Negligence

Picart vs. Smith

37 Phil 809 (March 15, 1918)
Facts: Plaintiff, Picart was riding a pony on Carlatan Bridge, San
Fernando. He pulled his pony over the bridges railing on the right
instead of left upon seeing the automobile rapidly approaching.
His pony was unfortunately frightened when the automobile
passed so close to them. The horse was struck on the hock of the
left hind leg by the flange of the car and the limb was broken. The
horse fell and its rider was thrown off with some violence. As a
result of its injuries the horse died. Picart received contusions
which caused temporary unconsciousness and required medical
attention for several days. Picart seeks to render the sum of
Php31,000 as damages. CFI- La Union absolved Smith.
Issue: Whether or not defendant was negligent and if the
concept of last clear chance is attributable to him?
Held: The defendant Smith is negligent and liable under the
doctrine of last clear chance even though the plaintiff was on the
wrong side of the bridge. Defendant has had the opportunity to
avoid the accident after realizing that the negligence by the
plaintiff could not have placed him in a position of better safety.
The last clear chance was passed unto the defendant
driving the automobile. It was his duty to bring the car to an
immediate stop or upon seeing no other persons were on the
bridge to take the other side and pass far away from the pony to
avoid collision. Instead of doing this, Smith ran straight on until he
was almost upon the horse. When Smith exposed the horse and
rider to this danger he was negligent in the eye of the law. Under
the circumstances, the law is that the person who has the last
clear chance to avoid the impending harm and fails to do is
chargeable with the consequences, without reference to the prior
negligence of the other party. The existence of negligence in a
given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law
considers what would be reckless, blameworthy, or negligent in
the man of ordinary intelligence and prudence and determines
liability by that.
The Supreme Court reversed the judgment of the lower
court, and rendered judgment that Picart recover of Smith the
sum of P200, with costs of both instances. The court held that the
sum awarded was estimated to include the value of the horse,
medical expenses of Picart, the loss or damage occasioned to
articles of his apparel, and lawful interest on the whole to the date
of this recovery.

Negligence in special cases (Children)

JARCO Marketing Corporation vs. Court of Appeals
and Spouses Aguilar
GR No. 129792 (December 21, 1999)
Facts: Petitioner Jarco is the owner of Syvel's Department Store in
Makati City. Respondent spouses are the parents of Zhieneth
Aguilar.
nd

On May 9, 1983, Criselda and Zhieneth were at the 2

floor of Syvel's. As Criselda was signing her credit card slip, she felt
a sudden gust of wind and heard a loud thud. She looked behind
her and saw her 6 yr. old daughter Zhieneth pinned down on the
floor by the store's giftwrapping counter/structure. Zhieneth was
crying and screaming for help. She was rushed to the Makati
Medical Center and was operated on. The next day, she lost her
speech and fourteen days after, she died. The cause of her death
was attributed to the injuries she sustained.

Spouses Aguilar demanded upon petitioners the

reimbursement of the hospitalization, medical bills, wake and
funeral expenses but petitioners refused to pay. Spouses filed a
complaint for damages. The trial court dismissed the complaint
and ruled that the proximate cause of the fall of the counter on
Zhieneth was her act of clinging to it. The court also held that
Criselda's negligence in allowing her daughter to freely roam
around the store contributed to the accident. In absolving
petitioners from liability, the court reasoned that the counter was
nd
situated at the end corner of the 2 floor as a precautionary
measure, hencce, it could not be considered as an attractive
nuisance.
On appeal, CA reversed the judgment and found that
petitioners were negligent in maintaining a structurally dangerous
counter. The counter was shaped like an inverted 'L' and it was top
heavy and the weight of the upper portion was neither evenly
distributed nor supported by its narrow base. It was also
established that 2 employees already requested the management
to nail the counter because it was shaky but the latter did not take
any action. The management insists that it has been there for 15
years and it has been stable. The Court of Appeals also declared
that Zhieneth was absolutely incapable of negligence or tort. It
also absolved Criselda of any negligence, finding nothing wrong in
momentarily allowing Zhieneth to walk while she signed the
document. Moreover, the allegation that Zhieneth clung to the
counter which caused the same to fall on her was denied by
Gonzales in his testimony. He said that when the doctor asked
Zhieneth what she did, the child answered 'nothing, i did not come
near the counter, the counter just fell on me'. The CA awarded

actual and compensatory damages. Petitioners filed a motion for

reconsideration but the court denied the same. Hence, this appeal.
Issues:
1.

Whether the death of Zhieneth was accidental or

attributable to negligence.

2.

In case of a finding of negligence, whether the same was

attributable to the store management for maintaining a
defective counter or to Criselda and Zhieneth for failing
to exercise due and reasonable care while inside the
store premises.

Held: An accident pertains to a fortuitous circumstance, event or

happening; an event happening without any human agency, or if
happening wholly or partly through human agency, an event which
under the circumstances is unusual or unexpected by the person
to whom it happens. On the other hand, negligence is the failure
to observe, for the protection of the interest of another person,
that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers
injury. Accident and negligence are intrinsically contradictory; one
cannot exist with the other.
The test in determining the existence of negligence is
enunciated in the landmark case of PICART V. SMITH, thus: Did the
defendant in doing the alleged negligent act use that reasonable
care and caution which an ordinarily prudent person would have
used in the same situation? If not, then he is guilty of negligence.
The court held that Zhieneth's tragedy and death can only be
attributed to negligence.
The testimony of Gonzales pertaining to Zhieneth's statement
formed part of the res gestae under Section 42, Rule 130 of the
Rules of Court. All that is required for their admissibility as part of
the res gestae is that they be made or uttered under the influence
of a startling event before the declarant had the time to think and
concoct a falsehood as witnessed by the person who testified in
court. it is unthinkable for a child of tender age and in extreme
pain to have lied to a doctor whom she trusted with her life.
Zhieneth performed no act that facilitated her tragic
death. However, petitioners did, through their negligence or
omission to secure or make stable the counter's base.
Anent the negligence imputed to Zhieneth, the court
applied the rule that a child under nine years of age must be
conclusively presumed incapable of contributory negligence as a
matter of law. And even if contributory negligence can be
attributed to Zhieneth and assume that she climbed over the
counter, no injury should have occurred if the counter was stable
and sturdy. Criselda too, should be absolved from contributory
negligence. Zhieneth held on to her mother's hand, Criselda

momentarily released the child's hand when she signed her credit
card slip. At this precise moment, it was reasonable for Criselda to
let go of her child. When the counter fell on her child, Criselda was
just one foot away.

Del Rosario vs. Manila Electric Company

57 Phil 478 (November 5, 1932)
Facts: At 2PM in the afternoon, trouble developed in a wire used
and operated by Manila Electric Company for the purpose of
conducting electricity and lighting the City of Manila and its
suburbs. Noguera noticed that the wire was burning and the
connections smoking. He then told Soco to telephone the
Malabon station of defendant. Soco transmitted the message at
2.25 p.m. and received answer from the station to the effect that
they would send an inspector.
At 4 p. m. the neighborhood school was dismissed and the
children went home. Among these was Alberto Del Rosario with
two of his friends. When they came upon the place where the
wire was down, Alberto's friend tried to touch it but was stopped
by his other friend, Jose. Alberto, saying he has the habit of
touching wires, touched the wire despit Jose's warning, got
electrocuted, and was pronounced dead when brought to the
hospital.
The parents of Alberto filed for damages against the company.
The engineer of the company says that it was customary for the
company to make a special inspection of these wires at least once
in six months, and that all of the company's inspectors were
required in their daily rounds to keep a lookout for trouble of this
kind. There is nothing in the record indicating any particular cause
for the parting of the wire.
Issue: Whether or not negligence can be imputed to the
defendant company, making it liable for damages.
Held: Yes. The Court is of the opinion that the presumption of
negligence on the part of the company from the breakage of this
wire has not been overcome, and the defendant is responsible for
the accident. Furthermore, when notice was received at the
Malabon station at 2.25 p. m., somebody should have been
dispatched to the scene of the trouble at once, or other measures
taken to guard the point of danger; but more than an hour and a
half passed before anyone representing the company appeared on
the scene, and in the meantime this child had been claimed as a
victim.
It is doubtful whether contributory negligence can properly be
imputed to the deceased, owing to his immature years and the

natural curiosity as a 9-year-old boy. The fact that he ignored the

warnings of his friend does not alter the case.
The Court therefore awards P1000 as general damages for loss of
service and P250 for expenses incurred for the death and burial of
the boy.

Ylarde vs. Aquino

163 SCRA 697 (July 29, 1988)
Facts: Private respondent Soriano was the principal of the
Gabaldon Primary School, a public school in Tayug, Pangasinan,
while Private respondent Aquino was a teacher therein. During the
happening of the events which led to the filing of the case, there
were several concrete blocks in the school which were remnants
of the old school shop that was destroyed in World War II.
Realizing that the huge stones were serious hazards to the
schoolchildren, Sergio Banez, also a teacher therein, started
burying them. Aquino, in order to help, gathered eighteen of his
male pupils after class and ordered them to dig an excavation pit
wherein the stone can be buried. It was continued the following
day by four of the original eighteen pupils. Among them is the son
of the petitioners, Novelito. When the depth was right enough to
accommodate the concrete block, Aquino and his pupils got out of
the hole. Aquino left to borrow a key to the workroom from Banez
to get a rope, he instructed the pupils not to touch the stone.
Three of the four kids, including Novelito, playfully jumped into
the pit. The other kid, without any warning jumped on top of the
concrete block causing it to slide down towards the opening.
Except for Novelito, the other kids were able to go out of the pit.
The concrete block pinned Novelito to the wall in a standing
position. As a result thereof, he sustained injuries. Novelito died 3
days after. Petitioner-parents filed a suit for damages against both
private respondents. Petitioners base their action against Aquino
on Article 2176 NCC for his alleged negligence that caused their
son's death while the complaint against Soriano as the head of
school is founded on Article 2180 NCC. The lower court dismissed
the complaint on the following grounds: (1) that the digging done
by the pupils is in line with their course called Work Education; (2)
that Aquino exercised the utmost diligence of a very cautious
person; and (3) that the demise of Novelito was due to his own
reckless imprudence. This was affirmed by CA on appeal. Hence
the present petition.
Issues: (1)Whether or not Soriano is liable for damages under Art.
2180. (2) Whether or not Aquino is liable for damages under Art.
2176.
Held: 1. No. The Court based their ruling on the doctrine
enunciated in the case of Amadora vs. CA, Article 2180 applies to

