[No. L-8937.

November 29, 1957]

OLEGARIO BRITO SY, plaintiff and appellee, vs.

MALATE TAXICAB & GARAGE, INC., defendant and
appellant;

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6 Whereas the exemption of "chocolate" aimed to benefit the consumers

thereof,
7 See footnote 5.

483

VOL. 102, NOVEMBER 29, 1957 483

Brito Sy vs. Malate Taxicab & Garage, Inc.

MALATE TAXICAB & GARAGE, INC., third-party

plaintiff and appellant, vs. JESUS DEQUITO Y DUPY,
third-party defendant and appellee.

1. PLEADING AND PRACTICE; PRE-JUDICIAL

QUESTION, CONSTRUED; CASE AT BAR.—Pre-judicial
question is understood in law to be that which precedes
the criminal action, or that which requires a decision
before final judgment is rendered in the principal action
with which said question is closely connected. Not all
previous questions are pre-judicial, although all pre-
judicial questions are necessarily previous. (Berbari vs.
Concepción, 40 Phil. 837.) In the present case, the third-
party complaint is not a pre-judicial question, as the issue
in the main action is not entirely dependent upon those in
the third-party complaint; on the contrary, it is the third-
party complaint that is dependent upon the main case at
least in the amount of damages which defendant-appellant
seeks to be reimbursed in its third-party complaint.
Furthermore, the complaint is based on a contractual
obligation of transportation of passenger which defendant-
appellant failed to carry out, and the action is entirely
different and independent from that in the third-party
complaint which is based on alleged tortious act
committed by the' third-party defendant. The main case,
therefore, is entirely severable and may be litigated
 independently. Moreover, whatever the outcome of the
third-party complaint might be would not in any way
affect or alter the contractual liability of the appellant to
plaintiff. If the collision was due to the negligence of the
third-party defendant, as alleged, then defendant-
appellant may file a separate civil action for damages
based on tort ex-delicto or upon quasi-delict, as the case
may be.

2. COMMON CARRIERS; OBLIGATION TO TRANSPORT

PASSENGER SAFELY; CARRIER PRESUMED
NEGLIGENT WHEN PASSENGER is INJURED; How
TO OVERCOME PRESUMPTION.—In an action based on
a contract of carriage, the court need not make an express
finding of fault or negligence on the part of the carrier in
order to hold it responsible to pay the damages sought for
by the passenger. By the contract of carriage, the carrier
assumes the express obligation to transport the passenger
to his destination safely and to observe extraordinary
diligence with a due regard for all the circumstances, and
any injury that might be suffered by the passenger is right
away attributable to the fault or negligence of the carrier
(Article 1756, new Civil Code). This is an exception to the
general

484

484 PHILIPPINE REPORTS ANNOTATED

Brito Sy vs. Malate Taxicab & Garage, Inc.

rule that negligence must be proved, and it is therefore

incumbent upon the carrier to prove that it has exercised
extraordinary diligence as prescribed in Articles 1733 and
1755 of the new Civil Code. In the case at bar, however,
the defendant carrier failed to present any evidence at all
to overcome and overwhelm the presumption of negligence
imposed upon it by law; hence, there was no need for the
lower court to make an express finding that the carrier
was responsible to the collision, in view of the provision of
the aforementioned Article 1756 of the new Civil Code.

APPEAL from a judgment of the Court of First Instance of

Manila. Montesa, J.

The facts are stated in the opinion of the Court.

Paredes, Gaw & Acevedo for appellee.
Diaz & Baizas for appellant.

