EN BANC

[G.R. No. L-21438. September 28, 1966.]

AIR FRANCE, petitioner, vs. RAFAEL CARRASCOSO and THE
HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo & Agcaoili for petitioner.
Bengzon, Villegas & Zarraga for respondent R. Carrascoso.
SYLLABUS
1.
JUDGMENT; FINDINGS OF FACT; REQUIREMENT OF LAW. Courts of
justice are not burdened with the obligation to specify in the sentence every bit
and piece of evidence presented by the parties upon the issues raised. The law
solely insists that a decision state the "essential ultimate facts" upon which the
court's conclusion is drawn.
2.
ID.; ID.; ID.; APPEAL AND ERROR; FAILURE TO MAKE FINDINGS ON
EVIDENCE AND CONTENTIONS OF ONE PARTY, EFFECT OF; DECISION NOT TO BE
CLOGGED WITH DETAILS. The mere failure to make specic ndings of fact on
the evidence presented for the defense or to specify in the decision the
contentions of the appellant and the reasons for refusing to believe them is not
sucient to hold the same contrary to the requirement of the law and the
Constitution. There is no law that so requires. A decision is not to be clogged with
details such that prolixity, if not confusion, may result.
3.
ID.; ID.; ID.; FINDINGS OF FACT BY COURTS DEFINED. Findings of fact
may be dened as the written statement of the ultimate facts as found by the
court and essential to support the decision and judgment rendered thereon; they
consist of the court's "conclusions with respect to the determinative facts on
issue."
4.
ID.; ID.; ID.; QUESTION OF LAW EXPLAINED. A question of law is "one
which does not call for an examination of the probative value of the evidence
presented by the parties."
5.
PLEADING AND PRACTICE; APPEAL; WHAT MAY BE RAISED ON APPEAL
FROM COURT OF APPEALS. It is not appropriately the business of the Supreme
Court to alter the facts or to review the questions of fact because, by statute,
only questions of law may be raised in an appeal by certiorari from a judgment
of the Court of Appeals, which judgment is conclusive as to the facts.
6.
ID.; ID.; EFFECT OF AFFIRMANCE BY COURT OF APPEALS OF TRIAL
COURT'S DECISION. When the Court of Appeals arms a judgment of the
trial court, and the ndings of fact of said appellate court are not in any way at
war with those of the trial court, nor is said armance upon a ground or grounds
dierent from those which were made the basis of the trial court's conclusions,
such judgment of armance is (1) a determination by the Court of Appeals that
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the proceeding in the lower court was free from prejudicial error; (7) that all
questions raised by the assignments of error and all questions that might have
been so raised have been nally adjudicated as free from all error.
7.
ID.; COMPLAINT; SPECIFIC MENTION OF THE TERM "BAD FAITH" IN THE
COMPLAINT NOT REQUIRED. Although there is no specic mention of the term
bad faith in the complaint, the inference of bad faith may be drawn from the
facts and circumstances set forth therein. 8. EVIDENCE; FINDING OF COURT OF
APPEALS THAT RESPONDENT WAS ENTITLED TO A FIRST CLASS SEAT. The
Court of Appeals properly found that a rst class-ticket holder is entitled to rst
class seat, given the fact that seat availability in specic ights is therein
conrmed; otherwise, an air passenger will be placed in the hollow of the hands
of an airline, because it will always be easy for an airline to strike out the very
stipulations in the ticket and say that there was verbal agreement to the
contrary. If only to achieve stability in the relations between passenger and air
carrier, adherence to the ticket so issued is desirable.
9.
ID.; LACK OF SPECIFIC AVERMENT OF BAD FAITH CURED BY NOTICE TO
DEFENDANT OF WHAT PLAINTIFF INTENDS TO PROVE AND BY EVIDENCE
PRESENTED WITHOUT OBJECTION; AMENDMENT OF COMPLAINT TO CONFORM
TO EVIDENCE UNNECESSARY. If there was lack of specic averment of bad
faith in the complaint, such deciency was cured by notice, right at the start of
the trial, by plainti's counsel to defendant as to what plainti intended to
prove: while in the plane in Bangkok, plainti was ousted by defendant's
manager who gave his seat to a white man; and by evidence of bad faith in the
fulllment of the contract presented without objection on the part of the
defendant. An amendment of the complaint to conform to the evidence is not
even required.
10.
ID.; ADMISSIBILITY OF TESTIMONY ON AN ENTRY IN A NOTEBOOK;
TESTIMONY NOT COVERED BY BEST EVIDENCE RULE. The testimony of a
witness 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 competent and admissible because the subject of
the inquiry is not the entry but the ouster incident. It does not come within the
prescription of the best evidence rule.
11.
CONTRACT OF CARRIAGE; QUASI-DELICT; LIABILITY OF COMMON
CARRIERS; CASE AT BAR. Neglect or malfeasance of the carrier's employees
could give ground for an action for damages. Damages here are proper because
the stress of respondent's action is placed upon his wrongful expulsion, which is
a violation of a public duty by petitioner-aircarrier a case of quasi-delict.
12.
ID.; ID.; ID.; AWARD OF MORAL DAMAGES FOR BREACH OF CONTRACT.
Award of moral damages is proper, despite petitioner's argument that
respondent's action is planted upon breach of contract, where the stress of the
action is put on wrongful expulsion, the contract having been averred only to
establish the relation between the parties.
13.
ID.; ID.; ID.; EMPLOYER IS RESPONSIBLE FOR TORTIOUS ACTS OF HIS
EMPLOYEE; CASE AT BAR. The responsibility of an employer for the tortious act
of his employees is well settled in law. (Art. 2130, Civil Code). Petitioneraircarrier must answer for the willful, malevolent act of its manager.
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14.
ID.; ID.; ID.; LIABILITY FOR EXEMPLARY DAMAGES; POWER OF COURTS
TO GRANT; CASE AT BAR. The Civil Code gives the court ample power to grant
exemplary damages, the only condition being that defendant should have "acted
in a wanton, fraudulent, reckless, oppressive, or malevolent manner." As the
manner of ejectment of plainti from his rst class seat ts into this legal
precept, exemplary damages are well awarded, in addition to moral damages.
15.
ID.; ID.; LIABILITY FOR ATTORNEY'S FEES; COURT DISCRETION WELL
EXERCISED SHOULD NOT BE DISTURBED. The grant of exemplary damages
justies a similar judgment for attorney's fees. The court below felt that it is but
just and equitable that attorney's fees be given and the Supreme Court does not
intend to break faith with the tradition that discretion well-exercised as it is
here should not be disturbed.
16.
ID.; RIGHTS OF PASSENGERS. 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, any rude or discourteous conduct on the part of
employees towards a passenger gives the latter an action for damages against
the carrier. (4 R. C. L-1174-1175).
17.
ID.; BREACH OF CONTRACT MAY BE A TORT. Although the relation of
passenger and carrier is contractual both in origin and nature, nevertheless, the
act that breaks the contract may also be a tort.
18.
WORDS AND PHRASES; BAD FAITH DEFINED. "Bad faith", as
understood in law, contemplates a state of mind armatively operating with
furtive design or with some motive of self-interest or ill will or for ulterior
purpose
DECISION
SANCHEZ, J :
p

