LAGUNA TAYABAS BUS CO., PETITIONER, VS. ANTONIO TIONGSON AND FELICITAS J. TIONGSON, RESPONDENTS.

This is an appeal by certiorari taken by Laguna Tayabas Bus
Co., a common carrier engaged in the land transportation business in
the southern Tagalog provinces, to review the decision of the Court of
Appeals affirming that of the Court of First Instance of Bulacan in
Civil Case No. 1760 entitled “Antonio Tiongson, Paz C. Tiongson and
Felicitas J. Tiongson, plaintiffs, vs. Laguna Tayabas Bus
Company, defendant” sentencing the latter to pay the former the sum of
P50,000.00 by way of actual, compensatory and moral damages, and the
further sum of P5,000.00 as attorney’s fees and costs.

On June 3, 1958, about two kilometers past the poblacion of Bay,
Laguna, petitioner’s LTB Bus No. 204, coming from San Pablo City
towards Manila, collided with a 7-Up delivery truck coming from the
opposite direction. As a consequence the bus fell on its right side on
the shoulder of the road resulting in injuries to many of its
passengers and the death of Ricardo C. Tiongson and a woman passenger.
Both drivers were prosecuted for double homicide, multiple serious
physical injuries and damage to property, thru reckless imprudence, in
the Court of First Instance of Laguna, but a separate action for
damages for breach of contract of carriage was filed in the Court of
First Instance of Bulacan (Civil Case No. 1760) by respondents herein,
as heirs of the deceased Ricardo C. Tiongson, against petitioner.

In its answer to the complaint, petitioner alleged that it had
observed utmost diligence in operating Bus No. 204 on June 3, 1958;
that its driver could not have prevented or avoided the accident which
was fortuitous insofar as it was concerned; and that the proximate
cause of the death of passenger Tiongson “was the negligence and
imprudence of one Porvenir Aralar Barretto and his employer Santiago
Syjuco, Inc. and/or Seven-Up Bottling Company of the Philippines, or,
in the alternative, the gross negligence of the highway authorities in
failing to keep and maintain the national roads in good repair at all
times and in safe condition for all motorists”.

Finding petitioner’s driver to blame for the accident, the trial court, on December 28, 1959, rendered judgment as follows:

“Wherefore, judgment is hereby rendered sentencing
defendant to pay to plaintiffs the sum of P50,000.00 by way of actual,
compensatory and moral damages, and the further sum of P5,000.00 as
counsel fees, with costs against defendant.”

Both parties appealed to the Court of Appeals—petitioner from the
portion thereof holding it liable for damages for breach of contract,
and respondents from the portion determining the amount of damages
awarded to them.

Meanwhile, on July 31, 1961, the Court of First Instance of Laguna,
in Criminal Case No. B-331, acquitted Claro Samonte, petitioner’s
driver, of the offense charged mentioned heretofore, on the ground of
reasonable doubt. Upon the other hand, on October 28, 1963, the Court
of Appeals rendered the decision appealed from.

In its first assignment of error, petitioner contends that the Court
of Appeals erred in affirming instead of reversing the findings made by
the trial court to the effect that the driver of the LTB bus and not
the driver of the 7-Up truck was to blame for the accident in question.

The following are the pertinent facts found established by the trial court:

“About two kilometers past the poblacion of Bay,
Laguna, defendant’s LTB Bus No. 204 collided with the 7-Up delivery
truck which came from the opposite direction, that is, from Manila
towards San Pablo City. As a result of the collision, defendant’s bus
fell on its right side on the shoulder of the road, which resulted in
injuries to many passengers, and the death of Ricardo C. Tiongson and a
woman passenger. * * * Having been notified of the collision, Gerardo
Dilla, chief of police of Bay, Laguna, immediately proceeded to the
scene thereof. The Bay Chief of Police made an on-the-spot
investigation and prepared a sketch of the spot where the collision
occurred. From the findings of the chief of police, it appears that the
road had an asphalted pavement, 5½ meters wide, and shoulders on both
sides, the shoulder going towards the poblacion. of Bay being 65 cm.
wide and the one on the opposite side having a width of 70 cm. The
chief of police also saw on the asphalted pavement a somewhat
rectangular depression, 3 meters long, 2 meters wide, and 12 cm. deep,
on the left side of the road going north, that is, going towards Manila * * *.”

