx

xxx

(x) Subject to the provisions of existing

law to provide for the laying out,
construction and improvement, and to
regulate the use of streets, avenues,
alleys, sidewalks, wharves, piers,
parks, cemeteries, and other public
places; to provide for lighting,
cleaning, and sprinkling of streets and
public places; . . . to provide for the
inspection of, fix the license fees for

and regulate the openings in the same

for the laying of gas, water, sewer and
other pipes, the building and repair of
tunnels, sewers, and drains, and all
structures in and under the same and
the erecting of poles and the stringing
of wires therein; to provide for and
regulate cross-works, curbs, and
gutters therein, . . . to regulate traffic
and sales upon the streets and other
public places; to provide for the
abatement of nuisances in the same
and punish the authors or owners
thereof; to provide for the construction
and maintenance, and regulate the
use, of bridges, viaducts and culverts;
to prohibit and regulate ball playing,
kite-flying, hoop rolling, and other
amusements which may annoy
persons using the streets and public
places, or frighten horses or other
animals; to regulate the speed of
horses and other animals, motor and
other vehicles, cars, and locomotives
within the limits of the city; to regulate
the lights used on all vehicles, cars,
and locomotives; . . . to provide for
and change the location, grade, and
crossing of railroads, and compel any
such railroad to raise or lower its
tracks to conform to such provisions or
changes; and to require railroad
companies to fence their property, or
any part thereof, to provide suitable
protection against injury to persons or
property, and to construct and repair
ditches, drains, sewers, and culverts
along and under their tracks, so that
the natural drainage of the streets and
adjacent property shall not be
obstructed.
This authority has been neither
withdrawn nor restricted by Republic
Act No. 917 and Executive Order No.
113, dated May 2, 1955, upon which
the City relies. Said Act governs the
disposition or appropriation of the
highway funds and the giving of aid to
provinces, chartered cities and

municipalities in the construction of

roads and streets within their
respective boundaries, and Executive
Order No. 113 merely implements the
provisions of said Republic Act No.
917, concerning the disposition and
appropriation of the highway funds.
Moreover, it provides that "the
construction, maintenance and
improvement of national primary,
national secondary and national aid
provincial and city roads shall be
accomplished by the Highway District
Engineers and Highway City Engineers
under the supervision of the
Commissioner of Public Highways and
shall be financed from such
appropriations as may be authorized
by the Republic of the Philippines in
annual or special appropriation Acts."
Then, again, the determination of
whether or not P. Burgos Avenue is
under the control or supervision of the
City of Manila and whether the latter is
guilty of negligence, in connection
with the maintenance of said road,
which were decided by the Court of
Appeals in the affirmative, is one of
fact, and the findings of said Court
thereon are not subject to our review.
WHEREFORE, the decision appealed
from should be as it is hereby
affirmed, with costs against the City of
Manila. It is so ordered.
Alitalia v. IAC
Dr. Felipa Pablo an associate professor
in the University of the Philippines, 1 and
a research grantee of the Philippine
Atomic Energy Agency was invited to
take part at a meeting of the Department
of Research and Isotopes of the Joint FAOIAEA Division of Atomic Energy in Food
and Agriculture of the United Nations in
Ispra, Italy. 2 She was invited in view of
her specialized knowledge in "foreign
substances in food and the agriculture
environment."
She
accepted
the

invitation, and was then scheduled by the

organizers, to read a paper on "The Fate
of
Radioactive
Fusion
Products
Contaminating Vegetable Crops." 3 The
program announced that she would be the
second speaker on the first day of the
meeting. 4 To fulfill this engagement, Dr.
Pablo booked passage on petitioner
airline, ALITALIA.
She arrived in Milan on the day before the
meeting in accordance with the itinerary
and time table set for her by ALITALIA.
She was however told by the ALITALIA
personnel there at Milan that her luggage
was "delayed inasmuch as the same . . .
(was) in one of the succeeding flights from
Rome to Milan." 5 Her luggage consisted
of two (2) suitcases: one contained her
clothing and other personal items; the
other, her scientific papers, slides and
other research material. But the other
flights arriving from Rome did not have
her baggage on board.
By then feeling desperate, she went to
Rome to try to locate her bags herself.
There, she inquired about her suitcases in
the domestic and international airports,
and filled out the forms prescribed by
ALITALIA for people in her predicament.
However, her baggage could not be found.
Completely distraught and discouraged,
she returned to Manila without attending
the meeting in Ispra, Italy.
: nad

