Supreme Court of the Philippines

124 Phil. 722

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

AIR FRANCE, PETITIONER, VS. RAFAEL CARRASCOSO AND
THE HONORABLE COURT OF APPEALS, RESPONDENTS.

DECISION

SANCHEZ, J.:

The Court of First Instance of Manila [1] sentenced petitioner

to pay respondent Rafael Carrascoso P25,000.00 by way of
moral damages; P10,000.00 as exemplary damages; P393.20
representing the difference in fare between first class and
tourist class for the portion of the trip Bangkok-Rome, these
various amounts with interest at the legal rate, from the date
of the filing of the complaint until paid; plus P3,000.00 for
attorneys' fees; and the costs of suit.

On appeal, [2] the Court of Appeals slightly reduced the

amount of refund on Carrascoso's plane ticket from P393.20
to P383.10, and voted to affirm the appealed decision "in all
other respects", with costs against petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as "fully

supported by the evidence of record", are:

"Plaintiff, a civil engineer, was a member of a group of 48

Filipino pilgrims that left Manila for Lourdes on March 30,
1958.
On March 28, 1958, the defendant, Air France, through its
authorized agent, Philippine Air Lines, Inc., issued to
plaintiff a 'first class' round trip airplane ticket from Manila
to Rome. From Manila to Bangkok, plaintiff travelled in 'first
class', but at Bangkok, the Manager of the defendant airline
forced plaintiff to vacate the 'first class' seat that he was
occupying because, in the words of the witness Ernesto G.
Cuento, there was a 'white man', who, the Manager alleged,
had a 'better right’ to the seat. When asked to vacate his
'first class' seat, the plaintiff, as was to be expected, refused,
and told defendant's Manager that his seat would be taken
over his dead body; a commotion ensued, and, according to
said Ernesto G. Cuento, 'many of the Filipino passengers got
nervous in the tourist class; when they found out that Mr.
Carrascoso was having a hot discussion with the white man
[manager], they came all across to Mr. Carrascoso and
pacified Mr. Carrascoso to give his seat to the white man’
(Transcript, p. 12, Hearing of May 26, 1959); and plaintiff
reluctantly gave his 'first class' seat in the plane." [3]

1. The thrust of the relief petitioner now seeks is that we

review “all the findings" [4] of respondent Court of Appeals.
Petitioner charges that respondent court failed to make
complete findings of fact on all the issues properly laid
before it. We are asked to consider facts favorable to
petitioner, and then, to overturn the appellate court's
decision.

Coming into focus is the constitutional mandate that "No

decision shall be rendered by any court of record without
expressing therein clearly and distinctly the facts and the
law on which it is based". [5] This is echoed in the statutory
demand that a judgment determining the merits of the case
shall state "clearly and distinctly the facts and the law on
which it is based"; [6] and that "Every decision of the Court of
Appeals shall contain complete findings of fact on all issues
properly raised before it". [7]
A decision with absolutely nothing to support it is a nullity. It
is open to direct attack. [8] The law, however, solely insists
that a decision state the "essential ultimate facts" upon
which the court's conclusion is drawn. [9] A court of justice is
not hidebound to write in its decision every bit and piece of
evidence [10] presented by one party and the other upon the
issues raised. Neither is it to be burdened with the
obligation "to specify in the sentence the facts" which a
party "considered as proved”. [11] This is but a part of the
mental process from which the Court draws the essential
ultimate facts. A decision is not to be so clogged with details
such that prolixity, if not confusion, may result. So long as
the decision of the Court of Appeals contains the necessary
facts to warrant its conclusions, it is no error for said court
to withhold therefrom "any specific finding of facts with
respect to the evidence for the defense". Because, as this
Court well observed, "There is no law that so requires". [12]]
Indeed, "the mere failure to specify (in the decision) the
contentions of the appellant and the reasons for refusing to
believe them is not sufficient to hold the same contrary to
the requirements of the provisions of law and the
Constitution". It is in this setting that in Manigque, it was
held that the mere fact that the findings "were based
entirely on the evidence for the prosecution without taking
into consideration or even mentioning the appellant's side in
the controversy as shown by his own testimony", would not
vitiate the judgment. [13] If the court did not recite in the
decision the testimony of each witness for, or each item of
evidence presented by, the defeated party, it does not mean
that the court has overlooked such testimony or such item of
evidence. [14] At any rate, the legal presumptions are that
official duty has been regularly performed, and that all the
matters within an issue in a case were laid before the court
and passed upon by it. [15]

