[72] BASCOS v.

CA ○ To carry out its obligation, CIPTRADE, through Rodolfo Cipriano,

G.R. No. 101089 | April 7, 1993 | Campos, Jr., J. subcontracted with Estrellita Bascos (petitioner) to transport and
to deliver 400 sacks of soya bean meal worth P156,404.00 from the
TOPIC: Common Carriers -> In General -> Definitions, essential elements, Art. 1732 -> Manila Port Area to Calamba, Laguna at the rate of P50.00 per
Liberal Approach metric ton.
● Petitioner failed to deliver the said cargo. As a consequence of that failure,
PROVISIONS: Cipriano paid Jibfair Shipping Agency the amount of the lost goods in
● Art. 1732, NCC. Common carriers are persons, corporations, firms or accordance with the contract:
associations engaged in the business of carrying or transporting passengers ○ “1. CIPTRADE shall be held liable and answerable for any loss in
or goods or both, by land, water, or air, for compensation, offering their bags due to theft, hijacking and nondelivery or damages to the
services to the public. cargo during transport at market value. x x x”
● CIPRIANO demanded reimbursement from petitioner but the latter refused
SUMMARY: CIPTRADE entered into a hauling contract with Jibfair Shipping Agency to pay. Cipriano then filed a complaint for a sum of money and damages
Corporation. To carry its obligation under said contract, CIPTRADE, through Rodolfo with writ of preliminary attachment and for breach of a contract of carriage
Cipriano, subcontracted with Estrellita Bascos (petitioner) to transport and to deliver ● PETITIONER’S ANSWER:
400 sacks of soya bean meal worth P156,404.00 from the Manila Port Area to ○ There was no contract of carriage since CIPTRADE leased her
Calamba, Laguna at the rate of P50.00 per metric ton. BASCOS failed to deliver, thus cargo truck to load the cargo from Manila Port Area to Laguna;
CIPRIANO paid Jibfair Shipping Agency and now demands reimbursement from ○ CIPTRADE was liable to petitioner in the amount of P11,000.00 for
petitioner. BASCOS refused on the grounds (1) that there is no contract of carriage loading the cargo;
(only lease of cargo truck) and (2) that the hijacking was a force majeure. COURT ○ the truck carrying the cargo was hijacked along Canonigo St., Paco,
held that petitioner is a common carrier and the hijacking is not a force majeure; thus, Manila on the night of October 21, 1988;
she is liable. ○ the hijacking was immediately reported to CIPTRADE and that
petitioner and the police exerted all efforts to locate the hijacked
DOCTRINE: The test to determine a common carrier is “whether the given properties;
undertaking is a part of the business engaged in by the carrier which he has held out ○ after preliminary investigation, an information for robbery and
to the general public as his occupation rather than the quantity or extent of the carnapping were filed against Jose Opriano, et al;
business transacted.” ○ and hijacking, being a force majeure, exculpated petitioner from
any liability to CIPTRADE.
Art. 1732 makes no distinction between one whose principal business activity is the ● RTC decided in favor of Cipriano, CA affirmed.
carrying of persons or goods or both, and one who does such carrying only as an ○ Found that she admitted in her answer that she did business under
ancillary activity (in local idiom, as a “sideline”). the name A.M. Bascos Trucking and that said admission dispensed
with the presentation by private respondent, Rodolfo Cipriano, of
FACTS: proofs that petitioner was a common carrier; also adopted in toto
● Rodolfo A. Cipriano representing Cipriano Trading Enterprise (CIPTRADE) the trial court’s decision that petitioner was a common carrier.
entered into a hauling contract with Jibfair Shipping Agency Corporation. ○ Evidence proving that petitioner is a common carrier, according to
○ CIPTRADE bound itself to haul the latter’s 2,000 m/tons of soya both the lower courts:
bean meal from Magallanes Drive, Del Pan, Manila to the ■ the fact that the truck driver of petitioner, Maximo Sanglay,
warehouse of Purefoods Corporation in Calamba, Laguna. received the cargo consisting of 400 bags of soya bean
 meal as evidenced by a cargo receipt signed by Maximo persons or goods or both, and one who does such carrying only as
Sanglay; an ancillary activity (in local idiom, as a “sideline”).
■ the fact that the truck helper, Juanito Morden, was also an ○ Article 1732 also carefully avoids making any distinction between a
employee of petitioner; person or enterprise offering transportation service on a regular or
■ and the fact that control of the cargo was placed in scheduled basis and one offering such service on an occasional,
petitioner’s care. episodic or unscheduled basis.