Once back in Manila she demanded that

ALITALIA
make
reparation
for
the
damages thus suffered by her. ALITALIA
offered her "free airline tickets to
compensate
her
for
any
alleged
damages. . . ." She rejected the offer, and
forthwith commenced the action 6 which
has given rise to the present appellate
proceedings.
As it turned out, Prof. Pablo's suitcases
were in fact located and forwarded to
Ispra, 7 Italy, but only on the day after
her
scheduled
appearance
and
participation at the U.N. meeting there. 8
Of course Dr. Pablo was no longer there to
accept delivery; she was already on her
way home to Manila. And for some reason
or other, the suitcases were not actually

restored to Prof. Pablo by ALITALIA until

eleven (11) months later, and four (4)
months after institution of her action. 9
After appropriate proceedings and trial,
the Court of First Instance rendered
judgment in Dr. Pablo's favor: 10
"(1)
Ordering
the
defendant
(ALITALIA) to pay . . . (her) the
sum of TWENTY THOUSAND PESOS
(P20,000.00), Philippine Currency,
by way of nominal damages;
(2) Ordering the defendant to pay .
. . (her) the sum of FIVE
THOUSAND PESOS (P5,000.00),
Philippine Currency, as and for
attorney's fees; (and)
(3) Ordering the defendant to pay
the costs of the suit."
ALITALIA appealed to the Intermediate
Appellate Court but failed to obtain a
reversal of the judgment. 11 Indeed, the
Appellate Court not only affirmed the Trial
Court's decision but also increased the
award of nominal damages payable by
ALITALIA to P40,000.00. 12 That increase
it justified as follows: 13
"Considering the circumstances, as
found by the Trial Court and the
negligence
committed
by
defendant,
the
amount
of
P20,000.00
under
present
inflationary conditions as awarded .
. . to the plaintiff as nominal
damages, is too little to make up
for the plaintiff's frustration and
disappointment in not being able to
appear at said conference; and for
the embarrassment and humiliation
she suffered from the academic
community for failure to carry out
an official mission for which she
was singled out by the faculty to
represent her institution and the
country. After weighing carefully all
the considerations, the amount
awarded to the plaintiff for nominal
damages and
attorney's fees
should be increased to the cost of
her round trip air fare or at the

present rate of peso to the dollar at

P40,000,00."
ALITALIA has appealed to this Court
on Certiorari. Here, it seeks to make
basically the same points it tried to make
before
the
Trial
Court
and
the
Intermediate Appellate Court, i.e.:
1) that the Warsaw Convention
should have been applied to limit
ALITALIA'S liability; and
2) that there is no warrant in fact
or in law for the award to Dr. Pablo
of nominal damages and attorney's
fees. 14
In addition, ALITALIA postulates that it
was error for the Intermediate Appellate
Court to have refused to pass on all the
assigned errors and in not stating the
facts and the law on which its decision is
based. 15
Under the Warsaw Convention, 16 an air
carrier is made liable for damages for:
1) the death, wounding or other
bodily injury of a passenger if the
accident causing it took place on
board the aircraft or in the course
of its operations of embarking or
disembarking; 17
2) the destruction or loss of, or
damage to, any registered luggage
or goods, if the occurrence causing
it took place during the carriage by
air;" 18 and
3) delay in the transportation by
air of passengers, luggage or
goods. 19
In these cases, it is provided in the
Convention that the "action for damages,
however, founded, can only be brought
subject to conditions and limits set out"
therein. 20
The Convention also purports to limit the
liability of the carriers in the following
manner: 21
1. In the carriage of passengers
the liability of the carrier for each
passenger is limited to the sum of

250,000 francs . . . Nevertheless,

by special contract, the carrier and
the passenger may agree to a
higher limit of liability.
: nad