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 dierence in fare between rst
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 ling 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 arm 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:
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"Plainti, 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 plainti a 'rst class' round trip
airplane ticket from Manila to Rome. From Manila to Bangkok, plainti
traveled in 'rst class', but at Bangkok, the Manager of the defendant
airline forced plainti to vacate the 'rst 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 'rst class' seat, the plainti, 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 pacied Mr. Carrascoso to give his seat to the 'white man'
(Transcript, p. 12, Hearing of May 26, 1959); and plainti reluctantly gave
his 'rst class' seat in the plane." 3

1.
The thrust of the relief petitioner now seeks is that we review "all the
ndings" 4 of respondent Court of Appeals. Petitioner charges that respondent
court failed to make complete ndings 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 ndings 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 specic
nding 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 sucient 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 ndings "were
based entirely on the evidence for the prosecution without taking into
consideration or even mentioning the appellant's side in the controversy as
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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 ocial 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, may be dened
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 ndings of fact
of the Court of Appeals support its judgment.
3.

Was Carrascoso entitled to the rst class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from
petitioner a rst 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 conrmed reservations for rst class on
any specic ight, although he had tourist class protection; that, accordingly, the
issuance of a rst class ticket was no guarantee that he would have a rst class
ride, but that such would depend upon the availability of rst 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 nding that plainti had conrmed reservations
for, and a right to, rst class seats on the 'denite' 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
rst-class ticket was no guarantee that the passenger to whom the same
had been issued, would be accommodated in the rst-class
compartment, for as in the case of plainti he had yet to make
arrangements upon arrival at every station for the necessary rst class
reservation. We are not impressed by such a reasoning. We cannot
understand how a reputable rm like defendant airplane company could
have the indiscretion to give out ticket it never meant to honor at all. It
received the corresponding amount in payment of rst-class tickets end
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 not the tickets it issues are to be honored or
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not." 22

Not that the Court of Appeals is alone. The trial court similarly disposed of
petitioner's contention, thus:
"On the fact that plainti paid for, and was issued a 'First class ticket,
there can be no question. Apart from his testimony, see plaintis Exhibits
'A', 'A-1' 'B', 'B-1', 'B-2', 'C' and 'C-1', and defendant's own witness, Rafael
Altonaga, conrmed plainti's testimony and testied as follows:
Q.