all schools, academic as well as non-academic. It provides further

that teachers in general shall be liable for the acts of their students
except where the school is technical in nature, in which case it is
the head thereof who shall be answerable. Thus, Soriano, as
principal, cannot be held liable for the reason that the school he
heads is an academic school and not a school of arts and trades.
Besides, as clearly admitted by private respondent Aquino, private
respondent Soriano did not give any instruction regarding the
digging.
2. Yes. It is very clear that private respondent Aquino
acted with fault and gross negligence when he: (1) failed to avail
himself of services of adult manual laborers and instead utilized
his pupils aged ten to eleven to make an excavation near the oneton concrete stone which he knew to be a very hazardous task; (2)
required the children to remain inside the pit even after they had
finished digging, knowing that the huge block was lying nearby and
could be easily pushed or kicked aside by any pupil who by chance
may go to the perilous area; (3) ordered them to level the soil
around the excavation when it was so apparent that the huge
stone was at the brink of falling; (4) went to a place where he
would not be able to check on the children's safety; and (5) left the
children close to the excavation, an obviously attractive nuisance.
These negligent acts have a direct causal connection to the death
of Novelito.
A reasonably prudent person would have foreseen that
bringing children to an excavation site, and more so, leaving them
there all by themselves, may result in an accident. An ordinarily
careful human being would not assume that a simple warning "not
to touch the stone" is sufficient to cast away all the serious danger
that a huge concrete block adjacent to an excavation would
present to the children. Moreover, a teacher who stands in loco
parentis to his pupils would have made sure that the children are
protected from all harm in his company.
The defense that the digging done by the pupils was part
of their Work Education was not sustained, since the nature of the
activity reveals a dangerous one and requires the attendance of
adult laborers and not ten-year old grade-four pupils. In fact, there
was no showing that it was included in the lesson plan for their
Work Education. Further it is admitted that Aquino decided all by
himself to help his colleague.
The finding of the lower court that the injuries were
caused by Novelitos own reckless imprudence was not sustained.
The Court ruled that deceased was only 10 years old as such his
actuations were natural to a boy his age. The degree of care
required to be exercised must vary with ones capacity, discretion,
knowledge and experience under the same or similar
circumstances.

Negligence (Experts/Professionals)
Cullion Ice, Fish and Electric Company vs.
Philippine Motors Corporation
GR No. 32611 (November 3, 1930)
Facts: Culion Ice, Fish & Electric Co. Inc. owned a motor schooner
named Gwendoline. H.D. Cranston, the representative of Cuilion in
Manila, decided to have the engine on the Gwendoline converted
from gasoline consumer to a crude oil burner. He had a conference
with C.E. Quest, the manager of Phil. Motors, who agreed to do
the job, with the understanding that payment shall be made upon
completion of the work.
The work began and conducted under the supervision of
Mr. Quest, and chiefly by a mechanic whom Quest took with him
to the boat. Cranston also directed the members of the crew of
the Gwendoline to assist in the work, placing them under the
command of Quest.
Upon inspection of the engine, Quest concluded that a
new carburetor was needed, hence one was installed. The next
problem was to introduce into the carburetor the baser fuel. A
temporary tank to contain the mixture was placed on deck above
and at a short distance from the compartment covering the
engine. This tank was connected with the carburetor by a piece of
tubing, which was apparently not well fitted at the point where it
was connected with the tank. The fuel mixture leaked from the
tank and dripped down into the engine compartment. To
paraphrase, a device was made where the engine can be
converted from gasoline to crude oil, switching back and forth.
Later, it was observed that the carburetor was flooding,
and that the gasoline, or other fuel, was dripping freely from the
lower part to the carburetor to the floor. This fact was called to
Quest's attention, but he said that, when the engine had gotten to
running well, the flooding would stop
The boat was taken out into the bay for a trial run. The
engine stopped a few times during the first run, owing to the use
of an improper mixture of fuel. As the boat was coming in from
this run, the engine stopped, and connection again had to be
made with the gasoline line to get a new start. After this had been
done, the mechanic, or engineer, switched to the tube connecting
with the new mixture. A moment later a back fire occurred in the
cylinder chamber. This caused a flame to shoot back into the
carburetor, and instantly the carburetor and adjacent parts were
covered with a mass of flames, which the members of the crew
were unable to subdue. A case for damages was filed.
Issue: Whether or not the loss of the boat is chargeable to the
negligence and lack of skill of Quest.

Held: YES. When a person holds himself out as being competent

to do things requiring professional skill, he will be held liable for
negligence if he fails to exhibit the care and skill of one ordinarily
skilled in the particular work which he attempts to do.
The temporary tank in which the mixture was prepared
was apparently at too great an elevation from the carburetor, so
that when the fuel line was opened, the hydrostatic pressure in
the carburetor was greater than the delicate parts of the
carburetor could sustain. This was the cause of the flooding of the
carburetor; and the result was that; when the back fire occurred,
the external parts of the carburetor, already saturated with
gasoline, burst into flames, whence the fire was quickly
communicated to the highly inflammable material near-by. The
leak along the pipe line and the flooding of the carburetor had
created a dangerous situation, which a prudent mechanic, versed
in repairs of this nature, would have taken precautions to avoid.
Proof shows that Quest had had ample experience in
fixing the engines of automobiles and tractors, but it does not
appear that he was experienced in the doing of similar work on
boats. Possibly the dripping of the mixture form the tank on deck
and the flooding of the carburetor did not convey to his mind an
adequate impression of the danger of fire. Quest did not use the
skill that would have been exhibited by one ordinarily expert in
repairing gasoline engines on boats. There was here, on the part
of Quest, a blameworthy antecedent inadvertence to possible
harm, and this constitutes negligence. The burning of the
Gwendoline may be said to have resulted from accident, but this
accident was in no sense an unavoidable accident. It would not
have occurred but for Quest's carelessness or lack of skill.

US v. Pineda
37 Phil 456 (January 22, 1918)
Facts: Santiago Pineda is a registered pharmacist and the owner of
a drug store. Feliciano Santos, having some sick horses, presented
a copy of a prescription to Pineda. On other occasions, Santos had
given the medicine prescribed to his horses with good results.
Under the supervision of Pineda, the drugs were prepared and
given Santos.
Santos, under the belief that he had purchased potassium
chlorate, placed two of the packages in water and gave the doses
to two of his sick horses. Another package was mixed with water
for another horse, but was not used. The two horses, who took the
drugs, died afterwards. Santos took the drug packages to the
Bureau of Science for examination. It was found that the packages
contained not potassium chlorate but barium chlorate (a poison).
When sued Pineda alleges that he did not intentionally sold the
poison and that what the law (to which he is indicted) forbids is
the sell any drug or poison under any "fraudulent name.

ISSUES: Whether or not Pineda can be held liable for the death of
the horses, assuming he did not deliberately sold poison.
HELD: Yes. In view of the tremendous and imminent danger to the
public from the careless sale of poison and medicine, we do not
deem it too rigid a rule to hold that the law penalizes any druggist
who shall sell one drug for another whether it be through
negligence or mistake. The care required must be commensurate
with the danger involved, and the skill employed must correspond
with the superior knowledge of the business which the law
demands.
As a pharmacist, he is made responsible for the quality of
all drugs and poison he sells. If were we to adhere to the technical
definition of fraud it would be difficult, if not impossible, to convict
any druggist of a violation of the law. The prosecution would have
to prove to a reasonable degree of certainty that the druggist
made a material representation; that it was false; that when he
made it he knew that it was false or made it recklessly without any
knowledge of its truth and as a positive assertion; that he made it
with the intention that it should be acted upon by the purchaser;
that the purchaser acted in reliance upon it, and that the
purchaser suffered injury. Such a construction with a literal
following of well-known principles on the subject of fraud would
strip the law of at least much of its force. It would leave the
innocent purchaser of drugs, who must blindly trust in the good
faith and vigilance of the pharmacist, at the mercy of any
unscrupulous vendor.
We should not, therefore, without good reason so devitalize the
law. The rule of caveat emptor cannot apply to the purchase and
sale of drugs. The vendor and the vendee in this case do not stand
at arms length as in ordinary transactions. It would be idle
mockery for the customer to make an examination of a compound
of which he can know nothing. Consequently, it must be that the
druggist warrants that he will deliver the drug called for.

BPI v. CA
216 SCRA 51 (November 26, 1992)
Facts: A person purporting to be Eligia G. Fernando, who had a
money market placement evidenced by a promissory note with a
maturity date of November 11, 1981 and a maturity value of
P2,462,243.19, called BPI's Money Market Department. The caller
wanted to pre-terminate the placement. However, Reginaldo
Eustaquio, Dealer Trainee in BPI's Money Market Department, told
her that "trading time" was over for the day (Friday). He suggested
that she call again the following week. The promissory note the
caller wanted to preterminate was a roll-over of an earlier 50-day
money market placement that had matured on September 24,
1981.

