Bar Q and A #46

1.) DT and MT were prominent members of the frequent travelers’ club of FX Airlines. In Hongkong, the couple were assigned seats in Business Class for which they had bought tickets. On checking in, however, they were told they were upgraded by computer to First Class for the flight to Manila because the Business Section was overbooked. Both refused to transfer despite better seats, food, beverage and other services in First Class. They said they had guests in Business Class they should attend to. They felt humiliated, embarrassed and vexed, however, when the stewardess allegedly threatened to offload them if they did not avail of the upgrade. Thus, they gave in, but during the transfer of luggage DT suffered pain in his arm and wrist. After arrival in Manila, they demanded an apology from FX’s management as well as indemnity payment. When none was forthcoming, they sued the airline for a million pesos in damages. Is the airline liable for actual and moral damages? Why or why not? Explain briefly.

FX Airlines committed breach of contract when it upgraded DT and MT, over their objections, to First Class because they had contracted for Business Class passage. However, although there is a breach of contract, DT and MT are entitled to actual damages only for such pecuniary losses suffered by them as a result of such breach. There seems to be no showing that they incurred such pecuniary loss. There is no showing that the pain in DT's arm and wrist resulted directly from the carrier's acts complained of. Hence, they are not entitled to actual damages. Moreover, DT could have avoided the alleged injury by requesting the airline staff to do the luggage transfer as a matter of duty on their part. There is also no basis to award moral damages for such breach of contract because the facts of the problem do not show bad faith or fraud on the part of the airline. (Cathay Pacific v. Vazquez, G.R. No. 150843, March 14, 2003) However, they may recover moral damages if the cause of action is based on Art. 21 for the humiliation and embarrassment they felt when the stewardess threatened to offload them if they did not avail of the upgrade.

2.) Dr. and Mrs. Almeda are prominent citizens of the country and are frequent travelers abroad. In 1996, they booked round-trip business class tickets for the Manila-Hong Kong-Manila route of the Pinoy Airlines, where they are holders of Gold Mabalos Class Frequent Flier cards. On their return flight, Pinoy Airlines upgraded their tickets to first class without their consent and, in spite of their protestations to be allowed to remain in the business class so that they could be with their friends, they were told that the business class was already fully booked, and that they were given priority in upgrading because they are elite members/holders of Gold Mabalos Class cards. Since they were embarrassed at the discussions with the flight attendants, they were forced to take the flight at the first-class section apart from their friends who were in the business class. Upon their return to Manila, they demanded a written apology from Pinoy Airlines. When it went unheeded, the couple sued Pinoy Airlines for breach of contract claiming moral and exemplary damages, as well as attorney's fees. Will the action prosper? Give reasons.

Yes, the action will prosper. Art. 2201entitles the person to recover damages which may be attributed to non-performance of an obligation. In Alitalia Airways v. Court of Appeals (G.R. No. 77011, July 24, 1990), when an airline issues ticket to a passenger confirmed on a particular flight, a contract of carriage arises and the passenger expects that he would fly on that day. When the airline deliberately overbooked, it took the risk of having to deprive some passengers of their seat in case all of them would show up. For the indignity and inconvenience of being refused the confirmed seat, said passenger is entitled to moral damages. In the given problem, spouses Almeda had a booked roundtrip business class ticket with Pinoy Airlines. When their tickets were upgraded to first class without their consent, Pinoy Airlines breached the contract. As ruled in Zulueta v. Pan American (G.R. No. L- 28589, January 8, 1973), in case of overbooking, airline is in bad faith. Therefore, spouses Almeda are entitled to damages.

3.) Johnny Maton's conviction for homicide was affirmed by the Court of Appeals and in addition although the prosecution had not appealed at all. The appellate court increased the indemnity for death from P30,000.00 to P50,000.00. On his appeal to the Supreme Court, among the other things Johnny Maton brought to the high court's attention, was the increase of indemnity imposed by the Court of Appeals despite the clear fact that the People had not appealed from the appellate court’s judgment. Is Johnny Maton correct?

In Abejam v. Court of Appeals, the Supreme Court said that even if the issue of damages were not raised by the appellant in the Court of Appeals but the Court of Appeals in its findings increased the damages, the Supreme Court will not disturb the findings of the Court of Appeals.

4.) Rommel’s private car, while being driven by the regular family driver, Amado, hits a pedestrian causing the latter’s death. Rommel is not in the car when the incident happened. 1. Is Rommel liable for damages to the heirs of the deceased? Explain. 2. Would your answer be the same if Rommel was in the car at the time of the accident? Explain.

1. Yes, Rommel may be held liable for damages if he fails to prove that he exercised the diligence of a good father of a family (Art. 2180, par 5) in selecting and supervising his family driver. The owner is presumed liable unless he proves the defense of diligence. If the driver was performing his assigned task when the accident happened, Rommel shall be solidarily liable with the driver.

In case the driver is convicted of reckless imprudence and cannot pay the civil liability, Rommel is subsidiarily liable for the damage awarded against the driver and the defense of diligence is not available.

2. Yes, my answer would be the same. Rommel, who was in the car, shall be liable for damages if he could have prevented the misfortune by the use of due diligence in supervising his driver but failed to exercise it. (Art. 2184) In such case, his liability is solidary with his driver.

5.) Peter, a resident of Cebu City, sent through Reliable Pera Padala (RPP) the amount of P20,000.00 to his daughter, Paula, for the payment of her tuition fee. Paula went to an RPP branch but was informed that there was no money remitted to her name. Peter inquired from RPP and was informed that there was a computer glitch and the money was credited to another person. Peter and Paula sued RPP for actual damages, moral damages and exemplary damages. The trial court ruled that there was no proof of pecuniary loss to the plaintiffs but awarded moral damages of P20,000.00 and exemplary damages of P5,000.00. On appeal, RPP questioned the award of moral and exemplary damages. Is the trial court correct in awarding moral and exemplary damages? Explain.