Findings of fact, which the Court of Appeals is required to

make, maybe defined as "the written statement of the
ultimate facts as found by the court x x x and essential to
support the decision and judgment rendered thereon". [16]
They consist of the court's "conclusions with respect to the
determinative facts in issue". [17] A question of law, upon the
other hand, has been declared as "one which does not call
for an examination of the probative value of the evidence
presented by the parties." [18]

2. By statute, "only questions of law may be raised" in an

appeal by certiorari from a judgment of the Court of
Appeals. [19] That judgment is conclusive as to the facts. It is
not appropriately the business of this Court to alter the facts
or to review the questions of fact. [20]

With these guideposts, we now face the problem of whether

the findings of fact of the Court of Appeals support its
judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid

to and received from petitioner a first class ticket. But
petitioner asserts that said ticket did not represent the true
and complete intent and agreement of the parties; that said
respondent knew that he did not have confirmed
reservations for first class on any specific flight, although he
had tourist class protection; that, accordingly, the issuance
of a first class ticket was no guarantee that he would have a
first class ride, but that such would depend upon the
availability of first class seats.

These are matters which petitioner has thoroughly

presented and discussed in its brief before the Court of
Appeals under its third assignment of error, which reads:
"The trial court erred in finding that plaintiff had confirmed
reservations for, and a right to, first class seats on the
'definite’ segments of his journey, particularly that from
Saigon to Beirut". [21]
And, the Court of Appeals disposed of this contention thus:

"Defendant seems to capitalize on the argument that the

issuance of a first-class ticket was no guarantee that the
passenger to whom the same had been issued, would be
accommodated in the first-class compartment, for as in the
case of plaintiff he had yet to make arrangements upon
arrival at every station for the necessary first-class
reservation. We are not impressed by such a reasoning. We
cannot understand how a reputable firm like defendant
airplane company could have the indiscretion to give out
tickets it never meant to honor at all. It received the
corresponding amount in payment of first-class tickets and
yet it allowed the passenger to be at the mercy of its
employees. It is more in keeping with the ordinary course of
business that the company should know whether or not the
tickets it issues are to be honored or not." [22]

Not that the Court of Appeals is alone. The trial court

similarly disposed of petitioner's contention, thus:

"On the fact that plaintiff paid for, and was issued a ‘First
class' ticket, there can be no question. Apart from his
testimony, see plaintiff's Exhibits 'A’, 'A-1', 'B’, 'B-1’, 'B-2’, 'C’
and 'C-1’, and defendant's own witness, Rafael Altonaga,
confirmed plaintiff's testimony and testified as follows:

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

know, what does this O.K. mean?

A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, 'first class'. (Transcript, p. 169)

xxxx
"Defendant tried to prove by the testimony of its witnesses
Luis Zaldariaga and Rafael Altonaga that although plaintiff
paid for, and was issued a 'first class' airplane ticket, the
ticket was subject to confirmation in Hongkong. The court
cannot give credit to the testimony of said witnesses. Oral
evidence cannot prevail over written evidence, and plaintiff's
Exhibits 'A’, 'A-1', 'B', 'B-1', 'C’ and 'C-1’ belie the testimony
of said witnesses, and clearly show that the plaintiff was
issued, and paid for, a first class ticket without any
reservation whatever.

Furthermore, as hereinabove shown, defendant's own

witness Rafael Altonaga testified that the reservation for a
'first class' accommodation for the plaintiff was confirmed.
The court cannot believe that after such confirmation
defendant had a verbal understanding with plaintiff that the
'first class’ ticket issued to him by defendant would be
subject to confirmation in Hongkong." [23]