In these tickets there are marks 'O.K.' From what you

know, what does this O.K. mean?

A.

That the space is conrmed.

Q.

Conrmed for rst class?

A.

Yes, 'rst class'. (Transcript, p. 169)

xxx xxx xxx

"Defendant tried to prove by the testimony of its witnesses Luis

Zaldariaga and Rafael Altonaga that although plainti paid for, and was
issued a 'rst class' airplane ticket, the ticket was subject to conrmation
in Hongkong. The court cannot give credit to the testimony of said
witnesses. Oral evidence cannot prevail over written evidence, and
plainti's Exhibits 'A', 'A1', 'B', 'B-1', 'C' and 'C- 1' belie the testimony of said
witnesses, and clearly show that the plainti was issued, and paid for, a
rst class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael
Altonaga testied that the reservation for a 'rst class' accommodation
for the plainti was conrmed. The court cannot believe that after such
conrmation ,defendant had a verbal understanding with plainti that the
'rst class' ticket issued to him by defendant would be subject to
conrmation in Hongkong." 23

We have heretofore adverted to the fact that except for a slight dierence of a
few pesos in the amount refunded on Carrascoso's ticket, the decision of the
Court of First Instance was armed by the Court of Appeals in all other respects.
We hold the view that such a judgment of armance has merged the judgment
of the lower court. 24 Implicit in that armance is a determination by the Court
of Appeals that the proceeding in the Court of First Instance was free from
prejudicial error and that 'all questions raised by the assignments of error and all
questions that might have been so raised are to be regarded as nally
adjudicated against the appellant". So also, the judgment armed "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 ndings of fact are in any way at war with those of the trial court. Nor was
said armance by the Court of Appeals upon a ground or grounds dierent from
those which were made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a rst-class-ticket holder is not entitled to a rst
class seat, notwithstanding the fact that seat availability in specic ights is
therein conrmed, 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
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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 fulll? 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 nding that respondent
Carrascoso had a rst class ticket and was entitled to a rst class seat at Bangkok,
which is a stopover in the Saigon to Beirut leg of the ight, 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 petitioners
accusation that respondent Carrascoso "surreptitiously took a rst class seat to
provoke an issue". 29 And this because, as petitioner states, Carrascoso went to
see the Manager at his oce in Bangkok "to conrm my seat and because from
Saigon I was told again to see the Manager. 30 Why, then, was he allowed to take
a rst 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
nding of bad faith. The pivotal allegations in the complaint bearing on this issue
are:
"3.
That . . . plainti 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 aid
contract, plainti was entitled to, as defendant agreed to furnish plainti,
First Class passage on defendant's plane during the entire duration of
plainti's tour of Europe with Hongkong as starting point up to and until
plainti's return trip to Manila, . . .
4.
That during the rst two legs of the trip from Hongkong to Saigon
and from Saigon to Bangkok, defendant furnished to the plainti First
Class accommodation but only after protestations, arguments and/or
insistence were made by the plainti with defendant's employees.
5.
That nally, defendant failed to provide First Class passage, but
instead furnished plainti only Tourist Class accommodations from
Bangkok to Teheran and/or Casablanca, . . . the plainti 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 plainti, 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
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2.
That likewise, as a result of defendant's failure to furnish First Class
accommodations aforesaid, plainti suered inconveniences,
embarrassments, and humiliations, thereby causing plainti 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 plainti a rst class passage covering, amongst others, the BangkokTeheran leg; Second, That said contract was breached when petitioner failed to
furnish rst class transportation at Bangkok; and Third, That there was bad faith
when petitioner's employee compelled Carrascoso to leave his rst class
accommodation berth "after he was already seated" and to take a seat in the
tourist class, by reason of which he suered 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 specic 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 at 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 fulllment 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 sucient averment in the complaint to justify an award for moral
damages. Deciency 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 plainti was forced out of his seat in the rst 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 suciently established by plainti 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 eye-witness 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 plainti.
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
deposition; but defendant did neither. 37

The Court of Appeals further stated

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"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 rst-class ticket to him when all the seats had already
been taken, surely the plainti should not have been picked out as the
one to suer 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 plainti who was then safely ensconced 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 plainti, said that 'the space is conrmed' for rst class.
Likewise, Zenaida Faustino, another witness for defendant, who was the
chief of the Reservation Oce of defendant, testied as follows:
'Q.

