4.

Proximate cause defined

Character of the goods or defects in the packing or in the containers

Art. 1742, Civil Code

Southern Lines, Inc. vs. CA, GR L-16629. Jan. 31, 1962, 4 SCRA 258

Order or act of competent public authority

Art. 1743, Civil Code

Ganzon vs. CA, GR L-48757. May 30, 1988, 161 SCRA 646

15. Doctrine of respondeat superior

Maranan vs. Perez, GR L-22272. June 26, 1967, 20 SCRA 412

16. Liability of common carrier for the acts of its employees and of its passengers or strangers

Manila Railroad Company vs. Ballesteros, GR L-19161. April 29, 1966, 16 SCRA 641

17. Presumption of negligence on common carriers of goods

Mirasol v. The Robert Dollar Co. GR 29721. March 27, 1929, 43 Phil. 124

18. Valid and void stipulations in contracts of carriage of goods

19. Rules on passengers baggage

20. Bill of lading; Stipulations limiting the liability of the carrier

H. E. Heacock Co. vs. Macondray & Co., Inc., GR L-16598. Oct. 3, 1921, 42 Phil. 205

21. Concurring causes of action that arise from the negligent act/s of the common carrie
G.R. No. L-16629 January 31, 1962

SOUTHERN LINES, INC., petitioner,

vs.
COURT OF APPEALS and CITY OF ILOILO, respondents.

Jose Ma. Lopez Vito, Jr. for petitioner.

The City Fiscal for respondents.

DE LEON, J.:

This is a petition to review on certiorari the decision of the Court of Appeals in CA-G.R. No. 15579-R affirming that of
the Court of First Instance of Iloilo which sentenced petitioner Southern Lines, Inc. to pay respondent City of Iloilo the
amount of P4,931.41.

Sometime in 1948, the City of Iloilo requisitioned for rice from the National Rice and Corn Corporation (hereafter
referred to as NARIC) in Manila. On August 24 of the same year, NARIC, pursuant to the order, shipped 1,726 sacks
of rice consigned to the City of Iloilo on board the SS "General Wright" belonging to the Southern Lines, Inc. Each
sack of rice weighed 75 kilos and the entire shipment as indicated in the bill of lading had a total weight of 129,450
kilos. According to the bill of lading, the cost of the shipment was P63,115.50 itemized and computed as follows: .

Unit Price per bag P36.25 P62,567.50

Handling at P0.13 per bag 224.38
Trucking at P2.50 per bag 323.62

T o t a l . . . . . .. . . . . 63,115.50

On September 3, 1948, the City of Iloilo received the shipment and paid the amount of P63,115.50. However, it was
noted that the foot of the bill of lading that the City of Iloilo 'Received the above mentioned merchandise apparently in
same condition as when shipped, save as noted below: actually received 1685 sacks with a gross weight of 116,131
kilos upon actual weighing. Total shortage ascertained 13,319 kilos." The shortage was equivalent to 41 sacks of rice
with a net weight of 13,319 kilos, the proportionate value of which was P6,486.35.

On February 14, 1951 the City of Iloilo filed a complaint in the Court of First Instance of Iloilo against NARIC and the
Southern Lines, Inc. for the recovery of the amount of P6,486.35 representing the value of the shortage of the shipment
of rice. After trial, the lower court absolved NARIC from the complaint, but sentenced the Southern Lines, Inc. to pay
the amount of P4,931.41 which is the difference between the sum of P6,486.35 and P1,554.94 representing the latter's
counterclaim for handling and freight.

The Southern Lines, Inc. appealed to the Court of Appeals which affirmed the judgment of the trial court. Hence, this
petition for review.

The only question to be determined in this petition is whether or not the defendant-carrier, the herein petitioner, is
liable for the loss or shortage of the rice shipped.

Article 361 of the Code of Commerce provides: .

ART. 361. The merchandise shall be transported at the risk and venture of the shipper, if the contrary has
not been expressly stipulated.

As a consequence, all the losses and deteriorations which the goods may suffer during the transportation by
reason of fortuitous event, force majeure, or the inherent nature and defect of the goods, shall be for the
account and risk of the shipper. 1wph1.t
 Proof of these accidents is incumbent upon the carrier.

Article 362 of the same Code provides: .

ART. 362. Nevertheless, the carrier shall be liable for the losses and damages resulting from the causes
mentioned in the preceding article if it is proved, as against him, that they arose through his negligence or by
reason of his having failed to take the precautions which usage his establisbed among careful persons, unless
the shipper has committed fraud in the bill of lading, representing the goods to be of a kind or quality different
from what they really were.

If, notwithstanding the precautions referred to in this article, the goods transported run the risk of being lost,
on account of their nature or by reason of unavoidable accident, there being no time for their owners to dispose
of them, the carrier may proceed to sell them, placing them for this purpose at the disposal of the judicial
authority or of the officials designated by special provisions.

Under the provisions of Article 361, the defendant-carrier in order to free itself from liability, was only obliged to prove
that the damages suffered by the goods were "by virtue of the nature or defect of the articles." Under the provisions
of Article 362, the plaintiff, in order to hold the defendant liable, was obliged to prove that the damages to the goods
by virtue of their nature, occurred on account of its negligence or because the defendant did not take the precaution
adopted by careful persons. (Government v. Ynchausti & Co., 40 Phil. 219, 223).