We have heretofore adverted to the fact that except for a

slight difference of a few pesos in the amount refunded on
Carrascoso's ticket, the decision of the Court of First
Instance was affirmed by the Court of Appeals in all other
respects. We hold the view that such a judgment of
affirmance has merged the judgment of the lower court. [24]
Implicit in that affirmance is a determination by the Court of
Appeals that the proceeding in the Court of First Instance
was free from prejudicial error and that "all questions raised
by the assignments of error and all questions that might
have been so raised are to be regarded as finally adjudicated
against the appellant". So also, the judgment affirmed "must
be regarded as free from all error". [25] We reached this
policy construction because nothing in the decision of the
Court of Appeals on this point would suggest that its findings
of fact are in any way at war with those of the trial court.
Nor was said affirmance by the Court of Appeals upon a
ground or grounds different from those which were made
the basis of the conclusions of the trial court. [26]

If, as petitioner underscores, a first-class-ticket holder is not

entitled to a first class seat, notwithstanding the fact that
seat availability in specific flights is therein confirmed, then
an air passenger is placed in the hollow of the hands of an
airline. What security then can a passenger have? It will
always be an easy matter for an airline aided by its
employees, to strike out the very stipulations in the ticket,
and say that there was a verbal agreement to the contrary.
What if the passenger had a schedule to fulfill? We have long
learned that, as a rule, a written document speaks a uniform
language; that spoken word could be notoriously unreliable.
If only to achieve stability in the relations between
passenger and air carrier, adherence to the ticket so issued
is desirable. Such is the case here. The lower courts refused
to believe the oral evidence intended to defeat the covenants
in the ticket.

The foregoing are the considerations which point to the

conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent Carrascoso
had a first class ticket and was entitled to a first class seat at
Bangkok, which is a stopover in the Saigon to Beirut leg of
the flight. [27] We perceive no "welter of distortions by the
Court of Appeals of petitioner's statement of its position", as
charged by petitioner. [28] Nor do we subscribe to petitioner's
accusation that respondent Carrascoso "surreptitiously took
a first class seat to provoke an issue". [29] And this because,
as petitioner states, Carrascoso went to see the Manager at
his office in Bangkok "to confirm my seat and because from
Saigon I was told again to see the Manager". [30] Why, then,
was he allowed to take a first class seat in the plane at
Bangkok, if he had no seat? Or, if another had a better right
to the seat?
4. Petitioner assails respondent court's award of moral
damages. Petitioner's trenchant claim is that Carrascoso's
action is planted upon breach of contract; that to authorize
an award for moral damages there must be an averment of
fraud or bad faith; [31] and that the decision of the Court of
Appeals fails to make a finding of bad faith. The pivotal
allegations in the complaint bearing on this issue are:

"3. That x x x plaintiff entered into a contract of air carriage

with the Philippine Air Lines for a valuable consideration,
the latter acting as general agents for and in behalf of the
defendant, under which said contract, plaintiff was entitled
to, as defendant agreed to furnish plaintiff, First Class
passage on defendant's plane during the entire duration of
plaintiff's tour of Europe with Hongkong as starting point up
to and until plaintiff's return trip to Manila, x x x

4. That, during the first two legs of the trip from Hongkong
to Saigon and from Saigon to Bangkok, defendant furnished
to the plaintiff First Class accommodation but only after
protestations, arguments and/or insistence were made by
the plaintiff with defendant's employees.

5. That finally, defendant failed to provide First Class

passage, but instead furnished plaintiff only Tourist Class
accommodations from Bangkok to Teheran and/or
Casablanca, x x x the plaintiff has been compelled by
defendant's employees to leave the First Class
accommodation berths at Bangkok after he was already
seated.

6. That consequently, the plaintiff, desiring no repetition of

the inconvenience and embarrassments brought by
defendant's breach of contract was forced to take a Pan
American World Airways plane on his return trip from
Madrid to Manila. [32]

xxxx
2. That likewise, as a result of defendant's failure to furnish
First Class accommodations aforesaid, plaintiff suffered
inconveniences, embarrassments, and humiliations, thereby
causing plaintiff mental anguish, serious anxiety, wounded
feelings, social humiliation, and the like injury, resulting in
moral damages in the amount of P30,000.00." [33]

The foregoing, in our opinion, substantially aver: First, That

there was a contract to furnish plaintiff a first class passage
covering, amongst others, the Bangkok-Teheran leg; Second,
That said contract was breached when petitioner failed to
furnish first class transportation at Bangkok; and Third, That
there was bad faith when petitioner's employee compelled
Carrascoso to leave his first class accommodation berth
"after he was already seated" and to take a seat in the
tourist class, by reason of which he suffered inconvenience,
embarrassments and humiliations, thereby causing him
mental anguish, serious anxiety, wounded feelings and social
humiliation, resulting in moral damages. It is true that there
is no specific mention of the term bad faith in the complaint.
But, the inference of bad faith is there; it may be drawn from
the facts and circumstances set forth therein. [34] The
contract was averred to establish the relation between the
parties. But the stress of the action is put on wrongful
expulsion.