Later that afternoon, Eustaquio conveyed the request for

pretermination to the officer who before had handled Fernando's
account, Penelope Bulan, but Eustaquio was left to attend to the
pretermination process.
The caller presenting herself as Ms. Fernando phoned
again and made a follow-up with Eustaquio the pretermination of
the placement. Although Eustaquio was not familiar with the voice
of the real Eligia G. Fernando, Eustaquio "made certain" that the
caller was the real Eligia G. Fernando by "verifying" the details the
caller gave with the details in "the ledger/folder" of the account.
But neither Eustaquio nor Bulan who originally handled Fernando's
account, nor anybody else at BPI, bothered to call up Fernando at
her Philamlife office to verify the request for pretermination.
Informed that the placement would yield less than the maturity
value, the caller insisted on the pretermination just the same and
asked that two checks be issued for the proceeds, one for
P1,800,000.00 and the second for the balance, and that the checks
be delivered to her office at Philamlife. Eustaquio, thus, proceeded
to prepare the "purchase order slip" for the requested
pretermination as required by office procedure. From his desk, the
papers, following the processing route, passed through the
position analyst, securities clerk, verifier clerk and documentation
clerk, before the two cashier's checks were prepared. The two
cashier's checks, together with the papers consisting of the money
market placement was to be preterminated and the promissory
note to be preterminated, were sent to Gerlanda E. de Castro and
Celestino Sampiton, Jr., Manager and Administrative Assistant,
respectively, in BPI's Treasury Operations Department, both
authorized signatories for BPI, who signed the two checks that
very morning. Thereafter, the checks went to the dispatcher for
delivery.
In the same morning when the checks were to be
delivered, the caller changed the delivery instructions; instead that
the checks were to be delivered to her office at Philamlife, she
would pick the checks up herself or send her niece, Rosemarie
Fernando, to pick them up. Eustaquio then told the caller that if
her niece was going to get the checks, her niece would have to
being a written authorization from her. It was agreed that
Rosemarie would pick the checks up from the bank. Thus,
Eustaquio hurriedly went to the dispatcher to inform him of the
new delivery instructions for the checks; in fact, he changed the
delivery instruction on the purchase order slip, writing thereon
"Rosemarie Fernando release only with authority to pick up.
It was, in fact Rosemarie who got the two checks from the
dispatcher, as shown by the delivery receipt. As it turned out, the
same person impersonated both Eligia G. Fernando and Rosemarie
Fernando. Although the checks represented the termination

proceeds of Fernando's placement, not just a roll-over of the

placement, the dispatcher failed to require the surrender of the
promissory note evidencing the placement. There is also no
showing that Fernando's purported signature on the letter
requesting the pretermination and the latter authorizing
Rosemarie to pick up the two checks was compared or verified
with Fernando's signature in BPI's file. Such purported signature
has been established to be forged although there 0was a "close
similarity" to the real signature of Eligia G. Fernando.
On a different day, a woman who represented herself to
be Eligia G. Fernando applied at China Banking Corporation's Head
Office for the opening of a current account. She was accompanied
and introduced to Emily Sylianco Cuaso, Cash Supervisor, by
Antonio Concepcion whom Cuaso knew to have opened, earlier
that year, an account. What Cuaso indicated in the application
form, however, was that Fernando was introduced by Valentin Co,
and with her initials on the form signifying her approval, she
referred the application to the New Accounts Section for
processing. The application form shows the signature of "Eligia G.
Fernando", "her" date of birth, sex, civil status, nationality,
occupation ("business woman"), tax account number, and initial
deposit of P10,000.00. This final approval of the new current
account is indicated on the application form by the initials of the
cashier, who did not interview the new client but affixed her
initials on the application form after reviewing it.
The woman holding herself out as Eligia G. Fernando
deposited the two checks in controversy. Her endorsement on the
two checks was found to conform with the depositor's specimen
signature. CBC's guaranty of prior endorsements and/or lack of
endorsement was then stamped on the two checks, which CBC
forthwith sent to clearing and which BPI cleared on the same day.
Two days after, withdrawals began.

The Arbitration Committee ruled in favor of BPI and

ordered CBC to pay the former with interest. - However, upon
CBCs motion for reconsideration, the Board of Directors of the
PCHC reversed the Arbitration Committee's decision and dismissed
the complaint of BPI while ordering it to pay CBC.
BPI then filed a petition for review with the Regional Trial
Court which dismissed said petition but modified the award by
including a provision for attorneys fees in favor of CBC, among
others. The court of appeals affirmed the trial courts decision.
ISSUES: Who between BPI and CBC should be held liable? Whose
negligence was the proximate cause of the payment of the forged
checks made by the impostor?
HELD: In the present petition, Fernandos name in the checks were
forged. The checks are "wholly inoperative" and of no effect.
However, the underlying circumstances of the case show that the
general rule on forgery is not applicable. The issue as to who
between the parties should bear the loss in the payment of the
forged checks necessities the determination of the rights and
liabilities of the parties involved in the controversy in relation to
the forged checks.
The records show that petitioner BPI, as drawee bank and
CBC as representing or collecting bank were both negligent
resulting in the encashment of the forged checks.

The maturity date of Eligia G. Fernado's money market

placement with BPI came and the real Eligia G. Fernando went to
BPI for the roll-over of her placement. She disclaimed having
preterminated her placement. She then executed an affidavit
stating that while she was the payee of the two checks in
controversy, she never received nor endorsed them and that her
purported signature on the back of the checks was not hers but
forged. With her surrender of the original of the promissory note
evidencing the placement which matured that day, BPI issued her
a new promissory note to evidence a roll-over of the placement.

The Arbitration Committee in its decision, analyzed the

negligence of the employees of BPI involved who are involved in
the processing of the pre-termination of Fernando's money
market placement and in the issuance and delivery of the subject
checks. A) The impostor could have been readily unmasked by a
mere telephone call, which nobody in BPI bothered to make to
Fernando; b) The officer who used to handle Fernando's account
did not do anything about the account's pre-termination; c) Again
no verification appears to have been made on Fernando's
purported signature on the letter requesting the pretermination
and the letter authorizing her niece to pick-up the checks, yet, her
signature was in BPI's file; and d) the surrender of the promissory
note evidencing the money market placement that was
supposedly pre-terminated. The Arbitration Committee, however,
belittled BPI's negligence compared to that of CBC which it
declared as graver and the proximate cause of the loss of the
subject checks to the impostor.

BPI returned the two checks in controversy to CBC as supported by

Eligia G. Fernando's affidavit, for the reason "Payee's endorsement
forged". CBC, in turn, returned the checks for reason "Beyond
Clearing Time". These incidents led to the filing of this case with
the Arbitration Committee.

Banks handle daily transactions involving millions of

pesos. By the very nature of their work the degree of
responsibility, care and trustworthiness expected of their
employees and officials is far greater than those of ordinary clerks
and employees. For obvious reasons, the banks are expected to

exercise the highest degree of diligence in the selection and

supervision of their employees.
In the present case, there is no question that the banks
were negligent in the selection and supervision of their
employees. The Arbitration Committee, the PCHC Board of
Directors and the lower court, however disagree in the evaluation
of the degree of negligence of the banks. While the Arbitration
Committee declared the negligence of respondent CBC graver, the
PCHC Board of Directors and the lower courts declared that BPI's
negligence was graver. To the extent that the degree of negligence
is equated to the proximate cause of the loss, we rule that the
issue as to whose negligence is graver is relevant. No matter how
many justifications both banks present to avoid responsibility, they
cannot erase the fact that they were both guilty in not exercising
extraordinary diligence in the selection and supervision of their
employees.
The next issue hinges on whose negligence was the
proximate cause of the payment of the forged checks by an
impostor. BPI insists that the doctrine of last clear chance should
have been applied considering the circumstances of this case.
Under this doctrine, where both parties were negligent and such
negligence were not contemporaneous, the person who has the
last fair chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior
negligence of the other party.
Applying these principles, BPI's reliance on the doctrine of
last clear chance to clear it from liability is not well-taken. CBC had
no prior notice of the fraud perpetrated by BPI's employees on the
pretermination of Eligia G. Fernando's money market placement.
Moreover, Fernando is not a depositor of CBC. Hence, a
comparison of the signature of Eligia G. Fernando with that of the
impostor Eligia G. Fernando, which CBC did, could not have
resulted in the discovery of the fraud. Hence, respondent CBC had
no way to discover the fraud at all. In fact, the records fail to show
that respondent CBC had knowledge, actual or implied, of the
fraud perpetrated by the impostor and the employees of BPI.
BPI further argues that the acts and omissions of are the
cause "that set into motion the actual and continuous sequence of
events that produced the injury and without which the result
would not have occurred." BPI anchors its argument on its stance
that there was "a gap, a hiatus, an interval between the issuance
and delivery of said checks by BPI to the impostor and their actual
payment of CBC to the impostor. BPI points out that the gap of
one (1) day that elapsed from its issuance and delivery of the
checks to the impostor is material on the issue of proximate cause.
At this stage, according to BPI, there was yet no loss and the
impostor could have decided to desist from completing the same
plan and could have held to the checks without negotiating them.

BPI's contention that CBC alone should bear the loss must
fail. The gap of one (1) day between the issuance and delivery of
the checks bearing the impostor's name as payee and the
impostor's negotiating the said forged checks by opening an
account and depositing the same with respondent CBC is not
controlling. It is not unnatural or unexpected that after taking the
risk of impersonating Eligia G. Fernando with the connivance of
BPI's employees, the impostor would complete her deception by
encashing the forged checks. There is therefore, greater reason to
rule that the proximate cause of the payment of the forged checks
by an impostor was due to the negligence of BPI. This finding,
notwithstanding, we are not inclined to rule that BPI must solely
bear the loss. Due care on the part of CBC could have prevented
any loss.
The Court cannot ignore the fact that the CBC employees
closed their eyes to the suspicious circumstances of huge over-thecounter withdrawals made immediately after the account was
opened. The opening of the account itself was accompanied by
inexplicable acts clearly showing negligence. And while we do not
apply the last clear chance doctrine as controlling in this case, still
the CBC employees had ample opportunity to avoid the harm
which befell both CBC and BPI. They let the opportunity slip by
when the ordinary prudence expected of bank employees would
have sufficed to seize it.
Both banks were negligent in the selection and
supervision of their employees resulting in the encashment of the
forged checks by an impostor. Both banks were not able to
overcome the presumption of negligence in the selection and
supervision of their employees. It was the gross negligence of the
employees of both banks which resulted in the fraud and the
subsequent loss. While it is true that BPI's negligence may have
been the proximate cause of the loss, CBC's negligence contributed
equally to the success of the impostor in encashing the proceeds
of the forged checks. Under these circumstances, we apply Article
2179 of the Civil Code to the effect that while CBC may recover its
losses, such losses are subject to mitigation by the courts.

