MARK P.

MORELOS

MEMORANDUM

TO FROM SUBJECT DATE

: : : :

Mrs. Sari Morelos Law Firm LEGAL REMEDIES FOR THE DEATH OF MR. SARI OCTOBER 5, 2013

I FACTUAL ANTECEDENT Robin Sari, an engineer working in Taiwan, arrived in Manila Domestic Airport last July 7, 2013. He rode a taxicab under the business name MSE taxicab, operated by JPM Transport Corporation, and driven by PJ Sumilang. It appears that while traversing EDSA, the driver tried to overtake a truck carrying motorcycles. Because of the speed and the fact that it was raining, the taxicab lost control and hit a railing. Sari died instantly. II ISSUE Whether or not the Taxicab driver and JPM Transport Corporation be held liable for the death of Mr. Robin Sari.

III REMEDIES OF THE VICTIMS FAMILY 1. Claim for CIVIL DAMAGES against the JPM Transportation Corp, viz; 1.1 Moral; 1.2 Actual; 1.3 Exemplary and; 1.4 Attorneys Fee / Litigation expense 2. File for CRIMINAL CASE against PJ Sumilang

IV OVERVIEW The wrongful act done by the culprit (PJ Sumilang) which resulted the death of the victim (Robin) on a vehicular accident provided by the foregoing facts, that the culprit has acted imprudently in failure to take caution or anticipate the consequences on the attempt to overtake a larger vehicle in the middle of the rain. Needless to say, the culprit is facing a possible criminal charge against him. However, the JPM Transport Corporation (employer) will be held civilly liable for the damages resulted on the acts of its employee since it is a Culpa Contractual, in which there is a breach of contract of carriage. (Further discussed)

V RULING (1) Liabilities of the JPM Transport Corporation Basically, common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both, by
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land, water, or air, for compensation, offering their services to the public. (Article 1732 Civil Code) (Emphasis supplied) Where it automatically constitutes a contract of carriage between the passenger and the employer as provided under the Civil Code: Art. 1305. A contract is a meeting of minds between to persons whereby one binds himself, with respect to the other, to give something or to render some service. (Emphasis supplied) Hence, the abovementioned common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. (Art. 1755, ibid) and in case of the death of the passenger; Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755. REGARDLESS of the employees act, as reads: Art. 1759 Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the formers employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers. (Emphasis supplied) This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees. To sum up, The common carrier fails to carry the passenger safely because of the negligence of its employee. Hence, there is a prima facie breach of contract. Wherefore, The Civil Damages arising from the breach of contract of carriage constitute an independent civil action which is separate and distinct from criminal action. (Art. 31 ibid.) Thus, can be filed separately against the common carrier (JPM Trans Corp.) without being disturbed or affected by the result of the criminal case against PJ. The damages, as indicated in the preceding chapter can be indemnified by the victims family against the JPM.

PREFARATORY The following are the damages recommended to claim by the victims family. The assessment of such damage is left to the discretion of the court according to the circumstances of each case. In order a damage be awarded, the claimant must satisfactorily prove the existence of FACTUAL BASIS and its CASUAL CONNECTION to defendants acts.

(1.1) MORAL DAMAGES These are the Physical suffering, sleepless nights, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliations, and similar injury. (xxxxx) These factors occurring towards the victims family shall be pleaded or prayed for to claim for the damages it caused. As so provided under Article 2206(3) in which the victims party are recognized to be entitled on such claim for damages. Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition: (3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. (Emphasis supplied) The amount of 300,000 will be recommended as moral damage. Reason, to enable such injured family of the victim to cope up with the latters incident.

(1.2) ACTUAL DAMAGES These are amount actually expended in connection with the death of the victim in which a pecuniary loss incurred. viz; (1) Funeral Expenses;
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(2) Loss of the victims earning capacity The total of 12,059,800.00 has incurred as ACTUAL DAMAGE to be indemnify.

Statement of Expenses: Funeral Expense: Coffin Funeral Services Cemetery Lot & Tomb Total Funeral Expenses: Loss of Earning Capacity: 2 (80-421) Net earning capacity = 3 76 = 3 = 25.33 x 464, 400.00 Total = P 11, 764, 800.00 x 464, 400. 00 x {($ 1, 8002 x 433) x 12} -50%4 120,000.00 15,000.00 160,000.00 295,000.00

Robin Saris age at the time of his death. 2 Robin Saris monthly income per Certification from USAID 3 Estimated foreign exchange currency 4 If there is no proof of living expenses, as in this case, the net income is estimated to be 50% of the gross annual income, People v. Templo, 400 Phil. 471, 494 (2000).
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(1.3) EXEMPLARY DAMAGES These are imposed by way of punishment, and are given for that purpose in addition to compensation for a loss sustained. As provided under Article 2229 imposed by way of example or correction for the public good to punish such actor of the wrong done. The amount of 50,000 will be reasonable for the court to appreciate the claim.

(1.4) ATTORNEYS FEE / LITIGATION EXPENSE These are the compensation for legal services and Litigation expenses may include obtaining copies of medical records, expert witness consultations, costs of hiring investigators, deposition costs, copies of photographs and other trial exhibits.

(2) Liabilities of PJ Sumilang PJ Sumilang as the driver of the Taxi Cab is criminally liable for his acts for being imprudent and thus, resulted the death of the victim. Hence, under Article 365 of the Revised Penal Code in which punishes any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony. PJ Sumilang will face a charge of Reckless Imprudence resulting to homicide. Moreover; Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which material damage results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act. (Ibid)

VI ANTICIPATED ARGUMENTS 1) The respondent will show that the existence of Employer and Employee relationship is absent. A) Produce papers relating to the relationship between the JPM Corp. and the employee.

2) The incident was caused by Fortuitous event. A) Produce the Police report regarding the vehicular incident, in default of such, gather witnesses to stand for their testimonies.

3) The exercise of a Good Father to their Employee. A) The law clearly states that This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees. (Art. 1759) thus, still liable for the death of the victim.

VII EVIDENCE REQUIRED 1) Papers relating to the relationship between the taxi driver and the employer. 2) Police report regarding the vehicular incident. 3) Certification from USAID of Mr. Saris Monthly income 4) Funeral receipts 5) Medico Legal receipts 6) Witnesses to the incident. (if any)

VIII RECOMMENDATION 1.) File for the complaint for recovery of damages against JPM Corp., and for the criminal charge against PJ Sumilang with the barangay and police authorities. 2.) Gather all Evidence previously mentioned. 3.) The case shall be filed before the Regional Trial Court of Manila; 4.) Prepare for the possible expenses that may incurred during the litigation.

Ochoa vs. G&S Transportation Corp. March 9, 2011 G.R. No. 170071 & 170125 Torts and Damages, Timoteo B. Aquino 2005