Quite apart from the foregoing is that (a) right at the start of
the trial, respondent's counsel placed petitioner on guard on
what Carrascoso intended to prove: That while sitting in the
plane in Bangkok, Carrascoso was ousted by petitioner's
manager who gave his seat to a white man; [35] and (b)
evidence of bad faith in the fulfillment of the contract was
presented without objection on the part of the petitioner. It
is, therefore, unnecessary to inquire as to whether or not
there is sufficient averment in the complaint to justify an
award for moral damages. Deficiency in the complaint, if
any, was cured by the evidence. An amendment thereof to
conform to the evidence is not even required. [36] On the
question of bad faith, the Court of Appeals declared:

"That the plaintiff was forced out of his seat in the first class
compartment of the plane belonging to the defendant Air
France while at Bangkok, and was transferred to the tourist
class not only without his consent but against his will, has
been sufficiently established by plaintiff in his testimony
before the court, corroborated by the corresponding entry
made by the purser of the plane in his notebook which
notation reads as follows:

'First-class passenger was forced to go to the tourist class

against his will, and that the captain refused to intervene’,
*** and by the testimony of an eye-witness, Ernesto G.
Cuento, who was a co-passenger. The captain of the plane
who was asked by the manager of defendant company at
Bangkok to intervene even refused to do so. It is noteworthy
that no one on behalf of defendant ever contradicted or
denied this evidence for the plaintiff. It could have been easy
for defendant to present its manager at Bangkok to testify at
the trial of the case, or yet to secure his deposition; but
defendant did neither. [37]

The Court of Appeals further stated -

"Neither is there evidence as to whether or not a prior

reservation was made by the white man. Hence, if the
employees of the defendant at Bangkok sold a first-class
ticket to him when all the seats had already been taken,
surely the plaintiff should not have been picked out as the
one to suffer the consequences and to be subjected to the
humiliation and indignity of being ejected from his seat in
the presence of others. Instead of explaining to the white
man the improvidence committed by defendant's employees,
the manager adopted the more drastic step of ousting the
plaintiff who was then safely ensconsced in his rightful seat.
We are strengthened in our belief that this probably was
what happened there, by the testimony of defendant's
witness Rafael Altonaga who, when asked to explain the
meaning of the letters 'O.K.' appearing on the tickets of
plaintiff, said 'that the space is confirmed’ for first class.
Likewise, Zenaida Faustino, another witness for defendant,
who was the chief of the Reservation Office of defendant,
testified as follows:

‘Q. How does the person in the ticket-issuing office know

what reservation the passenger has arranged with you?

A. They call us up by phone and ask for the confirmation,'

(t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial

Judge has said on this point:

'Why did the, using the words of the witness Ernesto G.

Cuento, 'white man’ have a 'better right' to the seat occupied
by Mr. Carrascoso? The record is silent. The defendant
airline did not prove ‘any better', nay, any right on the part
of the 'white man’ to the 'First class’ seat that the plaintiff
was occupying and for which he paid and was issued a
corresponding 'first class' ticket.

'If there was a justified reason for the action of the

defendant's Manager in Bangkok, the defendant could have
easily proven it by having taken the testimony of the said
Manager by deposition, but defendant did not do so; the
presumption is that evidence willfully suppressed would be
adverse if produced [Sec. 69, par. (e), Rules of Court]; and,
under the circumstances, the Court is constrained to find, as
it does find, that the Manager of the defendant airline in
Bangkok not merely asked but threatened the plaintiff to
throw him out of the plane if he did not give up his 'first
class’ seat because the said Manager wanted to
accommodate, using the words of the witness Ernesto G.
Cuento, the 'white man’” [38]

