G.R. No. L-47822 December 22, 1988PEDRO DE GUZMAN, petitioner,

vs.COURT OF APPEALS and ERNESTO CENDANA, respondents.

Vicente D. Millora for petitioner.Jacinto Callanta for private respondent.

FELICIANO, J.:Respondent Ernesto Cendana, a junk dealer, was engaged in buying upused bottles and scrap metal in Pangasinan. Upon gathering sufficientquantities of such scrap material, respondent would bring such materialto Manila for resale. He utilized two (2) six-wheeler trucks which heowned for hauling the material to Manila. On the return trip toPangasinan, respondent would load his vehicles with cargo which variousmerchants wanted delivered to differing establishments in Pangasinan.For that service, respondent charged freight rates which were commonlylower than regular commercial rates.Sometime in November 1970, petitioner Pedro de Guzman a merchantand authorized dealer of General Milk Company (Philippines), Inc. inUrdaneta, Pangasinan, contracted with respondent for the hauling of 750cartons of Liberty filled milk from a warehouse of General Milk in Makati,Rizal, to petitioner's establishment in Urdaneta on or before 4 December1970. Accordingly, on 1 December 1970, respondent loaded in Makatithe merchandise on to his trucks: 150 cartons were loaded on a truckdriven by respondent himself, while 600 cartons were placed on boardthe other truck which was driven by Manuel Estrada, respondent's driverand employee.Only 150 boxes of Liberty filled milk were delivered to petitioner. Theother 600 boxes never reached petitioner, since the truck which carriedthese boxes was hijacked somewhere along the MacArthur Highway inPaniqui, Tarlac, by armed men who took with them the truck, its driver,his helper and the cargo.On 6 January 1971, petitioner commenced action against privaterespondent in the Court of First Instance of Pangasinan, demandingpayment of P 22,150.00, the claimed value of the lost merchandise, plusdamages and attorney's fees. Petitioner argued that private respondent,being a common carrier, and having failed to exercise the extraordinarydiligence required of him by the law, should be held liable for the value ofthe undelivered goods.In his Answer, private respondent denied that he was a common carrierand argued that he could not be held responsible for the value of the lostgoods, such loss having been due to force majeure.On 10 December 1975, the trial court rendered a Decision 1 findingprivate respondent to be a common carrier and holding him liable for the

value of the undelivered goods (P 22,150.00) as well as for P 4,000.00 asdamages and P 2,000.00 as attorney's fees.On appeal before the Court of Appeals, respondent urged that the trialcourt had erred in considering him a common carrier; in finding that hehad habitually offered trucking services to the public; in not exemptinghim from liability on the ground of force majeure; and in ordering him topay damages and attorney's fees.The Court of Appeals reversed the judgment of the trial court and heldthat respondent had been engaged in transporting return loads of freight"as a casualoccupation a sideline to his scrap iron business" and not as a commoncarrier. Petitioner came to this Court by way of a Petition for Reviewassigning as errors the following conclusions of the Court of Appeals:1. that private respondent was not a common carrier;2. that the hijacking of respondent's truck was force majeure; and3. that respondent was not liable for the value of the undelivered cargo.(Rollo, p. 111)We consider first the issue of whether or not private respondent ErnestoCendana may, under the facts earlier set forth, be properly characterizedas a common carrier.The Civil Code defines "common carriers" in the following terms:Article 1732. Common carriers are persons, corporations, firms orassociations engaged in the business of carrying or transportingpassengers or goods or both, by land, water, or air for compensation,offering their services to the public.The above article makes no distinction between one whose principalbusiness activity is the carrying of persons or goods or both, and one whodoes such carrying only as an ancillary activity (in local Idiom as "asideline"). Article 1732 also carefully avoids making any distinctionbetween a person or enterprise offering transportation service on aregular or scheduled basis and one offering such service on anoccasional, episodic or unscheduled basis. Neither does Article 1732distinguish between a carrier offering its services to the "general public,"i.e., the general community or population, and one who offers services orsolicits business only from a narrow segment of the general population.We think that Article 1733 deliberaom making such distinctions.So understood, the concept of "common carrier" under Article 1732 maybe seen to coincide neatly with the notion of "public service," under thePublic Service Act (Commonwealth Act No. 1416, as amended) which atleast partially supplements the law on common carriers set forth in theCivil Code. Under Section 13, paragraph (b) of the Public Service Act,"public service" includes:... every person that now or hereafter may own, operate, manage, orcontrol in the Philippines, for hire or compensation, with general or limited

clientele, whether permanent, occasional or accidental, and done forgeneral business purposes, any common carrier, railroad, street railway,traction railway, subway motor vehicle, either for freight or passenger, orboth, with or without fixed route and whatever may be its classification,freight or carrier service of any class, express service, steamboat, orsteamship line, pontines, ferries and water craft, engaged in thetransportation of passengers or freight or both, shipyard, marine repairshop, wharf or dock, ice plant,ice-refrigeration plant, canal, irrigation system, gas, electric light, heatand power, water supply and power petroleum, sewerage system, wire orwireless communications systems, wire or wireless broadcasting stationsand other similar public services. ... (Emphasis supplied)It appears to the Court that private respondent is properly characterizedas a common carrier even though he merely "back-hauled" goods forother merchants from Manila to Pangasinan, although such back-haulingwas done on a periodic or occasional rather than regular or scheduledmanner, and even though private respondent's principal occupation wasnot the carriage of goods for others. There is no dispute that privaterespondent charged his customers a fee for hauling their goods; that feefrequently fell below commercial freight rates is not relevant here.The Court of Appeals referred to the fact that private respondent held nocertificate of public convenience, and concluded he was not a commoncarrier. This is palpable error. A certificate of public convenience is not arequisite for the incurring of liability under the Civil Code provisionsgoverning common carriers. That liability arises the moment a person orfirm acts as a common carrier, without regard to whether or not suchcarrier has also complied with the requirements of the applicableregulatory statute and implementing regulations and has been granted acertificate of public convenience or other franchise. To exempt privaterespondent from the liabilities of a common carrier because he has notsecured the necessary certificate of public convenience, would beoffensive to sound public policy; that would be to reward privaterespondent precisely for failing to comply with applicable statutoryrequirements. The business of a common carrier impinges directly andintimately upon the safety and well being and property of those membersof the general community who happen to deal with such carrier. The lawimposes duties and liabilities upon common carriers for the safety andprotection of those who utilize their services and the law cannot allow acommon carrier to render such duties and liabilities merely facultative bysimply failing to obtain the necessary permits and authorizations.We turn then to the liability of private respondent as a common carrier.Common carriers, "by the nature of their business and for reasons ofpublic policy" 2 are held to a very high degree of care and diligence("extraordinary diligence") in the carriage of goods as well as of

passengers. The specific import of extraordinary diligence in the care ofgoods transported by a common carrier is, according to Article 1733,"further expressed in Articles 1734,1735 and 1745, numbers 5, 6 and 7"of the Civil Code.Article 1734 establishes the general rule that common carriers areresponsible for the loss, destruction or deterioration of the goods whichthey carry, "unless the same is due to any of the following causes only:(1) Flood, storm, earthquake, lightning or other natural disaster orcalamity;(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 thecontainers; and(5) Order or act of competent public authority.It is important to point out that the above list of causes of loss, destructionor deterioration which exempt the common carrier for responsibilitytherefor, is a closed list. Causes falling outside the foregoing list, even ifthey appear to constitute a species of force majeure fall within the scopeof Article 1735, which provides as follows:In all cases other than those mentioned in numbers 1, 2, 3, 4 and 5 of thepreceding article, if the goods are lost, destroyed or deteriorated,common carriers are presumed to have been at fault or to have actednegligently, unless they prove that they observed extraordinary diligenceas required in Article 1733. (Emphasis supplied)Applying the above-quoted Articles 1734 and 1735, we note firstly thatthe specific cause alleged in the instant case the hijacking of thecarrier's truck does not fall within any of the five (5) categories ofexempting causes listed in Article 1734. It would follow, therefore, that thehijacking of the carrier's vehicle must be dealt with under the provisions ofArticle 1735, in other words, that the private respondent as commoncarrier is presumed to have been at fault or to have acted negligently.This presumption, however, may be overthrown by proof of extraordinarydiligence on the part of private respondent.Petitioner insists that private respondent had not observed extraordinarydiligence in the care of petitioner's goods. Petitioner argues that in thecircumstances of this case, private respondent should have hired asecurity guard presumably to ride with the truck carrying the 600 cartonsof Liberty filled milk. We do not believe, however, that in the instant case,the standard of extraordinary diligence required private respondent toretain a security guard to ride with the truck and to engage brigands in afirelight at the risk of his own life and the lives of the driver and his helper.The precise issue that we address here relates to the specificrequirements of the duty of extraordinary diligence in the vigilance overthe goods carried in the specific context of hijacking or armed robbery.