Petitioner claims exemption from liability by contending that the shortage in the shipment of rice was due to such
factors as the shrinkage, leakage or spillage of the rice on account of the bad condition of the sacks at the time it
received the same and the negligence of the agents of respondent City of Iloilo in receiving the shipment. The
contention is untenable, for, if the fact of improper packing is known to the carrier or his servants, or apparent upon
ordinary observation, but it accepts the goods notwithstanding such condition, it is not relieved of liability for loss or
injury resulting thereform. (9 Am Jur. 869.) Furthermore, according to the Court of Appeals, "appellant (petitioner)
itself frankly admitted that the strings that tied the bags of rice were broken; some bags were with holes and plenty of
rice were spilled inside the hull of the boat, and that the personnel of the boat collected no less than 26 sacks of rice
which they had distributed among themselves." This finding, which is binding upon this Court, shows that the shortage
resulted from the negligence of petitioner.

Invoking the provisions of Article 366 of the Code of Commerce and those of the bill of lading, petitioner further
contends that respondent is precluded from filing an action for damages on account of its failure to present a claim
within 24 hours from receipt of the shipment. It also cites the cases of Government v. Ynchausti & Co., 24 Phil. 315
and Triton Insurance Co. v. Jose, 33 Phil. 194, ruling to the effect that the requirement that the claim for damages
must be made within 24 hours from delivery is a condition precedent to the accrual of the right of action to recover
damages. These two cases above-cited are not applicable to the case at bar. In the first cited case, the plaintiff never
presented any claim at all before filing the action. In the second case, there was payment of the transportation charges
which precludes the presentation of any claim against the carrier. (See Article 366, Code of Commerce.) It is significant
to note that in the American case of Hoye v. Pennsylvania Railroad Co., 13 Ann. Case. 414, it has been said: .

... "It has been held that a stipulation in the contract of shipment requiring the owner of the goods to present
a notice of his claim to the carrier within a specified time after the goods have arrived at their destination is in
the nature of a condition precedent to the owner's right to enforce a recovery, that he must show in the first
instance that be has complied with the condition, or that the circumstances were such that to have complied
with it would have required him to do an unreasonable thing. The weight of authority, however, sustains the
view that such a stipulation is more in the nature of a limitation upon the owner's right to recovery, and that
the burden of proof is accordingly on the carrier to show that the limitation was reasonable and in proper form
or within the time stated." (Hutchinson on Carrier, 3d ed., par. 44) Emphasis supplied.

In the case at bar, the record shows that petitioner failed to plead this defense in its answer to respondent's complaint
and, therefore, the same is deemed waived (Section 10, Rule 9, Rules of Court), and cannot be raised for the first
time at the trial or on appeal. (Maxilom v. Tabotabo, 9 Phil. 390.) Moreover, as the Court of Appeals has said: .

... the records reveal that the appellee (respondent) filed the present action, within a reasonable time after the
short delivery in the shipment of the rice was made. It should be recalled that the present action is one for the
refund of the amount paid in excess, and not for damages or the recovery of the shortage; for admittedly the
 appellee (respondent) had paid the entire value of the 1726 sacks of rice, subject to subsequent adjustment,
as to shortages or losses. The bill of lading does not at all limit the time for filing an action for the refund of
money paid in excess.

WHEREFORE, the decision of the Court of Appeals is hereby affirmed in all respects and the petition
for certioraridenied.

With costs against the petitioner

G.R. No. L-48757 May 30, 1988

MAURO GANZON, petitioner,

vs.
COURT OF APPEALS and GELACIO E. TUMAMBING, respondents.

Antonio B. Abinoja for petitioner.

Quijano, Arroyo & Padilla Law Office for respondents.

SARMIENTO, J.:

The private respondent instituted in the Court of First Instance of Manila 1 an action against the petitioner for damages
based on culpa contractual. The antecedent facts, as found by the respondent Court, 2 are undisputed:

On November 28, 1956, Gelacio Tumambing contracted the services of Mauro B. Ganzon to haul 305 tons of scrap
iron from Mariveles, Bataan, to the port of Manila on board the lighter LCT "Batman" (Exhibit 1, Stipulation of Facts,
Amended Record on Appeal, p. 38). Pursuant to that agreement, Mauro B. Ganzon sent his lighter "Batman" to
Mariveles where it docked in three feet of water (t.s.n., September 28, 1972, p. 31). On December 1, 1956, Gelacio
Tumambing delivered the scrap iron to defendant Filomeno Niza, captain of the lighter, for loading which was actually
begun on the same date by the crew of the lighter under the captain's supervision. When about half of the scrap iron
was already loaded (t.s.n., December 14, 1972, p. 20), Mayor Jose Advincula of Mariveles, Bataan, arrived and
demanded P5,000.00 from Gelacio Tumambing. The latter resisted the shakedown and after a heated argument
between them, Mayor Jose Advincula drew his gun and fired at Gelacio Tumambing (t.s.n., March 19, 1971, p. 9;
September 28, 1972, pp. 6-7). The gunshot was not fatal but Tumambing had to be taken to a hospital in Balanga,
<re|| an 1w>

Bataan, for treatment (t.s.n., March 19, 1971, p. 13; September 28, 1972, p. 15).

After sometime, the loading of the scrap iron was resumed. But on December 4, 1956, Acting Mayor Basilio Rub,
accompanied by three policemen, ordered captain Filomeno Niza and his crew to dump the scrap iron (t.s.n., June
16, 1972, pp. 8-9) where the lighter was docked (t.s.n., September 28, 1972, p. 31). The rest was brought to the
compound of NASSCO (Record on Appeal, pp. 20-22). Later on Acting Mayor Rub issued a receipt stating that the
Municipality of Mariveles had taken custody of the scrap iron (Stipulation of Facts, Record on Appeal, p. 40; t.s.n.,
September 28, 1972, p. 10.)