It is really correct to say that the Court of Appeals in the

quoted portion first transcribed did not use the term "bad
faith". But can it be doubted that the recital of facts therein
points to bad faith? The manager not only prevented
Carrascoso from enjoying his right to a first class seat;
worse, he imposed his arbitrary will; he forcibly ejected him
from his seat, made him suffer the humiliation of having to
go to the tourist class compartment - just to give way to
another passenger whose right thereto has not been
established. Certainly, this is bad faith. Unless, of course,
bad faith has assumed a meaning different from what is
understood in law. For, "bad faith" contemplates a "state of
mind affirmatively operating with furtive design or with
some motive of self-interest or ill will or for ulterior
purpose." [39]

And if the foregoing were not yet sufficient, there is the

express finding of bad faith in the judgment of the Court of
First Instance, thus:

"The evidence shows that defendant violated its contract of

transportation with plaintiff in bad faith, with the
aggravating circumstances that defendant's Manager in
Bangkok went to the extent of threatening the plaintiff in the
presence of many passengers to have him thrown out of the
airplane to give the 'first class’ seat that he was occupying
to, again using the words of the witness Ernesto G. Cuento, a
'white man’ whom he (defendant's Manager) wished to
accommodate, and the defendant has not proven that this
'white man’ had any 'better right' to occupy the 'first class'
seat that the plaintiff was occupying, duly paid for, and for
which the corresponding 'first class’ ticket was issued by the
defendant to him." [40]
5. The responsibility of an employer for the tortious act of its
employees need not be essayed. It is well settled in law. [41]
For the willful malevolent act of petitioner's manager,
petitioner, his employer, must answer. Article 21 of the Civil
Code says:

"ART. 21. Any person who wilfully causes loss or injury to

another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the
damage."

In parallel circumstances, we applied the foregoing legal

precept; and, we held that upon the provisions of Article
2219 (10), Civil Code, moral damages are recoverable. [42]

6. A contract to transport passengers is quite different in

kind and degree from any other contractual relation. [43] And
this, because of the relation which an air-carrier sustains
with the public. Its business is mainly with the travelling
public. It invites people to avail of the comforts and
advantages it offers. The contract of air carriage, therefore,
generates a relation attended with a public duty. Neglect or
malfeasance of the carrier's employees, naturally, could give
ground for an action for damages.

Passengers do not contract merely for transportation. They

have a right to be treated by the carrier's employees with
kindness, respect, courtesy and due consideration. They are
entitled to be protected against personal misconduct,
injurious language, indignities and abuses from such
employees. So it is, that any rude or discourteous conduct on
the part of employees towards a passenger gives the latter
an action for damages against the carrier. [44]

Thus, "Where a steamship company [45] had accepted a

passenger's check, it was a breach of contract and a tort,
giving a right of action for its agent in the presence of third
persons to falsely notify her that the check was worthless
and demand payment under threat of ejection, though the
language used was not insulting and she was not ejected. [46]
And this, because, 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". [47] And in another case, "Where a passenger on a
railroad train, when the conductor came to collect his fare,
tendered him the cash fare to a point where the train was
scheduled not to stop, and told him that as soon as the train
reached such point he would pay the cash fare from that
point to destination, there was nothing in the conduct of the
passenger which justified the conductor in using insulting
language to him, as by calling him a lunatic," and the
Supreme Court of South Carolina there held the carrier
liable for the mental suffering of said passenger. [48]

Petitioner's contract with Carrascoso is one attended with

public duty. The stress of Carrascoso's action as we have
said, is placed upon his wrongful expulsion. This is a
violation of public duty by the petitioner-air carrier - a case
of quasi-delict. Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's

testimony, thus -

"Q. You mentioned about an attendant. Who is that attendant

and purser?

A. When we left already - that was already in the trip - I

could not help it. So one of the flight attendants approached
me and requested from me my ticket and I said, What for?
and she said, 'We will note that you were transferred to the
tourist class'. I said, 'Nothing of that kind. That is
tantamount to accepting my transfer.' And I also said, 'You
are not going to note anything there because I am protesting
to this transfer'.