As noted earlier, the duty of extraordinary diligence in the vigilance overgoods is, under Article 1733, given additional specification not only byArticles 1734 and 1735 but also by Article 1745, numbers 4, 5 and 6,Article 1745 provides in relevant part:Any of the following or similar stipulations shall be consideredunreasonable, unjust and contrary to public policy:xxx xxx xxx(5) that the common carrier shall not be responsible for the acts oromissions of his or its employees;(6) that the common carrier's liability for acts committed by thieves, or ofrobbers who do not act with grave or irresistible threat, violence or force,is dispensed with or diminished; and(7) that the common carrier shall not responsible for the loss, destructionor deterioration of goods on account of the defective condition of the carvehicle, ship, airplane or other equipment used in the contract of carriage.(Emphasis supplied)Under Article 1745 (6) above, a common carrier is held responsible and will not be allowed to divest or to diminish such responsibility evenfor acts of strangers like thieves or robbers, except where such thieves orrobbers in fact acted "with grave or irresistible threat, violence or force."We believe and so hold that the limits of the duty of extraordinarydiligence in the vigilance over the goods carried are reached where thegoods are lost as a result of a robbery which is attended by "grave orirresistible threat, violence or force."In the instant case, armed men held up the second truck owned byprivate respondent which carried petitioner's cargo. The record showsthat an information for robbery in band was filed in the Court of FirstInstance of Tarlac, Branch 2, in Criminal Case No. 198 entitled "Peopleof the Philippines v. Felipe Boncorno, Napoleon Presno, ArmandoMesina, Oscar Oria and one John Doe." There, the accused werecharged with willfully and unlawfully taking and carrying away with themthe second truck, driven by Manuel Estrada and loaded with the 600cartons of Liberty filled milk destined for delivery at petitioner's store inUrdaneta, Pangasinan. The decision of the trial court shows that theaccused acted with grave, if not irresistible, threat, violence or force. 3Three (3) of the five (5) hold-uppers were armed with firearms. Therobbers not only took away the truck and its cargo but also kidnapped thedriver and his helper, detaining them for several days and later releasingthem in another province (in Zambales). The hijacked truck wassubsequently found by the police in Quezon City. The Court of FirstInstance convicted all the accused of robbery, though not of robbery inband. 4In these circumstances, we hold that the occurrence of the loss mustreasonably be regarded as quite beyond the control of the common

carrier and properly regarded as a fortuitous event. It is necessary torecall that even common carriers are not made absolute insurers againstall risks of travel and of transport of goods, and are not held liable for actsor events which cannot be foreseen or are inevitable, provided that theyshall have complied with the rigorous standard of extraordinary diligence.We, therefore, agree with the result reached by the Court of Appeals thatprivate respondent Cendana is not liable for the value of the undeliveredmerchandise which was lost because of an event entirely beyond privaterespondent's control.ACCORDINGLY, the Petition for Review on certiorari is hereby DENIEDand the Decision of the Court of Appeals dated 3 August 1977 isAFFIRMED. No pronouncement as to costs.SO ORDERED.

MR. & MRS. ENGRACIO FABRE, JR.* and PORFIRIO CABIL,petitioners, vs. COURT OF APPEALS, THE WORD FOR THE WORLD

CHRISTIAN FELLOWSHIP, INC., AMYLINE ANTONIO, JOHNRICHARDS, GONZALO GONZALES, VICENTE V. QUE, JR., ICLICORDOVA, ARLENE GOJOCCO, ALBERTO ROXAS CORDERO,

RICHARD BAUTISTA, JOCELYN GARCIA, YOLANDA CORDOVA,NOEL ROQUE, EDWARD TAN, ERNESTO NARCISO, ENRIQUETA

LOCSIN, FRANCIS NORMAN O. LOPEZ, JULIUS CAESAR GARCIA,ROSARIO MA. V. ORTIZ, MARIETTA C. CLAVO, ELVIE SENIEL,

ROSARIO MARA-MARA, TERESITA REGALA, MELINDA TORRES,MARELLA MIJARES, JOSEFA CABATINGAN, MARA NADOC, DIANEMAYO, TESS PLATA, MAYETTE JOCSON, ARLENE Y. MORTIZ, LIZA

MAYO, CARLOS RANARIO, ROSAMARIA T. RADOC andBERNADETTE FERRER, respondents.

D E C I S I O NMENDOZA, J.:This is a petition for review on certiorari of the decision of the Court of Appeals[if !supportFootnotes][1][endif] in CA-GR No. 28245, dated September 30, 1992, which affirmed with modification the decision of the Regional Trial Court of Makati, Branch 58, ordering petitioners jointly and severally to pay damages to private respondent Amyline Antonio, and its resolution which denied petitioners motion for reconsideration for lack of merit.Petitioners Engracio Fabre, Jr. and his wife were owners of a 1982 modelMazda minibus. They used the bus principally in connection with a bus service for school children which they operated in Manila. The couple hada driver, Porfirio J. Cabil, whom they hired in 1981, after trying him out fortwo weeks. His job was to take school children to and from the St. Scholasticas College in Malate, Manila.On November 2, 1984 private respondent Word for the World Christian Fellowship Inc. (WWCF) arranged with petitioners for the transportation of 33 members of its Young Adults Ministry from Manila to La Union and back in consideration of which private respondent paid petitioners the amount of P3,000.00.The group was scheduled to leave on November 2, 1984, at 5:00 oclock in the afternoon. However, as several members of the party were late, thebus did not leave the Tropical Hut at the corner of Ortigas Avenue and EDSA until 8:00 oclock in the evening. Petitioner Porfirio Cabil drove the minibus.The usual route to Caba, La Union was through Carmen, Pangasinan. However, the bridge at Carmen was under repair, so that petitioner Cabil,who was unfamiliar with the area (it being his first trip to La Union), was forced to take a detour through the town of Ba-ay in Lingayen, Pangasinan. At 11:30 that night, petitioner Cabil came upon a sharp

curve on the highway, running on a south to east direction, which he described as siete. The road was slippery because it was raining, causingthe bus, which was running at the speed of 50 kilometers per hour, to skid to the left road shoulder. The bus hit the left traffic steel brace and sign along the road and rammed the fence of one Jesus Escano, then turned over and landed on its left side, coming to a full stop only after a series of impacts. The bus came to rest off the road. A coconut tree which it had hit fell on it and smashed its front portion.Several passengers were injured. Private respondent Amyline Antonio was thrown on the floor of the bus and pinned down by a wooden seat which came off after being unscrewed. It took three persons to safely remove her from this position. She was in great pain and could not move.The driver, petitioner Cabil, claimed he did not see the curve until it was too late. He said he was not familiar with the area and he could not have seen the curve despite the care he took in driving the bus, because it wasdark and there was no sign on the road. He said that he saw the curve when he was already within 15 to 30 meters of it. He allegedly slowed down to 30 kilometers per hour, but it was too late.The Lingayen police investigated the incident the next day, November 3, 1984. On the basis of their finding they filed a criminal complaint against the driver, Porfirio Cabil. The case was later filed with the Lingayen Regional Trial Court. Petitioners Fabre paid Jesus Escano P1,500.00 for the damage to the latters fence. On the basis of Escanos affidavit of desistance the case against petitioners Fabre was dismissed.Amyline Antonio, who was seriously injured, brought this case in the RTCof Makati, Metro Manila. As a result of the accident, she is now suffering from paraplegia and is permanently paralyzed from the waist down. During the trial she described the operations she underwent and adducedevidence regarding the cost of her treatment and therapy. Immediately after the accident, she was taken to the Nazareth Hospital in Ba-ay, Lingayen. As this hospital was not adequately equipped, she was transferred to the Sto. Nio Hospital, also in the town of Ba-ay, where she was given sedatives. An x-ray was taken and the damage to her spine was determined to be too severe to be treated there. She was therefore brought to Manila, first to the Philippine General Hospital and later to the Makati Medical Center where she underwent an operation to correct the dislocation of her spine.In its decision dated April 17, 1989, the trial court found that:No convincing evidence was shown that the minibus was properly checked for travel to a long distance trip and that the driver was properly screened and tested before being admitted for employment. Indeed, all the evidence presented have shown the negligent act of the defendants which ultimately resulted to the accident subject of this case.Accordingly, it gave judgment for private respondents holding:

Considering that plaintiffs Word for the World Christian Fellowship, Inc. and Ms. Amyline Antonio were the only ones who adduced evidence in support of their claim for damages, the Court is therefore not in a positionto award damages to the other plaintiffs.WHEREFORE, premises considered, the Court hereby renders judgmentagainst defendants Mr. & Mrs. Engracio Fabre, Jr. and Porfirio Cabil y Jamil pursuant to articles 2176 and 2180 of the Civil Code of the Philippines and said defendants are ordered to pay jointly and severally to the plaintiffs the following amount:1) P93,657.11 as compensatory and actual damages;2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff Amyline Antonio;3) P20,000.00 as moral damages;4) P20,000.00 as exemplary damages; and5) 25% of the recoverable amount as attorneys fees;6) Costs of suit.SO ORDERED.The Court of Appeals affirmed the decision of the trial court with respect to Amyline Antonio but dismissed it with respect to the other plaintiffs on the ground that they failed to prove their respective claims. The Court of Appeals modified the award of damages as follows:1) P93,657.11 as actual damages;2) P600,000.00 as compensatory damages;3) P50,000.00 as moral damages;4) P20,000.00 as exemplary damages;5) P10,000.00 as attorneys fees; and6) Costs of suit.The Court of Appeals sustained the trial courts finding that petitioner Cabil failed to exercise due care and precaution in the operation of his vehicle considering the time and the place of the accident. The Court of Appeals held that the Fabres were themselves presumptively negligent. Hence, this petition. Petitioners raise the following issues:I. WHETHER OR NOT PETITIONERS WERE NEGLIGENT.II. WHETHER OR NOT PETITIONERS WERE LIABLE FOR THE INJURIES SUFFERED BY PRIVATE RESPONDENTS.III. WHETHER OR NOT DAMAGES CAN BE AWARDED AND IN THE POSITIVE, UP TO WHAT EXTENT.Petitioners challenge the propriety of the award of compensatory damages in the amount of P600,000.00. It is insisted that, on the assumption that petitioners are liable, an award of P600,000.00 is unconscionable and highly speculative. Amyline Antonio testified that shewas a casual employee of a company called Suaco, earning P1,650.00 a month, and a dealer of Avon products, earning an average of P1,000.00 monthly. Petitioners contend that as casual employees do not have

