G.R. No. 101089. April 7, 1993.

ESTRELLITA M. BASCOS, petitioner, vs. COURT OF

APPEALS and RODOLFO A. CIPRIANO, respondents.
Civil Law; Common Carriers defined.—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.”
In this case, petitioner 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.
Same; Same; No distinction between person offering service
on regular basis and one offering service on occasional basis.—
But petitioner argues that there was only a contract of lease
because they offer their services only to a select group of people
and because the private respondents, plaintiffs in the lower
court, did not object to the presentation of affidavits by
petitioner where the transaction was referred to as a lease
contract. Regarding the first contention, the holding of the
Court in De Guzman vs. Court of Appeals is instructive. In
referring to Article 1732 of the Civil Code, it held thus: “The
above article makes no distinction between one
whose principal business activity is the carrying of persons or
goods or both, and one who does such carrying only as
an ancillary activity (in local idiom, as a “sideline”). Article
1732 also carefully avoids making any distinction between a
person or enterprise offering transportation service on
a regular or scheduled basis and one offering such service on
an occasional, episodic or unscheduled basis. Neither does
Article 1732 distinguish between a carrier offering its services
to the “general public,” i.e., the general community or
population, and one who offers services or solicits business only
from a narrow segment of the general population. We think that
Article 1732 deliberately refrained from making such
distinctions.”
Same; Same; Obligation of carrier to observe extraordinary
diligence; Presumption of negligence.—Common carriers are
obliged to
_______________
* SECOND DIVISION.
319

VOL. 221, APRIL 7, 1993 319

Bascos vs. Court of Appeals
observe extraordinary diligence in the vigilance over the
goods transported by them. Accordingly, they are presumed to
have been at fault or to have acted negligently if the goods are
lost, destroyed or deteriorated. There are very few instances
when the presumption of negligence does not attach and these
instances are enumerated in Article 1734. In those cases where
the presumption is applied, the common carrier must prove
that it exercised extraordinary diligence in order to overcome
the presumption.
Same; Same; Same; Liability arising from hijacking.—To
exculpate the carrier from liability arising from hijacking, he
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: x x x x x x
(6) That the common carrier’s liability for acts committed by
thieves, or of robbers who do not act with grave or irresistible
threat, violence or force, is dispensed with or diminished.”
PETITION for review on certiorari of the decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Modesto S. Bascos for petitioner.
Pelaez, Adriano & Gregorio for private respondent.
CAMPOS, JR., J.:
This is a petition for review on certiorari of the decision of **

the Court of Appeals in “RODOLFO A. CIPRIANO, doing

business under the name CIPRIANO TRADING
ENTERPRISES, plaintiff-appellee, vs. ESTRELLITA M.
BASCOS, doing business under the name of BASCOS
TRUCKING, defendant-appellant,” C.A.-G.R. CV No.
25216, the dispositive portion of which is quoted
hereunder:
_______________
**July 17, 1991; penned by Associate Justice Nicolas P. Lapeña, Jr., and
concurred in by Associate Justices Ricardo L. Pronove, Jr., and Consuelo V.
Santiago.
320
320 SUPREME COURT REPORTS
ANNOTATED
Bascos vs. Court of Appeals
“PREMISES considered, We find no reversible error in the
decision appealed from, which is hereby affirmed in toto. Costs
against appellant.” 1

The facts, as gathered by this Court, are as follows:

Rodolfo A. Cipriano representing Cipriano Trading
Enterprise (CIPTRADE for short) entered into a hauling
contract with Jibfair Shipping Agency Corporation
2

whereby the former bound itself to haul the latter’s 2,000

m/tons of soya bean meal from Magallanes Drive, Del
Pan, Manila to the warehouse of Purefoods Corporation
in Calamba, Laguna. To carry out its obligation,
CIPTRADE, through Rodolfo Cipriano, subcontracted
with Estrellita Bascos (petitioner) to transport and to
deliver 400 sacks of soya bean meal worth P156,404.00
from the Manila Port Area to Calamba, Laguna at the
rate of P50.00 per metric ton. Petitioner failed to deliver
the said cargo. As a consequence of that failure, Cipriano
paid Jibfair Shipping Agency the amount of the lost
goods in accordance with the contract which stated that:
“1. CIPTRADE shall be held liable and answerable for any loss
in bags due to theft, hijacking and non-delivery or damages to
the cargo during transport at market value. x x x” 3

