Air France vs.

Rafael Carrascoso and the Honorable Court of Appeals

G.R. No. L-21438 September 28, 1966

AIR FRANCE, petitioner,

vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.

Lichauco, Picazo and Agcaoili for petitioner.

Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:

The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by
way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between
first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with interest at the
legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs
of suit.

On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from
P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against
petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes
on March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc.,
issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to
Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced
plaintiff to vacate the "first class" seat that he was occupying because, in the words of the witness
Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the seat.
When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told
defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and,
according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class;
when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager],
they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man"
(Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the
plane.3

1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of
Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues
properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the appellate
court's decision.

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Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record
without expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in
the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the
facts and the law on which it is based"; 6 and that "Every decision of the Court of Appeals shall contain
complete findings of fact on all issues properly raised before it". 7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however,
solely insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A
court of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one
party and the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the
sentence the facts" which a party "considered as proved". 11 This is but a part of the mental process from which
the Court draws the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if
not confusion, may result. So long as the decision of the Court of Appeals contains the necessary facts to
warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with
respect to the evidence for the defense". Because as this Court well observed, "There is no law that so
requires". 12 Indeed, "the mere failure to specify (in the decision) the contentions of the appellant and the
reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the
provisions of law and the Constitution". It is in this setting that in Manigque, it was held that the mere fact that
the findings "were based entirely on the evidence for the prosecution without taking into consideration or even
mentioning the appellant's side in the controversy as shown by his own testimony", would not vitiate the
judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each item of
evidence presented by, the defeated party, it does not mean that the court has overlooked such testimony or such
item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed, and
that all the matters within an issue in a case were laid before the court and passed upon by it. 15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the
ultimate facts as found by the court ... and essential to support the decision and judgment rendered
thereon". 16They consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A
question of law, upon the other hand, has been declared as "one which does not call for an examination of the
probative value of the evidence presented by the parties." 18

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of
Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter
the facts or to review the questions of fact. 20

With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support
its judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket.
But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the parties;
that said respondent knew that he did not have confirmed reservations for first class on any specific flight,
although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no guarantee
that he would have a first class ride, but that such would depend upon the availability of first class seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of
Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had
confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly
that from Saigon to Beirut". 21
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And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee
that the passenger to whom the same had been issued, would be accommodated in the first-class
compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every station
for the necessary first-class reservation. We are not impressed by such a reasoning. We cannot
understand how a reputable firm like defendant airplane company could have the indiscretion to give out
tickets it never meant to honor at all. It received the corresponding amount in payment of first-class
tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with
the ordinary course of business that the company should know whether or riot the tickets it issues are to
be honored or not.22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:

On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his
testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness,
Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?

A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, "first class". (Transcript, p. 169)

xxx xxx xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although
plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in
Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over
written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said
witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any reservation
whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a
"first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such
confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by
defendant would be subject to confirmation in Hongkong. 23

We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded
on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all
other respects. We hold the view that such a judgment of affirmance has merged the judgment of the lower
court. 24Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in the Court
of First Instance was free from prejudicial error and "all questions raised by the assignments of error and all
questions that might have been raised are to be regarded as finally adjudicated against the appellant". So also,
the judgment affirmed "must be regarded as free from all error". 25 We reached this policy construction because
nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact are in any
way at war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or
grounds different from those which were made the basis of the conclusions of the trial court. 26
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If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact
that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the
hands of an airline. What security then can a passenger have? It will always be an easy matter for an airline
aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement
to the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written
document speaks a uniform language; that spoken word could be notoriously unreliable. If only to achieve
stability in the relations between passenger and air carrier, adherence to the ticket so issued is desirable. Such is
the case here. The lower courts refused to believe the oral evidence intended to defeat the covenants in the
ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class
seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of
distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do
we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to
provoke an issue". 29And this because, as petitioner states, Carrascoso went to see the Manager at his office in
Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then, was
he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to
the seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's
action is planted upon breach of contract; that to authorize an award for moral damages there must be an
averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a finding of bad
faith. The pivotal allegations in the complaint bearing on this issue are:

3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable
consideration, the latter acting as general agents for and in behalf of the defendant, under which said
contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on
defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting point
up to and until plaintiff's return trip to Manila, ... .

