G.R. No.

138334

August 25, 2003

ESTELA L. CRISOSTOMO, Petitioner,

vs.
The Court of Appeals and CARAVAN TRAVEL & TOURS INTERNATIONAL,
INC., Respondents.
DECISION
YNARES-SANTIAGO, J.:
In May 1991, petitioner Estela L. Crisostomo contracted the services of respondent
Caravan Travel and Tours International, Inc. to arrange and facilitate her booking,
ticketing and accommodation in a tour dubbed "Jewels of Europe". The package tour
included the countries of England, Holland, Germany, Austria, Liechstenstein,
Switzerland and France at a total cost of P74,322.70. Petitioner was given a 5%
discount on the amount, which included airfare, and the booking fee was also waived
because petitioners niece, Meriam Menor, was respondent companys ticketing
manager.
Pursuant to said contract, Menor went to her aunts residence on June 12, 1991 a
Wednesday to deliver petitioners travel documents and plane tickets. Petitioner, in
turn, gave Menor the full payment for the package tour. Menor then told her to be at
the Ninoy Aquino International Airport (NAIA) on Saturday, two hours before her flight
on board British Airways.
Without checking her travel documents, petitioner went to NAIA on Saturday, June 15,
1991, to take the flight for the first leg of her journey from Manila to Hongkong. To
petitioners dismay, she discovered that the flight she was supposed to take had
already departed the previous day. She learned that her plane ticket was for the flight
scheduled on June 14, 1991. She thus called up Menor to complain.
Subsequently, Menor prevailed upon petitioner to take another tour the "British
Pageant" which included England, Scotland and Wales in its itinerary. For this tour
package, petitioner was asked anew to pay US$785.00 or P20,881.00 (at the then
prevailing exchange rate of P26.60). She gave respondent US$300 or P7,980.00 as
partial payment and commenced the trip in July 1991.
Upon petitioners return from Europe, she demanded from respondent the
reimbursement of P61,421.70, representing the difference between the sum she paid
for "Jewels of Europe" and the amount she owed respondent for the "British Pageant"
tour. Despite several demands, respondent company refused to reimburse the
amount, contending that the same was non-refundable.1 Petitioner was thus
constrained to file a complaint against respondent for breach of contract of carriage
and damages, which was docketed as Civil Case No. 92-133 and raffled to Branch 59
of the Regional Trial Court of Makati City.

In her complaint,2 petitioner alleged that her failure to join "Jewels of Europe" was due
to respondents fault since it did not clearly indicate the departure date on the plane
ticket. Respondent was also negligent in informing her of the wrong flight schedule
through its employee Menor. She insisted that the "British Pageant" was merely a
substitute for the "Jewels of Europe" tour, such that the cost of the former should be
properly set-off against the sum paid for the latter.
For its part, respondent company, through its Operations Manager, Concepcion
Chipeco, denied responsibility for petitioners failure to join the first tour. Chipeco
insisted that petitioner was informed of the correct departure date, which was clearly
and legibly printed on the plane ticket. The travel documents were given to petitioner
two days ahead of the scheduled trip. Petitioner had only herself to blame for missing
the flight, as she did not bother to read or confirm her flight schedule as printed on the
ticket.
Respondent explained that it can no longer reimburse the amount paid for "Jewels of
Europe", considering that the same had already been remitted to its principal in
Singapore, Lotus Travel Ltd., which had already billed the same even if petitioner did
not join the tour. Lotus European tour organizer, Insight International Tours Ltd.,
determines the cost of a package tour based on a minimum number of projected
participants. For this reason, it is accepted industry practice to disallow refund for
individuals who failed to take a booked tour.3
Lastly, respondent maintained that the "British Pageant" was not a substitute for the
package tour that petitioner missed. This tour was independently procured by
petitioner after realizing that she made a mistake in missing her flight for "Jewels of
Europe". Petitioner was allowed to make a partial payment of only US$300.00 for the
second tour because her niece was then an employee of the travel agency.
Consequently, respondent prayed that petitioner be ordered to pay the balance of
P12,901.00 for the "British Pageant" package tour.
After due proceedings, the trial court rendered a decision,4 the dispositive part of
which reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. Ordering the defendant to return and/or refund to the plaintiff the amount
of Fifty Three Thousand Nine Hundred Eighty Nine Pesos and Forty Three
Centavos (P53,989.43) with legal interest thereon at the rate of twelve
percent (12%) per annum starting January 16, 1992, the date when the
complaint was filed;
2. Ordering the defendant to pay the plaintiff the amount of Five Thousand
(P5,000.00) Pesos as and for reasonable attorneys fees;
3. Dismissing the defendants counterclaim, for lack of merit; and

4. With costs against the defendant.

private respondent [is guilty] of gross negligence making the principle of pari
delicto inapplicable in the case;