On the basis of the above findings, the respondent Court rendered a decision, the dispositive portion of which states:

WHEREFORE, the decision appealed from is hereby reversed and set aside and a new one entered
ordering defendant-appellee Mauro Ganzon to pay plaintiff-appellant Gelacio E. Tumambimg the sum
of P5,895.00 as actual damages, the sum of P5,000.00 as exemplary damages, and the amount of
P2,000.00 as attorney's fees. Costs against defendant-appellee Ganzon. 3

In this petition for review on certiorari, the alleged errors in the decision of the Court of Appeals are:
I

THE COURT OF APPEALS FINDING THE HEREIN PETITIONER GUILTY OF BREACH OF THE CONTRACT OF
TRANSPORTATION AND IN IMPOSING A LIABILITY AGAINST HIM COMMENCING FROM THE TIME THE SCRAP
WAS PLACED IN HIS CUSTODY AND CONTROL HAVE NO BASIS IN FACT AND IN LAW.

II

THE APPELLATE COURT ERRED IN CONDEMNING THE PETITIONER FOR THE ACTS OF HIS EMPLOYEES IN
DUMPING THE SCRAP INTO THE SEA DESPITE THAT IT WAS ORDERED BY THE LOCAL GOVERNMENT
OFFICIAL WITHOUT HIS PARTICIPATION.

III

THE APPELLATE COURT FAILED TO CONSIDER THAT THE LOSS OF THE SCRAP WAS DUE TO A
FORTUITOUS EVENT AND THE PETITIONER IS THEREFORE NOT LIABLE FOR LOSSES AS A CONSEQUENCE
THEREOF. 4

The petitioner, in his first assignment of error, insists that the scrap iron had not been unconditionally placed under
his custody and control to make him liable. However, he completely agrees with the respondent Court's finding that
on December 1, 1956, the private respondent delivered the scraps to Captain Filomeno Niza for loading in the lighter
"Batman," That the petitioner, thru his employees, actually received the scraps is freely admitted. Significantly, there
is not the slightest allegation or showing of any condition, qualification, or restriction accompanying the delivery by the
private respondent-shipper of the scraps, or the receipt of the same by the petitioner. On the contrary, soon after the
scraps were delivered to, and received by the petitioner-common carrier, loading was commenced.

By the said act of delivery, the scraps were unconditionally placed in the possession and control of the common
carrier, and upon their receipt by the carrier for transportation, the contract of carriage was deemed perfected.
Consequently, the petitioner-carrier's extraordinary responsibility for the loss, destruction or deterioration of the goods
commenced. Pursuant to Art. 1736, such extraordinary responsibility would cease only upon the delivery, actual or
constructive, by the carrier to the consignee, or to the person who has a right to receive them. 5 The fact that part of
the shipment had not been loaded on board the lighter did not impair the said contract of transportation as the goods
remained in the custody and control of the carrier, albeit still unloaded.

The petitioner has failed to show that the loss of the scraps was due to any of the following causes enumerated in
Article 1734 of the Civil Code, namely:

(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;

(2) Act of the public enemy in war, whether international or civil;

(3) Act or omission of the shipper or owner of the goods;

(4) The character of the goods or defects in the packing or in the containers;

(5) Order or act of competent public authority.

Hence, the petitioner is presumed to have been at fault or to have acted negligently. 6 By reason of this presumption,
the court is not even required to make an express finding of fault or negligence before it could hold the petitioner answerable
for the breach of the contract of carriage. Still, the petitioner could have been exempted from any liability had he been able
to prove that he observed extraordinary diligence in the vigilance over the goods in his custody, according to all the
circumstances of the case, or that the loss was due to an unforeseen event or to force majeure. As it was, there was hardly
any attempt on the part of the petitioner to prove that he exercised such extraordinary diligence.

It is in the second and third assignments of error where the petitioner maintains that he is exempt from any liability
because the loss of the scraps was due mainly to the intervention of the municipal officials of Mariveles which
constitutes a caso fortuito as defined in Article 1174 of the Civil Code. 7
We cannot sustain the theory of caso fortuito. In the courts below, the petitioner's defense was that the loss of the
scraps was due to an "order or act of competent public authority," and this contention was correctly passed upon by
the Court of Appeals which ruled that:

... In the second place, before the appellee Ganzon could be absolved from responsibility on the
ground that he was ordered by competent public authority to unload the scrap iron, it must be shown
that Acting Mayor Basilio Rub had the power to issue the disputed order, or that it was lawful, or that
it was issued under legal process of authority. The appellee failed to establish this. Indeed, no authority
or power of the acting mayor to issue such an order was given in evidence. Neither has it been shown
that the cargo of scrap iron belonged to the Municipality of Mariveles. What we have in the record is
the stipulation of the parties that the cargo of scrap iron was accilmillated by the appellant through
separate purchases here and there from private individuals (Record on Appeal, pp. 38-39). The fact
remains that the order given by the acting mayor to dump the scrap iron into the sea was part of the
pressure applied by Mayor Jose Advincula to shakedown the appellant for P5,000.00. The order of
the acting mayor did not constitute valid authority for appellee Mauro Ganzon and his representatives
to carry out.

Now the petitioner is changing his theory to caso fortuito. Such a change of theory on appeal we cannot, however,
allow. In any case, the intervention of the municipal officials was not In any case, of a character that would render
impossible the fulfillment by the carrier of its obligation. The petitioner was not duty bound to obey the illegal order to
dump into the sea the scrap iron. Moreover, there is absence of sufficient proof that the issuance of the same order
was attended with such force or intimidation as to completely overpower the will of the petitioner's employees. The
mere difficulty in the fullfilment of the obligation is not considered force majeure. We agree with the private respondent
that the scraps could have been properly unloaded at the shore or at the NASSCO compound, so that after the dispute
with the local officials concerned was settled, the scraps could then be delivered in accordance with the contract of
carriage.