Intoxication
E.M. Wright V Manila Electric R.R. & Light Co.
28 Phil 122 (October 1, 1914)

FACTS: Manila Electric is a corporation engaged in operating an

electric street railway. Wrights residence in Caloocan fronts on
the street along which defendants tracks run. To enter his
premises from the street, Wright must cross defendants tracks.

One night, Wright drove home in a calesa and in crossing

the tracks to enter the premises of his home, the horse stumbled,
leaped forward, and fell, throwing the Wright from the vehicle,
causing injuries. On the location where Wright crossed the tracks,
the rails were above-ground, and the ties upon which the rails
rested projected from one-third to one-half of their depth out of
the ground, making the tops of the rails some 5 or 6 inches or
more above the level of the street.
Manila Electric admitted that it was negligent in
maintaining its tracks, but it also claimed that Wright was also
negligent in that he was so intoxicated, and such intoxication was
the primary cause of the accident.
The trial court held that both parties were negligent, but
that plaintiffs negligence was not as great as defendants. It
awarded Wright damages.
ISSUE: Whether or not the negligence of Wright contributed to the
principal occurrence or only to his own injury.
HELD: NO. Intoxication in itself is not negligence. It is but a
circumstance to be considered with the other evidence tending to
prove negligence. No facts, other than the fact that Wright was
intoxicated, are stated which warrant the conclusion that the
plaintiff was negligent. The conclusion that if he had been sober
he would not have been injured is not warranted by the facts as
found. It is impossible to say that a sober man would not have
fallen from the vehicle under the conditions described.
A horse crossing the railroad tracks with not only the rails
but a portion of the ties themselves aboveground, stumbling by
reason of the unsure footing and falling, the vehicle crashing
against the rails with such force as to break a wheel, might be
sufficient to throw a person from the vehicle no matter what his
condition; and to conclude that, under such circumstances, a
sober man would not have fallen while a drunken man did, is to
draw a conclusion which enters the realm of speculation and
guesswork. Wright was not negligent. No facts to merit a higher
award of damages to plaintiff

US vs. Baggay
20 PHIL 142 (September 1, 1911)
Facts: Several persons were assembled in Baggay's house to hold a
song service called "buni." The Non-Christian Baggay without
provocation, suddenly attacked a woman named Bil-liingan with a
bolo, inflicting a serious wound on her head from which she died
immediately. With the same bolo, he likewise inflicted various
wounds on the women named Calabayan, Agueng, Quisamay,
Calapini, and on his own mother, Dioalan.

For this reason, the provincial fiscal filed a complaint in

court charging Baggay with murder. After trial and proof that the
defendant was suffering from mental aberration, the judge
exempted Baggay from criminal liability but was obliged to
indemnify the heirs of the murdered woman. The Baggay's counsel
and his heirs appealed to this court.
ISSUES: (1) Whether or not an insane person, exempt from
criminal liability can still be civilly liable. (2) Can the heirs of Baggay
be held civilly liable?
HELD: (1) YES. Civil liability accompanies criminal liability, because
every person liable criminally for a crime or misdemeanor is also
liable for reparation of damage and for indemnification of the
harm done.
Civil liability may arise from acts ordinarily punishable under the
penal law, although the law has declared their perpetrators exempt
from criminal liability. Such is the case of a lunatic or insane
person who, in spite of his irresponsibility on account of the
deplorable condition of his deranged mind, is still reasonably and
justly liable with his property for the consequences of his acts, even
though they be performed unwittingly. His Negligence

Picart vs. Smith

37 Phil 809 (March 15, 1918)
Facts: Plaintiff, Picart was riding a pony on Carlatan Bridge, San
Fernando. He pulled his pony over the bridges railing on the right
instead of left upon seeing the automobile rapidly approaching.
His pony was unfortunately frightened when the automobile
passed so close to them. The horse was struck on the hock of the
left hind leg by the flange of the car and the limb was broken. The
horse fell and its rider was thrown off with some violence. As a
result of its injuries the horse died. Picart received contusions
which caused temporary unconsciousness and required medical
attention for several days. Picart seeks to render the sum of
Php31,000 as damages. CFI- La Union absolved Smith.
Issue: Whether or not defendant was negligent and if the
concept of last clear chance is attributable to him?
Held: The defendant Smith is negligent and liable under the
doctrine of last clear chance even though the plaintiff was on the
wrong side of the bridge. Defendant has had the opportunity to
avoid the accident after realizing that the negligence by the
plaintiff could not have placed him in a position of better safety.
The last clear chance was passed unto the defendant
driving the automobile. It was his duty to bring the car to an
immediate stop or upon seeing no other persons were on the
bridge to take the other side and pass far away from the pony to
avoid collision. Instead of doing this, Smith ran straight on until he
was almost upon the horse. When Smith exposed the horse and

rider to this danger he was negligent in the eye of the law. Under
the circumstances, the law is that the person who has the last
clear chance to avoid the impending harm and fails to do is
chargeable with the consequences, without reference to the prior
negligence of the other party. The existence of negligence in a
given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law
considers what would be reckless, blameworthy, or negligent in
the man of ordinary intelligence and prudence and determines
liability by that.
The Supreme Court reversed the judgment of the lower
court, and rendered judgment that Picart recover of Smith the
sum of P200, with costs of both instances. The court held that the
sum awarded was estimated to include the value of the horse,
medical expenses of Picart, the loss or damage occasioned to
articles of his apparel, and lawful interest on the whole to the date
of this recovery.

On appeal, CA reversed the judgment and found that

petitioners were negligent in maintaining a structurally dangerous
counter. The counter was shaped like an inverted 'L' and it was top
heavy and the weight of the upper portion was neither evenly
distributed nor supported by its narrow base. It was also
established that 2 employees already requested the management
to nail the counter because it was shaky but the latter did not take
any action. The management insists that it has been there for 15
years and it has been stable. The Court of Appeals also declared
that Zhieneth was absolutely incapable of negligence or tort. It
also absolved Criselda of any negligence, finding nothing wrong in
momentarily allowing Zhieneth to walk while she signed the
document. Moreover, the allegation that Zhieneth clung to the
counter which caused the same to fall on her was denied by
Gonzales in his testimony. He said that when the doctor asked
Zhieneth what she did, the child answered 'nothing, i did not come
near the counter, the counter just fell on me'. The CA awarded
actual and compensatory damages. Petitioners filed a motion for
reconsideration but the court denied the same. Hence, this appeal.
Issues:

Negligence in special cases (Children)

JARCO Marketing Corporation vs. Court of Appeals
and Spouses Aguilar
GR No. 129792 (December 21, 1999)
Facts: Petitioner Jarco is the owner of Syvel's Department Store in
Makati City. Respondent spouses are the parents of Zhieneth
Aguilar.
nd

On May 9, 1983, Criselda and Zhieneth were at the 2

floor of Syvel's. As Criselda was signing her credit card slip, she felt
a sudden gust of wind and heard a loud thud. She looked behind
her and saw her 6 yr. old daughter Zhieneth pinned down on the
floor by the store's giftwrapping counter/structure. Zhieneth was
crying and screaming for help. She was rushed to the Makati
Medical Center and was operated on. The next day, she lost her
speech and fourteen days after, she died. The cause of her death
was attributed to the injuries she sustained.
Spouses Aguilar demanded upon petitioners the
reimbursement of the hospitalization, medical bills, wake and
funeral expenses but petitioners refused to pay. Spouses filed a
complaint for damages. The trial court dismissed the complaint
and ruled that the proximate cause of the fall of the counter on
Zhieneth was her act of clinging to it. The court also held that
Criselda's negligence in allowing her daughter to freely roam
around the store contributed to the accident. In absolving
petitioners from liability, the court reasoned that the counter was
nd
situated at the end corner of the 2 floor as a precautionary
measure, hencce, it could not be considered as an attractive
nuisance.

1.

Whether the death of Zhieneth was accidental or

attributable to negligence.

2.

In case of a finding of negligence, whether the same was

attributable to the store management for maintaining a
defective counter or to Criselda and Zhieneth for failing
to exercise due and reasonable care while inside the
store premises.

Held: An accident pertains to a fortuitous circumstance, event or

happening; an event happening without any human agency, or if
happening wholly or partly through human agency, an event which
under the circumstances is unusual or unexpected by the person
to whom it happens. On the other hand, negligence is the failure
to observe, for the protection of the interest of another person,
that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers
injury. Accident and negligence are intrinsically contradictory; one
cannot exist with the other.
The test in determining the existence of negligence is
enunciated in the landmark case of PICART V. SMITH, thus: Did the
defendant in doing the alleged negligent act use that reasonable
care and caution which an ordinarily prudent person would have
used in the same situation? If not, then he is guilty of negligence.
The court held that Zhieneth's tragedy and death can only be
attributed to negligence.
The testimony of Gonzales pertaining to Zhieneth's statement
formed part of the res gestae under Section 42, Rule 130 of the
Rules of Court. All that is required for their admissibility as part of
the res gestae is that they be made or uttered under the influence

of a startling event before the declarant had the time to think and
concoct a falsehood as witnessed by the person who testified in
court. it is unthinkable for a child of tender age and in extreme
pain to have lied to a doctor whom she trusted with her life.
Zhieneth performed no act that facilitated her tragic
death. However, petitioners did, through their negligence or
omission to secure or make stable the counter's base.
Anent the negligence imputed to Zhieneth, the court
applied the rule that a child under nine years of age must be
conclusively presumed incapable of contributory negligence as a
matter of law. And even if contributory negligence can be
attributed to Zhieneth and assume that she climbed over the
counter, no injury should have occurred if the counter was stable
and sturdy. Criselda too, should be absolved from contributory
negligence. Zhieneth held on to her mother's hand, Criselda
momentarily released the child's hand when she signed her credit
card slip. At this precise moment, it was reasonable for Criselda to
let go of her child. When the counter fell on her child, Criselda was
just one foot away.