How does the person in the ticket-issuing oce know

what reservation the passenger has arranged with you?

A.

They call us up by phone and ask for the conrmation.'

(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 plainti was
occupying and for which he paid and was issued a corresponding 'rst
class' ticket.
'If there was a justied 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 nd, as it does nd, that the
Manager of the defendant airline in Bangkok not merely asked but
threatened the plainti to throw him out of the plane if he did not give up
his 'rst 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 rst
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 rst class seat; worse, he imposed his arbitrary will;
he forcibly ejected him from his seat, made him suer 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 dierent from what is understood in
law. For, "bad faith" contemplates a "state of mind armatively operating with
furtive design or with some motive of self-interest or ill will or for ulterior
purposes." 39
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And if the foregoing were not yet sucient, there is the express nding of bad
faith in the judgment of the Court of First Instance, thus:
"The evidence shows that defendant violated its contract of
transportation with plainti in bad faith, with the aggravating
circumstances that defendant's Manager in Bangkok went to the extent of
threatening the plainti in the presence of many passengers to have him
thrown out of the airplane to give the 'rst class' seat that he was
occupying to, again using the words of 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 'rst class' seat that the plainti was occupying, duly
paid for, and for which the corresponding 'rst class' ticket was issued by
the defendant to him." 40

5.
The responsibility of an employer for the tortuous act of its employeesneed not be essayed. It is well settled in law. 41 For the willful malevolent act of
petitioner's manager, petitioner's 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 dierent 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 oers. 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 light 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
rude 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, altho 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
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passenger which justied 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 suering of said passenger.
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 quasidelict. Damages are proper.
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 ight attendants
approached me and requested from me my ticket and I
said, What for? and she said, 'We will note that you were
transferred to the tourist class'. I said, 'Nothing of that
kind. That is tantamount to accepting my transfer.' And I
also said, You are not going to note anything there
because I am protesting to this 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
I move to strike out the last part of the testimony of the
witness because the best evidence would be the notes.
Your Honor.
COURT
I will allow that as part of his testimony." 49

Petitioner charges that the nding of the Court of Appeals that the purser made
an entry in his notebooks 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 of the entry does not come within the proscription of the
best evidence rule. Such testimony is admissible. 49
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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 quasi-contracts.
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 rst class seat ts into this legal precept. And
this, in addition to moral damages. 54
9.
The right to attorneys' fees is fully established. The grant of exemplary
damages justies 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 attorney's fees. The task of xing
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 suer
from reversible error. We accordingly vote to arm the same. Costs against
petitioner. So ordered.
Concepcion, C.J., Reyes J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and
Castro, JJ., concur.
Bengzon, J.P., J., did not take part.
Footnotes
1.

Civil Case No. 38810, Rafael Carrascoso, plainti, vs. Air France, defendant,"
R.A., pp. 79-80.

2.

C.A. - G.R. No. 26522-R, Rafael Carrascoso, plainti-appellee, vs. Air France,

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defendant-appellant".
3.

Appendix A, petitioner's brief, pp. 146-147. See also R.A., pp. 66-67.

4.

Petitioner's brief, p. 142.

5.

Section 12, Article VIII, Constitution.

6.

Section 1, Rule 36, Rules of Court. See also Section 2, Rule 120, in reference to
judgments in criminal cases.

7.

Sec. 4, Rule 51; Sec. 33(2), Judiciary Act of 1948, as amended.

8.

Edwards vs. McCoy, 22 Phil., 598, 601; Yangco vs. Court of First Instance of
Manila, et al., 29 Phil., 183, 191.

9.

Braga vs. Millora 3 Phil., 458, 465.

10.

Id.

11.

Aringo vs. Arena, 14 Phil., 263, 266, italics supplied.

12.

Reyes vs. People, 71 Phil., 598, 600.

13.

People vs. Manigque, 35 O. Gaz., No. 94, pp. 1682, 1683 citing Section 133
of the Code of Civil Procedure and Section 12, Art. VIII, Constitution, supra.

14.

Badger, et al., vs. Beyd, 65 S.W. (2d), pp. 601, 610.

15.

Section 5, (m) and (o), Rule 131, Rules of Court.