ENDENCIA, J.:
On June 26, 1952, at Dewey Boulevard in front of the
Selecta Restaurant, Olegario Brito Sy engaged a taxicab
bearing plate No. Taxi-1130, owned and operated by the
Malate Taxicab and Garage, Inc. and driven by Catalino
Ermino, to take him to his place of business at Dencia's
Restaurant on the Escolta where he was the general
manager. Upon reaching the Rizal Monument, he told the
driver to turn to the right, but the latter did not need him
and instead countered that they better pass along Katigbak
Drive. At the intersection of Dewey Boulevard and
Katigbak Drive, the taxi collided with an army wagon with
plate No. TPI-695 driven by Sgt. Jesus Dequito, as a result
of which Olegario Brito Sy was jarred, jammed and jolted.
He was taken to the Santa Isabel Hospital suffering from
bruises and contusions as well as a fractured right leg.
Thereafter he was transferred to the Gonzales Orthopedic
Clinic and was accordingly operated on. He spent some
P2,266.45 for medical bills and hospitalization.
On September 30, 1952, Sy filed action against the
Malate Taxicab & Garage, Inc., based upon a contract of

485

VOL. 102, NOVEMBER 29, 1957 485

Brito Sy vs. Malate Taxicab & Garage, Inc.

carriage, to recover the sums of P7,200 as actual or

compensatory damages, P20,000 as moral damages,
P15,000 as nominal and exemplary damages, and P3,000 a
attorney's fees. On October 2, 1952, a copy of the complaint
was served on and received by the defendant, but the latter
filed its answer only on October 20, 1952, wherein it
alleged that the collision subject of the complaint was not
due to the negligence of its driver but to that of Sgt. Jesus
Dequito, the driver of the army wagon; and, by way of
counterclaim, sought to recover the sum of P1,000 as
damages caused by the alleged malicious and frivolous
action filed against it.
The record reveals that upon plaintiff's motion filed on
October 23, 1952, the lower court ordered on October 25,
1952 that the answer which was filed by defendant out of
time be stricken out, and declared the Malate Taxicab &
Garage, Inc. in default. Thereafter, on October 30, 1952,
plaintiff presented his evidence, and on November 20, 1952
judgment was rendered awarding plaintiff the sum of
P14,000 as actual, compensatory, moral, nominal and
exemplary damages including attorney's fees and costs,
with interest at the legal rate from the filing of the action.
Defendant then filed a motion on December 17, 1952, for
relief from the order of default and for new trial, which was
granted. Hence, plaintiff filed his reply to defendant's
answer and counterclaim, and by leave of court, the latter
filed on February 24, 1953 a third-party complaint against
Sgt. Jesus Dequito alleging that the cause of the collision
between the taxicab and the army wagon was the
negligence of the army sergeant, and praying that
whatever amount the court may assess against it in the
action filed by plaintiff, be paid to said third-party plaintiff,
plus an additional amount of P1,000 representing
attorney's fees. It appears, however, that the summons and
copy of the third-party complaint were never served upon
third-party defendant Dequito in view of his continued
assignment from place to place in con-

486

486 PHILIPPINE REPORTS ANNOTATED

Brito Sy vs. Malate Taxicab & Garage, Inc.

nection with his army duties, and for this reason the main
case was set for trial on May 10, 1953, obviously for the
sole purpose of disposing of the issue arising from
plaintiff's complaint. On the day of the trial, defendant
failed to appear, whereupon plaintiff presented his
evidence, and judgment was rendered against the
defendant in the total sum of P4,200 representing actual,
compensatory and moral damages, as well as attorney's
fees, with interest at the legal rate from the filing of the
action, plus costs of suit. Against said judgment defendant
appealed to the Court of Appeals and assigned in its brief
two errors of the lower court, namely:

"1. The trial court erred in not finding that the third-
party complaint involves a prejudicial question, and
therefore, the main complaint cannot be decided
until the third-party complaint is decided.
2. The trial court erred in not deciding or making an
express finding as to whether the defendant-
appellant Malate Taxicab & Garage, Inc. was
responsible for the collision, and hence, civilly
responsible to the plaintiff-appellee."