There is no incompatibility between the Civil Code provisions on common carriers and Articles 361 8 and 362 9 of the
Code of Commerce which were the basis for this Court's ruling in Government of the Philippine Islands vs. Ynchausti &
Co.10 and which the petitioner invokes in tills petition. For Art. 1735 of the Civil Code, conversely stated, means that the
shipper will suffer the losses and deterioration arising from the causes enumerated in Art. 1734; and in these instances, the
burden of proving that damages were caused by the fault or negligence of the carrier rests upon him. However, the carrier
must first establish that the loss or deterioration was occasioned by one of the excepted causes or was due to an unforeseen
event or to force majeure. Be that as it may, insofar as Art. 362 appears to require of the carrier only ordinary diligence, the
same is .deemed to have been modified by Art. 1733 of the Civil Code.

Finding the award of actual and exemplary damages to be proper, the same will not be disturbed by us. Besides,
these were not sufficiently controverted by the petitioner.

WHEREFORE, the petition is DENIED; the assailed decision of the Court of Appeals is hereby AFFIRMED. Costs
against the petitioner.

This decision is IMMEDIATELY EXECUTORY.

Yap, C.J., Paras and Padilla, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., dissenting:

I am constrained to dissent.
It is my view that petitioner can not be held liable in damages for the loss and destruction of the scrap iron. The loss
of said cargo was due to an excepted cause an 'order or act of competent public authority" (Article 1734[5], Civil
Code).

The loading of the scrap iron on the lighter had to be suspended because of Municipal Mayor Jose Advincula's
intervention, who was a "competent public authority." Petitioner had no control over the situation as, in fact,
Tumambing himself, the owner of the cargo, was impotent to stop the "act' of said official and even suffered a gunshot
wound on the occasion.

When loading was resumed, this time it was Acting Mayor Basilio Rub, accompanied by three policemen, who ordered
the dumping of the scrap iron into the sea right where the lighter was docked in three feet of water. Again, could the
captain of the lighter and his crew have defied said order?

Through the "order" or "act" of "competent public authority," therefore, the performance of a contractual obligation was
rendered impossible. The scrap iron that was dumped into the sea was "destroyed" while the rest of the cargo was
"seized." The seizure is evidenced by the receipt issues by Acting Mayor Rub stating that the Municipality of Mariveles
had taken custody of the scrap iron. Apparently, therefore, the seizure and destruction of the goods was done under
legal process or authority so that petitioner should be freed from responsibility.

Art. 1743. If through order of public authority the goods are seized or destroyed, the common carrier
is not responsible, provided said public authority had power to issue the order.

G.R. No. L-22272 June 26, 1967

ANTONIA MARANAN, plaintiff-appellant,

vs.
PASCUAL PEREZ, ET AL., defendants.
PASCUAL PEREZ, defendant appellant.

Pedro Panganiban for plaintiff-appellant.

Magno T. Bueser for defendant-appellant.

BENGZON, J.P., J.:

Rogelio Corachea, on October 18, 1960, was a passenger in a taxicab owned and operated by Pascual Perez when
he was stabbed and killed by the driver, Simeon Valenzuela.

Valenzuela was prosecuted for homicide in the Court of First Instance of Batangas. Found guilty, he was sentenced
to suffer imprisonment and to indemnify the heirs of the deceased in the sum of P6,000. Appeal from said conviction
was taken to the Court of Appeals. 1wph1.t

On December 6 1961, while appeal was pending in the Court of Appeals, Antonia Maranan, Rogelio's mother, filed
an action in the Court of First Instance of Batangas to recover damages from Perez and Valenzuela for the death of
her son. Defendants asserted that the deceased was killed in self-defense, since he first assaulted the driver by
stabbing him from behind. Defendant Perez further claimed that the death was a caso fortuito for which the carrier
was not liable.

The court a quo, after trial, found for the plaintiff and awarded her P3,000 as damages against defendant Perez. The
claim against defendant Valenzuela was dismissed. From this ruling, both plaintiff and defendant Perez appealed to
this Court, the former asking for more damages and the latter insisting on non-liability. Subsequently, the Court of
Appeals affirmed the judgment of conviction earlier mentioned, during the pendency of the herein appeal, and on May
19, 1964, final judgment was entered therein. (Rollo, p. 33).

Defendant-appellant relies solely on the ruling enunciated in Gillaco v. Manila Railroad Co., 97 Phil. 884, that the
carrier is under no absolute liability for assaults of its employees upon the passengers. The attendant facts and
controlling law of that case and the one at bar are very different however. In the Gillaco case, the passenger was killed
outside the scope and the course of duty of the guilty employee. As this Court there found:

x x x when the crime took place, the guard Devesa had no duties to discharge in connection with the
transportation of the deceased from Calamba to Manila. The stipulation of facts is clear that when Devesa
shot and killed Gillaco, Devesa was assigned to guard the Manila-San Fernando (La Union) trains, and he
was at Paco Station awaiting transportation to Tutuban, the starting point of the train that he was engaged to
guard. In fact, his tour of duty was to start at 9:00 two hours after the commission of the crime. Devesa was
therefore under no obligation to safeguard the passengers of the Calamba-Manila train, where the deceased
was riding; and the killing of Gillaco was not done in line of duty. The position of Devesa at the time was that
of another would be passenger, a stranger also awaiting transportation, and not that of an employee assigned
to discharge any of the duties that the Railroad had assumed by its contract with the deceased. As a result,
Devesa's assault can not be deemed in law a breach of Gillaco's contract of transportation by a servant or
employee of the carrier. . . . (Emphasis supplied)

Now here, the killing was perpetrated by the driver of the very cab transporting the passenger, in whose hands the
carrier had entrusted the duty of executing the contract of carriage. In other words, unlike the Gillaco case, the killing
of the passenger here took place in the course of duty of the guilty employee and when the employee was acting
within the scope of his duties.

