CONCURRING OPINION
CAGUIOA, J.:
I concur with the result. However, I am compelled to clarify certain basic legal principles on moral and actual damages.
While there is legal basis to deny the claim for moral damages based on breach of contract of carriage, its award could, however, be justified under quasi-delict.1âwphi1 The injury suffered by Dionisio resulted from both breach of contract of carriage and quasi-delict. Evidently, the facts establish the commission of a quasi-delict by the driver of Philippine Rabbit which resulted to the physical injury suffered by Dionisio - this scenario falls under Article 2219 (2) of the Civil Code.1
While the trial court treated Dionisio's complaint for damages as one predicated on breach of contract of carriage, it nonetheless found that Philippine Rabbit failed to exercise the diligence of a good father of a family in the selection and supervision of its negligent driver, rendering it solidarily liable for damages. This standard (diligence of a good father of a family in the selection and supervision of an employee) is applicable in cases of quasi-delict, not breach of contract of carriage, as the latter carries a different standard (exercise of extraordinary diligence in the performance of its contractual obligation).2 Moreover, in cases of breach of contract of carriage (culpa contractual) the liability of the common carrier or employer is direct and immediate, not merely subsidiary or secondary,3 while in cases of quasi-delict (culpa aquiliana), the liability of the common carrier (employer) and the negligent driver (employee) is direct, primary, and solidary.4 Thus, in a case of breach of contract of carriage, the common carrier is the person liable and not the driver, while in a case of quasi-delict, both the common carrier and the driver are liable.5
On the issue of actual damages, I believe that they could have been granted based on the testimony of Dionisio. Testimonial evidence may be sufficient to establish the award of actual damages for loss of compensation, in cases where the victim is: (1) self-employed and earning less than the minimum wage under current labor laws, in which case, judicial notice may be taken of the fact that in the deceased's line of work, no documentary evidence is available; or (2) was employed as a daily wage worker earning less than the minimum wage under current labor laws.6
While Dionisio was employed as a public-school teacher at the time of the accident, he also worked part-time as a tricycle driver. Dionisio testified that ₱80.00 is his average daily earnings in his sideline as a tricycle driver. The amount could not possibly pertain to his loss of income as a public-school teacher because he continued practicing his profession despite the amputation of his right arm. Rather, the loss of his right arm has a direct bearing on his ability to drive a tricycle. That Dionisio has to drive a tricycle to augment his salary as a public-school teacher is both lamentable and condemnable. If a tricycle passenger pays ₱20.00 for a special trip, which is a conservative estimate, then ₱80.00 covers only four (4) trips. Thus, as a self-employed part-time tricycle driver, who was earning less than the minimum wage under current labor laws and judicial notice is taken that no documentary evidence is available to prove the minimum wage in that line of work, Dionisio's testimony is sufficient to support the award of ₱500,000.00 for loss of earning capacity as computed by him.
Since there could be basis for the award of actual damages for loss of compensation, the award made by the ponencia of temperate damages could have been dispensed with.
ALFREDO BENJAMIN S. CAGUIOA
Associate Justice
Footnotes
1 Republic Act No. 386, entitled "AN ACT TO ORDAIN AND INSTITUTE THE CIVIL CODE OF THE PHILIPPINES" otherwise known as the "CIVIL CODE OF THE PHILIPPINES" (1950).
2 CIVIL CODE, art. 2180; Torres-Madrid Brokerage, Inc. v. FEB Mitsui Marine Insurance Co., Inc., G.R. 194121,July 11,2016.
3 Vda. de Medina v. Cresencia, 99 Phil. 506, 510 (1956).
4 National Power Corporation v. Court of Appeals, 355 Phil. 642 (1998).
5 TIMOTEO B. AQUINO, REVIEWER ON CIVIL LAW 763-764 (1st ed. 2014).
6 Enriquez v. Isarog Line Transport, Inc., G.R. No. 212008, November 16, 2016, pp. 3-4.
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