Finding the quoted assignment of errors as involving a

purely question of law, the Court of Appeals, by virtue of
the provisions of section 17, paragraph 6 of the Judiciary
Act of 1948, as amended, certified the case to this Court for
adjudication, in its Resolution of February 7. 1955.
We find no merit in the first assignment of error that
the third-party complaint is a pre-judicial question. As
enunciated by this Court in Berbari vs. Concepcion, 40
Phil. 837, "Pre-judicial question is understood in law to be
that which precedes the criminal action, or that which
requires a decision before final judgment is rendered in the
principal action with which said question is closely
connected. Not all previous questions are pre-judicial,
although all pre-judicial questions are necessarily
previous." In the present case, the third-party complaint is
not a pre-judicial question, as the issue in the main action
is
487

VOL. 102, NOVEMBER 29, 1957 487

Brito Sy vs. Malate Taxicab & Garage, Inc,

not entirely dependent upon those in the third-party

complaint; on the contrary, it is the third-party complaint
that is dependent upon the main case at least in the
amount of damages which defendant-appellant seeks to be
reimbursed in its third-party complaint. Furthermore, the
complaint is based on a contractual obligation of
transportation of passenger which defendant-appellant
failed to carry out, and the action is entirely different and
independent from that in the third-party complaint which
is based on alleged tortious act committed by the third-
party defendant Sgt. Dequito. The main case, therefore, is
entirely severable and may be litigated independently.
Moreover, whatever the outcome of the third-party
complaint might be would not in any way affect or alter the
contractual liability of the appellant to plaintiff. If the
collision was due to the negligence of the third-party
defendant, as alleged, then defendantappellant may file a
separate civil action for damages based on tort ex-delicto or
upon quasi-delict, as the case may be.
Coming to the second assignment of error that the lower
court erred in not making an express finding as to whether
defendant-appellant was responsible for the collision, we
find the same to be unjustified. The pertinent provisions of
the new Civil Code under the heading Common Carriers,
are the following:

"ART. 1733. Common carriers, from the nature of their business

and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the
safety of the passengers transported by them, according to all the
circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is
further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and
7, while the extraordinary diligence for the safety of the passengers
is further set forth in articles 1755 and 1756.
"ART. 1755. A common carrier is bound to carry the passengers
to safety as far as human care and foresight can provide, using

488
488 PHILIPPINE REPORTS ANNOTATED
Brito Sy vs. Malate Taxicab & Garage, Inc.

the utmost diligence of very cautious persons, with a due regard for
all the circumstances.
"ART. 1756. In case of death of or injuries to passengers,
common carriers are presumed to have been at fault or to have
acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755."
(Italics supplied.)

Evidently, under these provisions of law, the court need not

make an express finding of fault or negligence on the part
of the defendant-appellant in order to hold it responsible to
pay the damages sought for by the plaintiff, for the action
initiated therefor is based on a contract of carriage and not
on tort. When plaintiff rode on defendant-appellant's
taxicab, the latter assumed the express obligation to
transport him to his destination safely, and to observe
extraordinary diligence with a due regard for all the
circumstances, and any injury that might be suffered by
the passenger is right away attributable to the fault or
negligence of the carrier (Article 1756, supra). This is an
exception to the general rule that negligence must be
proved, and it was therefore incumbent upon the carrier to
prove that it has exercised extraordinary diligence as
prescribed in Articles 1733 and 1755 of the new Civil Code.
It is noteworthy, however, that at the hearing in the lower
court defendant-appellant failed to appear and has not
presented any evidence at all to overcome and overwhelm
the presumption of negligence imposed upon it by law;
hence, there was no need for the lower court to make an
express finding thereon in view of the provisions of the
aforequoted Article 1756 of the new Civil Code.
Wherefore, the decision of the lower court is hereby
affirmed with cost against the appellant.

Parás, C. J., Bengzon, Montemayor, Bautista Angelo,

Labrador, and Concepción, JJ., concur.

489

VOL. 102, NOVEMBER 29, 1957 489

Liboro, et al., vs. Finance and Mining Investment Corp.

REYES, J. B. L., J. concurring:

I concur for the additional reason that the concurrent

negligence of a third person will not exempt the appellant
from responsibility; in other words, if the driver of the
taxicab was negligent and thereby caused the collision, the
 fact that another driver's negligence also contributed
thereto will not exempt the taxicab company. Hence, the
negligence of the other driver is not a prejudicial question
to the present action.

Padilla, J., concur.

Judgment affirmed.

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