Moreover, the Gillaco case was decided under the provisions of the Civil Code of 1889 which, unlike the present Civil
Code, did not impose upon common carriers absolute liability for the safety of passengers against wilful assaults or
negligent acts committed by their employees. The death of the passenger in the Gillaco case was truly a fortuitous
event which exempted the carrier from liability. It is true that Art. 1105 of the old Civil Code on fortuitous events has
been substantially reproduced in Art. 1174 of the Civil Code of the Philippines but both articles clearly remove from
their exempting effect the case where the law expressly provides for liability in spite of the occurrence of force majeure.
And herein significantly lies the statutory difference between the old and present Civil Codes, in the backdrop of the
factual situation before Us, which further accounts for a different result in the Gillaco case. Unlike the old Civil Code,
the new Civil Code of the Philippines expressly makes the common carrier liable for intentional assaults committed
by its employees upon its passengers, by the wording of Art. 1759 which categorically states that

Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of
the former's employees, although such employees may have acted beyond the scope of their authority or in
violation of the orders of the common carriers.

The Civil Code provisions on the subject of Common Carriers1 are new and were taken from Anglo-American
Law.2 There, the basis of the carrier's liability for assaults on passengers committed by its drivers rests either on (1)
the doctrine of respondeat superior or (2) the principle that it is the carrier's implied duty to transport the passenger
safely.3

Under the first, which is the minority view, the carrier is liable only when the act of the employee is within the scope of
his authority and duty. It is not sufficient that the act be within the course of employment only.4

Under the second view, upheld by the majority and also by the later cases, it is enough that the assault happens within
the course of the employee's duty. It is no defense for the carrier that the act was done in excess of authority or in
disobedience of the carrier's orders.5 The carrier's liability here is absolute in the sense that it practically secures the
passengers from assaults committed by its own employees.6

As can be gleaned from Art. 1759, the Civil Code of the Philippines evidently follows the rule based on the second
view. At least three very cogent reasons underlie this rule. As explained in Texas Midland R.R. v. Monroe, 110 Tex.
97, 216 S.W. 388, 389-390, and Haver v. Central Railroad Co., 43 LRA 84, 85: (1) the special undertaking of the
carrier requires that it furnish its passenger that full measure of protection afforded by the exercise of the high degree
of care prescribed by the law, inter alia from violence and insults at the hands of strangers and other passengers, but
above all, from the acts of the carrier's own servants charged with the passenger's safety; (2) said liability of the carrier
for the servant's violation of duty to passengers, is the result of the formers confiding in the servant's hands the
performance of his contract to safely transport the passenger, delegating therewith the duty of protecting the
passenger with the utmost care prescribed by law; and (3) as between the carrier and the passenger, the former must
bear the risk of wrongful acts or negligence of the carrier's employees against passengers, since it, and not the
passengers, has power to select and remove them.

Accordingly, it is the carrier's strict obligation to select its drivers and similar employees with due regard not only to
their technical competence and physical ability, but also, no less important, to their total personality, including their
patterns of behavior, moral fibers, and social attitude.

Applying this stringent norm to the facts in this case, therefore, the lower court rightly adjudged the defendant carrier
liable pursuant to Art. 1759 of the Civil Code. The dismissal of the claim against the defendant driver was also correct.
Plaintiff's action was predicated on breach of contract of carriage7 and the cab driver was not a party thereto. His civil
liability is covered in the criminal case wherein he was convicted by final judgment.

In connection with the award of damages, the court a quo granted only P3,000 to plaintiff-appellant. This is the
minimum compensatory damages amount recoverable under Art. 1764 in connection with Art. 2206 of the Civil Code
when a breach of contract results in the passenger's death. As has been the policy followed by this Court, this minimal
award should be increased to P6,000. As to other alleged actual damages, the lower court's finding that plaintiff's
evidence thereon was not convincing,8 should not be disturbed. Still, Arts. 2206 and 1764 award moral damages in
addition to compensatory damages, to the parents of the passenger killed to compensate for the mental anguish they
suffered. A claim therefor, having been properly made, it becomes the court's duty to award moral damages.9 Plaintiff
demands P5,000 as moral damages; however, in the circumstances, We consider P3,000 moral damages, in addition
to the P6,000 damages afore-stated, as sufficient. Interest upon such damages are also due to plaintiff-appellant. 10

Wherefore, with the modification increasing the award of actual damages in plaintiff's favor to P6,000, plus P3,000.00
moral damages, with legal interest on both from the filing of the complaint on December 6, 1961 until the whole amount
is paid, the judgment appealed from is affirmed in all other respects. No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

G.R. No. L-19161 April 29, 1966

MANILA RAILROAD COMPANY, petitioner,

vs.
MACARIA BALLESTEROS, TIMOTEO CAMAYO, JOSE REYES and JULIAN MAIMBAN, JR., respondents.

Gov't Corp. Counsel S. M. Gopengco and Atty. R. G. Fernando, for petitioner.

George G. Arbolario, for respondents.

MAKALINTAL, J.:

In civil case No. 45968 of the Court of First Instance of Manila (Macaria Ballesteros, Timoteo Camayo, Jose Reyes
and Julian Maimban, Jr. vs. Manila Railroad Company) the defendant was adjudged to pay damages in the following
amounts: P2,400 to Macaria Ballesteros; P4,000 to Timoteo Camayo; P3,000 to Jose Reyes: and P2,000, plus P1,000
as attorney's fees, to Julian Maimban, Jr.