SO ORDERED.5
II
The trial court held that respondent was negligent in erroneously advising petitioner of
her departure date through its employee, Menor, who was not presented as witness
to rebut petitioners testimony. However, petitioner should have verified the exact date
and time of departure by looking at her ticket and should have simply not relied on
Menors verbal representation. The trial court thus declared that petitioner was guilty
of contributory negligence and accordingly, deducted 10% from the amount being
claimed as refund.
Respondent appealed to the Court of Appeals, which likewise found both parties to be
at fault. However, the appellate court held that petitioner is more negligent than
respondent because as a lawyer and well-traveled person, she should have known
better than to simply rely on what was told to her. This being so, she is not entitled to
any form of damages. Petitioner also forfeited her right to the "Jewels of Europe" tour
and must therefore pay respondent the balance of the price for the "British Pageant"
tour. The dispositive portion of the judgment appealed from reads as follows:
WHEREFORE, premises considered, the decision of the Regional Trial Court dated
October 26, 1995 is hereby REVERSED and SET ASIDE. A new judgment is hereby
ENTERED requiring the plaintiff-appellee to pay to the defendant-appellant the
amount of P12,901.00, representing the balance of the price of the British Pageant
Package Tour, the same to earn legal interest at the rate of SIX PERCENT (6%) per
annum, to be computed from the time the counterclaim was filed until the finality of
this decision. After this decision becomes final and executory, the rate of TWELVE
PERCENT (12%) interest per annum shall be additionally imposed on the total
obligation until payment thereof is satisfied. The award of attorneys fees is
DELETED. Costs against the plaintiff-appellee.
SO ORDERED.6
Upon denial of her motion for reconsideration,7 petitioner filed the instant petition
under Rule 45 on the following grounds:
I
It is respectfully submitted that the Honorable Court of Appeals committed a
reversible error in reversing and setting aside the decision of the trial court
by ruling that the petitioner is not entitled to a refund of the cost of unavailed
"Jewels of Europe" tour she being equally, if not more, negligent than the
private respondent, for in the contract of carriage the common carrier is
obliged to observe utmost care and extra-ordinary diligence which is higher
in degree than the ordinary diligence required of the passenger. Thus, even
if the petitioner and private respondent were both negligent, the petitioner
cannot be considered to be equally, or worse, more guilty than the private
respondent. At best, petitioners negligence is only contributory while the

The Honorable Court of Appeals also erred in not ruling that the "Jewels of
Europe" tour was not indivisible and the amount paid therefor refundable;
III
The Honorable Court erred in not granting to the petitioner the consequential
damages due her as a result of breach of contract of carriage.8
Petitioner contends that respondent did not observe the standard of care required of a
common carrier when it informed her wrongly of the flight schedule. She could not be
deemed more negligent than respondent since the latter is required by law to exercise
extraordinary diligence in the fulfillment of its obligation. If she were negligent at all,
the same is merely contributory and not the proximate cause of the damage she
suffered. Her loss could only be attributed to respondent as it was the direct
consequence of its employees gross negligence.
Petitioners contention has no merit.
By definition, a contract of carriage or transportation is one whereby a certain person
or association of persons obligate themselves to transport persons, things, or news
from one place to another for a fixed price.9 Such person or association of persons
are regarded as carriers and are classified as private or special carriers and common
or public carriers.10 A common carrier is defined under Article 1732 of the Civil Code
as persons, corporations, firms or associations engaged in the business of carrying or
transporting passengers or goods or both, by land, water or air, for compensation,
offering their services to the public.
It is obvious from the above definition that respondent is not an entity engaged in the
business of transporting either passengers or goods and is therefore, neither a private
nor a common carrier. Respondent did not undertake to transport petitioner from one
place to another since its covenant with its customers is simply to make travel
arrangements in their behalf. Respondents services as a travel agency include
procuring tickets and facilitating travel permits or visas as well as booking customers
for tours.
While petitioner concededly bought her plane ticket through the efforts of respondent
company, this does not mean that the latter ipso facto is a common carrier. At most,
respondent acted merely as an agent of the airline, with whom petitioner ultimately
contracted for her carriage to Europe. Respondents obligation to petitioner in this
regard was simply to see to it that petitioner was properly booked with the airline for
the appointed date and time. Her transport to the place of destination, meanwhile,
pertained directly to the airline.