Cipriano demanded reimbursement from petitioner but

the latter refused to pay. Eventually, Cipriano filed a
complaint for a sum of money and damages with writ of
preliminary attachment for breach of a contract of
4

carriage. The prayer for a Writ of Preliminary

Attachment was supported by an affidavit which 5

contained the following allegations:

1. “4.That this action is one of those specifically
mentioned in Sec. 1, Rule 57 of the Rules of Court,
whereby a writ of preliminary
_______________
1 Rollo, p. 59.
2 Annex “K” of Memorandum for Petitioner; Rollo, p. 229.
3 Ibid.

4 Civil Case No. 49965, Regional Trial Court, Quezon City, Branch 83.

5 Annex “L” of Memorandum for Petitioner; Rollo, p. 230.

321
VOL. 221, APRIL 7, 1993 321
Bascos vs. Court of Appeals
1. attachment may lawfully issue, namely:
1. “(e)in an action against a party who has removed or
disposed of his property, or is about to do so, with
intent to defraud his creditors;”
1. 5.That there is no sufficient security for the claim
sought to be enforced by the present action;
2. 6.That the amount due to the plaintiff in the above-
entitled case is above all legal counterclaims;”
The trial court granted the writ of preliminary
attachment on February 17, 1987.
 In her answer, petitioner interposed the following
defenses: that there was no contract of carriage since
CIPTRADE leased her cargo truck to load the cargo from
Manila Port Area to Laguna; that CIPTRADE was liable
to petitioner in the amount of P11,000.00 for loading the
cargo; that the truck carrying the cargo was hijacked
along Canonigo St., Paco, Manila on the night of October
21, 1988; that the hijacking was immediately reported to
CIPTRADE and that petitioner and the police exerted all
efforts to locate the hijacked properties; that after
preliminary investigation, an information for robbery
and carnapping were filed against Jose Opriano, et al;
and that hijacking, being a force majeure, exculpated
petitioner from any liability to CIPTRADE.
After trial, the trial court rendered a decision the ***

dispositive portion of which reads as follows:

“WHEREFORE, judgment is hereby rendered in favor of
plaintiff and against defendant ordering the latter to pay the
former:
1. 1.The amount of ONE HUNDRED FIFTY-SIX
THOUSAND FOUR HUNDRED FOUR PESOS
(P156,404.00) as an (sic) for actual damages with legal
interest of 12% per cent per annum to be counted from
December 4, 1986 until fully paid;
2. 2.The amount of FIVE THOUSAND PESOS (P5,000.00)
as and for attorney’s fees; and
3. 3.The costs of the suit.
_______________
*** Civil Case No. 49965, October 12, 1989, Penned by Judge Reynaldo Roura.
322
322 SUPREME COURT REPORTS
ANNOTATED
Bascos vs. Court of Appeals
The “Urgent Motion To Dissolve/Lift preliminary
Attachment” dated March 10, 1987 filed by defendant is
DENIED for being moot and academic.
 SO ORDERED.” 6

Petitioner appealed to the Court of Appeals but

respondent Court affirmed the trial court’s judgment.
Consequently, petitioner filed this petition where she
makes the following assignment of errors; to wit:
1. “I.THE RESPONDENT COURT ERRED IN
HOLDING THAT THE CONTRACTUAL
RELATIONSHIP BETWEEN PETITIONER AND
PRIVATE RESPONDENT WAS CARRIAGE OF
GOODS AND NOT LEASE OF CARGO TRUCK.
2. II.GRANTING, EX GRATIA ARGUMENTI, THAT
THE FINDING OF THE RESPONDENT COURT
THAT THE CONTRACTUAL RELATIONSHIP
BETWEEN PETITIONER AND PRIVATE
RESPONDENT WAS CARRIAGE OF GOODS IS
CORRECT, NEVERTHELESS, IT ERRED IN
FINDING PETITIONER LIABLE THEREUNDER
BECAUSE THE LOSS OF THE CARGO WAS DUE
TO FORCE MAJEURE, NAMELY, HIJACKING.
3. III.THE RESPONDENT COURT ERRED IN
AFFIRMING THE FINDING OF THE TRIAL
COURT THAT PETITIONER’S MOTION TO
DISSOLVE/LIFT THE WRIT OF PRELIMINARY
ATTACHMENT HAS BEEN RENDERED MOOT
AND ACADEMIC BY THE DECISION OF THE
MERITS OF THE CASE.” 7

The petition presents the following issues for resolution:

(1) was petitioner a common carrier?; and (2) was the
hijacking referred to a force majeure?
The Court of Appeals, in holding that petitioner was a
common carrier, found that she 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. The
respondent Court also adopted in toto the trial
_______________
6 Rollo, p. 217.
7 Rollo, p. 16.