security of tenure, the award of P600,000.00, considering Amyline Antonios earnings, is without factual basis as there is no assurance that she would be regularly earning these amounts.With the exception of the award of damages, the petition is devoid of merit.First, it is unnecessary for our purpose to determine whether to decide this case on the theory that petitioners are liable for breach of contract of carriage or culpa contractual or on the theory of quasi delict or culpa aquiliana as both the Regional Trial Court and the Court of Appeals held, for although the relation of passenger and carrier is contractual both in origin and nature, nevertheless the act that breaks the contract may be also a tort.[if !supportFootnotes][2][endif] In either case, the question is whether the bus driver, petitioner Porfirio Cabil, was negligent.The finding that Cabil drove his bus negligently, while his employer, the Fabres, who owned the bus, failed to exercise the diligence of a good father of the family in the selection and supervision of their employee is fully supported by the evidence on record. These factual findings of the two courts we regard as final and conclusive, supported as they are by the evidence. Indeed, it was admitted by Cabil that on the night in question, it was raining, and, as a consequence, the road was slippery, and it was dark. He averred these facts to justify his failure to see that there lay a sharp curve ahead. However, it is undisputed that Cabil drove his bus at the speed of 50 kilometers per hour and only slowed down when he noticed the curve some 15 to 30 meters ahead.[if !supportFootnotes][3][endif] By then it was too late for him to avoid falling off the road. Given the conditions of the road and considering that the trip was Cabils first one outside of Manila, Cabil should have driven his vehicle at a moderate speed. There is testimony[if !supportFootnotes][4][endif] that the vehicles passing on that portion of the road should only be running 20 kilometers per hour, so that at 50 kilometers per hour, Cabil was running at a very high speed.Considering the foregoing the fact that it was raining and the road was slippery, that it was dark, that he drove his bus at 50 kilometers an hour when even on a good day the normal speed was only 20 kilometers an hour, and that he was unfamiliar with the terrain, Cabil was grossly negligent and should be held liable for the injuries suffered by private respondent Amyline Antonio.Pursuant to Arts. 2176 and 2180 of the Civil Code his negligence gave rise to the presumption that his employers, the Fabres, were themselves negligent in the selection and supervision of their employee.Due diligence in selection of employees is not satisfied by finding that theapplicant possessed a professional drivers license. The employer should also examine the applicant for his qualifications, experience and record ofservice.[if !supportFootnotes][5][endif] Due diligence in supervision, on the other hand,requires the formulation of rules and regulations for the guidance of

employees and the issuance of proper instructions as well as actual implementation and monitoring of consistent compliance with the rules.[if !supportFootnotes][6][endif]

In the case at bar, the Fabres, in allowing Cabil to drive the bus to La Union, apparently did not consider the fact that Cabil had been driving forschool children only, from their homes to the St. Scholasticas College in Metro Manila.[if !supportFootnotes][7][endif] They had hired him only after a two-week apprenticeship. They had tested him for certain matters, such as whether he could remember the names of the children he would be taking to school, which were irrelevant to his qualification to drive on a long distance travel, especially considering that the trip to La Union was his first. The existence of hiring procedures and supervisory policies cannot be casually invoked to overturn the presumption of negligence on the partof an employer.[if !supportFootnotes][8][endif]Petitioners argue that they are not liable because (1) an earlier departure (made impossible by the congregations delayed meeting) could have averted the mishap and (2) under the contract, the WWCF was directly responsible for the conduct of the trip. Neither of these contentions hold water. The hour of departure had not been fixed. Even if it had been, the delay did not bear directly on the cause of the accident. With respect to the second contention, it was held in an early case that:[A] person who hires a public automobile and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for acts of negligence of the latter or prevented from recovering for injuries suffered from a collision between the automobile and a train, caused by the negligence either of the locomotive engineer or the automobile driver.[if !supportFootnotes][9][endif]

As already stated, this case actually involves a contract of carriage. Petitioners, the Fabres, did not have to be engaged in the business of public transportation for the provisions of the Civil Code on common carriers to apply to them. As this Court has held:[if !supportFootnotes][10][endif]Art. 1732. Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air for compensation, offering their services to the public.The above article makes no distinction between one whose principal business activity is the carrying of persons or goods or both, and one whodoes such carrying only as an ancillary activity (in local idiom, as a sideline). Article 1732 also carefully avoids making any distinction between a person or enterprise offering transportation service on a regular or scheduled basis and one offering such service on an occasional, episodic or unscheduled basis. Neither does Article 1732 distinguish between a carrier offering its services to the general public,

i.e., the general community or population, and one who offers services or solicits business only from a narrow segment of the general population. We think that Article 1732 deliberately refrained from making such distinctions.As common carriers, the Fabres were bound to exercise extraordinary diligence for the safe transportation of the passengers to their destination.This duty of care is not excused by proof that they exercised the diligenceof a good father of the family in the selection and supervision of their employee. As Art. 1759 of the Code provides:Common carriers are liable for the death of or injuries to passengers through the negligence or wilful acts of the formers employees, although such employees may have acted beyond the scope of their authority or inviolation of the orders of the common carriers.This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection andsupervision of their employees.The same circumstances detailed above, supporting the finding of the trial court and of the appellate court that petitioners are liable under Arts. 2176 and 2180 for quasi delict, fully justify finding them guilty of breach ofcontract of carriage under Arts. 1733, 1755 and 1759 of the Civil Code.Secondly, we sustain the award of damages in favor of Amyline Antonio. However, we think the Court of Appeals erred in increasing the amount ofcompensatory damages because private respondents did not question this award as inadequate.[if !supportFootnotes][11][endif] To the contrary, the award ofP500,000.00 for compensatory damages which the Regional Trial Court made is reasonable considering the contingent nature of her income as a casual employee of a company and as distributor of beauty products and the fact that the possibility that she might be able to work again has not been foreclosed. In fact she testified that one of her previous employers had expressed willingness to employ her again.With respect to the other awards, while the decisions of the trial court andthe Court of Appeals do not sufficiently indicate the factual and legal basis for them, we find that they are nevertheless supported by evidence in the records of this case. Viewed as an action for quasi delict, this case falls squarely within the purview of Art. 2219(2) providing for the payment of moral damages in cases of quasi delict. On the theory that petitioners are liable for breach of contract of carriage, the award of moral damages is authorized by Art. 1764, in relation to Art. 2220, since Cabils gross negligence amounted to bad faith.[if !supportFootnotes][12][endif] Amyline Antonios testimony, as well as the testimonies of her father and co-passengers, fully establish the physical suffering and mental anguish she endured as a result of the injuries caused by petitioners negligence.The award of exemplary damages and attorneys fees was also properly made. However, for the same reason that it was error for the appellate

court to increase the award of compensatory damages, we hold that it was also error for it to increase the award of moral damages and reduce the award of attorneys fees, inasmuch as private respondents, in whose favor the awards were made, have not appealed.[if !supportFootnotes][13][endif]As above stated, the decision of the Court of Appeals can be sustained either on the theory of quasi delict or on that of breach of contract. The question is whether, as the two courts below held, petitioners, who are the owners and driver of the bus, may be made to respond jointly and severally to private respondent. We hold that they may be. In Dangwa Trans. Co. Inc. v. Court of Appeals,[if !supportFootnotes][14][endif] on facts similar to those in this case, this Court held the bus company and the driver jointly and severally liable for damages for injuries suffered by a passenger. Again, in Bachelor Express, Inc. v. Court of Appeals[if !supportFootnotes][15][endif] a driver found negligent in failing to stop the bus in order to let off passengers when a fellow passenger ran amuck, as a result of which the passengers jumped out of the speeding bus and suffered injuries, was held also jointly and severally liable with the bus company to the injured passengers.The same rule of liability was applied in situations where the negligence of the driver of the bus on which plaintiff was riding concurred with the negligence of a third party who was the driver of another vehicle, thus causing an accident. In Anuran v. Buo,[if !supportFootnotes][16][endif] Batangas Laguna Tayabas Bus Co. v. Intermediate Appellate Court,[if !supportFootnotes][17][endif] and Metro Manila Transit Corporation v. Court of Appeals,[if !supportFootnotes][18][endif] the bus company, its driver, the operator of the other vehicle and the driver of the vehicle were jointly and severally held liable to the injured passenger or the latters heirs. The basis of this allocation ofliability was explained in Viluan v. Court of Appeals,[if !supportFootnotes][19][endif] thus:Nor should it make any difference that the liability of petitioner [bus owner] springs from contract while that of respondents [owner and driver of other vehicle] arises from quasi-delict. As early as 1913, we already ruled in Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of injury to a passenger due to the negligence of the driver of the bus on which he wasriding and of the driver of another vehicle, the drivers as well as the owners of the two vehicles are jointly and severally liable for damages. Some members of the Court, though, are of the view that under the circumstances they are liable on quasi-delict.[if !supportFootnotes][20][endif]It is true that in Philippine Rabbit Bus Lines, Inc. v. Court of Appeals[if !supportFootnotes][21][endif] this Court exonerated the jeepney driver from liability to the injured passengers and their families while holding the owners of the jeepney jointly and severally liable, but that is because that case was expressly tried and decided exclusively on the theory of culpa contractual.As this Court there explained:

The trial court was therefore right in finding that Manalo [the driver] and spouses Mangune and Carreon [the jeepney owners] were negligent. However, its ruling that spouses Mangune and Carreon are jointly and severally liable with Manalo is erroneous. The driver cannot be held jointly and severally liable with the carrier in case of breach of the contract of carriage. The rationale behind this is readily discernible. Firstly, the contract of carriage is between the carrier and the passenger, and in the event of contractual liability, the carrier is exclusively responsible therefore to the passenger, even if such breach be due to thenegligence of his driver (see Viluan v. The Court of Appeals, et al., G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742) . . .[if !supportFootnotes][22][endif]As in the case of BLTB, private respondents in this case and her co-plaintiffs did not stake out their claim against the carrier and the driver exclusively on one theory, much less on that of breach of contract alone. After all, it was permitted for them to allege alternative causes of action and join as many parties as may be liable on such causes of action[if !supportFootnotes][23][endif] so long as private respondent and her co-plaintiffs do not recover twice for the same injury. What is clear from the cases is the intent of the plaintiff there to recover from both the carrier and the driver, thus justifying the holding that the carrier and the driver were jointly and severally liable because their separate and distinct acts concurred to produce the same injury.

WHEREFORE, the decision of the Court of Appeals is AFFIRMEDwith MODIFICATION as to the award of damages. Petitioners areORDERED to PAY jointly and severally the private respondent AmylineAntonio the following amounts:1) P93,657.11 as actual damages;2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff Amyline Antonio;3) P20,000.00 as moral damages;4) P20,000.00 as exemplary damages;5) 25% of the recoverable amount as attorneys fees; and6) costs of suit.SO ORDERED.

G.R. No. 101089. April 7, 1993.

ESTRELLITA M. BASCOS, petitioners, vs.

COURT OF APPEALS and RODOLFO A. CIPRIANO, respondents.Modesto S. Bascos for petitioner.

Pelaez, Adriano & Gregorio for private respondent.

SYLLABUS1. CIVIL LAW; COMMON CARRIERS; DEFINED; TEST TO DETERMINE COMMON CARRIER. Article 1732 of the Civil Code defines a common carrier as "(a) person, corporation or firm, or association engaged in the business of carrying or transporting passengers or goods or both, by land, water or air, for compensation, offering their services to the public." The test to determine a common carrier is "whether the given undertaking is a part of the business engaged in by the carrier which he has held out to the general public as his occupation rather than the quantity or extent of the business transacted." . . . The holding of the Court in De Guzman vs. Court of Appeals is instructive. In referring to Article 1732 of the Civil Code, it held thus: "The above article makes no distinction between one whose principal business activity is the carrying of persons or goods or both, andone who does such carrying only as an ancillary activity (in local idiom, asa "sideline"). Article 1732 also carefully avoids making any distinction between a person or enterprise offering transportation service on a regular or scheduled basis and one offering such service on an occasional, episodic or unscheduled basis. Neither does Article 1732 distinguished between a carrier offering its services to the "general public," i.e., the general community or population, and one who offers services or solicits business only from a narrow segment of the general population. We think that Article 1732 deliberately refrained from making such distinctions."2. ID.; ID.; DILIGENCE REQUIRED IN VIGILANCE OVER GOODS TRANSPORTED; WHEN PRESUMPTION OF NEGLIGENCE ARISES; HOW PRESUMPTION OVERCAME; WHEN PRESUMPTION MADE ABSOLUTE. Common carriers are obliged to observe extraordinary diligence in the vigilance over the goods transported by them. Accordingly, they are presumed to have been at fault or to have acted negligently if the goods are lost, destroyed or deteriorated. There are veryfew instances when the presumption of negligence does not attach and these instances are enumerated in Article 1734. In those cases where thepresumption is applied, the common carrier must prove that it exercised extraordinary diligence in order to overcome the presumption . . . The presumption of negligence was raised against petitioner. It was petitioner's burden to overcome it. Thus, contrary to her assertion, private

respondent need not introduce any evidence to prove her negligence. Her own failure to adduce sufficient proof of extraordinary diligence madethe presumption conclusive against her.3. ID.; ID.; HIJACKING OF GOODS; CARRIER PRESUMED NEGLIGENT; HOW CARRIER ABSOLVED FROM LIABILITY. In De Guzman vs. Court of Appeals, the Court held that hijacking, not being included in the provisions of Article 1734, must be dealt with under the provisions of Article 1735 and thus, the common carrier is presumed to have been at fault or negligent. To exculpate the carrier from liability arising from hijacking, he must prove that the robbers or the hijackers acted with grave or irresistible threat, violence, or force. This is in accordance with Article 1745 of the Civil Code which provides: "Art. 1745.Any of the following or similar stipulations shall be considered unreasonable, unjust and contrary to public policy . . . (6) That the common carrier's liability for acts committed by thieves, or of robbers whodo not act with grave or irresistible threat, violences or force, is dispensedwith or diminished"; In the same case, the Supreme Court also held that: "Under Article 1745 (6) above, a common carrier is held responsible and will not be allowed to divest or to diminish such responsibility evenfor acts of strangers like thieves or robbers, except where such thieves orrobbers in fact acted "with grave of irresistible threat, violence of force," We believe and so hold that the limits of the duty of extraordinary diligence in the vigilance over the goods carried are reached where the goods are lost as a result of a robbery which is attended by "grave or irresistible threat, violence or force."4. REMEDIAL LAW; EVIDENCE; JUDICIAL ADMISSIONS CONCLUSIVE. In this case, petitioner herself has made the admissionthat she was in the trucking business, offering her trucks to those with cargo to move. Judicial admissions are conclusive and no evidence is required to prove the same.5. ID.; ID.; BURDEN OF PROOF RESTS WITH PARTY WHO ALLEGES A FACT. Petitioner presented no other proof of the existence of the contract of lease. He who alleges a fact has the burden of proving it.6. ID.; ID.; AFFIDAVITS NOT CONSIDERED BEST EVIDENCE IF AFFIANTS AVAILABLE AS WITNESSES. While the affidavit of Juanito Morden, the truck helper in the hijacked truck, was presented as evidence in court, he himself was a witness as could be gleaned from thecontents of the petition. Affidavits are not considered the best evidence if the affiants are available as witnesses.7. CIVIL LAW; OBLIGATIONS AND CONTRACTS; CONTRACT IS WHAT LAW DEFINES IT TO BE. Granting that the said evidence werenot self-serving, the same were not sufficient to prove that the contract was one of lease. It must be understood that a contract is what the law defines it to be and not what it is called by the contracting parties.

D E C I S I O NCAMPOS, JR., J p:This is a petition for review on certiorari of the decision ** of the Court of Appeals in "RODOLFO A. CIPRIANO, doing business under the name CIPRIANO TRADING ENTERPRISES plaintiff-appellee, vs. ESTRELLITA M. BASCOS, doing business under the name of BASCOS TRUCKING, defendant-appellant," C.A.-G.R. CV No. 25216, the dispositive portion of which is quoted hereunder:"PREMISES considered, We find no reversible error in the decision appealed from, which is hereby affirmed in toto. Costs against appellant." 1The facts, as gathered by this Court, are as follows:Rodolfo A. Cipriano representing Cipriano Trading Enterprise (CIPTRADE for short) entered into a hauling contract 2 with Jibfair Shipping Agency Corporation whereby the former bound itself to haul the latter's 2,000 m/tons of soya bean meal from Magallanes Drive, Del Pan, Manila to the warehouse of Purefoods Corporation in Calamba, Laguna. To carry out its obligation, CIPTRADE, through Rodolfo Cipriano, subcontracted with Estrellita Bascos (petitioner) to transport and to deliver 400 sacks of soya bean meal worth P156,404.00 from the Manila Port Area to Calamba, Laguna at the rate of P50.00 per metric ton. Petitioner failed to deliver the said cargo. As a consequence of that failure, Cipriano paid Jibfair Shipping Agency the amount of the lost goods in accordance with the contract which stated that:"1. CIPTRADE shall be held liable and answerable for any loss in bags due to theft, hijacking and non-delivery or damages to the cargo during transport at market value, . . ." 3Cipriano demanded reimbursement from petitioner but the latter refused to pay. Eventually, Cipriano filed a complaint for a sum of money and damages with writ of preliminary attachment 4 for breach of a contract of carriage. The prayer for a Writ of Preliminary Attachment was supported by an affidavit 5 which contained the following allegations:"4. That this action is one of those specifically mentioned in Sec. 1, Rule 57 the Rules of Court, whereby a writ of preliminary attachment may lawfully issue, namely:"(e) in an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors;"5. That there is no sufficient security for the claim sought to be enforced by the present action;6. That the amount due to the plaintiff in the above-entitled case is above all legal counterclaims;"The trial court granted the writ of preliminary attachment on February 17, 1987.In her answer, petitioner interposed the following defenses: that there