The object of petitioners contractual relation with respondent is the latters service of
arranging and facilitating petitioners booking, ticketing and accommodation in the
package tour. In contrast, the object of a contract of carriage is the transportation of
passengers or goods. It is in this sense that the contract between the parties in this
case was an ordinary one for services and not one of carriage. Petitioners
submission is premised on a wrong assumption.
The nature of the contractual relation between petitioner and respondent is
determinative of the degree of care required in the performance of the latters
obligation under the contract. For reasons of public policy, a common carrier in a
contract of carriage is bound by law to carry passengers as far as human care and
foresight can provide using the utmost diligence of very cautious persons and with
due regard for all the circumstances.11 As earlier stated, however, respondent is not a
common carrier but a travel agency. It is thus not bound under the law to observe
extraordinary diligence in the performance of its obligation, as petitioner claims.
Since the contract between the parties is an ordinary one for services, the standard of
care required of respondent is that of a good father of a family under Article 1173 of
the Civil Code.12 This connotes reasonable care consistent with that which an
ordinarily prudent person would have observed when confronted with a similar
situation. The test to determine whether negligence attended the performance of an
obligation is: did the defendant in doing the alleged negligent act use that reasonable
care and caution which an ordinarily prudent person would have used in the same
situation? If not, then he is guilty of negligence.13
In the case at bar, the lower court found Menor negligent when she allegedly informed
petitioner of the wrong day of departure. Petitioners testimony was accepted as
indubitable evidence of Menors alleged negligent act since respondent did not call
Menor to the witness stand to refute the allegation. The lower court applied the
presumption under Rule 131, Section 3 (e)14 of the Rules of Court that evidence
willfully suppressed would be adverse if produced and thus considered petitioners
uncontradicted testimony to be sufficient proof of her claim.
On the other hand, respondent has consistently denied that Menor was negligent and
maintains that petitioners assertion is belied by the evidence on record. The date and
time of departure was legibly written on the plane ticket and the travel papers were
delivered two days in advance precisely so that petitioner could prepare for the trip. It
performed all its obligations to enable petitioner to join the tour and exercised due
diligence in its dealings with the latter.
We agree with respondent.
Respondents failure to present Menor as witness to rebut petitioners testimony could
not give rise to an inference unfavorable to the former. Menor was already working in
France at the time of the filing of the complaint,15 thereby making it physically
impossible for respondent to present her as a witness. Then too, even if it were
possible for respondent to secure Menors testimony, the presumption under Rule
131, Section 3(e) would still not apply. The opportunity and possibility for obtaining
Menors testimony belonged to both parties, considering that Menor was not just
respondents employee, but also petitioners niece. It was thus error for the lower

court to invoke the presumption that respondent willfully suppressed evidence under
Rule 131, Section 3(e). Said presumption would logically be inoperative if the
evidence is not intentionally omitted but is simply unavailable, or when the same
could have been obtained by both parties.16
In sum, we do not agree with the finding of the lower court that Menors negligence
concurred with the negligence of petitioner and resultantly caused damage to the
latter. Menors negligence was not sufficiently proved, considering that the only
evidence presented on this score was petitioners uncorroborated narration of the
events. It is well-settled that the party alleging a fact has the burden of proving it and
a mere allegation cannot take the place of evidence.17 If the plaintiff, upon whom rests
the burden of proving his cause of action, fails to show in a satisfactory manner facts
upon which he bases his claim, the defendant is under no obligation to prove his
exception or defense.18
Contrary to petitioners claim, the evidence on record shows that respondent
exercised due diligence in performing its obligations under the contract and followed
standard procedure in rendering its services to petitioner. As correctly observed by
the lower court, the plane ticket19 issued to petitioner clearly reflected the departure
date and time, contrary to petitioners contention. The travel documents, consisting of
the tour itinerary, vouchers and instructions, were likewise delivered to petitioner two
days prior to the trip. Respondent also properly booked petitioner for the tour,
prepared the necessary documents and procured the plane tickets. It arranged
petitioners hotel accommodation as well as food, land transfers and sightseeing
excursions, in accordance with its avowed undertaking.
Therefore, it is clear that respondent performed its prestation under the contract as
well as everything else that was essential to book petitioner for the tour. Had
petitioner exercised due diligence in the conduct of her affairs, there would have been
no reason for her to miss the flight. Needless to say, after the travel papers were
delivered to petitioner, it became incumbent upon her to take ordinary care of her
concerns. This undoubtedly would require that she at least read the documents in
order to assure herself of the important details regarding the trip.
The negligence of the obligor in the performance of the obligation renders him liable
for damages for the resulting loss suffered by the obligee. Fault or negligence of the
obligor consists in his failure to exercise due care and prudence in the performance of
the obligation as the nature of the obligation so demands.20 There is no fixed standard
of diligence applicable to each and every contractual obligation and each case must
be determined upon its particular facts. The degree of diligence required depends on
the circumstances of the specific obligation and whether one has been negligent is a
question of fact that is to be determined after taking into account the particulars of
each case.21
1wphi1