No, the trial court is not correct in awarding moral and exemplary damages. The damages in this case are prayed for based on the breach of contract committed by RPP in failing to deliver the sum of money to Paula. Under the provisions of the Civil Code, in breach of contract, moral damages may be recovered when the defendant acted in bad faith or was guilty of gross negligence (amounting to bad faith) or in wanton disregard of his contractual obligation. In the same fashion, to warrant the award of exemplary damages, the wrongful act must be accomplished by bad faith, and an award of damages would be allowed only if the guilty party acted in a wanton, fraudulent, reckless or malevolent manner. (Art. 2232, CC)

Bad faith does not simply connote bad judgment or negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of known duty through some motive or interest or ill will that partakes of the nature of fraud. In this case, however, RPP’s breach was due to a computer glitch which at most can be considered as negligence on its part, but definitely does not constitute bad faith or fraud as would warrant the award of moral and exemplary damages.

6.) On her third month of pregnancy, Rosemarie married to Boy. For reasons known only to her, and without informing Boy, went to the clinic of X, a known abortionist, who for a fee, removed and expelled the fetus from her womb, Boy learned of the abortion six (6) months later. Availing of that portion of Section 12 of Article II of the 1987 Constitution which reads: The State xxx shall equally protect the life of the mother and the life of the unborn from conception, xxx which he claims confers a civil personality on the unborn from the moment of conception. Boy filed a case for damages against the abortionist, praying therein that the latter be ordered to pay him: (a) P30,000.00 as indemnity for the death of the fetus, (b) P100, 000.00 as moral damages for the mental anguish and anxiety he suffered, (c) P50,000.00 as exemplary damages, (d) P20,000.00 as nominal damages, and (e) P25,000.00 as attorney's fees. May actual damages be also recovered? If so, what facts should be alleged and proved?

Yes, provided that the pecuniary loss suffered should be substantiated and duly proved.

7.) If a pregnant woman passenger of a bus were to suffer an abortion following a vehicular accident due to the gross negligence of the bus driver, may she and her husband claim damages from the bus company for the death of their unborn child? Explain.

No, the spouses cannot recover actual damages in the form of indemnity for the loss of life of the unborn child. This is because the unborn child is not yet considered a person and the law allows indemnity only for loss of life of person. The mother, however may recover damages for the bodily injury she suffered from the loss of the fetus which is considered part of her internal organ. The parents may also recover damages for injuries that are inflicted directly upon them, e.g., moral damages for mental anguish that attended the loss of the unborn child. Since there is gross negligence, exemplary damages can also be recovered. (Geluz v. CA, G.R. No. L-16439, July 20, 1961)

8.) Ortillo contracts Fabricato, Inc. to supply and install tile materials in a building he is donating to his province. Ortillo pays 50% of the contract price as per agreement. It is also agreed that the balance would be payable periodically after every 10% performance until completed. After performing about 93% of the contract, for which it has been paid an additional 40% as per agreement, Fabricato, Inc. did not complete the project due to its sudden cessation of operations. Instead, Fabricato, Inc. demands payment of the last 10% of the contract despite its non- completion of the project. Ortillo refuses to pay, invoking the stipulation that payment of the last amount 10% shall be upon completion. Fabricato, Inc. brings suit for the entire 10%. Plus damages, Ortillo counters with claims for (a) moral damages for Fabricato, Inc.’s unfounded suit which has damaged his reputation as a philanthropist and respect businessman in his community, and (b) attorney’s fees. a. Does Ortillo have a legal basis for his claim for moral damages? b. How about his claim for attorney’s fees, having hired a lawyer to defend him?

1. There is no legal basis to Ortillo’s claim for moral damages. It does not fall under the coverage of Art. 2219.

2. Ortillo is entitled to attorney’s fees because Fabricato’s complaint is a case of malicious prosecution or a clearly unfounded civil action. (Art. 2208 [4] and [11])

9.) Rodolfo, married to Sharon, had an illicit affair with his secretary, Nanette, a 19-year- old girl, and begot a baby girl, Rona. Nanette sued Rodolfo for damages: actual, for hospital and other medical expenses in delivering the child by caesarean section; moral, claiming that Rodolfo promised to marry her, representing that he was single when, in fact, he was not; and exemplary, to teach a lesson to like-minded Lotharios. If you were the judge, would you award all the claims of Nanette? Explain.

If Rodolfo's marriage could not have been possibly known to Nanette or there is no gross negligence on the part of Nanette, Rodolfo could be held liable for moral damages.

If there is gross negligence in a suit for quasi-delict, exemplary could be awarded.

10.) Rosa was leasing an apartment in the city. Because of the Rent Control Law, her landlord could not increase the rental as much as he wanted to, nor terminate her lease as long as she was paying her rent. In order to force her to leave the premises, the landlord stopped making repairs on the apartment, and caused the water and electricity services to be disconnected. The difficulty of living without electricity and running water resulted in Rosa's suffering a nervous breakdown. She sued the landlord for actual and moral damages. Will the action prosper? Explain.

Yes, based on quasi-delict under the human relations provisions of the New Civil Code (Arts. 19, 20 and 21) because the act committed by the lessor is contrary to morals. Moral damages are recoverable under Art. 2219 (10) in relation to Art. 21. Although the action is based on quasi- delict and not on contract, actual damages may be recovered if the lessee is able to prove the losses and expenses she suffered.