● PETITIONER ARGUES: ○ Neither does Article 1732 distinguish between a carrier offering its
○ The contract was for lease of the truck, as shown by certain services to the “general public,” i.e., the general community or
affidavits which referred to the contract as “lease”. population, and one who offers services or solicits business only
■ These affidavits were made by Jesus Bascos and by from a narrow segment of the general population. We think that
petitioner herself. Jesus Bascos confirmed in his Article 1732 deliberately refrained from making such distinctions.
testimony his statement that the contract was a lease ● Regarding affidavits presented by petitioner to the court:
contract. ○ Both the trial and appellate courts have dismissed them as self
○ She was not catering to the general public. She does business serving. We are bound by the appellate court’s factual conclusions.
under the same style of A.M. Bascos Trucking, offering her trucks Yet, granting that the said evidence were not selfserving, the same
for lease to those who have cargo to move, not to the general were not sufficient to prove that the contract was one of lease.
public but to a few customers only in view of the fact that it is only
a small business. [2] W/N the hijacking referred to was a force majeure. — NO.
● Common carriers are obliged to observe extraordinary diligence in the
ISSUES w/ HOLDING & RATIO: vigilance over the goods transported by them. Accordingly, they are
[1] W/N petitioner is a common carrier. — YES. presumed to have been at fault or to have acted negligently if the goods are
● Petitioner is a common carrier. Article 1732 of the Civil Code defines a lost, destroyed or deteriorated.
common carrier as: ○ There are very few instances when the presumption of negligence
○ “(a) person, corporation or firm, or association engaged in the does not attach, and these instances are enumerated in Article
business of carrying or transporting passengers or goods or both, 1734.
by land, water or air, for compensation, offering their services to the ○ In those cases where the presumption is applied, the common
public.” carrier must prove that it exercised extraordinary diligence in order
● The test to determine a common carrier is “whether the given undertaking is to overcome the presumption.
a part of the business engaged in by the carrier which he has held out to the ● De Guzman vs. Court of Appeals: hijacking, not being included in the
general public as his occupation rather than the quantity or extent of the provisions of Article 1734, must be dealt with under the provisions of Article
business transacted.” 1735 and thus, the common carrier is presumed to have been at fault or
○ ITC, petitioner herself has made the admission that she was in the negligent.
trucking business, offering her trucks to those with cargo to move. ○ To exculpate the carrier from liability arising from hijacking, he
Judicial admissions are conclusive and no evidence is required to must prove that the robbers or the hijackers acted with grave or
prove the same. irresistible threat, violence, or force. This is in accordance with
● Re: argument that petitioner only serves a few people: Article 1745 of the Civil Code which provides:
○ De Guzman vs. Court of Appeals: (Art. 1732) makes no distinction ■ Art. 1745. Any of the following or similar stipulations shall
between one whose principal business activity is the carrying of be considered unreasonable, unjust and contrary to public
policy: xxx xxx (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;
● ITC, to establish grave and irresistible force, petitioner presented her
accusatory affidavit, Jesus Bascos’ affidavit, and Juanito Morden’s
“Salaysay”. However, both lower courts concluded that these affidavits were
not enough to overcome the presumption.
○ Petitioner’s affidavit about the hijacking was based on what had
been told her by Juanito Morden. It was not a firsthand account.
While it had been admitted in court for lack of objection on the part
of private respondent, the respondent Court had discretion in
assigning weight to such evidence.
○ Secondly, the affidavit of Jesus Bascos did not dwell on how the
hijacking took place.
○ Thirdly, 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.
○ The subsequent filing of the information for carnapping and
robbery against the accused named in said affidavits did not
necessarily mean that the contents of the affidavits were true
because they were yet to be determined in the trial of the criminal
cases.
○ The presumption of negligence was raised against petitioner. It was
petitioner’s burden to overcome it. Thus, contrary to her assertion,
private respondent need not introduce any evidence to prove her
negligence.

RULING: Petition denied.