The lower court declared that respondents employee was negligent. This factual
finding, however, is not supported by the evidence on record. While factual findings
below are generally conclusive upon this court, the rule is subject to certain
exceptions, as when the trial court overlooked, misunderstood, or misapplied some
facts or circumstances of weight and substance which will affect the result of the
case.22

In the case at bar, the evidence on record shows that respondent company performed
its duty diligently and did not commit any contractual breach. Hence, petitioner cannot
recover and must bear her own damage.
WHEREFORE, the instant petition is DENIED for lack of merit. The decision of the
Court of Appeals in CA-G.R. CV No. 51932 is AFFIRMED. Accordingly, petitioner is
ordered to pay respondent the amount of P12,901.00 representing the balance of the
price of the British Pageant Package Tour, with legal interest thereon at the rate of 6%
per annum, to be computed from the time the counterclaim was filed until the finality
of this Decision. After this Decision becomes final and executory, the rate of 12% per
annum shall be imposed until the obligation is fully settled, this interim period being
deemed to be by then an equivalent to a forbearance of credit.23

place. When negligence shows bad faith, the provisions of Articles 1171 and
2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be
observed in the performance, that which is expected of a good
father of a family shall be required.
Jarco Marketing Corporation v. Court of Appeals, 378 Phil. 991, 1003
(1999), citing Picart v. Smith, 37 Phil. 809 (1918).
13

14

This rule states:

SEC. 3. Disputable presumptions. The following presumptions are
satisfactory if uncontradicted, but may be contradicted and
overcome by other evidence:

SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur.

xxx

Footnotes

xxx

xxx

(e) That evidence willfully suppressed would be adverse if

produced;

TSN, March 4, 1993, pp. 4-6.

RTC Records, p. 1.

TSN, August 30, 1994, pp. 6-9.

15

Rollo, pp. 38-43.

16

Id. at 43; penned by Judge Lucia Violago Isnani.

Id. at 36.

Id. at 37.

Id. at 15.

xxx

xxx

xxx

Supra, note 3 at 10.

The Revised Rules of Court in the Philippines, Vol. VII, Part II (1999
Edition) V. Francisco, p. 92.
17

Pimentel v. Court of Appeals, 307 SCRA 38.

Castilex Industrial Corporation v. Vasquez, Jr., 378 Phil. 1009, 1018

(1999), citing Belen v. Belen, 13 Phil. 202, 206 (1909), cited in Martin v.
Court of Appeals, G.R. No. 82248, 205 SCRA 591 (1992).
18

19

Commentaries and Jurisprudence on the Commercial Laws of the

Philippines, Vol. 4 (1993 Edition), Aguedo F. Agbayani, p. 1, citing 1 Blanco
640.

Supra, note 2 at 60 & 94.

10

Bayne Adjusters and Surveyors, Inc. v. Court of Appeals, G.R. No. 116332,
323 SCRA 231 (2000), citing Articles 1170, 1172-73, Civil Code;
Southeastern College, Inc. v. Court of Appeals, 354 Phil 434 (1998).
20

Id. at 4.
Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol.
IV (1999 Edition), Arturo M. Tolentino, p. 124.
21

11

Civil Code of the Philippines, Article 1755.

Article 1173. The fault or negligence of the obligor consists in the omission
of that diligence which is required by the nature of the obligation and
corresponds with the circumstances of the persons, of the time and of the
12

Supra, note 13, citing Borillo v. CA, G.R. No. 55691, 209 SCRA 130
(1992); Mckee v. Intermediate Appellate Court, G.R. No. 68102, 211 SCRA
517 (1992); and Salvador v. Court of Appeals, 313 Phil. 36 (1995).
22

Eastern Shipping Lines, Inc. v. Court of Appeals, G.R. No. 97412, 12 July
1994, 234 SCRA 78, 97.
23

[G.R. No. L-21486. May 14, 1966.]

LA MALLORCA and PAMPANGA BUS COMPANY, Petitioners, v.
VALENTIN DE JESUS, MANOLO TOLENTINO and COURT OF
APPEALS, Respondents.
Manuel O. Chan, for Petitioners.
Sixto T. Antonio for Respondents.

SYLLABUS

1. DAMAGES, ACCIDENT CAUSED BY MECHANICAL DEFECT; LIABILITY OF

OWNER OF VEHICLE. Where the cause of the blowout which caused the
accident was known in that the inner tube of the left front tire was pressed
between the inner circle of the left wheel and the rim which had slipped out of
the wheel, a mechanical defect of the conveyance or a fault in equipment which
was easily discoverable if the bus had been subjected to a more thorough or
rigid check-up before it took to the road, the owner of the vehicle is liable
accident.
2. MORAL DAMAGES; COMMON CARRIER; BREACH OF CONTRACT. In this
jurisdiction moral damages are recoverable by reason of the death of a
passenger caused by the breach of contract of a common carrier, as provided in
Article 1764, in relation to Article 2206, of the Civil Code.

