Case Digest: Crisostomo v. CA, G.R. No. 138334, August 25, 2003

Facts:

• Estela L. Crisostomo contracted Caravan Travel and Tours International, Inc. for a "Jewels of Europe" tour package worth P74,322.70 with a 5% discount and waived booking fee.

• The tour included England, Holland, Germany, Austria, Liechtenstein, Switzerland, and France.

• Petitioner was misinformed about her flight date by Meriam Menor, respondent's employee, causing her to miss her flight on June 14, 1991, and thus the entire tour.

• Petitioner agreed to a substitute "British Pageant" tour, paying an additional US$300 as partial payment for a tour valued at US$785.

• After returning from the substitute tour, petitioner demanded a refund of P61,421.70, representing the difference in cost between the two tours. 

• Respondent refused, stating that the payment was non-refundable as per industry practice.

• Petitioner filed a breach of contract case, claiming that the respondent's negligence caused her to miss the "Jewels of Europe" tour.

• RTC-Makati: Found respondent negligent but also held petitioner contributory negligent for not verifying the travel documents. Respondent was ordered to refund P53,989.43, with interest, but 10% was deducted due to petitioner's negligence.

• CA: Reversed the trial court's decision, holding petitioner more negligent and ordering her to pay the remaining balance of P12,901.00 for the "British Pageant" tour. It found that as a well-traveled person and lawyer, petitioner should have verified her flight details.

• Petitioner argued that respondent, as a common carrier, was required to exercise extraordinary diligence, and her own negligence was only contributory, not the primary cause of her loss. She claimed the amount paid for the unavailed "Jewels of Europe" tour should be refundable and sought consequential damages.

Issue: Whether respondent did not observe the standard of care required of a common carrier when it informed her wrongly of the flight schedule. NO

Petitioner’s contention has no merit.

By definition, a contract of carriage or transportation is one whereby a certain person or association of persons obligate themselves to transport persons, things, or news from one place to another for a fixed price. Such person or association of persons are regarded as carriers and are classified as private or special carriers and common or public carriers. 

A common carrier is defined under Article 1732 of the Civil Code as persons, corporations, firms or associations 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.

It is obvious from the above definition that respondent is not an entity engaged in the business of transporting either passengers or goods and is therefore, neither a private nor a common carrier. Respondent did not undertake to transport petitioner from one place to another since its covenant with its customers is simply to make travel arrangements in their behalf. Respondent’s services as a travel agency include procuring tickets and facilitating travel permits or visas as well as booking customers for tours.

While petitioner concededly bought her plane ticket through the efforts of respondent company, this does not mean that the latter ipso facto is a common carrier. At most, respondent acted merely as an agent of the airline, with whom petitioner ultimately contracted for her carriage to Europe. Respondent’s obligation to petitioner in this regard was simply to see to it that petitioner was properly booked with the airline for the appointed date and time. Her transport to the place of destination, meanwhile, pertained directly to the airline.

The object of petitioner’s contractual relation with respondent is the latter’s service of arranging and facilitating petitioner’s booking, ticketing and accommodation in the package tour. 

In contrast, the object of a contract of carriage is the transportation of passengers or goods. It is in this sense that the contract between the parties in this case was an ordinary one for services and not one of carriage. Petitioner’s submission is premised on a wrong assumption.

The nature of the contractual relation between petitioner and respondent is determinative of the degree of care required in the performance of the latter’s obligation under the contract. For reasons of public policy, a common carrier in a contract of carriage is bound by law to carry passengers as far as human care and foresight can provide using the utmost diligence of very cautious persons and with due regard for all the circumstances. As earlier stated, however, respondent is not a common carrier but a travel agency. It is thus not bound under the law to observe extraordinary diligence in the performance of its obligation, as petitioner claims.

Since the contract between the parties is an ordinary one for services, the standard of care required of respondent is that of a good father of a family under Article 1173 of the Civil Code. This connotes reasonable care consistent with that which an ordinarily prudent person would have observed when confronted with a similar situation. The test to determine whether negligence attended the performance of an obligation is: did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence.

In the case at bar, the lower court found Menor negligent when she allegedly informed petitioner of the wrong day of departure. Petitioner’s testimony was accepted as indubitable evidence of Menor’s alleged negligent act since respondent did not call Menor to the witness stand to refute the allegation. The lower court applied the presumption under Rule 131, Section 3 (e)14 of the Rules of Court that evidence willfully suppressed would be adverse if produced and thus considered petitioner’s uncontradicted testimony to be sufficient proof of her claim.