16.

In re Good's Estate, 266 P. (2d), pp. 719, 729.

17.

Badger, et al., vs. Boyd, supra.

18.

Goduco vs. Court of Appeals, et al., L-17647, February 28, 1964.

19.

Section 2, Rule 45, Rules of Court, formerly Section 2, Rule 46 of the Rules of
Court.

20.

Medel, et al., vs. Calasanz, et al., L-14835, August 31, 1960; Astraquillo, et al.,
vs. Javier, et al., L-20034, January 30, 1965.

21.

Petitioner's brief in the Court of Appeals, pp. 82-98.

22.

Decision of the Court of Appeals, Appendix A, petitioner's brief, pp. 148-149.

23.

R. A., pp. 67, 73.

24.

5 B. C. J. S., p. 295; 3 Am. Jur. p. 678.

25.

3 Am. Jur., pp. 677-678.

26.

See Garcia Valdez vs. Soteraa Tuason, 40 Phil., 943, 951.

27.

Carrascoso's ticket, according to petitioner (brief, pp. 7-8), shows:

Segment or leg

Carrier

1.

Manila to Hongkong

PAL

2.

Hongkong to Saigon

VN

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Flight No.
300A

Date of Departure
March 30

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(Air Vietnam)
3.

Saigon to Beirut
(Air France)

693
AF
245

March 31
March 31

28.

Petitioner's brief, p. 50; see also id., pp. 37 and 46.

29.

Id., p. 103.

30.

Ibid., p. 102.

31.

Article 2220, Civil Code reads: "Willful injury to property may be a legal ground
for awarding moral damages if the court should nd that, under the
circumstances, such damages are justly due. The same rule applies to breaches
of contract where the defendant acted fraudulently or in bad faith."

32.

R. A., p. 2-4; Italics supplied.

33.

R. A. p. 5; second cause of action.

34.

Copeland vs. Cunehoo, et al., 138 S.E., 267, 270. See also 25 C.J.S., pp. 758759; 15 Am. Jur., pp. 766-767.

35.

Statement of Attorney Villegas for respondent Carrascoso in open court.

Respondent's brief. p. 33.

36.

Section 5, Rule 10, Rules of Court, in part reads:

"SEC. 5.
Amendment to conform to or authorize presentation of
evidence. When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects, as if they
had been raised in the pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise these issues
may be made upon motion of any party at any time, even after judgment; but
failure so to amend does not aect the result of the trial of these issues . . .; Co
Tiamco vs. Diaz, etc., et al., 75 Phil., 672, 679; J. M. Tuason & Co., Inc., etc., vs.
Bolaos, 95 Phil., 106, 110.

37.

Decision, Court of Appeals, Appendix A of petitioner's brief, pp. 147-148.

38.

Decision of the Court of Appeals, Appendix A petitioner's brief pp. 147-151.

39.

Words & Phrases, Perm. Ed., Vol. 5, p. 13, citing Wareld Natural Gas Co., vs.
Allen, 59 S.W. (2d.) 534, 538.

40.

R.A., p. 74; emphasis supplied.

41.

Article 2180, Civil Code.

42.

Philippine Rening Co. vs. Garcia, et al., L-21871 and L- 21962, September 27,
1966.

43.

See Section 4, Chapter 3, Title VIII, Civil Code.

44.

4 R.C.L., pp. 1174-1175.

45.

An air carrier is common carrier; and air transportation is similar or analogous

to land and water transportation, Mendoza vs. Philippine Air Lines, Inc., 90 Phil.,
836, 841-842.

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46.

Austro-American S.S. Co. vs. Thomas, 248 F.231.

47.

Id., p. 233.

48.

Lipman vs. Atlantic Coast Line R. Co., 93 S.E., 714, 716.

49.

Petitioner's brief, pp. 104-105.

49a

V. Moran, Comments on Rules of Court, 1963 ed., p. 76.

50.

Section 36. Rule 130, Rules of Court.

51.

IV Martin, Rules of Court in the Philippines, 1966 ed., p. 324.

52.

Ibid.

53.

Article 2232, Civil Code.

54.

Article 2229, Civil Code.

55.

Article 2208, (1) and (11), Civil Code.

56.

Coleongco vs. Claparols, L-18616, March 31, 1964; Corpus vs. Cuaderno, et
al., L-23721, March 31, 1965.

57.

Cf. Yutuk vs. Manila Electric company, L-13016, May 31, 1961; Lopez et al., vs.
Pan American World Airways, L-22415, March 30, 1966.

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