was no contract of carriage since CIPTRADE leased her cargo truck to load the cargo from Manila Port Area to Laguna; that CIPTRADE was liable to petitioner in the amount of P11,000.00 for loading the cargo; that the truck carrying the cargo was hijacked along Canonigo St., Paco, Manila on the night of October 21, 1988; that the hijacking was immediately reported to CIPTRADE and that petitioner and the police exerted all efforts to locate the hijacked properties; that after preliminary investigation, an information for robbery and carnapping were filed against Jose Opriano, et al.; and that hijacking, being a force majeure, exculpated petitioner from any liability to CIPTRADE.After trial, the trial court rendered a decision *** the dispositive portion of which reads as follows:"WHEREFORE, judgment is hereby rendered in favor of plaintiff and against defendant ordering the latter to pay the former:1. The amount of ONE HUNDRED FIFTY-SIX THOUSAND FOUR HUNDRED FOUR PESOS (P156,404.00) as an (sic) for actual damages with legal interest of 12% per cent per annum to be counted from December 4, 1986 until fully paid;2. The amount of FIVE THOUSAND PESOS (P5,000.00) as and for attorney's fees; and3. The costs of the suit.The "Urgent Motion To Dissolve/Lift preliminary Attachment" dated March10, 1987 filed by defendant is DENIED for being moot and academic.SO ORDERED." 6Petitioner appealed to the Court of Appeals but respondent Court affirmed the trial court's judgment.Consequently, petitioner filed this petition where she makes the following assignment of errors; to wit:"I. THE RESPONDENT COURT ERRED IN HOLDING THAT THE CONTRACTUAL RELATIONSHIP BETWEEN PETITIONER AND PRIVATE RESPONDENT WAS CARRIAGE OF GOODS AND NOT LEASE OF CARGO TRUCK.II. GRANTING, EX GRATIA ARGUMENTI, THAT THE FINDING OF THERESPONDENT COURT THAT THE CONTRACTUAL RELATIONSHIP BETWEEN PETITIONER AND PRIVATE RESPONDENT WAS CARRIAGE OF GOODS IS CORRECT, NEVERTHELESS, IT ERRED INFINDING PETITIONER LIABLE THEREUNDER BECAUSE THE LOSS OF THE CARGO WAS DUE TO FORCE MAJEURE, NAMELY, HIJACKING.III. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT PETITIONER'S MOTION TO DISSOLVE/LIFT THE WRIT OF PRELIMINARY ATTACHMENT HAS BEEN RENDERED MOOT AND ACADEMIC BY THE DECISION OF THE MERITS OF THE CASE." 7

The petition presents the following issues for resolution: (1) was petitionera common carrier?; and (2) was the hijacking referred to a force majeure?The Court of Appeals, in holding that petitioner was a common carrier, found that she admitted in her answer that she did business under the name A.M. Bascos Trucking and that said admission dispensed with the presentation by private respondent, Rodolfo Cipriano, of proofs that petitioner was a common carrier. The respondent Court also adopted in toto the trial court's decision that petitioner was a common carrier, Moreover, both courts appreciated the following pieces of evidence as indicators that petitioner was a common carrier: the fact that the truck driver of petitioner, Maximo Sanglay, received the cargo consisting of 400bags of soya bean meal as evidenced by a cargo receipt signed by Maximo Sanglay; the fact that the truck helper, Juanito Morden, was also an employee of petitioner; and the fact that control of the cargo was placed in petitioner's care.In disputing the conclusion of the trial and appellate courts that petitioner was a common carrier, she alleged in this petition that the contract between her and Rodolfo A. Cipriano, representing CIPTRADE, was lease of the truck. She cited as evidence certain affidavits which referred to the contract as "lease". These affidavits were made by Jesus Bascos 8and by petitioner herself. 9 She further averred that Jesus Bascos confirmed in his testimony his statement that the contract was a lease contract. 10 She also stated that: she was not catering to the general public. Thus, in her answer to the amended complaint, she said that she does business under the same style of A.M. Bascos Trucking, offering her trucks for lease to those who have cargo to move, not to the general public but to a few customers only in view of the fact that it is only a smallbusiness. 11We agree with the respondent Court in its finding that petitioner is a common carrier.Article 1732 of the Civil Code defines a common carrier as "(a) person, corporation or firm, or association engaged in the business of carrying or transporting passengers or goods or both, by land, water or air, for compensation, offering their services to the public." The test to determine a common carrier is "whether the given undertaking is a part of the business engaged in by the carrier which he has held out to the general public as his occupation rather than the quantity or extent of the businesstransacted." 12 In this case, petitioner herself has made the admission that she was in the trucking business, offering her trucks to those with cargo to move. Judicial admissions are conclusive and no evidence is required to prove the same. 13But petitioner argues that there was only a contract of lease because theyoffer their services only to a select group of people and because the

private respondents, plaintiffs in the lower court, did not object to the presentation of affidavits by petitioner where the transaction was referred to as a lease contract.Regarding the first contention, the holding of the Court in De Guzman vs. Court of Appeals 14 is instructive. In referring to Article 1732 of the Civil Code, it held thus:"The above article makes no distinction between one whose principal business activity is the carrying of persons or goods or both, and one whodoes such carrying only as an ancillary activity (in local idiom, as a "sideline"). Article 1732 also carefully avoids making any distinction between a person or enterprise offering transportation service on a regular or scheduled basis and one offering such service on an occasional, episodic or unscheduled basis. Neither does Article 1732 distinguish between a carrier offering its services to the "general public," i.e., the general community or population, and one who offers services or solicits business only from a narrow segment of the general population. We think that Article 1732 deliberately refrained from making such distinctions."Regarding the affidavits presented by petitioner to the court, both the trial and appellate courts have dismissed them as self-serving and petitioner contests the conclusion. We are bound by the appellate court's factual conclusions. Yet, granting that the said evidence were not self-serving, the same were not sufficient to prove that the contract was one of lease. It must be understood that a contract is what the law defines it to be and not what it is called by the contracting parties. 15 Furthermore, petitioner presented no other proof of the existence of the contract of lease. He whoalleges a fact has the burden of proving it. 16Likewise, We affirm the holding of the respondent court that the loss of the goods was not due to force majeure.Common carriers are obliged to observe extraordinary diligence in the vigilance over the goods transported by them. 17 Accordingly, they are presumed to have been at fault or to have acted negligently if the goods are lost, destroyed or deteriorated. 18 There are very few instances whenthe presumption of negligence does not attach and these instances are enumerated in Article 1734. 19 In those cases where the presumption is applied, the common carrier must prove that it exercised extraordinary diligence in order to overcome the presumption.In this case, petitioner alleged that hijacking constituted force majeure which exculpated her from liability for the loss of the cargo. In De Guzman vs. Court of Appeals, 20 the Court held that hijacking, not being included in the provisions of Article 1734, must be dealt with under the provisions of Article 1735 and thus, the common carrier is presumed to have been at fault or negligent. To exculpate the carrier from liability arising from hijacking, he must prove that the robbers or the hijackers

acted with grave or irresistible threat, violence, or force. This is in accordance with Article 1745 of the Civil Code which provides:"Art. 1745. Any of the following or similar stipulations shall be considered unreasonable, unjust and contrary to public policy;xxx xxx xxx(6) That the common carrier's liability for acts committed by thieves, or of robbers who do not act with grave or irresistible threat, violences or force,is dispensed with or diminished;"In the same case, 21 the Supreme Court also held that:"Under Article 1745 (6) above, a common carrier is held responsible and will not be allowed to divest or to diminish such responsibility evenfor acts of strangers like thieves or robbers except where such thieves or robbers in fact acted with grave or irresistible threat, violence or force. We believe and so hold that the limits of the duty of extraordinary diligence in the vigilance over the goods carried are reached where the goods are lost as a result of a robbery which is attended by "grave or irresistible threat, violence or force."To establish grave and irresistible force, petitioner presented her accusatory affidavit, 22 Jesus Bascos' affidavit, 23 and Juanito Morden's 24 "Salaysay". However, both the trial court and the Court of Appeals have concluded that these affidavits were not enough to overcome the presumption. Petitioner's affidavit about the hijacking was based on what had been told her by Juanito Morden. It was not a first-hand account. While it had been admitted in court for lack of objection on the part of private respondent, the respondent Court had discretion in assigning weight to such evidence. We are bound by the conclusion of the appellate court. In a petition for review on certiorari, We are not to determine the probative value of evidence but to resolve questions of law.Secondly, the affidavit of Jesus Bascos did not dwell on how the hijackingtook place. Thirdly, while the affidavit of Juanito Morden, the truck helper in the hijacked truck, was presented as evidence in court, he himself was a witness as could be gleaned from the contents of the petition. Affidavits are not considered the best evidence if the affiants are available as witnesses. 25 The subsequent filing of the information for carnapping androbbery against the accused named in said affidavits did not necessarily mean that the contents of the affidavits were true because they were yet to be determined in the trial of the criminal cases.The presumption of negligence was raised against petitioner. It was petitioner's burden to overcome it. Thus, contrary to her assertion, privaterespondent need not introduce any evidence to prove her negligence. Her own failure to adduce sufficient proof of extraordinary diligence madethe presumption conclusive against her.Having affirmed the findings of the respondent Court on the substantial issues involved, We find no reason to disturb the conclusion that the

motion to lift/dissolve the writ of preliminary attachment has been rendered moot and academic by the decision on the merits.In the light of the foregoing analysis, it is Our opinion that the petitioner's claim cannot be sustained. The petition is DISMISSED and the decision of the Court of Appeals is hereby AFFIRMED.SO ORDERED.

[G.R. No. 141910. August 6, 2002]FGU INSURANCE CORPORATION, petitioner, vs. G.P. SARMIENTO

TRUCKING CORPORATION and LAMBERT M. EROLES,respondents.