Issue: Whether or not negligence can be imputed to the

defendant company, making it liable for damages.
Held: Yes. The Court is of the opinion that the presumption of
negligence on the part of the company from the breakage of this
wire has not been overcome, and the defendant is responsible for
the accident. Furthermore, when notice was received at the
Malabon station at 2.25 p. m., somebody should have been
dispatched to the scene of the trouble at once, or other measures
taken to guard the point of danger; but more than an hour and a
half passed before anyone representing the company appeared on
the scene, and in the meantime this child had been claimed as a
victim.
It is doubtful whether contributory negligence can properly be
imputed to the deceased, owing to his immature years and the
natural curiosity as a 9-year-old boy. The fact that he ignored the
warnings of his friend does not alter the case.
The Court therefore awards P1000 as general damages for loss of
service and P250 for expenses incurred for the death and burial of
the boy.

Del Rosario vs. Manila Electric Company

57 Phil 478 (November 5, 1932)
Facts: At 2PM in the afternoon, trouble developed in a wire used
and operated by Manila Electric Company for the purpose of
conducting electricity and lighting the City of Manila and its
suburbs. Noguera noticed that the wire was burning and the
connections smoking. He then told Soco to telephone the
Malabon station of defendant. Soco transmitted the message at
2.25 p.m. and received answer from the station to the effect that
they would send an inspector.
At 4 p. m. the neighborhood school was dismissed and the
children went home. Among these was Alberto Del Rosario with
two of his friends. When they came upon the place where the
wire was down, Alberto's friend tried to touch it but was stopped
by his other friend, Jose. Alberto, saying he has the habit of
touching wires, touched the wire despit Jose's warning, got
electrocuted, and was pronounced dead when brought to the
hospital.
The parents of Alberto filed for damages against the company.
The engineer of the company says that it was customary for the
company to make a special inspection of these wires at least once
in six months, and that all of the company's inspectors were
required in their daily rounds to keep a lookout for trouble of this
kind. There is nothing in the record indicating any particular cause
for the parting of the wire.

Ylarde vs. Aquino

163 SCRA 697 (July 29, 1988)
Facts: Private respondent Soriano was the principal of the
Gabaldon Primary School, a public school in Tayug, Pangasinan,
while Private respondent Aquino was a teacher therein. During the
happening of the events which led to the filing of the case, there
were several concrete blocks in the school which were remnants
of the old school shop that was destroyed in World War II.
Realizing that the huge stones were serious hazards to the
schoolchildren, Sergio Banez, also a teacher therein, started
burying them. Aquino, in order to help, gathered eighteen of his
male pupils after class and ordered them to dig an excavation pit
wherein the stone can be buried. It was continued the following
day by four of the original eighteen pupils. Among them is the son
of the petitioners, Novelito. When the depth was right enough to
accommodate the concrete block, Aquino and his pupils got out of
the hole. Aquino left to borrow a key to the workroom from Banez
to get a rope, he instructed the pupils not to touch the stone.
Three of the four kids, including Novelito, playfully jumped into
the pit. The other kid, without any warning jumped on top of the
concrete block causing it to slide down towards the opening.
Except for Novelito, the other kids were able to go out of the pit.
The concrete block pinned Novelito to the wall in a standing
position. As a result thereof, he sustained injuries. Novelito died 3
days after. Petitioner-parents filed a suit for damages against both
private respondents. Petitioners base their action against Aquino

on Article 2176 NCC for his alleged negligence that caused their
son's death while the complaint against Soriano as the head of
school is founded on Article 2180 NCC. The lower court dismissed
the complaint on the following grounds: (1) that the digging done
by the pupils is in line with their course called Work Education; (2)
that Aquino exercised the utmost diligence of a very cautious
person; and (3) that the demise of Novelito was due to his own
reckless imprudence. This was affirmed by CA on appeal. Hence
the present petition.
Issues: (1)Whether or not Soriano is liable for damages under Art.
2180. (2) Whether or not Aquino is liable for damages under Art.
2176.
Held: 1. No. The Court based their ruling on the doctrine
enunciated in the case of Amadora vs. CA, Article 2180 applies to
all schools, academic as well as non-academic. It provides further
that teachers in general shall be liable for the acts of their students
except where the school is technical in nature, in which case it is
the head thereof who shall be answerable. Thus, Soriano, as
principal, cannot be held liable for the reason that the school he
heads is an academic school and not a school of arts and trades.
Besides, as clearly admitted by private respondent Aquino, private
respondent Soriano did not give any instruction regarding the
digging.
2. Yes. It is very clear that private respondent Aquino
acted with fault and gross negligence when he: (1) failed to avail
himself of services of adult manual laborers and instead utilized
his pupils aged ten to eleven to make an excavation near the oneton concrete stone which he knew to be a very hazardous task; (2)
required the children to remain inside the pit even after they had
finished digging, knowing that the huge block was lying nearby and
could be easily pushed or kicked aside by any pupil who by chance
may go to the perilous area; (3) ordered them to level the soil
around the excavation when it was so apparent that the huge
stone was at the brink of falling; (4) went to a place where he
would not be able to check on the children's safety; and (5) left the
children close to the excavation, an obviously attractive nuisance.
These negligent acts have a direct causal connection to the death
of Novelito.
A reasonably prudent person would have foreseen that
bringing children to an excavation site, and more so, leaving them
there all by themselves, may result in an accident. An ordinarily
careful human being would not assume that a simple warning "not
to touch the stone" is sufficient to cast away all the serious danger
that a huge concrete block adjacent to an excavation would
present to the children. Moreover, a teacher who stands in loco
parentis to his pupils would have made sure that the children are
protected from all harm in his company.

The defense that the digging done by the pupils was part
of their Work Education was not sustained, since the nature of the
activity reveals a dangerous one and requires the attendance of
adult laborers and not ten-year old grade-four pupils. In fact, there
was no showing that it was included in the lesson plan for their
Work Education. Further it is admitted that Aquino decided all by
himself to help his colleague.
The finding of the lower court that the injuries were
caused by Novelitos own reckless imprudence was not sustained.
The Court ruled that deceased was only 10 years old as such his
actuations were natural to a boy his age. The degree of care
required to be exercised must vary with ones capacity, discretion,
knowledge and experience under the same or similar
circumstances.

Negligence (Experts/Professionals)
Cullion Ice, Fish and Electric Company vs.
Philippine Motors Corporation
GR No. 32611 (November 3, 1930)
Facts: Culion Ice, Fish & Electric Co. Inc. owned a motor schooner
named Gwendoline. H.D. Cranston, the representative of Cuilion in
Manila, decided to have the engine on the Gwendoline converted
from gasoline consumer to a crude oil burner. He had a conference
with C.E. Quest, the manager of Phil. Motors, who agreed to do
the job, with the understanding that payment shall be made upon
completion of the work.
The work began and conducted under the supervision of
Mr. Quest, and chiefly by a mechanic whom Quest took with him
to the boat. Cranston also directed the members of the crew of
the Gwendoline to assist in the work, placing them under the
command of Quest.
Upon inspection of the engine, Quest concluded that a
new carburetor was needed, hence one was installed. The next
problem was to introduce into the carburetor the baser fuel. A
temporary tank to contain the mixture was placed on deck above
and at a short distance from the compartment covering the
engine. This tank was connected with the carburetor by a piece of
tubing, which was apparently not well fitted at the point where it
was connected with the tank. The fuel mixture leaked from the
tank and dripped down into the engine compartment. To
paraphrase, a device was made where the engine can be
converted from gasoline to crude oil, switching back and forth.
Later, it was observed that the carburetor was flooding,
and that the gasoline, or other fuel, was dripping freely from the
lower part to the carburetor to the floor. This fact was called to
Quest's attention, but he said that, when the engine had gotten to
running well, the flooding would stop

The boat was taken out into the bay for a trial run. The
engine stopped a few times during the first run, owing to the use
of an improper mixture of fuel. As the boat was coming in from
this run, the engine stopped, and connection again had to be
made with the gasoline line to get a new start. After this had been
done, the mechanic, or engineer, switched to the tube connecting
with the new mixture. A moment later a back fire occurred in the
cylinder chamber. This caused a flame to shoot back into the
carburetor, and instantly the carburetor and adjacent parts were
covered with a mass of flames, which the members of the crew
were unable to subdue. A case for damages was filed.
Issue: Whether or not the loss of the boat is chargeable to the
negligence and lack of skill of Quest.
Held: YES. When a person holds himself out as being competent
to do things requiring professional skill, he will be held liable for
negligence if he fails to exhibit the care and skill of one ordinarily
skilled in the particular work which he attempts to do.
The temporary tank in which the mixture was prepared
was apparently at too great an elevation from the carburetor, so
that when the fuel line was opened, the hydrostatic pressure in
the carburetor was greater than the delicate parts of the
carburetor could sustain. This was the cause of the flooding of the
carburetor; and the result was that; when the back fire occurred,
the external parts of the carburetor, already saturated with
gasoline, burst into flames, whence the fire was quickly
communicated to the highly inflammable material near-by. The
leak along the pipe line and the flooding of the carburetor had
created a dangerous situation, which a prudent mechanic, versed
in repairs of this nature, would have taken precautions to avoid.
Proof shows that Quest had had ample experience in
fixing the engines of automobiles and tractors, but it does not
appear that he was experienced in the doing of similar work on
boats. Possibly the dripping of the mixture form the tank on deck
and the flooding of the carburetor did not convey to his mind an
adequate impression of the danger of fire. Quest did not use the
skill that would have been exhibited by one ordinarily expert in
repairing gasoline engines on boats. There was here, on the part
of Quest, a blameworthy antecedent inadvertence to possible
harm, and this constitutes negligence. The burning of the
Gwendoline may be said to have resulted from accident, but this
accident was in no sense an unavoidable accident. It would not
have occurred but for Quest's carelessness or lack of skill.

US v. Pineda
37 Phil 456 (January 22, 1918)
Facts: Santiago Pineda is a registered pharmacist and the owner of
a drug store. Feliciano Santos, having some sick horses, presented
a copy of a prescription to Pineda. On other occasions, Santos had

given the medicine prescribed to his horses with good results.