On the other hand, respondent has consistently denied that Menor was negligent and maintains that petitioner’s assertion is belied by the evidence on record. The date and time of departure was legibly written on the plane ticket and the travel papers were delivered two days in advance precisely so that petitioner could prepare for the trip. It performed all its obligations to enable petitioner to join the tour and exercised due diligence in its dealings with the latter.

We agree with respondent.

Respondent’s failure to present Menor as witness to rebut petitioner’s testimony could not give rise to an inference unfavorable to the former. Menor was already working in France at the time of the filing of the complaint, thereby making it physically impossible for respondent to present her as a witness. Then too, even if it were possible for respondent to secure Menor’s testimony, the presumption under Rule 131, Section 3(e) would still not apply. The opportunity and possibility for obtaining Menor’s testimony belonged to both parties, considering that Menor was not just respondent’s employee, but also petitioner’s niece. It was thus error for the lower court to invoke the presumption that respondent willfully suppressed evidence under Rule 131, Section 3(e). Said presumption would logically be inoperative if the evidence is not intentionally omitted but is simply unavailable, or when the same could have been obtained by both parties.

In sum, we do not agree with the finding of the lower court that Menor’s negligence concurred with the negligence of petitioner and resultantly caused damage to the latter. Menor’s negligence was not sufficiently proved, considering that the only evidence presented on this score was petitioner’s uncorroborated narration of the events. It is well-settled that the party alleging a fact has the burden of proving it and a mere allegation cannot take the place of evidence. If the plaintiff, upon whom rests the burden of proving his cause of action, fails to show in a satisfactory manner facts upon which he bases his claim, the defendant is under no obligation to prove his exception or defense.

Contrary to petitioner’s claim, the evidence on record shows that respondent exercised due diligence in performing its obligations under the contract and followed standard procedure in rendering its services to petitioner. As correctly observed by the lower court, the plane ticket19 issued to petitioner clearly reflected the departure date and time, contrary to petitioner’s contention. The travel documents, consisting of the tour itinerary, vouchers and instructions, were likewise delivered to petitioner two days prior to the trip. Respondent also properly booked petitioner for the tour, prepared the necessary documents and procured the plane tickets. It arranged petitioner’s hotel accommodation as well as food, land transfers and sightseeing excursions, in accordance with its avowed undertaking.

Therefore, it is clear that respondent performed its prestation under the contract as well as everything else that was essential to book petitioner for the tour. Had petitioner exercised due diligence in the conduct of her affairs, there would have been no reason for her to miss the flight. Needless to say, after the travel papers were delivered to petitioner, it became incumbent upon her to take ordinary care of her concerns. This undoubtedly would require that she at least read the documents in order to assure herself of the important details regarding the trip.

The negligence of the obligor in the performance of the obligation renders him liable for damages for the resulting loss suffered by the obligee. Fault or negligence of the obligor consists in his failure to exercise due care and prudence in the performance of the obligation as the nature of the obligation so demands. There is no fixed standard of diligence applicable to each and every contractual obligation and each case must be determined upon its particular facts. The degree of diligence required depends on the circumstances of the specific obligation and whether one has been negligent is a question of fact that is to be determined after taking into account the particulars of each case.

The lower court declared that respondent’s employee was negligent. This factual finding, however, is not supported by the evidence on record. While factual findings below are generally conclusive upon this court, the rule is subject to certain exceptions, as when the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which will affect the result of the case.

In the case at bar, the evidence on record shows that respondent company performed its duty diligently and did not commit any contractual breach. Hence, petitioner cannot recover and must bear her own damage.

WHEREFORE, the instant petition is DENIED for lack of merit. The decision of the Court of Appeals in CA-G.R. CV No. 51932 is AFFIRMED. Accordingly, petitioner is ordered to pay respondent the amount of P12,901.00 representing the balance of the price of the British Pageant Package Tour, with legal interest thereon at the rate of 6% per annum, to be computed from the time the counterclaim was filed until the finality of this Decision. After this Decision becomes final and executory, the rate of 12% per annum shall be imposed until the obligation is fully settled, this interim period being deemed to be by then an equivalent to a forbearance of credit.

SO ORDERED.