D E C I S I O NVITUG, J.:

G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver on18 June 1994 thirty (30) units of Condura S.D. white refrigerators aboardone of its Isuzu truck, driven by Lambert Eroles, from the plant site ofConcepcion Industries, Inc., along South Superhighway in Alabang,Metro Manila, to the Central Luzon Appliances in Dagupan City. Whilethe truck was traversing the north diversion road along McArthur highwayin Barangay Anupol, Bamban, Tarlac, it collided with an unidentifiedtruck, causing it to fall into a deep canal, resulting in damage to thecargoes.

FGU Insurance Corporation (FGU), an insurer of the shipment, paidto Concepcion Industries, Inc., the value of the covered cargoes in thesum of P204,450.00. FGU, in turn, being the subrogee of the rights andinterests of Concepcion Industries, Inc., sought reimbursement of theamount it had paid to the latter from GPS. Since the trucking companyfailed to heed the claim, FGU filed a complaint for damages and breachof contract of carriage against GPS and its driver Lambert Eroles with theRegional Trial Court, Branch 66, of Makati City. In its answer,respondents asserted that GPS was the exclusive hauler only ofConcepcion Industries, Inc., since 1988, and it was not so engaged inbusiness as a common carrier. Respondents further claimed that thecause of damage was purely accidental.

The issues having thus been joined, FGU presented its evidence,establishing the extent of damage to the cargoes and the amount it hadpaid to the assured. GPS, instead of submitting its evidence, filed withleave of court a motion to dismiss the complaint by way of demurrer toevidence on the ground that petitioner had failed to prove that it was acommon carrier.

The trial court, in its order of 30 April 1996,[if !supportFootnotes][1][endif]granted the motion to dismiss, explaining thusly:Under Section 1 of Rule 131 of the Rules of Court, it is provided that Each party must prove his own affirmative allegation, xxx.In the instant case, plaintiff did not present any single evidence that would prove that defendant is a common carrier.x x x x x x x x xAccordingly, the application of the law on common carriers is not warranted and the presumption of fault or negligence on the part of a

common carrier in case of loss, damage or deterioration of goods during transport under 1735 of the Civil Code is not availing.Thus, the laws governing the contract between the owner of the cargo to whom the plaintiff was subrogated and the owner of the vehicle which transports the cargo are the laws on obligation and contract of the Civil Code as well as the law on quasi delicts.Under the law on obligation and contract, negligence or fault is not presumed. The law on quasi delict provides for some presumption of negligence but only upon the attendance of some circumstances. Thus, Article 2185 provides:Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.Evidence for the plaintiff shows no proof that defendant was violating any traffic regulation. Hence, the presumption of negligence is not obtaining.Considering that plaintiff failed to adduce evidence that defendant is a common carrier and defendants driver was the one negligent, defendant cannot be made liable for the damages of the subject cargoes.[if !supportFootnotes][2][endif]

The subsequent motion for reconsideration having been denied,[if !supportFootnotes][3][endif] plaintiff interposed an appeal to the Court of Appeals,contending that the trial court had erred (a) in holding that the appelleecorporation was not a common carrier defined under the law and existingjurisprudence; and (b) in dismissing the complaint on a demurrer toevidence.

The Court of Appeals rejected the appeal of petitioner and ruled infavor of GPS. The appellate court, in its decision of 10 June 1999, [if !supportFootnotes][4][endif] discoursed, among other things, that -"x x x in order for the presumption of negligence provided for under the law governing common carrier (Article 1735, Civil Code) to arise, the appellant must first prove that the appellee is a common carrier. Should the appellant fail to prove that the appellee is a common carrier, the presumption would not arise; consequently, the appellant would have to prove that the carrier was negligent."x x x x x x x x x"Because it is the appellant who insists that the appellees can still be considered as a common carrier, despite its `limited clientele, (assuming it was really a common carrier), it follows that it (appellant) has the burden of proving the same. It (plaintiff-appellant) `must establish his case by a preponderance of evidence, which means that the evidence as a whole adduced by one side is superior to that of the other. (Summa Insurance Corporation vs. Court of Appeals, 243 SCRA 175). This, unfortunately, the appellant failed to do -- hence, the dismissal of the plaintiffs complaint by the trial court is justified.

"x x x x x x x x x"Based on the foregoing disquisitions and considering the circumstances that the appellee trucking corporation has been `its exclusive contractor, hauler since 1970, defendant has no choice but to comply with the directive of its principal, the inevitable conclusion is that the appellee is a private carrier."x x x x x x x x x"x x x the lower court correctly ruled that 'the application of the law on common carriers is not warranted and the presumption of fault or negligence on the part of a common carrier in case of loss, damage or deterioration of good[s] during transport under [article] 1735 of the Civil Code is not availing.' x x x."Finally, We advert to the long established rule that conclusions and findings of fact of a trial court are entitled to great weight on appeal and should not be disturbed unless for strong and valid reasons."[if !supportFootnotes][5][endif]

Petitioner's motion for reconsideration was likewise denied;[ i f !supportFootnotes][6][endif] hence, the instant petition,[if !supportFootnotes][7][endif] raising thefollowing issues:IWHETHER RESPONDENT GPS MAY BE CONSIDERED AS A COMMON CARRIER AS DEFINED UNDER THE LAW AND EXISTING JURISPRUDENCE.IIWHETHER RESPONDENT GPS, EITHER AS A COMMON CARRIER OR A PRIVATE CARRIER, MAY BE PRESUMED TO HAVE BEEN NEGLIGENT WHEN THE GOODS IT UNDERTOOK TO TRANSPORT SAFELY WERE SUBSEQUENTLY DAMAGED WHILE IN ITS PROTECTIVE CUSTODY AND POSSESSION.IIIWHETHER THE DOCTRINE OF RES IPSA LOQUITUR IS APPLICABLEIN THE INSTANT CASE.

On the first issue, the Court finds the conclusion of the trial courtand the Court of Appeals to be amply justified. GPS, being an exclusivecontractor and hauler of Concepcion Industries, Inc., rendering or offeringits services to no other individual or entity, cannot be considered acommon carrier. Common carriers are persons, corporations, firms orassociations engaged in the business of carrying or transportingpassengers or goods or both, by land, water, or air, for hire orcompensation, offering their services to the public,[if !supportFootnotes][8][endif]whether to the public in general or to a limited clientele in particular, butnever on an exclusive basis.[if !supportFootnotes][9][endif] The true test of a commoncarrier is the carriage of passengers or goods, providing space for thosewho opt to avail themselves of its transportation service for a fee.[if !

supportFootnotes][10][endif] Given accepted standards, GPS scarcely falls within theterm common carrier.

The above conclusion nothwithstanding, GPS cannot escape fromliability.

I n culpa contractual, upon which the action of petitioner rests asbeing the subrogee of Concepcion Industries, Inc., the mere proof of theexistence of the contract and the failure of its compliance justify, primafacie, a corresponding right of relief.[if !supportFootnotes][11][endif] The law,recognizing the obligatory force of contracts,[if !supportFootnotes][12][endif] will notpermit a party to be set free from liability for any kind of misperformanceof the contractual undertaking or a contravention of the tenor thereof.[if !supportFootnotes][13][endif] A breach upon the contract confers upon the injuredparty a valid cause for recovering that which may have been lost orsuffered. The remedy serves to preserve the interests of the promiseethat may include his expectation interest, which is his interest in havingthe benefit of his bargain by being put in as good a position as he wouldhave been in had the contract been performed, or his reliance interest,which is his interest in being reimbursed for loss caused by reliance onthe contract by being put in as good a position as he would have been inhad the contract not been made; or his restitution interest, which is hisinterest in having restored to him any benefit that he has conferred on theother party.[if !supportFootnotes][14][endif] Indeed, agreements can accomplish little,either for their makers or for society, unless they are made the basis foraction.[if !supportFootnotes][15][endif] The effect of every infraction is to create a newduty, that is, to make recompense to the one who has been injured by thefailure of another to observe his contractual obligation[if !supportFootnotes][16][endif]unless he can show extenuating circumstances, like proof of his exerciseof due diligence (normally that of the diligence of a good father of a familyor, exceptionally by stipulation or by law such as in the case of commoncarriers, that of extraordinary diligence) or of the attendance of fortuitousevent, to excuse him from his ensuing liability.

Respondent trucking corporation recognizes the existence of acontract of carriage between it and petitioners assured, and admits thatthe cargoes it has assumed to deliver have been lost or damaged while inits custody. In such a situation, a default on, or failure of compliance with,the obligation in this case, the delivery of the goods in its custody to theplace of destination - gives rise to a presumption of lack of care andcorresponding liability on the part of the contractual obligor the burdenbeing on him to establish otherwise. GPS has failed to do so.