The defendant appealed from the judgment, but upon motion by the plaintiffs, the trial court, by order dated October
14, 1961, dismissed the appeal on the ground that it was "manifestly and palpably frivolous and interposed ostensibly
to delay the settlement of the just and reasonable claims of the herein plaintiffs, which have been pending since 1958."
The defendant moved to reconsider, and upon denial of its motion instituted in this Court the instant petition
for mandamus to set aside the order of dismissal and to order respondent court to give due course to the appeal.

In filing the petition directly with this Court, petitioner evidently intended to raise only questions of law in the appeal
contemplated, since under Rule 41, section 15, "when erroneously a motion to dismiss an appeal is granted or a
record on appeal is disallowed by the trial court, a proper petition for mandamus may be filed in the appellate court;"
and under section 17(6) of the Judiciary Act this Court may review on appeal only questions of law in civil cases
decided by inferior courts unless the value in controversy exceeds P200,000. 1w ph1.t
The fact that an appeal is frivolous and interposed only for purposes of delay has been recognized as a valid ground
to deny issuance of the writ of mandamus to compel the trial court to approve and certify the appeal. In De la Cruz vs.
Blanco and Quevedo, 73 Phil. 596, We held:

And where as in the instant case, the dismissal has been ordered by the trial court, it would not be disturbed
in the Appellate Court if the latter finds the appeal to have been interposed ostensibly for delay. It has been
held that a frivolous appeal is one presenting no justiciable question or one so readily cognizable as devoid of
merit on the face of the record that there is little, if any, prospect that it can over succeed. The instant case is
one such instance in which the appeal is evidently without merit, taken manifestly for delay.

And in Paner vs. Yatco, 87 Phil. 271, We denied the writ prayed for and held that "while strictly and legally speaking
the petition may be granted, we may, before acting thereon, inquire into the facts involved in order to determine
whether once the writ is granted and the case is brought up here on appeal the appellant has any chance, even
possibility, of having the basic decision of the trial court set aside or modified; for if the appellant has not that prospect
or likelihood then the granting of the writ and the consequent appeal would be futile and would mean only a waste of
time to the parties and to this Court."

The material facts, as found by respondent court in its decision, are as follows: Private respondents here, plaintiffs
below, were passengers on petitioner's bus, the driver of which was Jose Anastacio. In Bayombong, Nueva Vizcaya,
Anastacio stopped the bus and got off to replace a defective spark plug. While he was thus engaged, one Dionisio
Abello, an auditor assigned to defendant company by the General Auditing Office, took the wheel and told the driver
to sit somewhere else. With Abello driving, the bus proceeded on its way, from time to time stopping to pick up
passengers. Anastacio tried twice to take the wheel back but Abello would not relinquish it. Then, in the language of
the trial court, "while the bus was negotiating between Km. posts 328 and 329 (in Isabela) a freight truck ... driven by
Marcial Nocum ... bound for Manila, was also negotiating the same place; when these two vehicles were about to
meet at the bend of the road Marcial Nocum, in trying to evade several holes on the right lane, where his truck was
running, swerved his truck towards the middle part of the road and in so doing, the left front fender and left side of the
freight truck smashed the left side of the bus resulting in extensive damages to the body of the bus and injuries to
seventeen of its passengers, ... including the plaintiffs herein."

In rejecting petitioner's contention that the negligence of Marcial Nocum could not be imputed to it and relieved it from
liability, the trial court found that Dionisio Abello "was likewise reckless when he was driving the bus at the rate of from
40 to 50 kilometers per hour on a bumpy road at the moment of the collision."

Another defense put up by petitioner is that since Abello was not its employee it should not be held responsible for
his acts. This defense was correctly overruled by the trial court, considering the provisions of Article 1763 of the Civil
Code and section 48 (b) of the Motor Vehicle Law, which respectively provide as follows:

Art. 1763. A common carrier is responsible for injuries suffered by a passenger on account of the wilfull acts
or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of
the diligence of a good father of a family could have prevented or stopped the act or omission.

Sec. 48(b). No professional chauffeur shall permit any unlicensed person to drive the motor vehicle under his
control, or permit a person, sitting beside him or in any other part of the car, to interfere with him in the operation
of the motor vehicle, by allowing said person to take hold of the steering wheel, or in any other manner take
part in the manipulation or control of the car.

It appears further, and so the trial court found, that there were negotiations between the parties to compromise the
case, as a result of which respondents herein, plaintiffs below, considerably reduced their claims to the amounts
subsequently awarded in the judgment; that petitioner had in fact settled the claims of the other passengers who were
also injured in the same accident and even the claim for damages filed in another action by the owner of the freight
truck; and that the Government Corporate Counsel himself, who represents herein petitioner, rendered two separate
opinions (Op. No. 86, May 19, 1960; and Op. No. 99, series of 1961) wherein, after analyzing the facts and the law
applicable, he reached the conclusion that the acts of the bus personnel, particularly "in allowing Mr. Abello to drive
despite two occasions when the bus stopped and the regular driver could have taken over, constitute reckless
imprudence and wanton injurious conduct on the part of the MRR employees." On the basis of those opinions the
Government Corporate Counsel advised petitioner that the offer of the claimants was reasonable and should be
accepted. His advice, however, was not favorably acted upon, petitioner obviously preferring to litigate.
The issues proposed to be taken up on appeal, as set forth in the petition, are whether or not Dionisio Abello acted
with reckless negligence while driving petitioner's bus at the time of the accident, and whether or not petitioner may
be held liable on account of such negligence, considering that he was not its employee. These are no longer justiciable
questions which would justify our issuing the peremptory writ prayed for. The first is a question of fact on which the
affirmative finding of respondent court is not reviewable by Us; and the second is one as to which there can be no
possible doubt in view of the provisions of the Civil Code and of the Motor Vehicle Law hereinbefore cited. There
would be no point in giving the appeal due course.