Under the supervision of Pineda, the drugs were prepared and
given Santos.
Santos, under the belief that he had purchased potassium
chlorate, placed two of the packages in water and gave the doses
to two of his sick horses. Another package was mixed with water
for another horse, but was not used. The two horses, who took the
drugs, died afterwards. Santos took the drug packages to the
Bureau of Science for examination. It was found that the packages
contained not potassium chlorate but barium chlorate (a poison).
When sued Pineda alleges that he did not intentionally sold the
poison and that what the law (to which he is indicted) forbids is
the sell any drug or poison under any "fraudulent name.
ISSUES: Whether or not Pineda can be held liable for the death of
the horses, assuming he did not deliberately sold poison.
HELD: Yes. In view of the tremendous and imminent danger to the
public from the careless sale of poison and medicine, we do not
deem it too rigid a rule to hold that the law penalizes any druggist
who shall sell one drug for another whether it be through
negligence or mistake. The care required must be commensurate
with the danger involved, and the skill employed must correspond
with the superior knowledge of the business which the law
demands.
As a pharmacist, he is made responsible for the quality of
all drugs and poison he sells. If were we to adhere to the technical
definition of fraud it would be difficult, if not impossible, to convict
any druggist of a violation of the law. The prosecution would have
to prove to a reasonable degree of certainty that the druggist
made a material representation; that it was false; that when he
made it he knew that it was false or made it recklessly without any
knowledge of its truth and as a positive assertion; that he made it
with the intention that it should be acted upon by the purchaser;
that the purchaser acted in reliance upon it, and that the
purchaser suffered injury. Such a construction with a literal
following of well-known principles on the subject of fraud would
strip the law of at least much of its force. It would leave the
innocent purchaser of drugs, who must blindly trust in the good
faith and vigilance of the pharmacist, at the mercy of any
unscrupulous vendor.
We should not, therefore, without good reason so devitalize the
law. The rule of caveat emptor cannot apply to the purchase and
sale of drugs. The vendor and the vendee in this case do not stand
at arms length as in ordinary transactions. It would be idle
mockery for the customer to make an examination of a compound
of which he can know nothing. Consequently, it must be that the
druggist warrants that he will deliver the drug called for.

BPI v. CA
216 SCRA 51 (November 26, 1992)
Facts: A person purporting to be Eligia G. Fernando, who had a
money market placement evidenced by a promissory note with a
maturity date of November 11, 1981 and a maturity value of
P2,462,243.19, called BPI's Money Market Department. The caller
wanted to pre-terminate the placement. However, Reginaldo
Eustaquio, Dealer Trainee in BPI's Money Market Department, told
her that "trading time" was over for the day (Friday). He suggested
that she call again the following week. The promissory note the
caller wanted to preterminate was a roll-over of an earlier 50-day
money market placement that had matured on September 24,
1981.
Later that afternoon, Eustaquio conveyed the request for
pretermination to the officer who before had handled Fernando's
account, Penelope Bulan, but Eustaquio was left to attend to the
pretermination process.
The caller presenting herself as Ms. Fernando phoned
again and made a follow-up with Eustaquio the pretermination of
the placement. Although Eustaquio was not familiar with the voice
of the real Eligia G. Fernando, Eustaquio "made certain" that the
caller was the real Eligia G. Fernando by "verifying" the details the
caller gave with the details in "the ledger/folder" of the account.
But neither Eustaquio nor Bulan who originally handled Fernando's
account, nor anybody else at BPI, bothered to call up Fernando at
her Philamlife office to verify the request for pretermination.
Informed that the placement would yield less than the maturity
value, the caller insisted on the pretermination just the same and
asked that two checks be issued for the proceeds, one for
P1,800,000.00 and the second for the balance, and that the checks
be delivered to her office at Philamlife. Eustaquio, thus, proceeded
to prepare the "purchase order slip" for the requested
pretermination as required by office procedure. From his desk, the
papers, following the processing route, passed through the
position analyst, securities clerk, verifier clerk and documentation
clerk, before the two cashier's checks were prepared. The two
cashier's checks, together with the papers consisting of the money
market placement was to be preterminated and the promissory
note to be preterminated, were sent to Gerlanda E. de Castro and
Celestino Sampiton, Jr., Manager and Administrative Assistant,
respectively, in BPI's Treasury Operations Department, both
authorized signatories for BPI, who signed the two checks that
very morning. Thereafter, the checks went to the dispatcher for
delivery.
In the same morning when the checks were to be
delivered, the caller changed the delivery instructions; instead that
the checks were to be delivered to her office at Philamlife, she

would pick the checks up herself or send her niece, Rosemarie

Fernando, to pick them up. Eustaquio then told the caller that if
her niece was going to get the checks, her niece would have to
being a written authorization from her. It was agreed that
Rosemarie would pick the checks up from the bank. Thus,
Eustaquio hurriedly went to the dispatcher to inform him of the
new delivery instructions for the checks; in fact, he changed the
delivery instruction on the purchase order slip, writing thereon
"Rosemarie Fernando release only with authority to pick up.
It was, in fact Rosemarie who got the two checks from the
dispatcher, as shown by the delivery receipt. As it turned out, the
same person impersonated both Eligia G. Fernando and Rosemarie
Fernando. Although the checks represented the termination
proceeds of Fernando's placement, not just a roll-over of the
placement, the dispatcher failed to require the surrender of the
promissory note evidencing the placement. There is also no
showing that Fernando's purported signature on the letter
requesting the pretermination and the latter authorizing
Rosemarie to pick up the two checks was compared or verified
with Fernando's signature in BPI's file. Such purported signature
has been established to be forged although there 0was a "close
similarity" to the real signature of Eligia G. Fernando.
On a different day, a woman who represented herself to
be Eligia G. Fernando applied at China Banking Corporation's Head
Office for the opening of a current account. She was accompanied
and introduced to Emily Sylianco Cuaso, Cash Supervisor, by
Antonio Concepcion whom Cuaso knew to have opened, earlier
that year, an account. What Cuaso indicated in the application
form, however, was that Fernando was introduced by Valentin Co,
and with her initials on the form signifying her approval, she
referred the application to the New Accounts Section for
processing. The application form shows the signature of "Eligia G.
Fernando", "her" date of birth, sex, civil status, nationality,
occupation ("business woman"), tax account number, and initial
deposit of P10,000.00. This final approval of the new current
account is indicated on the application form by the initials of the
cashier, who did not interview the new client but affixed her
initials on the application form after reviewing it.
The woman holding herself out as Eligia G. Fernando
deposited the two checks in controversy. Her endorsement on the
two checks was found to conform with the depositor's specimen
signature. CBC's guaranty of prior endorsements and/or lack of
endorsement was then stamped on the two checks, which CBC
forthwith sent to clearing and which BPI cleared on the same day.
Two days after, withdrawals began.
The maturity date of Eligia G. Fernado's money market
placement with BPI came and the real Eligia G. Fernando went to
BPI for the roll-over of her placement. She disclaimed having

preterminated her placement. She then executed an affidavit

stating that while she was the payee of the two checks in
controversy, she never received nor endorsed them and that her
purported signature on the back of the checks was not hers but
forged. With her surrender of the original of the promissory note
evidencing the placement which matured that day, BPI issued her
a new promissory note to evidence a roll-over of the placement.

and the letter authorizing her niece to pick-up the checks, yet, her
signature was in BPI's file; and d) the surrender of the promissory
note evidencing the money market placement that was
supposedly pre-terminated. The Arbitration Committee, however,
belittled BPI's negligence compared to that of CBC which it
declared as graver and the proximate cause of the loss of the
subject checks to the impostor.

BPI returned the two checks in controversy to CBC as supported by

Eligia G. Fernando's affidavit, for the reason "Payee's endorsement
forged". CBC, in turn, returned the checks for reason "Beyond
Clearing Time". These incidents led to the filing of this case with
the Arbitration Committee.

Banks handle daily transactions involving millions of

pesos. By the very nature of their work the degree of
responsibility, care and trustworthiness expected of their
employees and officials is far greater than those of ordinary clerks
and employees. For obvious reasons, the banks are expected to
exercise the highest degree of diligence in the selection and
supervision of their employees.

The Arbitration Committee ruled in favor of BPI and

ordered CBC to pay the former with interest. - However, upon
CBCs motion for reconsideration, the Board of Directors of the
PCHC reversed the Arbitration Committee's decision and dismissed
the complaint of BPI while ordering it to pay CBC.
BPI then filed a petition for review with the Regional Trial
Court which dismissed said petition but modified the award by
including a provision for attorneys fees in favor of CBC, among
others. The court of appeals affirmed the trial courts decision.
ISSUES: Who between BPI and CBC should be held liable? Whose
negligence was the proximate cause of the payment of the forged
checks made by the impostor?
HELD: In the present petition, Fernandos name in the checks were
forged. The checks are "wholly inoperative" and of no effect.
However, the underlying circumstances of the case show that the
general rule on forgery is not applicable. The issue as to who
between the parties should bear the loss in the payment of the
forged checks necessities the determination of the rights and
liabilities of the parties involved in the controversy in relation to
the forged checks.
The records show that petitioner BPI, as drawee bank and
CBC as representing or collecting bank were both negligent
resulting in the encashment of the forged checks.
The Arbitration Committee in its decision, analyzed the
negligence of the employees of BPI involved who are involved in
the processing of the pre-termination of Fernando's money
market placement and in the issuance and delivery of the subject
checks. A) The impostor could have been readily unmasked by a
mere telephone call, which nobody in BPI bothered to make to
Fernando; b) The officer who used to handle Fernando's account
did not do anything about the account's pre-termination; c) Again
no verification appears to have been made on Fernando's
purported signature on the letter requesting the pretermination

In the present case, there is no question that the banks

were negligent in the selection and supervision of their
employees. The Arbitration Committee, the PCHC Board of
Directors and the lower court, however disagree in the evaluation
of the degree of negligence of the banks. While the Arbitration
Committee declared the negligence of respondent CBC graver, the
PCHC Board of Directors and the lower courts declared that BPI's
negligence was graver. To the extent that the degree of negligence
is equated to the proximate cause of the loss, we rule that the
issue as to whose negligence is graver is relevant. No matter how
many justifications both banks present to avoid responsibility, they
cannot erase the fact that they were both guilty in not exercising
extraordinary diligence in the selection and supervision of their
employees.
The next issue hinges on whose negligence was the
proximate cause of the payment of the forged checks by an
impostor. BPI insists that the doctrine of last clear chance should
have been applied considering the circumstances of this case.
Under this doctrine, where both parties were negligent and such
negligence were not contemporaneous, the person who has the
last fair chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior
negligence of the other party.
Applying these principles, BPI's reliance on the doctrine of
last clear chance to clear it from liability is not well-taken. CBC had
no prior notice of the fraud perpetrated by BPI's employees on the
pretermination of Eligia G. Fernando's money market placement.
Moreover, Fernando is not a depositor of CBC. Hence, a
comparison of the signature of Eligia G. Fernando with that of the
impostor Eligia G. Fernando, which CBC did, could not have
resulted in the discovery of the fraud. Hence, respondent CBC had
no way to discover the fraud at all. In fact, the records fail to show
that respondent CBC had knowledge, actual or implied, of the
fraud perpetrated by the impostor and the employees of BPI.

