Myline Cordial

Estrellita Bascos vs. Court of Appeals and Rodolfo Cipriano
G.R. No. 101089. April 7, 1993

FACTS:
Rodolfo A. Cipriano representing Cipriano Trading Enterprise (CIPTRADE) entered into a hauling contract with Jibfair Shipping Agency Corporation to haul tons of soya bean meal from Manila to the warehouse of Purefoods Corporation in Laguna. To carry out its obligation, CIPTRADE subcontracted with petitioner Estrellita Bascos to transport and to deliver 400 sacks of soya bean meal from the Manila Port Area to Calamba, Laguna. Petitioner failed to deliver the said cargo because the truck carrying the cargo was hijacked along the way. As a consequence of that failure, Cipriano paid Jibfair Shipping Agency the amount of the lost goods in accordance with the contract. Cipriano demanded reimbursement from petitioner but the latter refused to pay.

Petitioner’s contention: She offered 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 small business.

Trial Court’s decision: Petitioner was a common carrier

CA finding: Petitioner 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.

ISSUES:
1. Is petitioner a common carrier therefore, liable for the loss of the goods?
2. Is the incident of hijacking can be considered a force majeure?

RULING:
1. Petitioner is a common carrier. She presented no other proof of the existence of the contract of lease. She 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.
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.

2. The loss of the goods was not due to force majeure. Hijacking, not enumerated in the provisions of Article 1734, should dealt with under the provisions of Article 1735.  To exculpate the carrier from liability arising from hijacking, she 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 who do not act with grave or irresistible threat, violences or force, is dispensed with or diminished“. Under Article 1745 (6), a common carrier is held responsible and will not be allowed to divest or to diminish such responsibility, even for acts of strangers like thieves or robbers, except where such thieves or robbers in fact acted “with grave of irresistible threat, violence of force. 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.”

Petitioner failed to adduce sufficient proof of extraordinary diligence so she was not able to overcome the presumption of negligence.

NOTES:

Affidavits not considered best evidence if affiants available as witness
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.