Respondent driver, on the other hand, without concrete proof of hisnegligence or fault, may not himself be ordered to pay petitioner. Thedriver, not being a party to the contract of carriage between petitionersprincipal and defendant, may not be held liable under the agreement. Acontract can only bind the parties who have entered into it or their

successors who have assumed their personality or their juridical position.[if !supportFootnotes][17][endif] Consonantly with the axiom res inter alios acta aliisneque nocet prodest, such contract can neither favor nor prejudice a thirdperson. Petitioners civil action against the driver can only be based onculpa aquiliana, which, unlike culpa contractual, would require theclaimant for damages to prove negligence or fault on the part of thedefendant.[if !supportFootnotes][18][endif]

A word in passing. Res ipsa loquitur, a doctrine being invoked bypetitioner, holds a defendant liable where the thing which caused theinjury complained of is shown to be under the latters management andthe accident is such that, in the ordinary course of things, cannot beexpected to happen if those who have its management or control useproper care. It affords reasonable evidence, in the absence ofexplanation by the defendant, that the accident arose from want of care. [if !supportFootnotes][19][endif] It is not a rule of substantive law and, as such, it doesnot create an independent ground of liability. Instead, it is regarded as amode of proof, or a mere procedural convenience since it furnishes asubstitute for, and relieves the plaintiff of, the burden of producingspecific proof of negligence. The maxim simply places on the defendantthe burden of going forward with the proof.[if !supportFootnotes][20][endif] Resort tothe doctrine, however, may be allowed only when (a) the event is of akind which does not ordinarily occur in the absence of negligence; (b)other responsible causes, including the conduct of the plaintiff and thirdpersons, are sufficiently eliminated by the evidence; and (c) the indicatednegligence is within the scope of the defendant's duty to the plaintiff.[if !supportFootnotes][21][endif] Thus, it is not applicable when an unexplained accidentmay be attributable to one of several causes, for some of which thedefendant could not be responsible.[if !supportFootnotes][22][endif]Res ipsa loquitur generally finds relevance whether or not a contractual relationship exists between the plaintiff and the defendant, for the inference of negligence arises from the circumstances and nature of the occurrence and not from the nature of the relation of the parties.[if !supportFootnotes][23][endif] Nevertheless, the requirement that responsible causes other than those due to defendants conduct must first be eliminated, for the doctrine to apply, should be understood as being confined only to cases of pure (non-contractual) tort since obviously the presumption of negligence in culpa contractual, as previously so pointed out, immediatelyattaches by a failure of the covenant or its tenor. In the case of the truck driver, whose liability in a civil action is predicated on culpa acquiliana, while he admittedly can be said to have been in control and managementof the vehicle which figured in the accident, it is not equally shown, however, that the accident could have been exclusively due to his negligence, a matter that can allow, forthwith, res ipsa loquitur to work against him.

If a demurrer to evidence is granted but on appeal the order ofdismissal is reversed, the movant shall be deemed to have waived theright to present evidence.[if !supportFootnotes][24][endif] Thus, respondent corporationmay no longer offer proof to establish that it has exercised due care intransporting the cargoes of the assured so as to still warrant a remand ofthe case to the trial court.WHEREFORE, the order, dated 30 April 1996, of the Regional Trial Court, Branch 66, of Makati City, and the decision, dated 10 June 1999, of the Court of Appeals, are AFFIRMED only insofar as respondent Lambert M. Eroles is concerned, but said assailed order of the trial court and decision of the appellate court are REVERSED as regards G.P. Sarmiento Trucking Corporation which, instead, is hereby ordered to pay FGU Insurance Corporation the value of the damaged and lost cargoes inthe amount of P204,450.00. No costs.

SO ORDERED.

G.R. No. L-64693 April 27, 1984LITA ENTERPRISES, INC., petitioner,

vs.SECOND CIVIL CASES DIVISION, INTERMEDIATE APPELLATE

COURT, NICASIO M. OCAMPO and FRANCISCA P. GARCIA,respondents.

Manuel A. Concordia for petitioner.Nicasio Ocampo for himself and on behalf of his correspondents.

ESCOLIN, J.:+.wph!1"Ex pacto illicito non oritur actio" [No action arises out of an illicit bargain]is the tune-honored maxim that must be applied to the parties in the caseat bar. Having entered into an illegal contract, neither can seek relief fromthe courts, and each must bear the consequences of his acts.The factual background of this case is undisputed.Sometime in 1966, the spouses Nicasio M. Ocampo and FranciscaGarcia, herein private respondents, purchased in installment from theDelta Motor Sales Corporation five (5) Toyota Corona Standard cars tobe used as taxicabs. Since they had no franchise to operate taxicabs,they contracted with petitioner Lita Enterprises, Inc., through itsrepresentative, Manuel Concordia, for the use of the latter's certificate ofpublic convenience in consideration of an initial payment of P1,000.00and a monthly rental of P200.00 per taxicab unit. To effectuate Idagreement, the aforesaid cars were registered in the name of petitionerLita Enterprises, Inc, Possession, however, remained with tile spousesOcampo who operated and maintained the same under the name AcmeTaxi, petitioner's trade name.About a year later, on March 18, 1967, one of said taxicabs driven bytheir employee, Emeterio Martin, collided with a motorcycle whose driver,one Florante Galvez, died from the head injuries sustained therefrom. Acriminal case was eventually filed against the driver Emeterio Martin,while a civil case for damages was instituted by Rosita Sebastian Vda. deGalvez, heir of the victim, against Lita Enterprises, Inc., as registeredowner of the taxicab in the latter case, Civil Case No. 72067 of the Courtof First Instance of Manila, petitioner Lita Enterprises, Inc. was adjudgedliable for damages in the amount of P25,000.00 and P7,000.00 forattorney's fees.This decision having become final, a writ of execution was issued. One ofthe vehicles of respondent spouses with Engine No. 2R-914472 waslevied upon and sold at public auction for 12,150.00 to one SonnieCortez, the highest bidder. Another car with Engine No. 2R-915036 waslikewise levied upon and sold at public auction for P8,000.00 to a certainMr. Lopez.Thereafter, in March 1973, respondent Nicasio Ocampo decided to

register his taxicabs in his name. He requested the manager of petitionerLita Enterprises, Inc. to turn over the registration papers to him, but thelatter allegedly refused. Hence, he and his wife filed a complaint againstLita Enterprises, Inc., Rosita Sebastian Vda. de Galvez, Visayan Surety &Insurance Co. and the Sheriff of Manila for reconveyance of motorvehicles with damages, docketed as Civil Case No. 90988 of the Court ofFirst Instance of Manila. Trial on the merits ensued and on July 22, 1975,the said court rendered a decision, the dispositive portion of which reads:t.hqwWHEREFORE, the complaint is hereby dismissed as far as defendantsRosita Sebastian Vda. de Galvez, Visayan Surety & Insurance Companyand the Sheriff of Manila are concerned.Defendant Lita Enterprises, Inc., is ordered to transfer the registrationcertificate of the three Toyota cars not levied upon with Engine Nos. 2R-230026, 2R-688740 and 2R-585884 [Exhs. A, B, C and D] by executing adeed of conveyance in favor of the plaintiff.Plaintiff is, however, ordered to pay Lita Enterprises, Inc., the rentals inarrears for the certificate of convenience from March 1973 up to May1973 at the rate of P200 a month per unit for the three cars. (Annex A,Record on Appeal, p. 102-103, Rollo)Petitioner Lita Enterprises, Inc. moved for reconsideration of the decision,but the same was denied by the court a quo on October 27, 1975. (p.121, Ibid.)On appeal by petitioner, docketed as CA-G.R. No. 59157-R, theIntermediate Appellate Court modified the decision by including as part ofits dispositive portion another paragraph, to wit: t.hqwIn the event the condition of the three Toyota rears will no longer servethe purpose of the deed of conveyance because of their deterioration, orbecause they are no longer serviceable, or because they are no longeravailable, then Lita Enterprises, Inc. is ordered to pay the plaintiffs theirfair market value as of July 22, 1975. (Annex "D", p. 167, Rollo.)Its first and second motions for reconsideration having been denied,petitioner came to Us, praying that: t.hqw1. ...2. ... after legal proceedings, decision be rendered or resolution beissued, reversing, annulling or amending the decision of publicrespondent so that:(a) the additional paragraph added by the public respondent to theDECISION of the lower court (CFI) be deleted;(b) that private respondents be declared liable to petitioner for whateveramount the latter has paid or was declared liable (in Civil Case No.72067) of the Court of First Instance of Manila to Rosita Sebastian Vda.de Galvez, as heir of the victim Florante Galvez, who died as a result otthe gross negligence of private respondents' driver while driving one

private respondents' taxicabs. (p. 39, Rollo.)Unquestionably, the parties herein operated under an arrangement,comonly known as the "kabit system", whereby a person who has beengranted a certificate of convenience allows another person who ownsmotors vehicles to operate under such franchise for a fee. A certificate ofpublic convenience is a special privilege conferred by the government .Abuse of this privilege by the grantees thereof cannot be countenanced.The "kabit system" has been Identified as one of the root causes of theprevalence of graft and corruption in the government transportationoffices. In the words of Chief Justice Makalintal, 1 "this is a pernicioussystem that cannot be too severely condemned. It constitutes animposition upon the goo faith of the government.Although not outrightly penalized as a criminal offense, the "kabit system"is invariably recognized as being contrary to public policy and, therefore,void and inexistent under Article 1409 of the Civil Code, It is afundamental principle that the court will not aid either party to enforce anillegal contract, but will leave them both where it finds them. Upon thispremise, it was flagrant error on the part of both the trial and appellatecourts to have accorded the parties relief from their predicament. Article1412 of the Civil Code denies them such aid. It provides:t.hqwART. 1412. if the act in which the unlawful or forbidden cause consistsdoes not constitute a criminal offense, the following rules shall beobserved;(1) when the fault, is on the part of both contracting parties, neither mayrecover what he has given by virtue of the contract, or demand theperformance of the other's undertaking.The defect of inexistence of a contract is permanent and incurable, andcannot be cured by ratification or by prescription. As this Court said inEugenio v. Perdido, 2 "the mere lapse of time cannot give efficacy tocontracts that are null void."The principle of in pari delicto is well known not only in this jurisdiction butalso in the United States where common law prevails. Under Americanjurisdiction, the doctrine is stated thus: "The proposition is universal thatno action arises, in equity or at law, from an illegal contract; no suit canbe maintained for its specific performance, or to recover the propertyagreed to be sold or delivered, or damages for its property agreed to besold or delivered, or damages for its violation. The rule has sometimesbeen laid down as though it was equally universal, that where the partiesare in pari delicto, no affirmative relief of any kind will be given to oneagainst the other." 3 Although certain exceptions to the rule are providedby law, We see no cogent reason why the full force of the rule should notbe applied in the instant case.WHEREFORE, all proceedings had in Civil Case No. 90988 entitled"Nicasio Ocampo and Francisca P. Garcia, Plaintiffs, versus Lita

Enterprises, Inc., et al., Defendants" of the Court of First Instance ofManila and CA-G.R. No. 59157-R entitled "Nicasio Ocampo andFrancisca P. Garica, Plaintiffs-Appellees, versus Lita Enterprises, Inc.,Defendant-Appellant," of the Intermediate Appellate Court, as well as thedecisions rendered therein are hereby annuleled and set aside. No costs.SO ORDERED.