BPI further argues that the acts and omissions of are the
cause "that set into motion the actual and continuous sequence of
events that produced the injury and without which the result
would not have occurred." BPI anchors its argument on its stance
that there was "a gap, a hiatus, an interval between the issuance
and delivery of said checks by BPI to the impostor and their actual
payment of CBC to the impostor. BPI points out that the gap of
one (1) day that elapsed from its issuance and delivery of the
checks to the impostor is material on the issue of proximate cause.
At this stage, according to BPI, there was yet no loss and the
impostor could have decided to desist from completing the same
plan and could have held to the checks without negotiating them.
BPI's contention that CBC alone should bear the loss must
fail. The gap of one (1) day between the issuance and delivery of
the checks bearing the impostor's name as payee and the
impostor's negotiating the said forged checks by opening an
account and depositing the same with respondent CBC is not
controlling. It is not unnatural or unexpected that after taking the
risk of impersonating Eligia G. Fernando with the connivance of
BPI's employees, the impostor would complete her deception by
encashing the forged checks. There is therefore, greater reason to
rule that the proximate cause of the payment of the forged checks
by an impostor was due to the negligence of BPI. This finding,
notwithstanding, we are not inclined to rule that BPI must solely
bear the loss. Due care on the part of CBC could have prevented
any loss.
The Court cannot ignore the fact that the CBC employees
closed their eyes to the suspicious circumstances of huge over-thecounter withdrawals made immediately after the account was
opened. The opening of the account itself was accompanied by
inexplicable acts clearly showing negligence. And while we do not
apply the last clear chance doctrine as controlling in this case, still
the CBC employees had ample opportunity to avoid the harm
which befell both CBC and BPI. They let the opportunity slip by
when the ordinary prudence expected of bank employees would
have sufficed to seize it.
Both banks were negligent in the selection and
supervision of their employees resulting in the encashment of the
forged checks by an impostor. Both banks were not able to
overcome the presumption of negligence in the selection and
supervision of their employees. It was the gross negligence of the
employees of both banks which resulted in the fraud and the
subsequent loss. While it is true that BPI's negligence may have
been the proximate cause of the loss, CBC's negligence contributed
equally to the success of the impostor in encashing the proceeds
of the forged checks. Under these circumstances, we apply Article
2179 of the Civil Code to the effect that while CBC may recover its
losses, such losses are subject to mitigation by the courts.

Intoxication
E.M. Wright V Manila Electric R.R. & Light Co.
28 Phil 122 (October 1, 1914)

FACTS: Manila Electric is a corporation engaged in operating an

electric street railway. Wrights residence in Caloocan fronts on
the street along which defendants tracks run. To enter his
premises from the street, Wright must cross defendants tracks.
One night, Wright drove home in a calesa and in crossing
the tracks to enter the premises of his home, the horse stumbled,
leaped forward, and fell, throwing the Wright from the vehicle,
causing injuries. On the location where Wright crossed the tracks,
the rails were above-ground, and the ties upon which the rails
rested projected from one-third to one-half of their depth out of
the ground, making the tops of the rails some 5 or 6 inches or
more above the level of the street.
Manila Electric admitted that it was negligent in
maintaining its tracks, but it also claimed that Wright was also
negligent in that he was so intoxicated, and such intoxication was
the primary cause of the accident.
The trial court held that both parties were negligent, but
that plaintiffs negligence was not as great as defendants. It
awarded Wright damages.
ISSUE: Whether or not the negligence of Wright contributed to the
principal occurrence or only to his own injury.
HELD: NO. Intoxication in itself is not negligence. It is but a
circumstance to be considered with the other evidence tending to
prove negligence. No facts, other than the fact that Wright was
intoxicated, are stated which warrant the conclusion that the
plaintiff was negligent. The conclusion that if he had been sober
he would not have been injured is not warranted by the facts as
found. It is impossible to say that a sober man would not have
fallen from the vehicle under the conditions described.
A horse crossing the railroad tracks with not only the rails
but a portion of the ties themselves aboveground, stumbling by
reason of the unsure footing and falling, the vehicle crashing
against the rails with such force as to break a wheel, might be
sufficient to throw a person from the vehicle no matter what his
condition; and to conclude that, under such circumstances, a
sober man would not have fallen while a drunken man did, is to
draw a conclusion which enters the realm of speculation and
guesswork. Wright was not negligent. No facts to merit a higher
award of damages to plaintiff

US vs. Baggay

the lunatic shall answer with his own property, excepting that part
which is exempted for their support in accordance with the civil
law.

20 PHIL 142 (September 1, 1911)

Facts: Several persons were assembled in Baggay's house to hold a
song service called "buni." The Non-Christian Baggay without
provocation, suddenly attacked a woman named Bil-liingan with a
bolo, inflicting a serious wound on her head from which she died
immediately. With the same bolo, he likewise inflicted various
wounds on the women named Calabayan, Agueng, Quisamay,
Calapini, and on his own mother, Dioalan.
For this reason, the provincial fiscal filed a complaint in
court charging Baggay with murder. After trial and proof that the
defendant was suffering from mental aberration, the judge
exempted Baggay from criminal liability but was obliged to
indemnify the heirs of the murdered woman. The Baggay's counsel
and his heirs appealed to this court.
ISSUES: (1) Whether or not an insane person, exempt from
criminal liability can still be civilly liable. (2) Can the heirs of Baggay
be held civilly liable?
HELD: (1) YES. Civil liability accompanies criminal liability, because
every person liable criminally for a crime or misdemeanor is also
liable for reparation of damage and for indemnification of the
harm done.
Civil liability may arise from acts ordinarily punishable
under the penal law, although the law has declared their
perpetrators exempt from criminal liability. Such is the case of a
lunatic or insane person who, in spite of his irresponsibility on
account of the deplorable condition of his deranged mind, is still
reasonably and justly liable with his property for the consequences
of his acts, even though they be performed unwittingly. His fellows
ought not to suffer for the disastrous results of his harmful acts
inspite of his unfortunate condition.
Law and society are under obligation to protect him
during his illness and so when he is declared to be liable with his
property for reparation and indemnification, he is still entitled to
the benefit of what is necessary for his decent maintenance, but
this protection does not exclude liability for damage caused to
those who may have the misfortune to suffer the consequences of
his acts.
(2) Yes. The persons who are civilly liable for acts committed by a
lunatic or imbecile are those who have them under their authority,
legal guardianship or power, unless they prove that there was no
blame or negligence on their part.
Should there be no person having them under his
authority, legal guardian, or power, if such person be insolvent,

Degrees of Negligence
Marinduque vs.Workmens Compensation
99 PHIL 48 (June 30, 1956)
FACTS: A truck driven by Procopio Macunat, belonging to
Marinduque Iron Mines, turned over and hit a coconut tree
resulting in the death of Pedro Mamador and injury to the other
laborers. Macunat was prosecuted, convicted and was sentenced
to indemnify the heirs of the deceased. He paid nothing, however,
to the latter. Madadors wife now seeks compensation by
Marinduque Iron Mines as the employer.
ISSUES: (1) Whether or not Mamador has a right to be
compensated by Marinduque Iron Mines. (2) Whether or not there
was notorious negligence by Mamador for having violated the
employers prohibition on riding haulage trucks.
HELD: YES. Marinduque Iron Mines alleged that the criminal case
sentencing Macunat to indemnify the heirs of Mamador was a suit
for damages against a third person, thereby having the effect of
releasing the employer from liability. The criminal case, however,
was not a suit for damages against third persons because the heirs
did not intervene therein and they have not received the
indemnity ordered by the court. At any rate, even if the case was
against a third person, the court already decided in Nava vs.
Inchausti that criminal prosecution of the "other person" does not
affect the liability of the employer.
Marinduque also contended that the amicable settlement
entered into by Mamador's widow and Macunat barred the
widow's claim against the employer because she has already
elected one of the remedies. This contention cannot be sustained
because what the widow waived was the offender's criminal
prosecution and not all civil action for damages.
2. NO. Mere riding on a haulage truck or stealing a ride thereon is
not negligence, ordinarily. It couldn't be, because transportation
by truck is not dangerous per se. Although the employer
prohibited its employees to ride the haulage trucks, its violation
does not constitute negligence per se, but it may be an evidence
of negligence.
Under the circumstance, however, it cannot be declared
negligence because the prohibition had nothing to do with the
personal safety of the riders. Notorious negligence means the
same as gross negligence which implies "conscious indifference to

consequences, or "pursuing a course of conduct which would

naturally and probably result in injury."

Res Ipsa Loquitur

Layugan vs. IAC
167 SCRA 363 November 14, 1968
FACTS: Pedro Layugan testified that while he and his companion
were repairing the tire of their cargo truck that was parked along
the right side of the National Highway, Godofredo Isidros truck,
recklessly driven by Daniel Serrano bumped Layugan. As a result,
Layugan had his left leg amputated.
Defendant Isidro admitted his ownership of the vehicle
involved in the accident. Isidro said that Layugan was merely a
bystander, not a truck helper being a brother-in-law of the driver
of said truck; that the truck allegedly, while being repaired was
parked, occupying almost half of the right lane right after the
curve; that the proximate cause of the incident was the failure of
the driver of the parked truck in installing the early warning
device.
Daniel Serrano, defendant driver, said that he knew the
responsibilities of a driver; that before leaving, he checked the
truck. The truck owner used to instruct him to be careful in driving.
He bumped the truck being repaired by Layugan, while the same
was at a stop. Serrano also testified that, When I was a few
meters away, I saw the truck which was loaded with round logs. I
stepped on my foot brakes but it did not function with my many
attempts. I have (sic) found out later that the fluid pipe on the rear
right was cut that's why the breaks did not function. Layugan, on
the other hand, claims that a warning device consisting of the
lighted kerosene lamp was placed 3-4 Meters from the back of the
truck.
Isidro points to the driver of parked truck as negligent, and says
that absent such proof of care, it would, under the doctrine of res
ipsa loquitur, there exists a presumption of negligence on the part
of the driver of the parked cargo truck as well as his helper.

