Pedro De Guzman vs.

Court of Appeals and Ernesto Cendana

G.R. No. L-47822, December 22, 1988, J. Feliciano

Article 1732 of the Civil Code 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.

FACTS:
Respondent Ernesto Cendana is a junk dealer in Pangasinan. He utilized two
trucks which he owned for hauling the material to Manila for resale. On the return
trip to Pangasinan, respondent would load his vehicles with cargo which various
merchants wanted delivered to differing establishments in Pangasinan. For that
service, respondent charged freight rates which were commonly lower than regular
commercial rates.

Pedro de Guzman a merchant and authorized dealer of General Milk

Company contracted with respondent for the hauling of 750 cartons of Liberty filled
milk from a warehouse in Makati to petitioner's establishment in Urdaneta on or
before 4 December 1970. Only 150 boxes of Liberty filled milk were delivered to
petitioner since the truck which carried these boxes was hijacked somewhere along
the MacArthur Highway in Paniqui, Tarlac, by armed men who took with them the
truck, its driver, his helper and the cargo.

Petitioner commenced action against private respondent in the CFI of

Pangasinan, demanding payment of the lost goods, arguing that the latter failed to
exercise extraordinary diligence required of him by the law. Respondent denied that
he was a common carrier and argued that he could not be held responsible for the
value of the lost goods, such loss having been due to force majeure.

CFI ruled in favor of petitioner De Guzman, finding respondent to be a

common carrier and liable to petitioner. CA reversed the decision.

ISSUE:
Whether or not private respondent Ernesto Cendana may, under the facts
earlier set forth, be properly characterized as a common carrier.

HELD:
Yes. Private respondent is a common carrier. However, he could not be held
liable for the lost goods.

Article 1732 of the Civil Code 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. 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 and one who offers
services or solicits business only from a narrow segment of the general population.

So understood, the concept of "common carrier" under Article 1732 may be

seen to coincide neatly with the notion of "public service," under the Public Service
Act:

every person that now or hereafter may own, operate, manage, or control in the
Philippines, for hire or compensation, with general or limited clientele, whether
permanent, occasional or accidental, and done for general business purposes, any
common carrier,

A certificate of public convenience is not a requisite for the incurring of

liability under the Civil Code provisions governing common carriers.

Respondent is not liable for the lost goods within the purview of articles
1734 and 1735. The hijacking of the carrier's truck does not fall within any of the
five (5) categories of exempting causes listed in Article 1734. It would follow,
therefore, that the hijacking of the carrier's vehicle must be dealt with under the
provisions of Article 1735, in other words, that the private respondent as common
carrier is presumed to have been at fault or to have acted negligently. This
presumption, however, may be overthrown by proof of extraordinary diligence. The
duty of extraordinary diligence in the vigilance over goods is given additional
specification not only by Articles 1734 and 1735 but also by Article 1745.

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." In the instant case, armed men held
up the second truck owned by private respondent which carried petitioner's cargo.

DISPOSITIVE PORTION:
ACCORDINGLY, the Petition for Review on certiorari is hereby DENIED and
the Decision of the Court of Appeals dated 3 August 1977 is AFFIRMED. No
pronouncement as to costs.