2. a) In the carriage of registered

baggage and of cargo, the liability
of the carrier is limited to a sum of
250 francs per kilogramme, unless
the passenger or consignor has
made, at the time when the
package was handed over to the
carrier, a special declaration of
interest in delivery at destination
and has paid a supplementary sum
if the case so requires. In that case
the carrier will be liable to pay a
sum not exceeding the declared
sum, unless he proves that sum is
greater than the actual value to the
consignor at delivery.
b) In the case of loss, damage or
delay of part of registered baggage
or cargo, or of any object
contained therein, the weight to be
taken
into
consideration
in
determining the amount to which
the carrier's liability is limited shall
be only the total weight of the
package or packages concerned.
Nevertheless,
when
the
loss,
damage or delay of a part of the
registered baggage or cargo, or of
an object contained therein, affects
the value of other packages
covered by the same baggage
check or the same air way bill, the
total weight of such package or
packages shall also be taken into
consideration in determining the
limit of liability.
3. As regards objects of which the
passenger takes charge himself the
liability of the carrier is limited to
5000 francs per passenger.
4. The limits prescribed . . shall not
prevent the court from awarding,
in accordance with its own law, in
addition, the whole or part of the
court costs and of the other
expenses of litigation incurred by
the
plaintiff.
The
foregoing

provision shall not apply if the

amount of the damages awarded,
excluding court costs and other
expenses of the litigation, does not
exceed the sum which the carrier
has offered in writing to the
plaintiff within a period of six
months from the date of the
occurrence causing the damage, or
before the commencement of the
action, if that is later.
The Warsaw Convention however denies
to the carrier availment "of the provisions
which exclude or limit his liability, if the
damage is caused by his wilful misconduct
or by such default on his part as, in
accordance with the law of the court
seized of the case, is considered to be
equivalent to wilful misconduct," or "if the
damage is (similarly) caused . . by any
agent of the carrier acting within the
scope of his employment." 22 The Hague
Protocol amended the Warsaw Convention
by removing the provision that if the
airline took all necessary steps to avoid
the damage, it could exculpate itself
completely, 23 and declaring the stated
limits of liability not applicable "if it is
proved that the damage resulted from an
act or omission of the carrier, its servants
or agents, done with intent to cause
damage or recklessly and with knowledge
that damage would probably result." The
same deletion was effected by the
Montreal Agreement of 1966, with the
result that a passenger could recover
unlimited damages upon proof of wilful
misconduct. 24
The Convention does not thus operate as
an exclusive enumeration of the instances
of an airline's liability, or as an absolute
limit of the extent of that liability. Such a
proposition is not borne out by the
language of the Convention, as this Court
has now, and at an earlier time, pointed
out. 25 Moreover, slight reflection readily
leads to the conclusion that it should be
deemed a limit of liability only in those
cases where the cause of the death or
injury to person, or destruction, loss or
damage to property or delay in its
transport is not attributable to or attended

by any wilful misconduct, bad faith,

recklessness, or otherwise improper
conduct on the part of any official or
employee for which the carrier is
responsible, and there is otherwise no
special or extraordinary form of resulting
injury. The Convention's provisions, in
short, do not "regulate or exclude liability
for other breaches of contract by the
carrier" 26 or misconduct of its officers
and employees, or for some particular or
exceptional type of damage. Otherwise,
"an air carrier would be exempt from any
liability for damages in the event of its
absolute refusal, in bad faith, to comply
with a contract of carriage, which is
absurd." 27 Nor may it for a moment be
supposed that if a member of the aircraft
complement should inflict some physical
injury on a passenger, or maliciously
destroy or damage the latter's property,
the Convention might successfully be
pleaded as the sole gauge to determine
the carrier's liability to the passenger.
Neither may the Convention be invoked to
justify
the
disregard
of
some
extraordinary sort of damage resulting to
a passenger and preclude recovery
therefor beyond the limits set by said
Convention. It is in this sense that the
Convention has been applied, or ignored,
depending on the peculiar facts presented
by each case.
:-cralaw

In Pan American World Airways, Inc. v.

