ROSALINA MARTINEZ, PLAINTIFF AND APPELLANT, VS. AURELIA GONZALES, ET AL., DEFENDANTS AND APPELLEES.

Plaintiff-appellant Rosalina Martinez filed a case for damages
against defendants-appellees, Aurelia Gonzales and Luis Fornal, owner
and driver, respectively of Banner Taxi Cab Plate No. 3303-58, due to
physical injuries sustained by her, while a passenger of said taxi cab,
asking P2,000.00 for moral damages, P2,000.00 for exemplary damages,
P200.00 for actual damages and P500.00 for attorney’s fees. After trial
in the CFI of Manila, where defendants failed to appear, and after
receiving plaintiff’s evidence ex-parte, the lower court rendered
judgment, the pertinent portions of which recite:

“It appears that at about 12:00 o’clock noon of July
15, 1958, the plaintiff, Rosalina Martinez, who is a filing clerk in
the NAWASA with a monthly salary of P150.00, boarded the “Banner
taxicab, plate No. 3303-58, driven by defendant Luis Fornal, at the
corner of Teodoro Alonso and Azcarraga Streets, Manila, and instructed
the driver to take her to her residence at Misericordia Street, Sta.
Cruz. When said vehicle arrived at the intersection of O’Donnel and
Mayhaligue streets, it bumped a “Golden” taxicab, causing the plaintiff
to fall from her seat and to loss consciousness. She regained
consciousness at the North General Hospital, where she was taken by a
passing Police Mobile Patrol Car. At said Hospital, she was treated by
Dr. Ricardo Gochico for the following injuries: Contusion chin, left,
infrascapular, left, buttocks, lateral left, lumber, posterior, left,
(Exhibit “A”). After treatment, she was allowed to go home but she
returned to the hospital dispensary for further treatment for a period
of five (5) days. For her medical expenses, plaintiff incurred the sum
of P150.00. Although she claims in her complaint that as a result of
the injuries sustained by her because of the accident, she was
prevented from performing her daily work at the office where she was
employed, it appears, however, after questioning by the Court, that she
was able to receive her salary covering the period of her absence from
office.

* * * * * * *

Wherefore, judgment is hereby rendered, ordering the
defendants, Aurelia Gonzales and Luis Fornal y Soniel, to pay jointly
and severally to the plaintiff, Rosalina Martinez, the sum of P150.00
as compensatory damages, plus the further amount of P200.00 as
attorney’s fees, and the costs.”

Plaintiff moved for a reconsideration of the above judgment insofar
as it did not award the moral and exemplary damages amounting to
P4,000.00, prayed for in the complaint. The motion was denied, so the
plaintiff appealed to the Court of Appeals, which certified the same to
this Court, since the facts were not at all controverted.

As this case now stands, the only issue we are called upon to determine is whether the court a quo erred in not awarding the moral and exemplary damages and in reducing the attorney’s fees.

It is the contention of the plaintiff-appellant that having suffered
physical injuries, she is entitled to moral and exemplary damages,
pursuant to Articles 2219 and 2229 of the New Civil Code, quoted
hereunder:

“Art. 2219.—Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in article 309;

(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35;

* * * * * * *

Art.
2229.—Exemplary or corrective damages are imposed by way of example or
correction for the public good in addition to the moral temperate,
liquidated or compensatory damages.”

The action of plaintiff is based on breach of contract of
transportation, which, as may be seen, is not one of those enumerated
under Article 2219, authorizing the award of moral damages. The query
would be, is the cause of action included under the expression
“analogous cases”? This Court has had the occasion to pass upon the
above question in recent cases, in which we made the following
pronouncements:

“* a branch of contract cannot be considered
included in the descriptive term “analogous cases” used in Art. 2219;
not only because Art. 2220 specifically provides for the damages that
are caused by contractual breach, but because the definition of quasi-delict in Art. 2176 of the Code-expressly excludes the cases where there is a “pre-existing contractual relation between the parties.” (S. A. Verzosa vs. A. Baytan, et al., 107 Phil., 1010).

“Petitioner next contends that the Court of Appeals erred in awarding moral damages to respondent Bautista.

The contention is meritorious. This Court has repeatedly held (Cachero vs. Manila Yellow Taxicab, Inc., 101 Phil., 523; 54 Off. Gaz. [26] 6599; Necesito vs. Paras, et al., 104 Phil., 75; 56 Off. Gaz. [23] 4023; Fores vs. Miranda, 105 Phil., 256; 57 Off. Gaz. [44] 7938; Tamayo vs.
Aquino, et al., 105 Phil., 949 56 Off. Gaz. [36] 5617) that moral
damages are not recoverable in damages actions, predicated on a breach
of the contract of transportation, as in the instant case, in view of
the provisions of Articles 2219 and 2220 of the New Civil Code. The
exceptions according to the Fores case, supra (which we here
re-affirm), are (1) where the mishap results in the death of a
passenger, and (2) where it is proved that the carrier was guilty of
fraud or bad faith, even if death does not result.” (Rex Taxicab Co.,
Inc. vs. Jose Bautista, et al., 109 Phil., 712.

“We
gleaned, therefore, from the above mentioned decisions, (1) that the
case of a passenger of a carrier who suffered physical injuries
“because of the carrier’s negligence (culpa contractual),
cannot be considered in the descriptive expression ‘analogous cases’,
used in Art. 2219; and (2) that in cases of breach of contract
(including one of transportation) proof of bad faith or fraud (dolus)
i.e., wanton or deliberate injurious conduct is essential to justify an
award of moral damages. There being no evidence of fraud, malice or bad
faith, contemplated by law, on the part of the respondents, because the
cause of the accident was merely the bursting of a tire while the bus
was over speeding, the cause of petitioner Nita Lira should fail, as
far as moral damages is concerned. Moral damages was, therefore,
correctly eliminated by the Court of Appeals”. (Mercado, et al. vs. Lira et al., Lira vs. Mercado et al., 113 Phil., 112).

Appellant’s complaint does not allege fraud, malice or bad faith on
the part of the defendants-appellees. Neither was there any allegation
of wanton or gross negligence. In fact, plaintiff-appellant designated
the incident as accident and predicated her cause of action
on the failure of the defendants to perform her obligation, as a
carrier, to bring plaintiff-appellant safely to her destination. This
being the case, no moral damages are awardable.

Plaintiff-appellant not being entitled to moral damages, she is not
also entitled to exemplary damages. For one to recover exemplary
damages, he must first show that he is entitled to moral, temperate,
liquidated or compensatory damages (Yutuk vs. Manila Electric Co., 112 Phil., 271, and cases cited therein).

Plaintiff-appellant also impugns the award for only P200.00 as
attorney’s fees. All circumstances considered, however, we find the
amount to be reasonable.

Conformably with the foregoing, we find the decision appealed from
in conformity with the law on the matter. The same should be, as it is
hereby affirmed in all respects, without pronouncement as to costs.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador Concepcion, Reyes, J. B. L., Barrera, Dizon, Regala and Makalintal, JJ., concur.