“Perhaps of most value to plaintiffs is the testimony
of Rufo Reano, a farmer and a barrio lieutenant of Tabon, Bay, Laguna.
The substance of Rufo’s testimony is that * * * he saw two LTB trucks,
following each other, from south to north at a distance of about 30
meters from each other; that he also saw a 7-Up truck going from north
to south; that the leading LTB bus (presumably Bus No. 204) was
traveling faster than the 7-Up truck; that suddenly, he heard the
impact of a collision between the leading LTB bus and the 7-Up truck;
that as a result of the collision, the LTB bus fell on its side while
the 7-Up truck turned crosswise on the road; * * *.”

“Samonte
testified that x x x while he was in barrio Tabon, Bay, Laguna, at
about 5:45 that same afternoon, he first saw the 7-Up truck from a
distance of about 150 meters; that he was then running at about 30
kilometers per hour; that upon sighting the 7-Up truck, he slackened
his speed and placed his bus on the right side of the road; that when
the distance between his bus and the 7-Up truck had been reduced to
about 10 meters and foreseeing that he could not avoid being hit by the
truck which had swerved to the left, he applied his brakes and
maneuvered his bus towards the right side of the road so much so that
the right wheels were already on the shoulder of the road; but that
before he could come to a complete stop, at a speed then of only 10
kilometers per hour, the left front mudguard of his bus was hit by the
7-Up truck.”

After thus evaluating the prosecution evidence and the testimony of
petitioner’s witnesses, namely, Claro Samonte, its driver, Ernesto
Alcantara, its conductor, and Teotimo de Mesa, its Chief Clerk, the
trial court said:

“In moving forward to a conclusion in this case,
certain general principles must be borne in mind, namely: (1) the
liability of a carrier is contractual and arises upon its breach of the
obligation, and there is a breach if it fails to exercise
extra-ordinary diligence according to all the circumstances of each
case; (2) a carrier is obliged to carry its passengers with the utmost
diligence of a very cautious person, having due regard for all the
circumstances; (3) a carrier is presumed to be at fault or to have
acted negligently in case of death of, or injury to its passengers, it
being its duty to prove that it exercised extra-ordinary diligence; (4)
a carrier is not an insurer against all risks of travel (Isaac vs.
A. L. Amen Transportation Co., Inc., G. R. No. L-9671, August 28,
1957); and (5) that a carrier shall not be responsible for events which
could not be foreseen, or which, though foreseen, were inevitable
(Alfaro vs. Ayson, 54 Off. Gaz. 7922).

“In the
light of the foregoing principles and the evidence of record, the main
questions for determination are whether defendant has successfully
discharged its burden of disproving its presumptive negligence because
of its failure to transport safely to his destination the deceased
Ricardo C. Tiongson, and whether defendant has sufficiently established
its defense of fortuitous event.

“After a review of the
record, the court believes that defendant has not successfully
discharged its burden. Defendant’s driver, Samonte, wanted to impress
the court that he was entirely free from fault or negligence in the
collision between his bus and the 7-Up truck. This he testified that
when he first sighted the 7-Up truck, 150 meters away from his bus, the
said truck was then running between 50 and 60 kilometers per hour,
while he, for his part, was then going only at about 30 kilometers per
hour. This testimony of Samonte is to be seriously doubted. In the
first place, he and his conductor, Alcantara, must be necessarily
biased witnesses for they are both employed by the defendant. In the
second place, it is of common knowledge that a delivery truck fully
loaded with cases of soft drinks is a slower moving vehicle than a
passenger bus. A passenger bus is necessarily designed for speed
because travellers usually want to arrive at their destinations within
the shortest possible time, whereas soft drinks delivery trucks are
built more for the safety of its bottled cargo than for speed. In the
third place, Samonte’s claim that when he applied the brakes of his bus
when it was then about 10 meters away from the 7-Up truck, the speed of
his bus was only about 10 kilometers per hour cannot be given full
credence. He stated that after applying the brakes, his bus still moved
less than 5 meters before being hit by the 7-Up truck. If his speed had
only been 10 kilometers per hour, upon the application of the brakes,
he would have stopped the bus within a much shorter distance.