I.A.C., 28 for example, the Warsaw
Convention was applied as regards the
limitation on the carrier's liability, there
being a simple loss of baggage without
any otherwise improper conduct on the
part of the officials or employees of the
airline or other special injury sustained by
the passenger.
On the
other
hand,
the
Warsaw
Convention has invariably been held
inapplicable, or as not restrictive of the
carrier's
liability, where
there
was
satisfactory evidence of malice or bad
faith attributable to its officers and
employees. 29 Thus, an air carrier was
sentenced to pay not only compensatory
but also moral and exemplary damages,
and attorney's fees, for instance, where

its employees rudely put a passenger

holding a first-class ticket in the tourist or
economy section, 30 or ousted a brown
Asiatic from the plane to give his seat to a
white man, 31 or gave the seat of a
passenger with a confirmed reservation to
another, 32 or subjected a passenger to
extremely rude, even barbaric treatment,
as by calling him a "monkey." 33
In the case at bar, no bad faith or
otherwise improper conduct may be
ascribed to the employees of petitioner
airline; and Dr. Pablo's luggage was
eventually returned to her, belatedly, it is
true, but without appreciable damage. The
fact is, nevertheless, that some special
species of injury was caused to Dr. Pablo
because petitioner ALITALIA misplaced her
baggage and failed to deliver it to her at
the time appointed a breach of its
contract of carriage, to be sure with the
result that she was unable to read the
paper and make the scientific presentation
(consisting of slides, autoradiograms or
films, tables and tabulations) that she had
painstakingly
labored
over, at
the
prestigious international conference, to
attend which she had traveled hundreds of
miles, to her chagrin and embarrassment
and the disappointment and annoyance of
the organizers. She felt, not unreasonably,
that the invitation for her to participate at
the conference, extended by the Joint
FAO/IAEA Division of Atomic Energy in
Food and Agriculture of the United
Nations, was a singular honor not only to
herself, but to the University of the
Philippines and the country as well, an
opportunity to make some sort of
impression among her colleagues in that
field of scientific activity. The opportunity
to claim this honor or distinction was
irretrievably lost to her because of
Alitalia's breach of its contract.

conference. As she herself put it, she "was

really shocked and distraught and
confused."
Certainly, the compensation for the injury
suffered by Dr. Pablo cannot under the
circumstances be restricted to that
prescribed by the Warsaw Convention for
delay in the transport of baggage.
She is not, of course, entitled to be
compensated for loss or damage to her
luggage. As already mentioned, her
baggage was ultimately delivered to her in
Manila, tardily but safely. She is however
entitled to nominal damages which, as
the law says, is adjudicated in order that a
right of the plaintiff, which has been
violated or invaded by the defendant, may
be vindicated and recognized, and not for
the purpose of indemnifying the plaintiff
for any loss suffered and this Court
agrees that the respondent Court of
Appeals correctly set the amount thereof
at P40,000.00. As to the purely technical
argument that the award to her of such
nominal damages is precluded by her
omission to include a specific claim
therefor in her complaint, it suffices to
draw attention to her general prayer,
following her plea for moral and
exemplary damages and attorney's fees,
"for such other and further just and
equitable relief in the premises," which
certainly is broad enough to comprehend
an application as well for nominal
damages. Besides, petitioner should have
realized that the explicit assertion, and
proof, that Dr. Pablo's right had been
violated or invaded by it absent any
claim
for
actual
or
compensatory
damages, the prayer thereof having been
voluntarily deleted by Dr. Pablo upon the
return to her of her baggage
necessarily raised the issue of nominal
damages.
: rd

Apart from this, there can be no doubt

that Dr. Pablo underwent profound
distress and anxiety, which gradually
turned to panic and finally despair, from
the time she learned that her suitcases
were missing up to the time when, having
gone to Rome, she finally realized that she
would no longer be able to take part in the

This Court also agrees that respondent

Court of Appeals correctly awarded
attorney's fees to Dr. Pablo, and the
amount of P5,000.00 set by it is
reasonable in the premises. The law
authorizes recovery of attorney's fees
inter alia where, as here, "the defendant's

act or omission has compelled the plaintiff

to litigate with third persons or to incur
expenses to protect his interest," 34 or
"where the court deems it just and
equitable." 35
WHEREFORE, no error being perceived in
the challenged decision of the Court of

Appeals, it appearing on the contrary to

be entirely in accord with the facts and
the law, said decision is hereby AFFIRMED,
with costs against the petitioner.
SO ORDERED.