323
VOL. 221, APRIL 7, 1993 323
Bascos vs. Court of Appeals
court’s decision that petitioner was a common carrier.
Moreover, both courts appreciated the following pieces of
evidence as indicators that petitioner was a common
carrier: the fact that the truck driver of petitioner,
Maximo Sanglay, received the cargo consisting of 400
bags of soya bean meal as evidenced by a cargo receipt
signed by Maximo Sanglay; the fact that the truck helper,
Juanito Morden, was also an employee of petitioner; and
the fact that control of the cargo was placed in
petitioner’s care.
In disputing the conclusion of the trial and appellate
courts that petitioner was a common carrier, she alleged
in this petition that the contract between her and Rodolfo
A. Cipriano, representing CIPTRADE, was lease of the
truck. She cited as evidence certain affidavits which
referred to the contract as “lease”. These affidavits were
made by Jesus Bascos and by petitioner herself. She
8 9

further averred that Jesus Bascos confirmed in his

testimony his statement that the contract was a lease
contract. She also stated that she was not catering to the
10

general public. Thus, in her answer to the amended

complaint, she said that she does business under the
same style of A.M. Bascos Trucking, offering 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.
11

We agree with the respondent Court in its finding that

petitioner is a common carrier.
 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
_______________
8 Petition, pp. 12-13; Rollo, pp. 20-21; Annex “G” of Memorandum for Petitioner;
Rollo, p. 225.
9 Petition, pp. 13-14; Rollo, pp. 21-22.

10 Ibid.; Rollo, p. 21; Annex “E” of Memorandum for Petitioner; Rollo, p. 222.

11 Court of Appeals Decision, p. 5; Rollo, p. 55.

324
324 SUPREME COURT REPORTS
ANNOTATED
Bascos vs. Court of Appeals
transacted.” In this case, petitioner herself has made the
12

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. 13

But petitioner argues that there was only a contract of

lease because they offer their services only to a select
group of people and because the private respondents,
plaintiffs in the lower court, did not object to the
presentation of affidavits by petitioner where the
transaction was referred to as a lease contract.
Regarding the first contention, the holding of the Court
in De Guzman vs. Court of Appeals is instructive. In 14

referring to Article 1732 of the Civil Code, it held thus:

“The above article makes no distinction between one
whose principal business activity is the carrying of persons or
goods or both, and one who does such carrying only as
an ancillaryactivity (in local idiom, as a “sideline”). Article 1732
also carefully avoids making any distinction between a person
or enterprise offering transportation service on a regular or
scheduled basis and one offering such service on an occasional,
episodic or unscheduled basis. Neither does Article 1732
distinguish between a carrier offering its services to
the “general public,” i.e., the general community or population,
and one who offers services or solicits business only from a
narrow segment of the general population. We think that
Article 1732 deliberately refrained from making such
distinctions.”
Regarding the affidavits presented by petitioner to the
court, both the trial and appellate courts have dismissed
them as self-serving and petitioner contests the
conclusion. We are bound by the appellate court’s factual
conclusions. Yet, granting that the said evidence were
not self-serving, the same were not sufficient to prove
that the contract was one of lease. It must be understood
that a contract is what the law defines it to be and not
what it is called by the contracting
parties. Furthermore, petitioner pre-
15

_______________
12 4 AGBAYANI, COMMENTARIES AND JURISPRUDENCE ON THE
COMMERCIAL LAWS OF THE PHILIPPINES, 5 (1987).
13 Solivio vs. Court of Appeals, 182 SCRA 119 (1990).

14 168 SCRA 612 (1988).