DECISION
MAKALINTAL, J.:
La Mallorca and Pampanga Bus Company, Inc., commonly known as La
Mallorca-Pambusco, filed this appeal by certiorari from the decision of the Court
of Appeals which affirmed that rendered by the Court of First Instance of
Bulacan in its civil case No. 2100, entitled Valentin de Jesus and Manolo
Tolentino v. La Mallorca Pambusco." The court a quo sentenced the defendant
now petitioner, "to pay to plaintiffs the amount of P2,132.50 for actual
damages; P14,400.00 as compensatory damages; P10,000.00 to each plaintiff
by way of moral damages; and P3,000.00 as counsel fees."
cralaw virtua1aw library

Two errors are attributed to the appellate Court: (1) "in sustaining the decision
(of the court a quo) holding that the petitioners were liable for the accident
which was caused by a blow-out of one of the tires of the bus and in not

considering the same as," and (2) in holding petitioners liable for moral
damages.
The suit arose by reason of the death of Lolita de Jesus, 20-year old daughter
of Valentin de Jesus and wife of Manolo Tolentino, in a head-on collision
between petitioners bus, on which she was a passenger, and a freight truck
travelling in the opposite direction, in a barrio in Marilao, Bulacan, in the
morning of October 8, 1959. The immediate cause of the collision was the fact
that the driver of the bus lost control of the wheel when its left front tire
suddenly exploded.
Petitioner maintains that a tire blowout is a fortuitous event and gives rise to
no liability for negligence, citing the rulings of the Court of Appeals in
Rodriguez v. Red Line Transportation Co., CA-G.R. No. 8136; December 29,
1954, and v. Palapad, CA-G.R. No. 18480, June 27, 1953. These rulings,
however, not only are not binding on this Court but were based on
considerations quite different from those that obtain in the case at bar. The
appellate Court there made no findings of any specific acts of negligence on the
part of the defendants and confined itself to the question of whether or not a
tire blowout, by itself alone and without a showing as to the causative factors,
would generate liability. In the present case, the cause of the blowout was
known. The inner tube of the left front tire, according to petitioners own
evidence and as found by the Court of Appeals, "was pressed between the
inner circle of the left wheel and the rim which had slipped out of the wheel."
This was, said Court correctly held, a mechanical direct of the conveyance or a
fault in its equipment which was easily discoverable if the bus had been
subjected to a more thorough or rigid check-up before it took to the road that
morning.
Then again both trial court and the Court of Appeals found as a fact that the
bus was running quite fast immediately before the accident. Considering that
the tire which exploded was not new petitioner describes it as "hindi
masyadong kalbo," or not so very worn out the plea of caso fortuito cannot
be entertained.
The second issue raised by petitioner is already a settled one. In this
jurisdiction moral damages are recoverable by reason of the death of a
passenger cause by the breach of contract of a common carrier, as provided in
Article 1764, in relation to Article 2206, of the Civil Code. These articles have
been applied by this Court in a number of cases, among them Necessito, etc. v.
Paras, Et Al., 104 Phil. 75; Mercado v. Lira, 113 Phil. 112; Villa-Rey Transit v.
Bello, 117 Phil. 745.
Wherefore, the judgment appealed from is affirmed, with costs against
petitioner.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon,
Regala, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

[G.R. No. L-20761. July 27, 1966.]

LA MALLORCA, Petitioner, v. HONORABLE COURT OF APPEALS,
MARIANO BELTRAN, ET AL.,Respondents.
G. E. Yabut, R. Monterey and M. C. Lagman for Petitioner.
Achmed Garcia for Respondents.