“But
even assuming that defendant’s bus was then running only at
approximately 10 kilometers per hour when the driver Samonte first
applied the brakes, it would seem that he applied the brakes too late.
Samonte testified that upon sighting the 7-Up truck at a distance of
approximately 150 meters, he slackened his speed by first reducing it
to 20 and then to 10 kilometers per hour, and brought his bus towards
the right side of the road; and that it was only when the distance
between the two vehicles was only about 10 meters that he first stepped
on the brakes. The court feels that it was not enough for Samonte to
slacken his speed gradually until he came down to 10 kilometers per
hour. He should have stopped his bus immediately upon seeing the 7-Up
truck veer towards his lane after jumping out of the big depression on
the asphalted pavement. He was not unaware of such depression, and the
location thereof for he had been travelling on the same route for a
considerable length of time prior to 3 June 1958.

“It will
not do for defendants driver to claim that he could not avoid the 7-Up
truck because if he did he would have fallen into the ditch on his side
of the highway. If he was placed in the position claimed by him, it was
entirely his fault, for he could have easily avoided the 7-Up truck if
he had applied his brakes on time, while the 7-Up truck was still more
than 10 meters away from him. Besides, instead of applying the brakes
while the 7-Up truck was still some distance away from him, he could
have veered to the left side of the road, going north, where there was
sufficient space for him, taking into account that the asphalted
pavement of the road was 5½ meters wide with a shoulder of 65 cm. wide.
In such posture, he could have avoided collision with the 7-Up truck
which, on the other hand, would have also been free to right its
direction after it came out from the big depression.

“An
examination of the sketch prepared by the chief of police of Bay,
Laguna (Exhibit 1) shows that the collision between defendant’s bus and
the 7-Up truck occurred only 8 meters away from the big depression.
This short distance would seem to indicate that defendant’s driver,
Samonte, knowing exactly the location of the depression, and
anticipating that the 7-Up truck coming the opposite direction would
veer to the left of the said depression in order to avoid the same,
raced with the 7-Up truck in order that he could first pass through the
space between the depression and what was left of the asphalted
pavement of the lane on which he was then travelling, obviously for the
purpose of avoiding delay. Because of this, the 7-Up truck driver who
must have intended to pass on the said space in order to avoid going
through the depression, was suddenly forced into the depression, in
order to avoid a head-on collision with defendant’s bus. But
unfortunately, after bumping out of the depression, the truck veered to
the left and hit defendant’s bus on the left front side, thereby
causing the bus to overturn on its right side.”

The Court of Appeals agreed with the above being of the opinion that
the testimony of Rufo Reaño, a barrio lieutenant and a disinterested
eye-witness of the accident, was credible; that, to the contrary, the
testimony of Claro Samonte and Ernesto Alcantara, driver and conductor
respectively of petitioner’s bus, was improbable and biased; that
Samonte actually applied the brakes on his bus too late to avoid the
accident because at that time the distance between the two vehicles was
only ten meters; that Samonte was well aware of the condition of the
road, particularly of the existence of a depression near the place
where the two vehicles collided, because he had been driving through
and along the same route for a considerable period of time prior to the
accident; that on May 16, 1958 or only two weeks before the fatal
collision, Samonte had been apprehended for overspeeding, and finally,
that certain admissions made on the witness stand by Teotimo de Mesa,
petitioner’s chief clerk since 1948, sufficiently showed that the
company had not exercised due care and diligence in connection with the
hiring of Samonte. The Court of Appeals therefore expressly found that
petitioner not only failed to disprove the presumption of negligence
arising against it (Articles 1733, 1755, and 1756 of the New Civil
Code) but that, on the contrary, its negligence had been established by
more than mere preponderance of evidence.

A thorough review of the record by Us has not disclosed any material
fact or circumstance showing that the trial court and the Court of
Appeals erred in the respects covered by the issue under consideration.