Q. Was she able to note it?

A. No, because I did not give my ticket.

Q. About that purser?

A. Well, the seats there are so close that you feel

uncomfortable and you don't have enough leg room, I stood
up and I went to the pantry that was next to me and the
purser was there. He told me, 'I have recorded the incident
in my notebook.' He read it and translated it to me - because
it was recorded in French - 'First class passenger was forced
to go to the tourist class against his will, and that the
captain refused to intervene.'

MR. VALTE -

I move to strike out the last part of the testimony of the

witness because the best evidence would be the notes. Your
Honor.

COURT -

I will allow that as part of his testimony." [49]

Petitioner charges that the finding of the Court of Appeals

that the purser made an entry in his notebook reading "First
class passenger was forced to go to the tourist class against
his will, and that the captain refused to intervene" is
predicated upon evidence [Carrascoso's testimony above]
which is incompetent. We do not think so. The subject of
inquiry is not the entry, but the ouster incident. Testimony
on the entry does not come within the proscription of the
best evidence rule. Such testimony is admissible. [49A]

Besides, from a reading of the transcript just quoted, when

the dialogue happened, the impact of the startling
occurrence was still fresh and continued to be felt. The
excitement had not as yet died down. Statements then, in
this environment, are admissible as part of the res gestae. [50]
For, they grow "out of the nervous excitement and mental
and physical condition of the declarant". [51] The utterance of
the purser regarding his entry in the notebook was
spontaneous, and related to the circumstances of the ouster
incident. Its trustworthiness has been guaranteed. [52] It thus
escapes the operation of the hearsay rule. It forms part of
the res gestae.

At all events, the entry was made outside the Philippines.

And, by an employee of petitioner. It would have been an
easy matter for petitioner to have contradicted Carrascoso's
testimony. If it were really true that no such entry was made,
the deposition of the purser could have cleared up the
matter.

We, therefore, hold that the transcribed testimony of

Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code

gives the court ample power to grant exemplary damages -
in contracts and quasi-contracts. The only condition is that
defendant should have "acted in a wanton, fraudulent,
reckless, oppressive, or malevolent manner". [53] The manner
of ejectment of respondent Carrascoso from his first class
seat fits into this legal precept. And this, in addition to moral
damages. [54]

9. The right to attorneys’ fees is fully established. The grant

of exemplary damages justifies a similar judgment for
attorneys' fees. The least that can be said is that the courts
below felt that it is but just and equitable that attorneys' fees
be given. [55] We do not intend to break faith with the
tradition that discretion well exercised - as it was here -
should not be disturbed.

10. Questioned as excessive are the amounts decreed by

both the trial court and the Court of Appeals, thus:
P25,000.00, as moral damages; P10,000.00, by way of
exemplary damages, and P3,000.00 as attorneys' fees. The
task of fixing these amounts is primarily with the trial court.
[56]
The Court of Appeals did not interfere with the same. The
dictates of good sense suggest that we give our imprimatur
thereto. Because, the facts and circumstances point to the
reasonableness thereof. [57]

On balance, we say that the judgment of the Court of

Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against petitioner.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala,

Makalintal, Zaldivar and Ruiz Castro, JJ., concur.
Bengzon, J.P., J., no part.

Civil Case No. 38810, "Rafael Carrascoso, plaintiff, vs. Air

[1]

France, defendant," R. A., pp. 79-80.

C. A.-G.R. No. 26522-R, "Rafael Carrascoso, plaintiff-

[2]

appellee, vs. Air France, defendant-appellant".

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

[3]

pp. 66-67.
[4]
Petitioner's brief, p. 142.
[5]
Section 12, Article VIII, Constitution.

Section 1, Rule 36, Rules of Court. See also Section 2,

[6]

Rule 120, in reference to judgments in criminal cases.

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

[7]

amended.
[8]
Edwards vs. McCoy, 22 Phil., 598, 601; Yangco vs. Court
of First Instance of Manila, et al., 29 Phil., 183, 191.
[9]
Braga vs. Millora, 3 Phil., 458, 465.
[10]
Id.
[11]
Aringo vs. Arena, 14 Phil., 263, 266; emphasis supplied.
[12]
Reyes vs. People, 71 Phil. 598, 600.
[13]
People vs. Manigque, 35 O.G., No. 94, pp. 1682, 1683,
citing Section 133 of the Code of Civil Procedure and Section
12, Art. VIII, Constitution, supra.
[14]
Badger, et al., vs. Boyd, 65 S.W. (2d), pp. 601, 610.
[15]
Section 5, (m) and (o), Rule 131, Rules of Court.
[16]
In re Good’s Estate, 266 P. (2d), pp. 719, 729.
[17]
Badger, et al., vs. Boyd, supra.