SYLLABUS

1. COMMON CARRIERS; CARRIER - PASSENGER RELATION CONTINUES UNTIL

PASSENGER HAS REASONABLE TIME TO LEAVE CARRIERS PREMISES. The
relation of carrier and passenger does not cease at the moment the passenger
alights from the carriers vehicle at a place selected by the carrier at the point
of destination, but continues until the passenger has had a reasonable time or
a reasonable opportunity to leave the carriers premises (Ormond v. Hayes, 60
Tex. 180, cited in 10 C.J. 626).
2. ID.; ID.; "REASONABLE TIME" CONSTRUED. What is a reasonable time or
a reasonable delay is to be determined from all the circumstances. Thus, a
person who, after alighting from a train, walks along the station platform, is
considered still a passenger (Keefe v. Boston, etc. R. Co., 142 Mass. 251, 7
N.E. 874). So also, where a passenger has alighted at his destination and is
proceeding by the usual way to leave the companys premises, but before
actually doing so is halted by the report that his brother, a fellow passenger,
has been shot, and he in good faith and without intent of engaging in the
difficulty, returns to relieve his brother, he is deemed reasonably and
necessarily delayed and thus continues to be a passenger entitled as such to
the protection of the railroad and company and its agents (Layne v.
Chesapeake, etc., R. Co., 68 W. Va. 213, 69 S.E. 700, 31 L.R.A., [N.S.] 414).
3. ID.; ID.; CARRIERS RESPONSIBILITY FOR NEGLIGENCE; CASE AT BAR.
In the present case, the father returned to the bus to get one of his baggages
which was not unloaded when he end other members of his family alighted
from the bus. The victim, one of his minor daughters, must have followed her
father. However, although the father was still on the running board of the bus
awaiting for the conductor to hand to him the bag or bayong, the bus started
to run, so that even he (the father) had to jump down from the moving
vehicle. It was at this instance that the child, who must be near the bus, was
run over and killed. Held: In the circumstances, it cannot be claimed that the
carriers agent had exercised the "utmost diligence" of a "very cautious person"
required by Article 1755 of the Civil Code to be observed by a common carrier
in the discharge of its obligation to transport safely its passengers. In the first

place, the driver, although stopping the bus, did not put off the engine.
Secondly, he started to run the bus even before the bus conductor gave him
the signal to go and while the latter was still unloading a baggage of some
passengers. The presence of said passengers near the bus was not
unreasonable and they are, therefore, to be considered still as passengers of
the carrier, entitled to the protection under their contract of carriage.
4. ID.; ID.; ID.; AVERMENT FOR QUASI-DELICT, ALTHOUGH INCOMPATIBLE
WITH CLAIM UNDER CONTRACT OF CARRIAGE, PERMISSIBLE. The inclusion
of the averment for quasi-delict in appellees complaint in the court a quo,
while incompatible with the other claim under the contract of carriage, is
permissible under Section 2, Rule 8 of the new Rules of Court, which allows a
plaintiff to allege causes of action in the alternative, be they compatible with
each other or not, to the end that the real matter in controversy may be
resolved and determined (Nelayan, Et. Al. v. Nelayan, Et Al., 109 Phil., 183).
5. ID.; ID.; ID.; ID.; EFFECT OF PRESENTATION OF PROOF OF CARRIERS
NEGLIGENCE; CASE AT BAR. - The presentation of proof of the negligence of
its employee gave rise to the presumption that the defendant employer did not
exercise the diligence of a good father of the family in the selection and
supervision of its employees. This presumption not having been overcome, the
employer must be adjudged pecuniarily liable for the death of the passenger.
6. ID.; ID.; ID.; ID.; ID.; SUFFICIENT ALLEGATION IN THE COMPLAINT; CASE
AT BAR. The allegation in the complaint to the effect that "the death of
Raquel Beltran, plaintiffs daughter, was caused by the negligence and want of
exercise of the utmost diligence of a very cautious person on the part of the
defendants and their agent," sufficiently pleads the culpa or negligence upon
which the claim was predicated. This allegation was proved when it was
established during the trial that the driver, even before receiving the proper
signal from the conductor, and while there were still persons on the running
board of the bus and near it, started to run off the vehicle.
7. APPEALS; WHAT CAN BE PASSED UPON ON APPEAL; CASE AT BAR.
Generally, the appellate court can only pass upon and consider questions or
issues raised and argued in appellants brief. In the case at bar, plaintiffs did
not appeal from that portion of the judgment of the trial court awarding them
only P3,000.00 as damages for the death of their daughter. Neither did they
point out in their brief in the Court of Appeals that the award was inadequate,
or that the inclusion of that figure was merely a clerical error, in order that the
matter may be treated as an exception to the general rule (Section 7, Rule 51,
new Rules of Court). The Court of Appeals therefore erred in raising the
amount of the award.

DECISION
BARRERA, J.:
La Mallorca seeks the review of the decision of the Court of Appeals in CA- G.
R. No. 23267-R, holding it liable for quasi-delict and ordering it to pay to

respondents Mariano Beltran, Et. Al. P6,000.00 for the death of his minor
daughter Raquel Beltran, plus P400.00 as actual damages.

child and P400.00 as compensatory damages representing burial expenses and

costs.