15 Schmid and Oberly, Inc. vs. RJL Martinez Fishing Corp., 166 SCRA
493 (1988).
325
VOL. 221, APRIL 7, 1993 325
Bascos vs. Court of Appeals
sented no other proof of the existence of the contract of
lease. He who alleges a fact has the burden of proving it. 16

Likewise, We affirm the holding of the respondent court

that the loss of the goods was not due to force majeure.
Common carriers are obliged to observe extraordinary
diligence in the vigilance over the goods transported by
them. Accordingly, they are presumed to have been at
17
fault or to have acted negligently if the goods are lost,
destroyed or deteriorated. There are very few instances
18

when the presumption of negligence does not attach and

these instances are enumerated in Article 1734. In those 19

cases where the presumption is applied, the common

carrier must prove that it exercised extraordinary
diligence in order to overcome the presumption.
_______________
16 Imperial Vitory Shipping Agency vs. NLRC, 200 SCRA 178 (1991).
17 “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 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.”
18 “Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of

the preceding article, if the goods are lost, destroyed or deteriorated, common
carriers are presumed to have been at fault or to have acted negligently, unless
they prove that they observed extraordinary diligence as required in article 1733.”
19 “Art. 1734. Common carriers are responsible for the loss, destruction, or

deterioration of the goods, unless the same is due to any of the following causes
only:

1.(1)Flood, storm, earthquake, lightning, or other natural disaster or

calamity;
2.(2)Act of the public enemy in war, whether international or civil;
3.(3)Act or omission of the shipper or owner of the goods;
4.(4)The character of the goods or defects in the packing or in the containers;
5.(5)Order or act of competent public authority.”

326
326 SUPREME COURT REPORTS
ANNOTATED
Bascos vs. Court of Appeals
In this case, petitioner alleged that hijacking constituted
force majeure which exculpated her from liability for the
loss of the cargo. In De Guzman vs. Court of Appeals, the 20

Court held that hijacking, not being included in the

provisions of Article 1734, must be dealt with under the
provisions of Article 1735 and thus, the common carrier
is presumed to have been at fault or negligent. To
exculpate the carrier from liability arising from
hijacking, he 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:
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;”
In the same case, the Supreme Court also held that:
21

“Under Article 1745 (6) above, 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 or irresistible threat, violence or force.” We believe and
so hold that 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.”
To establish grave and irresistible force, petitioner
presented her accusatory affidavit, Jesus Baseos’ 22

affidavit, and Juanito Morden’s “Salaysay”. However,

23 24

both the trial court and the Court of Appeals have

concluded that these affidavits were not
_______________
20 “Supra, note 14.
21 Ibid., p. 621.

22 Annex “G” of Memorandum for Petitioner; Rollo, p. 225; and Juanito Morden’s

affidavit Annex “H” of Memorandum for Petitioner; Rollo, p. 226.

23 Annex “E” of Memorandum for Petitioner; Rollo, p. 222.

24 Annex “H” of Memorandum for Petitioner; Rollo, p. 226.

327
VOL. 221, APRIL 7, 1993 327
Bascos vs. Court of Appeals
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 first-hand
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. We are bound by the conclusion of the
appellate court. In a petition for review on certiorari, We
are not to determine the probative value of evidence but
to resolve questions of law. 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
25

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. Her
own failure to adduce sufficient proof of extraordinary
diligence made the presumption conclusive against her.
Having affirmed the findings of the respondent Court
on the substantial issues involved, We find no reason to
disturb the conclusion that the motion to lift/dissolve the
writ of preliminary attachment has been rendered moot
and academic by the decision on the merits.
In the light of the foregoing analysis, it is Our opinion
that the petitioner’s claim cannot be sustained. The
petition is DISMISSED and the decision of the Court of
Appeals is hereby AFFIRMED.
SO ORDERED.
 Narvasa (C.J.,
Chairman), Padilla, Regalado and Nocon,
_______________
25 Ayco vs. Fernandez, 195 SCRA 328 (1991).
328

328 SUPREME COURT

REPORTS ANNOTATED
Candido vs. Macapagal
JJ., concur.
Petition dismissed. Decision affirmed.
Note.—In culpa contractual, the moment a passenger
dies or is injured, the carrier is presumed to have been at
fault or to have acted negligently, and this disputable
presumption may only be overcome by evidence that it
had observed extra-ordinary diligence or that the death
or injury of the passenger was due to a fortuitous event
(Philippine Rabbit Bus Lines, Inc. vs. Intermediate
Appellate Court, 189 SCRA 158).
——o0o——