G.R. No. 149749 ; July 25, 2006
AGAPITA DIAZ, petitioner, vs. COURT OF APPEALS; HEIRS OF SHERLY MONEÑO, ET AL., represented by EDDIE C. MONEÑO; TEODORO LANTORIA and ROGELIO FRANCISCO, respondents.

FACTS

Petitioner Agapita Diaz operated a common carrier taxi. On July 20, 1996, her taxi, driven by Arman Retes, was moving at excessive speed and rammed into the rear of a cargo truck owned by respondent Teodoro Lantoria and driven by respondent Rogelio Francisco. The accident resulted in the death of passenger Sherly Moneño. The heirs of Moneño filed an action for breach of contract of carriage and damages against Diaz and her driver. Diaz subsequently filed a third-party complaint against Lantoria and Francisco.
The pre-trial conference was scheduled, but petitioner and her counsel failed to appear despite due notice. The trial court reset the pre-trial, but petitioner and counsel again failed to appear. Consequently, the court allowed the private respondents to present their evidence ex parte. More than seven months after the conclusion of this ex parte presentation, petitioner filed a motion for leave to present evidence on her defense and third-party complaint, which the trial court denied.

ISSUE

The issues are: (1) whether the Court of Appeals committed grave abuse of discretion in affirming the trial court’s denial of petitioner’s motion to present evidence, and (2) whether it committed grave abuse of discretion in affirming the trial court’s decision holding petitioner liable for breach of contract of carriage.

RULING

The petition lacks merit. On the first issue, the trial court correctly denied petitioner’s motion to present evidence. Under Sections 4 and 5, Rule 18 of the Rules of Court, the duty to appear at pre-trial is mandatory. The notice of pre-trial was validly served on petitioner’s counsel, who was charged with the duty of notifying her. The counsel’s failure constituted negligence binding upon the client. The defendant’s failure to appear is cause to allow the plaintiff to present evidence ex parte. The trial court’s order allowing ex parte presentation and subsequently denying the belated motion to present evidence was proper and not a grave abuse of discretion.
On the second issue, the finding of liability for breach of contract is correct. A common carrier is bound to observe extraordinary diligence in safeguarding passengers. In a contract of carriage, the carrier is presumed negligent upon the death of a passenger; this statutory presumption can only be overcome by proof of such extraordinary diligence. Petitioner, as the common carrier, failed to rebut this presumption. The factual findings of the trial court, affirmed by the Court of Appeals, established that the accident was caused by the reckless speed and gross negligence of petitioner’s driver. Therefore, petitioner was correctly held liable for breach of contract. No grave abuse of discretion attended the appellate court’s affirmance. The petition is dismissed.