The facts of the case, as found by the Court of Appeals, briefly are:

On appeal to the Court of Appeals, La Mallorca claimed that there could not be
a breach of contract in the case, for the reason that when the child met her
death, she was no longer a passenger of the bus involved in the incident and,
therefore, the contract of carriage had already terminated. Although the Court
of Appeals sustained this theory, it nevertheless found the defendant-appellant
guilty of quasi- delict and held the latter liable for damages, for the negligence
of its driver, in accordance with Article 2180 of the Civil Code. And, the Court of
Appeals did not only find the petitioner liable, but increased the damages
awarded the plaintiffs-appellees to P6,000.00, instead of P3,000.00 granted by
the trial court.

chanrobles virtual lawlibrary

jgc:chanroble s.com.ph

"On December 20, 1953, at about noontime, plaintiffs, husband and wife,
together with their minor daughters, namely Milagros, 13 years old, Raquel,
about 4-1/2 years old, and Fe, over 2 years old, boarded the Pambusco Bus
No. 352, bearing plate TPU No. 757 (1953 Pampanga), owned and operated by
the defendant, at San Fernando, Pampanga, bound for Anao, Mexico,
Pampanga. At the time, they were carrying with them four pieces of baggages
containing their personal belongings. The conductor of the bus who happened
to be a half-brother of plaintiff Mariano Beltran, issued three tickets (Exhs. A,
B, & C) covering the full fares of the plaintiff and their eldest child, Milagros. No
fare was charged on Raquel and Fe, since both were below the height at which
fare is charged in accordance with the appellants rules and regulations.
"After about an hours trip, the bus reached Anao, whereat it stopped to allow
the passengers bound therefor, among whom were the plaintiffs and their
children to get off. With respect to the group of the plaintiffs, Mariano Beltran,
then carrying some of their baggages, was the first to get down the bus,
followed by his wife and his children. Mariano led his companions to a shaded
spot on the left pedestrians side of the road about four or five meters away
from the vehicle. Afterwards, he returned to the bus in controversy to get his
other bayong, which he had left behind, but in so doing, his daughter Raquel
followed him unnoticed by her father. While said Mariano Beltran was on the
running board of the bus waiting for the conductor to hand him his bayong
which he left under one of its seats near the door; the bus, whose motor was
not shut off while unloading, suddenly started moving forward, evidently to
resume its trip, notwithstanding the fact that the conductor has not given the
driver the customary signal to start, since said conductor was still attending to
the baggage left behind by Mariano Beltran. Incidentally, when the bus was
again placed into a complete stop, it had travelled about ten meters from the
point where the plaintiffs had gotten off.
"Sensing that the bus was again in motion, Mariano Beltran immediately
jumped from the running board without getting his bayong from the conductor.
He landed on the side of the road almost in front of the shaded place where he
left his wife and children. At that precise time, he saw people beginning to
gather around the body of the child lying prostrate on the ground, her skull,
crushed, and without life. The child was none other than his daughter Raquel,
who was run over by the bus in which she rode earlier together with her
parents.
"For the death of their said child, the plaintiffs commenced the present suit
against the defendant seeking to recover from the latter an aggregate amount
of P6,000 to cover moral damages and actual damages sustained as a result
thereof and attorneys fees. After trial on the merits the court below rendered
the judgment in question."
cralaw virtua1aw library

On the basis of these facts, the trial court found defendant liable for breach of
contract of carriage and sentenced it to pay P3,000.00 for the death of the

chanrobles law library : red

In its brief now before us, La Mallorca contends that the Court of Appeals erred
(1) in holding it liable for quasi- delict, considering that respondents complaint
was one for breach of contract, and (2) in raising the award of damages from
P3,000.00 to P6,000.00 although respondents did not appeal from the decision
of the lower court.
Under the facts as found by the Court of Appeals we have to sustain the
judgment holding petitioner liable for damages for the death of the child,
Raquel Beltran. It may be pointed out that although it is true that respondent
Mariano Beltran, his wife, and their children (including the deceased child) had
alighted from the bus at a place designated for disembarking or unloading of
passengers, it was also established that the father had to return to the vehicle
(which was still at a stop) to get one of his bags or bayong that was left under
one of the seats of the bus. There can be no controversy that as far as the
father is concerned, when he returned to the bus for his bayong which was not
unloaded, the relation of passenger and carrier between him and the petitioner
remained subsisting. For, the relation of carrier and passenger does not
necessarily cease where the latter, after alighting from the car, aids the
carriers servant or employee in removing his baggage from the car. 1 The
issue to be determined here is whether as to the child, who was already led by
the father to a place about 5 meters away from the bus, the liability of the
carrier for her safety under the contract of carriage also persisted.
cralawnad

It has been recognized as a rule that the relation of carrier and passenger does
not cease at the moment the passenger alights from the carriers vehicle at a
place selected by the carrier at the point of destination, but continues until the
passenger has had a reasonable time or a reasonable opportunity to leave the
carriers premises. And, what is a reasonable time or a reasonable delay within
this rule is to be determined from all the circumstances. Thus, a person who,
after alighting from a train, walks along the station platform is considered still a
passenger. 2 So also, where a passenger has alighted at his destination and is
proceeding by the usual way to leave the companys premises, but before
actually doing so is halted by the report that his brother, a fellow passenger,
has been shot, and he in good faith and without intent of engaging in the
difficulty, returns to relieve his brother, he is deemed reasonably and
necessarily delayed and thus continues to be a passenger entitled as such to
the protection of the railroad and company and its agents. 3

