Legal Memorandum Sample 1

Republic of the Philippines

Municipal Trial Court

Sixth Region

Branch 7

INJURED PASSENGER

                        Plaintiff, For Damages

-versus-                                                            CIVIL CASE NO. 72-131411

                                                                                               

ZOMBIE TRANSPORTATION COMPANY

                        Defendant,

x-----------------------------------x

DEFENDANT’S MEMORANDUM

            The undersigned law firm most respectfully enters its appearance as counsel for the Plaintiff INJURED PASSENGER in the above-entitled case. Henceforth, it is most respectfully prayed that all notices and other legal processes be sent to and furnished the undersigned at the address indicated herein below.

AND BY WAY OF MEMORANDUM-

           

Plaintiff INJURED PASSENGER, thru the undersigned counsel and unto this Honorable Court, respectfully submits this MEMORANDUM in compliance with the 27 December 2014 Order of this Honorable Court which was received by defendant on 05 January 2015, requiring the parties to file their respective Memorandum within thirty (30) days from receipt or until 04 February 2015 as for the plaintiff.

STATEMENT OF THE FACT

 In order that this honorable court may be enlightened and guided in the judicious disposition of the above-entitled case, cited hereunder the material, relevant and pertinent facts of the case to wit:

1.      Plaintiff Injured Passenger is a commuter of a public utility vehicle.

2.      The defendant Zombie Transportation Company is the owner of the public utility vehicle.

3.      A vehicular accident occurred when the public utility automobile owned by the defendant collided with another vehicle.

4.      Due to this unfortunate event, the plaintiff, Injured Passenger sustained injuries and was brought to hospital on account of which dealing with incurred expenses.

5.      According to the investigation, it was found out that the vehicular accident was due to the negligence of the driver of the Zombie Transportation Company.

STATEMENT OF THE ISSUES

I

DEFENDANT IS LIABLE

FOR BREACH OF CONTRACT OF CARRIAGE

II

DEFENDANT DID NOT OBSERVE

EXTRAORDINARY DILIGENCE

REQUIRED BY THE LAW

III

PROXIMATE CAUSE DID NOT BAR

THE ACTION FOR DAMAGES

AGAINST DEFENDANT

IV

DEFENDANT IS LIABLE

FOR THE DAMAGES INCURRED

BY THE INJURIES OF THE

INJURED PASSENGER

ARGUMENTS/DISCUSSONS

I

DEFENDANT IS LIABLE

FOR BREACH OF CONTRACT OF CARRIAGE

____________________________________

The operator of a public utility vehicle is a common carrier in the eyes of the law. A common carrier is a person, corporation, firm or association engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air, for compensation, offering such services to the public.¹

In consideration of the defendant Zombie Transportation Company, diligence of a good father is not enough. Contracts of common carriage are governed by the provisions on common carriers of the Civil Code, the Public Service Act, and other special laws relating to transportation.² A common carrier is required to observe extraordinary diligence, and is presumed to be at fault or to have acted negligently in case of the loss of the effects of passengers, or the death or injuries to passengers.³

To overcome the presumption, the Zombie Transportation Company must prove that it exercised extraordinary diligence. However, it failed to fend off the presumption by which it would be tantamount to liabilities for the damages of the negligence of the driver.

__________________________________

¹_{Article 1732, Civil Code of the Philippines}

² _{Commonwealth Act No. 146, as amended, particularly by PD No. 1, Integrated Reorganization Plan and E.O. 546.}

³_{Article 1756, Civil Code of the Philippines}

II

DEFENDANT DID NOT OBSERVE

EXTRAORDINARY DILIGENCE

REQUIRED BY THE LAW

_________________________________

The Code Commission, in justifying this extraordinary diligence required of a common carrier, says the following:

A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautions persons, with due regard for all circumstances. This extraordinary diligence required of common carriers is calculated to protect the passengers from the tragic mishaps that frequently occur in connection with rapid modern transportation. This high standard of care is imperatively demanded by the precariousness of human life and by the consideration that every person must in every way be safeguarded against all injury.⁴ (Emphasis supplied)

The principles governing the liability of a common carrier can be summarized as follows: (1) the liability of a carrier is contractual and arises upon breach of its obligation. There is breach if it fails to exert extraordinary diligence according to all circumstances of each case; (2) a carrier is obliged to carry its passenger with the utmost diligence of a very cautious person, having due regard for all the circumstances; (3) a carrier is presumed to be at fault or to have acted negligently in case of death of, or injury to, passengers, it being its duty to prove that it exercised extraordinary diligence; and (4) the carrier is not an insurer against all risks of travel.⁵

            The question now arises whether the defendant Zombie Transportation Company observed extraordinary diligence required for common carriers. Unfortunately, based on the findings on the facts of the case, the driver of the PUV caused the vehicular accident. By which this incident sustained injuries to the plaintiff Injured Passenger.