The remaining assignment of errors refer to the correctness of the decision appealed from in so far as it grants moral damages to respondents, the amount of the award for loss of earnings, and the additional award of P5,000 for attorney’s fees.

Petitioner’s liability for moral damages can not now be
seriously questioned in view of the provisions of Articles 1764 and
2206, Nos. 1 and 3 of the New Civil Code and the ruling in Necesito et
al. vs. Paras et al., 104 Phil. 75, Resolution on motion to
reconsider September 11, 1958 where, speaking through Mr. Justice Jose
B. L. Reyes, We said:

“In awarding to the heirs of the deceased Severino
Garces an indemnity for the loss of ‘her guidance, protection and
company,’ although it is but moral damage, the Court took into account
that the case of a passenger who dies in the course of an accident, due
to the carrier’s negligence, constitutes an exception to the general
rule. While, as pointed out in the main decision, under Article 2220 of
the new Civil Code there can be no recovery of moral damages for a
breach of contract in the absence of fraud (malice) or bad faith, the
case of a violation of the contract or carrier leading, to a
passenger’s death escapes this general rule, in view of Article 1764 in
connection with Article 2206, No. 3 of the new Civil Code.

‘Art.
1764. Damages in cases comprised in this section shall be awarded in
accordance with Title XVIII of this Book, concerning Damages. Article
2206 shall also apply to the death of a passenger caused by the breach
of contract by a common carrier.’

‘Art. 2206. * * *

‘(3)
The spouse, legitimate and illegitimate descendants and ascendants of
the deceased may demand moral damages for mental anguish by reason of
the death of the deceased.’

“Being a special
rule limited to cases of fatal injuries, these articles prevail over
the general rule of Art. 2220. Special provisions control general ones
(Lichauco & Co. vs. Apostol, 44 Phil. 138; Sancho vs. Lizarrage, 55 Phil. 601).

“It
thus appears that under the new Civil Code, in case of accident due to
a carrier’s negligence, the heirs of a deceased passenger may recover
moral damages, even though a passenger who is injured, but manages to
survive, is not entitled to them. There is, therefore, no conflict
between our main decision in the instant case and that of Cachero vs. Manila Taxi Cab Co., G. R. No. L-8721, May 23, 1957, where the passenger suffered injuries, but did not lose his life.”

The above ruling was followed and applied in Cariaga vs. L.T.B. G. R. No, L-11037, December 29, 1960, 110 Phil., 346; Bernardo vs. Luna, 113 Phil. 112; and Martinez vs. Gonzales, 116 Phil. 643.

Petitioner contends that the compensatory and moral damages awarded
are excessive. We do not find them to be so, considering the pertinent
facts of record. The deceased Ricardo C. Tiongson, at the time of his
death on June 3, 1958, was only thirty-two years old. He was a Bachelor
of Science in Commerce (Far Eastern University 1949) and obtained
employment with the San Pablo City Branch of the People’s Bank in 1954
with a starting monthly salary of P150.00 which, after six months in
the service, was increased to P175.00. While thus employed with the
People’s Bank, he was also administering his mother’s farm in Calamba,
Laguna. He was the only son of respondent spouses Antonio Tiongson and
Paz Cailles Tiongson, and had been married hardly three years when he
died. The foregoing circumstances, in our opinion, fully justify the
damages awarded in the appealed decision which are substantially in
accord with the rules of law contained in Articles 1764 and 2206, Nos.
1 and 3 of the New Civil Code.

Lastly, it is contended that the Court of Appeals erred in affirming
the trial court’s award for attorney’s fees. This contention is
likewise untenable.

Considering the provisions of Article No. 2208, Nos. 2 and 11 of the
New Civil Code, and the proven fact that petitioner ignored
respondents’ demand for an amicable settlement of their claim, the
award of attorney’s fees in this case seems to be completely justified
(Rex Taxi Cab Co. Inc. vs. Bautista, 109 Phil., 712; Necesito vs. Paras, supra).

Wherefore, the decision appealed from is affirmed, with costs.

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