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

[18]

1964.

Section 2, Rule 45, Rules of Court, formerly Section 2,

[19]

Rule 46 of the Rules of Court.

Medel, et al., vs. Calasanz, et al., L-14835, August 31,

[20]

1960; Astraquillo, et al., vs. Javier, et al., L-20034, January

30, 1965.
[21]
Petitioner's brief in the Court of Appeals, pp. 82-98.

Decision of the Court of Appeals, Appendix A, petitioner's

[22]

brief, pp. 148-149.

[23]
R. A., pp. 67, 73.
[24]
5 B C.J.S., p. 295; 3 Am. Jur. p. 678.
[25]
3 Am. Jur., pp. 677-678.
[26]
See Garcia Valdez vs. Soteraña Tuason, 40 Phil. 943, 951.
[27]
Carrascoso's ticket, according to petitioner (brief, pp. 7-
8), shows:

1. Manila to PAL 300A March 30

Hong Kong
2. Hong Kong VN (Air 693 March 31
to Saigon Vietnam)
3.Saigon o AF (Air 245 March 31
Beirut France)
[28]
Petitioner's brief, p. 50; see also id., pp. 37 and 46.
[29]
Id., p. 103.
[30]
Ibid., p. 102.
[31]
Article 2220, Civil Code reads: "Willful injury to property
may be a legal ground for awarding moral damages if the
court should find that, under the circumstances, such
damages are justly due. The same rule applies to breaches of
contract where the defendant acted fraudulently or in bad
faith.”
[32]
R. A., p. 2-4; underscoring supplied.
[33]
R. A., p. 5; second cause of action

Copeland vs. Dunehoo, et al., 138 S.E., 267, 270. See also
[34]

25 C.J.S., pp. 758-759; 15 Am. Jur., pp. 766-767.

Statement of Attorney Villegas for respondent Carrascoso

[35]

in open court. Respondent's brief, p. 33.

 Section 5, Rule 10, Rules of Court, in part, reads: "SEC. 5
[36]

Amendment to conform to or authorize presentation of

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

Decision, Court of Appeals, Appendix A of petitioner's

[37]

brief, pp. 147-148.

Decision of the Court of Appeals, Appendix A petitioner's

[38]

brief; pp. 147-151.

Words & Phrases, Perm. Ed., Vol. 5, p. 13, citing Warfield

[39]

Natural Gas Co., vs. Allen, 59 S.W. (2d.) 534, 538.

[40]
R. A., p. 74; emphasis supplied.
[41 ]
Article 2180, Civil Code.

Philippine Refining Co. vs. Garcia, et al., L-21871 and L-

[42]

21962, September 27, 1966.

[43]
See Section 4, Chapter 3, Title VIII, Civil Code.
[44]
4 R.C.L., pp. 1174-1175.
[45]
An air carrier is a common carrier; and air transportation
is similar or analogous to land and water transportation.
Mendoza vs. Philippine Air Lines, Inc., 90 Phil. 836, 841-842.
[46]
Austro-American S.S. Co. vs. Thomas, 248 F. 231.
[47]
Id., p. 233.
[48]
Lipman vs. Atlantic Coast Line R. Co., 93 S.E., 714, 716.
[49]
Petitioner's brief, pp. 104-105.
[49A]
V Moran, Comments on the Rules of Court, 1963 ed., p.
76.
[50]
Section 36, Rule 130, Rules of Court.

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

[51]

324.
[52]
Ibid.
[53]
Article 2232, Civil Code.
[54]
Article 2229, Civil Code.
[55]
Article 2208, (1) and (11), Civil Code.

Coleongco vs. Claparols, L-18616, March 31, 1964;

[56]

Corpus vs. Cuaderno, et al., L-23721, March 31, 1965.

Cf. Yutuk vs. Manila Electric Company, L-13016, May 31,

[57]

1961; Lopez, et al., vs. Pan American World Airways, L-

22415, March 30, 1966.

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