            The presumption of negligence, being a presumption of law, laid the burden of evidence on their shoulders to establish that they had not been negligent.⁶ It was the law no less that required them to prove their observance of extraordinary diligence in seeing to the safe and secure carriage of the passengers to their destination. Until they did so in a credible manner, they stood to be held legally responsible for the injuries of the passenger.⁷

__________________________________

⁴ _{Report of the Code Commission, pp. 35-36, Padilla, Civil Code of the Philippines, Vol. IV, 1956 ed., p. 197}.

  _{Article 1755, Civil Code of the Philippines}

⁵ _{Isaac vs. A.L. Ammen Transportation Co., Inc., G.R. No. L-9671, August 23, 1957, [J., Bautista-Angelo]}

⁶ _{31A CJS, Evidence §134, citing State Tax Commission v. Phelps Dodge Corporation, 157 P. 2d 693, 62 Ariz. 320; Kott v. Hilton, 114 P. 2d 666, 45 C.A. 2d 548; Lindley v. Mowell, Civ. Ap. 232 S.W. 2d 256.}

⁷_{Sps Pereña vs. Sps Zarate, G.R. No. 157917, August 29, 2012, [Bersamin, J.]}

III

PROXIMATE CAUSE DID NOT BAR

THE ACTION FOR DAMAGES

AGAINST DEFENDANT

_________________________________

Proximate cause is defined as an act from which an injury results as a natural, direct, uninterrupted, consequence and without which the injury would not have occurred.⁸ The doctrine of proximate cause is applicable only in actions for quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing liability to a person where there is no relation between him and another party. In such a case, the obligation is created by law itself. But, where there is a pre-existing contractual relation between the parties, it is the parties themselves who create the obligation, and the function of the law is merely to regulate the relation thus created. Insofar as contracts of carriage are concerned, some aspects regulated by the Civil Code are those respecting the diligence required of common carriers with regard to the safety of passengers as well as the presumption of negligence in cases of death or injury to passengers.⁹ It provides:

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 the vigilance over the goods is further expressed in articles 1734, 1735, and 1746, Nos. 5,6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756.

Art. 1755. A 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 due regard for all the circumstances.

In the case at bar, it is evidently stated in the facts that Zombie Transportation Company is at fault on the vehicular accident. The collision was due to the negligence of the driver of the PUV owned by the defendant. Hence, the proximate cause is the laxity of the driver which the presumption of law is proven.

___________________________

⁸_{www.legal-dictionary.com}

⁹_{Calalas v. Sunga and Salva, G.R. No. 122039. May 31, 2000}

IV

DEFENDANT IS LIABLE

FOR THE DAMAGES INCURRED

BY THE INJURIES OF THE

INJURED PASSENGER

_________________________________

            Failure to prove that Zombie Transportation Company exercised extraordinary diligence or utmost diligence of every cautious person, having due regard for all circumstances, in avoiding the collision which resulted in the injury caused to the plaintiff is tantamount to civil damages for the injured passenger.

            Moreover, it was manifestly established that the proximate cause of the accident is the negligence of the PUV driver owned by the company. Assuming arguendo that the truck was the legal cause of the collision, still it is not a valid defense for breach of contract in the case of common carriage. Without proving that it carried the passenger safely as far as human care and foresight could provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances required by Article 1755. The legal basis for this is:

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 by articles 1733 and 1755.

Thus, the defendant Zombie Transportation Company is liable to the civil damages incurred by the injured passenger.

CONCLUSION

            In summary, the defendant Zombie Transportation Company did not observe the extraordinary diligence required for common carrier. Unable to break the presumption of negligence prescribed by law give rise to the liabilities incurred and sustained on the injuries on the passenger.

PRAYER

            WHEREFORE, premises considered, it is most respectfully prayed unto this Honorable Court that an Order be issued resolving the claims here in Plaintiff Injured Passenger be granted.

Other reliefs deemed just, proper and equitable in the premises are likewise most respectfully prayed for.

RESPECTFULLY SUBMITTED.

Tigbauan, Iloilo, Philippines, 16 January 2015

                                                            PALMA LAW OFFICE

                                                            Counsel for Defendant                               

                                                            Rm.72, Santos Bldg.

                                                            La Paz, Iloilo City

                                                            

                                                            By:

                                                            KYTH L. PALMA

                                                            PTR No: 72131413

                                                            Roll No. 5272

                                                            IBP No. 92356

                                                            MCLE No. 1453