ISSUES
1. Whether or not defendant driver Serrano was negligent.
2. Whether or not the doctrine of res ipsa loquitur applies in this
case.
HELD: 1. NO. The test by which to determine the existence of
negligence in a particular case may be stated as follows: Did the
defendant in doing the alleged negligent act use that reasonable
care and caution which an ordinarily prudent person would have
used in the same situation? If not, then he is guilty of negligence.

Negligence is the omission to do something which a

reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do.
Applying the definition and the test, it is clear that the absence or
want of care of Daniel Serrano has been established by clear and
convincing evidence. Whether the cargo truck was parked along
the road or on half of the shoulder of the road is immaterial taking
into account the warning device consisting of the lighted kerosene
lamp placed 3-4m from the back of the truck. But despite this
warning, the Isuzu truck driven by Serrano, still bumped the rear
of the parked cargo truck. As a direct consequence of such
accident, Layugan sustained injuries on his left forearm and left
foot.
2. NO. In our jurisdiction, Res ipsa loquitur as a rule of evidence is
peculiar to the law of negligence which recognizes that prima facie
negligence may be established without direct proof and furnishes
a substitute for specific proof of negligence. The doctrine is not a
rule of substantive law but merely a mode of proof or a mere
procedural convenience. The doctrine merely determines and
regulates what shall be prima facie evidence thereof and facilitates
the burden of plaintiff of proving a breach of the duty of due care.
The doctrine can be invoked when and only when, under
the circumstances involved, direct evidence is absent and not
readily available. So, it is inapplicable where plaintiff has
knowledge and testifies or presents evidence as to the specific act
of negligence which is the cause of the injury, or where theres
direct evidence as to the precise cause of the accident and all the
facts and circumstances attendant on the occurrence clearly
appear. And once the actual cause of injury is established beyond
controversy, no presumptions will be involved and the doctrine
becomes inapplicable when the circumstances show that no
inference of defendant's liability can reasonably be made,
whatever the source of the evidence. In this case, it is inapplicable
because it was established by clear and convincing evidence the
negligence of the defendant driver.
(Note: The discussion in this case of res ipsa loquitur is merely
stated in the obiter dictum.)

Ramos vs. CA
321 SCRA 584 (December 29, 1999)
Facts: Erlinda Ramos was a robust woman except for occasional
complaints of discomfort due to pains caused by the presence of a
stone in her gall bladder. She was advised to undergo an operation
for the removal of the stone in her gall bladder. She underwent a
series of examinations which included blood and urine tests which
indicated she was fit for surgery.

She and her husband, Rogelio, met Dr. Hozaka, one of the
defendants in this case, for the first time. They agreed on the date
of the operation and the doctor decided that she undergo a
cholecystectomy operation. Erlinda was admitted in the hospital
and was accompanied by her sister-in-law, Herminda Cruz. At the
operating room, Cruz saw about two or three nurses and Dr.
Perfecta Gutierrez, the other defendant, who was to administer
the anesthesia. Although not a member of the hospital staff,
Herminda Cruz introduced herself as the Dean of the College of
Nursing at the Capitol Medical Center and was allowed to stay
inside the operating room.
Hours later, Cruz, who was inside the operating room with the
patient, heard somebody say Dr. Hosaka is already here. As she
held the hand of Erlinda, she then saw Dr. Gutierrez intubating the
hapless patient. She thereafter heard Dr. Gutierrez say, ang hirap
maintubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan. Due to the remarks of Dr. Gutierrez, she focused her
attention on what Dr. Gutierrez was doing. She noticed a bluish
discoloration of the nailbeds of the left hand of Erlinda. Cruz then
heard Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist. After Dr. Calderon arrived in the
operating room, Cruz saw him trying to intubate Erlinda. Erlindas
nailbed became bluish and the patient was placed in a
trendelenburg position. Immediately, thereafter, Cruz went out of
the operating room, and told Erlindas husband (her brother) that
something wrong was happening. Cruz immediately rushed back,
and saw Erlinda was still in trendelenburg position. On that fateful
day, she saw Erlinda taken to the Intensive Care Unit (ICU). Erlinda
stayed for about four months in the hospital and has been in a
comatose condition.
When asked by the hospital to explain what happened to
the patient, Doctors Gutierrez and Hosaka explained that the
patient had bronchospasm. After being discharged from the
hospital, she has been staying in their residence, still needing
constant medical attention, with her husband Rogelio incurring
monthly expenses. She was diagnosed to be suffering from
diffuse cerebral parenchymal damage.
The Ramoses filed a civil case for damages against the
private respondents alleging negligence in the management and
care of Erlinda Ramos.
ISSUES: (1) Whether or not the doctrine of res ipsa loquitur is
applicable. (2) Whether or not private respondents were negligent
in the care of Erlinda during the anesthesia phase of the operation
and, if in the affirmative, whether the alleged negligence was the
proximate cause of Erlindas comatose condition. (3) Is the
hospital liable?
Held: YES. The doctrine of res ipsa loquitur is appropriate in the
case at bar. As will hereinafter be explained, the damage sustained

by Erlinda in her brain prior to a scheduled gall bladder operation

presents a case for the application of the doctrine.
In holding that res ipsa loquitur is available to the present
case we are not saying that the doctrine is applicable in any and all
cases where injury occurs to a patient while under anesthesia, or
to any and all anesthesia cases. Each case must be viewed in its
own light and scrutinized in order to be within the res ipsa loquitur
coverage.
Res ipsa loquitur is a Latin phrase which literally means
the thing or the transaction speaks for itself. The phrase res
ipsa loquitur is a maxim for the rule that the fact of the
occurrence of an injury, taken with the surrounding circumstances,
may permit an inference or raise a presumption of negligence, or
make out a plaintiffs prima facie case, and present a question of
fact for defendant to meet with an explanation.
However, res ipsa loquitur is not a rule of substantive law and, as
such, does not create or constitute an independent or separate
ground of liability. Instead, it is considered as merely evidentiary
or in the nature of a procedural rule. Mere invocation and
application of the doctrine does not dispense with the
requirement of proof of negligence. It is simply a step in the
process of such proof. Still, before resort to the doctrine may be
allowed, the following requisites must be satisfactorily shown:
1.The accident is of a kind which ordinarily does not occur in the
absence of someones negligence;

2. It is caused by an instrumentality within the exclusive

control of the defendant or defendants; and 3. The possibility of
contributing conduct which would make the plaintiff responsible is
eliminated.
In the above requisites, the fundamental element is the control of
the instrumentality which caused the damage. Such element of
control must be shown to be within the dominion of the
defendant.
But it does not automatically apply to all cases of medical
negligence as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed negligence.
The real question, therefore, is whether or not in the process of
the operation any extraordinary incident or unusual event outside
of the routine performance occurred. If there were such
extraneous interventions, the doctrine of res ipsa loquitur may be
utilized and the defendant is called upon to explain the matter, by
evidence of exculpation, if he could.
(2) YES. Private respondents were unable to disprove the
presumption of negligence on their part. Their negligence was the
proximate cause of her condition. Dr. Gutierrez failed to properly
intubate the patient. She admitted that she saw Erlinda for the

first time on the day of the operation. And no prior consultations

with, or pre-operative evaluation of Erlinda was done by her. She
was unaware of the physiological make-up and needs of Erlinda.
This is an act of exceptional negligence and professional
irresponsibility.
Private respondents repeatedly hammered the view that
the cerebral anoxia which led to Erlindas coma was due to
bronchospasm mediated by her allergic response to a drug
introduced into her system. Proximate cause has been defined as
that which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without which the
result would not have occurred.
Respondent Dr. Hosakas negligence can be found in his
failure to exercise the proper authority (as the captain of the
operative team) in not determining, if his anesthesiologist
observed proper anesthesia protocols. No evidence on record
exists to show that Dr. Hosaka verified if respondent Dr. Gutierrez
properly intubated the patient. Furthermore, it does not escape us
that respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as Erlindas cholecystectomy,
and was in fact over three hours late for the latters operation.
Because of this, he had little or no time to confer with his
anesthesiologist regarding the anesthesia delivery.
(3) We now discuss the responsibility of the hospital. The unique
practice (among private hospitals) of filling up specialist staff with
attending and visiting consultants, who are allegedly not
hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases. The
truth is, Private hospitals, hire, fire and exercise real control over
their attending and visiting consultant staff. While consultants
are not, technically employees, a point which respondent hospital
asserts in denying all responsibility for the patients condition, the
control exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an employeremployee relationship, with the exception of the payment of
wages.
The basis for holding an employer solidarily responsible
for the negligence of its employee is found in Article 2180 of the
Civil Code which considers a person accountable not only for his
own acts but also for those of others based on the formers
responsibility under a relationship of patria potestas. Such
responsibility ceases when the persons or entity concerned prove
that they have observed the diligence of a good father of the
family to prevent damage. In other words, while the burden of
proving negligence rests on the plaintiffs, once negligence is
shown, the burden shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they observed the
diligence of a good father of a family to prevent damage. In the
instant case, respondent hospital, apart from a general denial of

its responsibility over respondent physicians, failed to adduce

evidence showing that it exercised the diligence of a good father
of a family in the hiring and supervision of the latter. Upon these
disquisitions we hold that private respondents are solidarily liable
for damages under Article 2176 of the Civil Code.

Batiquin vs. CA
258 SCRA 334 (July 5, 1996)