The writ prayed for is denied, with costs against petitioner.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Bengzon, J.P., and Sanchez,
JJ., concur.

G.R. No. L-29721 March 27, 1929

AMANDO MIRASOL, plaintiff-appellant,

vs.
THE ROBERT DOLLAR CO., defendant-appellant.

Vicente Hilado for plaintiff-appellant.

J.A. Wolfson for defendant-appellant.

STATEMENT

After the promulgation of the decision rendered by the Second Division of February 13, 1929,1 the defendant filed a
motion to have the case heard and decided in banc, and inasmuch as the legal questions involved are important to
the shipping interests, the court thought it best to do so.

After the formal pleas, plaintiff alleges that he is the owner and consignee of two cases of books, shipped in good
order and condition at New York, U.S.A., on board the defendant's steamship President Garfield, for transport and
delivery to the plaintiff in the City of Manila, all freight charges paid. That the two cases arrived in Manila on
September 1, 1927, in bad order and damaged condition, resulting in the total loss of one case and a partial loss of
the other. That the loss in one case is P1,630, and the other P700, for which he filed his claims, and defendant has
refused and neglected to pay, giving as its reason that the damage in question "was caused by sea water." That
plaintiff never entered into any contract with the defendant limiting defendant's liability as a common carrier, and
when he wrote the letter of September 3, 1927, he had not then ascertained the contents of the damaged case, and
could not determine their value. That he never intended to ratify or confirm any agreement to limit the liability of the
defendant. That on September 9, 1927, when the other case was found, plaintiff filed a claim for the real damage of
the books therein named in the sum of $375.

Plaintiff prays for corresponding judgment, with legal interest from the filing of the complaint and costs.

For answer the defendant made a general and specific denial, and as a separate and special defense alleges that
the steamship President Garfield at all the times alleged was in all respects seaworthy and properly manned,
equipped and supplied, and fit for the voyage. That the damage to plaintiff's merchandise, if any, was not caused
through the negligence of the vessel, its master, agent, officers, crew, tackle or appurtenances, nor by reason of the
vessel being unseaworthy or improperly manned, "but that such damage, if any, resulted from faults or errors in
navigation or in the management of said vessel." As a second separate and special defense, defendant alleges that
in the bill of lading issued by the defendant to plaintiff, it was agreed in writing that defendant should not be "held
liable for any loss of, or damage to, any of said merchandise resulting from any of the following causes, to wit: Acts
of God, perils of the sea or other waters," and that plaintiff's damage, if any, was caused by "Acts of God" or "perils
of the sea." As a third special defense, defendant quoted clause 13 of the bill of lading, in which it is stated that in no
case shall it be held liable "for or in respect to said merchandise or property beyond the sum of two hundred and fifty
dollars for any piece, package or any article not enclosed in a package, unless a higher value is stated herein and
ad valorem freight paid or assessed thereon," and that there was no other agreement. That no September 3, 1927
the plaintiff wrote the defendant a letter as follows:
 Therefore, I wish to file claim of damage to the meager maximum value that your bills of lading will indemnify
me, that is $250 as per condition 13.

As a fourth special defense, defendant alleges that the damage, if any, was caused by "sea water," and that the bill
of lading exempts defendant from liability for that cause. That damage by "sea water" is a shipper's risk, and that
defendant is not liable.

As a result of the trial upon such issues, the lower court rendered judgment for the plaintiff for P2,080, with legal
interest thereon from the date of the final judgment, with costs, from which both parties appealed, and the plaintiff
assigns the following errors:

I. The lower court erred in holding that plaintiff's damage on account of the loss of the damaged books in the
partially damaged case can be compensated with an indemnity of P450 instead of P750 as claimed by
plaintiff.

II. The lower court, consequently, also erred in giving judgment for plaintiff for only P2,080 instead of
P2,380.

III. The lower court erred in not sentencing defendant to pay legal interest on the amount of the judgment, at
least, from the date of the rendition of said judgment, namely, January 30, 1928.

The defendant assigns the following errors:

I. The lower court erred in failing to recognize the validity of the limited liability clause of the bill of lading,
Exhibit 2.

II. The lower court erred in holding defendant liable in any amount and in failing to hold, after its finding as a
fact that the damage was caused by sea water, that the defendant is not liable for such damage by sea
water.

III. The lower court erred in awarding damages in favor of plaintiff and against defendant for P2,080 or in any
other amount, and in admitting, over objection, Exhibits G, H, I and J.

JOHNS, J.:

Plaintiff's contention that he is entitled to P700 for his Encyclopedia Britannica is not tenable. The evidence shows
that the P400 that the court allowed, he could buy a new set which could contain all of the material and the subject
matter of the one which he lost. Plaintiff's third assignment of error is well taken, as under all of the authorities, he is
entitled to legal interest from the date of his judgement rendered in the lower court and not the date when it
becomes final. The lower court found that plaintiff's damage was P2,080, and that finding is sustained by that
evidence. There was a total loss of one case and a partial loss of the other, and in the very nature of the things,
plaintiff could not prove his loss in any other way or manner that he did prove it, and the trial court who heard him
testify must have been convinced of the truth of his testimony.

There is no claim or pretense that the plaintiff signed the bill of lading or that he knew of his contents at the time that
it was issued. In that situation he was not legally bound by the clause which purports to limit defendant's liability.
That question was squarely met and decided by this court in banc in Juan Ysmael and Co., vs. Gabino Baretto and
Co., (51 Phil., 90; see numerous authorities there cited).