G.R. No. 174156 June 20, 2012

FILCAR TRANSPORT SERVICES, Petitioner, vs.

JOSE A. ESPINAS, Respondent.

D E C I S I O NBRION, J.:We resolve the present petition for review on certiorari1 filed by petitioner Filcar Transport Services (Filcar), challenging the decision2 and the resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 86603.The facts of the case, gathered from the records, are briefly summarized below.On November 22, 1998, at around 6:30 p.m., respondent Jose A. Espinas was driving his car along Leon Guinto Street in Manila. Upon reaching the intersection of Leon Guinto and President Quirino Streets, Espinas stopped his car. When the signal light turned green, he proceeded to cross the intersection. He was already in the middle of the intersection when another car, traversing President Quirino Street and going to Roxas Boulevard, suddenly hit and bumped his car. As a result of the impact, Espinas car turned clockwise. The other car escaped from the scene of the incident, but Espinas was able to get its plate number.After verifying with the Land Transportation Office, Espinas learned that the owner of the other car, with plate number UCF-545, is Filcar.Espinas sent several letters to Filcar and to its President and General Manager Carmen Flor, demanding payment for the damages sustained by his car. On May 31, 2001, Espinas filed a complaint for damages against Filcar and Carmen Flor before the Metropolitan Trial Court (MeTC) of Manila, and the case was raffled to Branch 13. In the complaint, Espinas demanded that Filcar and Carmen Flor pay the amount of P97,910.00, representing actual damages sustained by his car.Filcar argued that while it is the registered owner of the car that hit and bumped Espinas car, the car was assigned to its Corporate Secretary Atty. Candido Flor, the husband of Carmen Flor. Filcar further stated that when the incident happened, the car was being driven by Atty. Flors personal driver, Timoteo Floresca.Atty. Flor, for his part, alleged that when the incident occurred, he was attending a birthday celebration at a nearby hotel, and it was only later that night when he noticed a small dent on and the cracked signal light of the car. On seeing the dent and the crack, Atty. Flor allegedly asked Floresca what happened, and the driver replied that it was a result of a "hit and run" while the car was parked in front of Bogota on Pedro Gil Avenue, Manila.

Filcar denied any liability to Espinas and claimed that the incident was notdue to its fault or negligence since Floresca was not its employee but thatof Atty. Flor. Filcar and Carmen Flor both said that they always exercised the due diligence required of a good father of a family in leasing or assigning their vehicles to third parties.The MeTC DecisionThe MeTC, in its decision dated January 20, 2004,4 ruled in favor of Espinas, and ordered Filcar and Carmen Flor, jointly and severally, to payEspinas P97,910.00 as actual damages, representing the cost of repair, with interest at 6% per annum from the date the complaint was filed; P50,000.00 as moral damages; P20,000.00 as exemplary damages; and P20,000.00 as attorneys fees. The MeTC ruled that Filcar, as the registered owner of the vehicle, is primarily responsible for damages resulting from the vehicles operation.The RTC DecisionThe Regional Trial Court (RTC) of Manila, Branch 20, in the exercise ofits appellate jurisdiction, affirmed the MeTC decision.5 The RTC ruled thatFilcar failed to prove that Floresca was not its employee as no proof wasadduced that Floresca was personally hired by Atty. Flor. The RTCagreed with the MeTC that the registered owner of a vehicle is directlyand primarily liable for the damages sustained by third persons as aconsequence of the negligent or careless operation of a vehicleregistered in its name. The RTC added that the victim of recklessness onthe public highways is without means to discover or identify the personactually causing the injury or damage. Thus, the only recourse is todetermine the owner, through the vehicles registration, and to hold himresponsible for the damages.The CA DecisionOn appeal, the CA partly granted the petition in CA-G.R. SP No. 86603; itmodified the RTC decision by ruling that Carmen Flor, President and General Manager of Filcar, is not personally liable to Espinas. The appellate court pointed out that, subject to recognized exceptions, the liability of a corporation is not the liability of its corporate officers because a corporate entity subject to well-recognized exceptions has a separate and distinct personality from its officers and shareholders. Sincethe circumstances in the case at bar do not fall under the exceptions recognized by law, the CA concluded that the liability for damages cannotattach to Carmen Flor.The CA, however, affirmed the liability of Filcar to pay Espinas damages. According to the CA, even assuming that there had been no employer-employee relationship between Filcar and the driver of the vehicle, Floresca, the former can be held liable under the registered owner rule.The CA relied on the rule that the registered owner of a vehicle is directly and primarily responsible to the public and to third persons while the

vehicle is being operated. Citing Erezo, et al. v. Jepte,6 the CA said that the rationale behind the rule is to avoid circumstances where vehicles running on public highways cause accidents or injuries to pedestrians or other vehicles without positive identification of the owner or drivers, or with very scant means of identification. In Erezo, the Court said that the main aim of motor vehicle registration is to identify the owner, so that if a vehicle causes damage or injury to pedestrians or other vehicles, responsibility can be traced to a definite individual and that individual is the registered owner of the vehicle.7The CA did not accept Filcars argument that it cannot be held liable for damages because the driver of the vehicle was not its employee. In so ruling, the CA cited the case of Villanueva v. Domingo8 where the Court said that the question of whether the driver was authorized by the actual owner is irrelevant in determining the primary and direct responsibility of the registered owner of a vehicle for accidents, injuries and deaths caused by the operation of his vehicle.Filcar filed a motion for reconsideration which the CA denied in its Resolution dated July 6, 2006.Hence, the present petition.

The IssueSimply stated, the issue for the consideration of this Court is: whether

Filcar, as registered owner of the motor vehicle which figured in anaccident, may be held liable for the damages caused to Espinas.

Our RulingThe petition is without merit.

Filcar, as registered owner, is deemed the employer of the driver,Floresca, and is thus vicariously liable under Article 2176 in relation withArticle 2180 of the Civil CodeIt is undisputed that Filcar is the registered owner of the motor vehiclewhich hit and caused damage to Espinas car; and it is on the basis ofthis fact that we hold Filcar primarily and directly liable to Espinas fordamages.As a general rule, one is only responsible for his own act or omission.9Thus, a person will generally be held liable only for the torts committed byhimself and not by another. This general rule is laid down in Article 2176of the Civil Code, which provides to wit:Article 2176. Whoever by act or omission causes damage to another,there being fault or negligence, is obliged to pay for the damage done.Such fault or negligence, if there is no pre-existing contractual relationbetween the parties, is called a quasi-delict and is governed by theprovisions of this Chapter.Based on the above-cited article, the obligation to indemnify another fordamage caused by ones act or omission is imposed upon the tortfeasorhimself, i.e., the person who committed the negligent act or omission.

The law, however, provides for exceptions when it makes certain personsliable for the act or omission of another.One exception is an employer who is made vicariously liable for the tortcommitted by his employee. Article 2180 of the Civil Code states:Article 2180. The obligation imposed by Article 2176 is demandable notonly for ones own acts or omissions, but also for those of persons forwhom one is responsible.x x x xEmployers shall be liable for the damages caused by their employeesand household helpers acting within the scope of their assigned tasks,even though the former are not engaged in any business or industry.x x x xThe responsibility treated of in this article shall cease when the personsherein mentioned prove that they observed all the diligence of a goodfather of a family to prevent damage.Under Article 2176, in relation with Article 2180, of the Civil Code, anaction predicated on an employees act or omission may be institutedagainst the employer who is held liable for the negligent act or omissioncommitted by his employee.Although the employer is not the actual tortfeasor, the law makes himvicariously liable on the basis of the civil law principle of pater familias forfailure to exercise due care and vigilance over the acts of onessubordinates to prevent damage to another.10 In the last paragraph ofArticle 2180 of the Civil Code, the employer may invoke the defense thathe observed all the diligence of a good father of a family to preventdamage.As its core defense, Filcar contends that Article 2176, in relation withArticle 2180, of the Civil Code is inapplicable because it presupposes theexistence of an employer-employee relationship. According to Filcar, itcannot be held liable under the subject provisions because the driver ofits vehicle at the time of the accident, Floresca, is not its employee butthat of its Corporate Secretary, Atty. Flor.We