In the present case, the father returned to the bus to get one of his baggages
which was not unloaded when they alighted from the bus. Raquel, the child
that she was, must have followed the father. However, although the father was
still on the running board of the bus awaiting for the conductor to hand him the
bag or bayong, the bus started to run, so that even he (the father) had to
jump down from the moving vehicle. It was at this instance that the child, who
must be near the bus, was run over and killed. In the circumstances, it cannot
be claimed that the carriers agent had exercised the "utmost diligence" of a
"very cautious person" required by Article 1755 of the Civil Code to be
observed by a common carrier in the discharge of its obligation to transport
safely its passengers. In the first place, the driver, although stopping the bus,
nevertheless did not put off the engine. Secondly, he started to run the bus
even before the bus conductor gave him the signal to go and while the latter
was still unloading part of the baggages of the passengers Mariano Beltran and
family. The presence of said passengers near the bus was not unreasonable
and they are, therefore, to be considered still as passengers of the carrier,
entitled to the protection under their contract of carriage.

negligence of its employee gave rise to the presumption that the defendant
employer did not exercise the diligence of a good father of the family in the
selection and supervision of its employees. And this presumption, as the Court
of Appeals found, petitioner had failed to overcome. Consequently, petitioner
must be adjudged pecuniarily liable for the death of the child Raquel Beltran.

But even assuming arguendo that the contract of carriage has already
terminated, herein petitioner can be held liable for the negligence of its driver,
as ruled by the Court of Appeals, pursuant to Article 2180 of the Civil Code.
Paragraph 7 of the complaint, which reads

WHEREFORE, the decision of the Court of Appeals is hereby modified by

sentencing the petitioner to pay to the respondents Mariano Beltran, Et Al., the
sum of P3,000.00 for the death of the child, Raquel Beltran, and the amount of
P400.00 as actual damages. No costs in this instance. So ordered.

"That aside from the aforesaid breach of contract, the death of Raquel Beltran,
plaintiffs daughter, was caused by the negligence and want of uxorious of the
utmost diligence of a very cautious person on the part of the defendants and
their agent, necessary to transport plaintiffs and their daughter safely as far as
human and care and foresight can provide in the operation of their vehicle."

Concepcion, C.J., J.B.L., Reyes, Dizon, Regala, J.P. Bengzon, Zaldivar, Sanchez
and Castro, JJ., concur.

The increase of the award of damages from P3,000.00 to P6,000.00 by the

Court of Appeals, however, cannot be sustained. Generally, the appellate court
can only pass upon and consider questions or issues raised and argued in
appellants brief. Plaintiffs did not appeal from that portion of the judgment of
the trial court awarding them only P3,000.00 damages for the death of their
daughter. Neither does it appear that, as appellees in the Court of Appeals,
plaintiffs have pointed out in their brief the inadequacy of the award, or that
the inclusion of the figure P3,000.00 was merely a clerical error, in order that
the matter may be treated as an exception to the general rule. 5 Herein
petitioners contention, therefore, that the Court of Appeals committed error in
raising the amount of the award for damages is, evidently, meritorious.
chanrobles virtual lawlibrary

Makalintal, J., concurs in the result.

cralaw virtua1aw library

is clearly an allegation for quasi-delict. The inclusion of this averment for quasidelict, while incompatible with the other claim under the contract of carriage, is
permissible under Section 2 of Rule 8 of the New Rules of Court, which allows a
plaintiff to allege causes of action in the alternative, be they compatible with
each other or not, to the end that the real matter in controversy may be
resolved and determined. 4
The plaintiffs sufficiently pleaded the culpa or negligence upon which the claim
was predicated when it was alleged in the complaint that "the death of Raquel
Beltran, plaintiffs daughter, was caused by the negligence and want of exercise
of the utmost diligence of a very cautious person on the part of the defendants
and their agent." This allegation was also proved when it was established
during the trial that the driver, even before receiving the proper signal from the
conductor, and while there were still persons on the running board of the bus
and near it, started to run off the vehicle. The presentation of proof of the

Endnotes:

1. Ormond v. Hayer, 60 Tex. 180, cited in 10 C.J. 626.

2. Keefe v. Boston, etc., R. Co., 142 Mass. 251, 7 NE 874.
3. Layne v. Chesapeake, etc., R. Co., 68 W. Va. 213, 69 SE 700, 31 LRANS 414.
4. Nelayan, Et. Al. v. Nelayan, Et Al., 109 Phil. 183.
5. Sec. 7, Rule 51, New Rules of Court.