Among such authorities in the case of The Kengsington decided by the Supreme Court of the U.S. January 6, 1902
(46 Law. Ed., 190), in which the opinion was written by the late Chief Justice White, the syllabus of which is as
follows:

1. Restrictions of the liability of a steamship company for its own negligence or failure of duty toward the
passenger, being against the public policy enforced by the courts of the United States, will not to be upheld,
though the ticket was issued and accepted in a foreign country and contained a condition making it subject
to the law thereof, which sustained such stipulation.
 2. The stipulation in a steamship passenger's ticket, which compels him to value his baggage, at a certain
sum, far less than it is worth, or, in order to have a higher value put upon it, to subject it to the provisions of
the Harter Act, by which the carrier would be exempted from all the liability therefore from errors in
navigation or management of the vessel of other negligence is unreasonable and in conflict with public
policy.

3. An arbitrary limitation of 250 francs for the baggage of any steamship passenger unaccompanied by any
right to increase the amount of adequate and reasonable proportional payment, is void as against public
policy.

Both the facts upon which it is based and the legal principles involved are square in point in this case.

The defendant having received the two boxes in good condition, its legal duty was to deliver them to the plaintiff in
the same condition in which it received them. From the time of their delivery to the defendant in New York until they
are delivered to the plaintiff in Manila, the boxes were under the control and supervision of the defendant and
beyond the control of the plaintiff. The defendant having admitted that the boxes were damaged while in transit and
in its possession, the burden of proof then shifted, and it devolved upon the defendant to both allege and prove that
the damage was caused by reason of some fact which exempted it from liability. As to how the boxes were
damaged, when or where, was a matter peculiarly and exclusively within the knowledge of the defendant and in the
very nature of things could not be in the knowledge of the plaintiff. To require the plaintiff to prove as to when and
how the damage was caused would force him to call and rely upon the employees of the defendant's ship, which in
legal effect would be to say that he could not recover any damage for any reason. That is not the law.

Shippers who are forced to ship goods on an ocean liner or any other ship have some legal rights, and when goods
are delivered on board ship in good order and condition, and the shipowner delivers them to the shipper in bad order
and condition, it then devolves upon the shipowner to both allege and prove that the goods were damaged by the
reason of some fact which legally exempts him from liability; otherwise, the shipper would be left without any
redress, no matter what may have caused the damage.

The lower court in its opinion says:

The defendant has not even attempted to prove that the two cases were wet with sea water by fictitious
event, force majeure or nature and defect of the things themselves. Consequently, it must be presumed that
it was by causes entirely distinct and in no manner imputable to the plaintiff, and of which the
steamer President Garfield or any of its crew could not have been entirely unaware.

And the evidence for the defendant shows that the damage was largely caused by "sea water," from which it
contends that it is exempt under the provisions of its bill of lading and the provisions of the article 361 of the Code of
Commerce, which is as follows:

Merchandise shall be transported at the risk and venture of the shipper, if the contrary was not expressly
stipulated.

Therefore, all damages and impairment suffered by the goods during the transportation, by reason of
accident, force majeure, or by virtue of the nature or defect of the articles, shall be for the account and risk of
the shipper.

The proof of these accidents is incumbent on the carrier.

In the final analysis, the cases were received by the defendant in New York in good order and condition, and when
they arrived in Manila, they were in bad condition, and one was a total loss. The fact that the cases were damaged
by "sea water," standing alone and within itself, is not evidence that they were damaged by force majeure or for a
cause beyond the defendant's control. The words "perils of the sea," as stated in defendant's brief apply to "all kinds
of marine casualties, such as shipwreck, foundering, stranding," and among other things, it is said: "Tempest, rocks,
shoals, icebergs and other obstacles are within the expression," and "where the peril is the proximate cause of the
loss, the shipowner is excused." "Something fortuitous and out of the ordinary course is involved in both words 'peril'
or 'accident'."
Defendant also cites and relies on the case of Government of the Philippine Islands vs. Ynchausti & Company (40
Phil., 219), but it appears from a reading of that case that the facts are very different and, hence, it is not in point. In
the instant case, there is no claim or pretense that the two cases were not in good order when received on board the
ship, and it is admitted that they were in bad order on their arrival at Manila. Hence, they must have been damaged
in transit. In the very nature of things, if they were damaged by reason of a tempest, rocks, icebergs, foundering,
stranding or the perils of the sea, that would be a matter exclusively within the knowledge of the officers of
defendant's ship, and in the very nature of things would not be within plaintiff's knowledge, and upon all of such
questions, there is a failure of proof.

The judgment of the lower court will be modified, so as to give the plaintiff legal interest on the amount of his
judgment from the date of its rendition in the lower court, and in all respects affirmed, with costs. So ordered.

Johnson, Malcolm, Ostrand, Romualdez, and Villa-Real, JJ., concur.

Separate Opinions

STREET, J., dissenting in part:

I gave a hesitating adherence to the decision of this case in division, and upon further reflection, I am now
constrained to record my belief that the decision is in part erroneous. I agree with the court that the defendant is
liable to the plaintiff, but I think that its liability is limited, under clause 13, printed on the back of the bill of lading, to
the amount of 250 dollars for each of the two boxes of books comprising this consignment. While the law does not
permit a carrier gratuitously to exempt itself from liability for the negligence of its servants, it cannot effectually do so
for a valuable consideration; and where freight rates are adjusted upon the basis of a reasonable limited value per
package, where a higher value is not declared by the shipper, the limitation as to the value is binding. This court in
two well considered decisions has heretofore upheld a limitation of exactly the character of that indicated in clause
13 (H.E. Heacock Co. vs. Macondray & Co., 42 Phil., 205; Freixas & Co. vs. Pacific Mail Steamship Co., 42 Phil.,
198); and I am unable to see any sufficient reason for ignoring those decisions.