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok,
defendant furnished to the plaintiff First Class accommodation but only after protestations, arguments
and/or insistence were made by the plaintiff with defendant's employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has
been compelled by defendant's employees to leave the First Class accommodation berths at
Bangkok after he was already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments
brought by defendant's breach of contract was forced to take a Pan American World Airways plane on
his return trip from Madrid to Manila. 32

xxx xxx xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff
suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious
anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of
P30,000.00. 33
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 xxx xxx xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class
passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when
petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was already,
seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments
and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social
humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the
complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth
therein. 34 The contract was averred to establish the relation between the parties. But the stress of the action is
put on wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on
guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso
was ousted by petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the
fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore,
unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award for
moral damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to
conform to the evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the
defendant Air France while at Bangkok, and was transferred to the tourist class not only without his
consent but against his will, has been sufficiently established by plaintiff in his testimony before the
court, corroborated by the corresponding entry made by the purser of the plane in his notebook which
notation reads as follows:

"First-class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the
plane who was asked by the manager of defendant company at Bangkok to intervene even refused to do
so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the
plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at the trial of
the case, or yet to secure his disposition; but defendant did neither. 37

The Court of appeals further stated —

Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if
the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already
been taken, surely the plaintiff should not have been picked out as the one to suffer the consequences
and to be subjected to the humiliation and indignity of being ejected from his seat in the presence of
others. Instead of explaining to the white man the improvidence committed by defendant's employees,
the manager adopted the more drastic step of ousting the plaintiff who was then safely ensconsced in his
rightful seat. We are strengthened in our belief that this probably was what happened there, by the
testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning of the letters
"O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for first class. Likewise,
Zenaida Faustino, another witness for defendant, who was the chief of the Reservation Office of
defendant, testified as follows:

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 "Q How does the person in the ticket-issuing office know what reservation the passenger has
arranged with you?

A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:

Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to
the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove
"any better", nay, any right on the part of the "white man" to the "First class" seat that the
plaintiff was occupying and for which he paid and was issued a corresponding "first class" ticket.

If there was a justified reason for the action of the defendant's Manager in Bangkok, the
defendant could have easily proven it by having taken the testimony of the said Manager by
deposition, but defendant did not do so; the presumption is that evidence willfully suppressed
would be adverse if produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances,
the Court is constrained to find, as it does find, that the Manager of the defendant airline in
Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did not
give up his "first class" seat because the said Manager wanted to accommodate, using the words
of the witness Ernesto G. Cuento, the "white man". 38

It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the
term "bad faith". But can it be doubted that the recital of facts therein points to bad faith? The manager
not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his
arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to
the tourist class compartment - just to give way to another passenger whose right thereto has not been
established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different
from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating
with furtive design or with some motive of self-interest or will or for ulterior purpose." 39

And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of
the Court of First Instance, thus:

The evidence shows that the defendant violated its contract of transportation with plaintiff in bad
faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the
extent of threatening the plaintiff in the presence of many passengers to have him thrown out of
the airplane to give the "first class" seat that he was occupying to, again using the words of the
witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to
accommodate, and the defendant has not proven that this "white man" had any "better right" to
occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by the defendant to him.40

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled
in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article
21 of the Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.

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In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of
Article 2219 (10), Civil Code, moral damages are recoverable. 42

6. A contract to transport passengers is quite different in kind and degree from any other contractual
relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its business is mainly
with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air
carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's
employees, naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees
with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal
misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or
discourteous conduct on the part of employees towards a passenger gives the latter an action for damages
against the carrier. 44

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort,
giving a right of action for its agent in the presence of third persons to falsely notify her that the check was
worthless and demand payment under threat of ejection, though the language used was not insulting and she
was not ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in
origin and nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case,
"Where a passenger on a railroad train, when the conductor came to collect his fare tendered him the cash fare
to a point where the train was scheduled not to stop, and told him that as soon as the train reached such point he
would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger which
justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and the Supreme Court
of South Carolina there held the carrier liable for the mental suffering of said passenger.1awphîl.nèt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we
have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier
— a case of quasi-delict. Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already — that was already in the trip — I could not help it. So one of the flight
attendants approached me and requested from me my ticket and I said, What for? and she said, "We will
note that you transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to
accepting my transfer." And I also said, "You are not going to note anything there because I am
protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.

Q About that purser?

A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I
stood up and I went to the pantry that was next to me and the purser was there. He told me, "I have
recorded the incident in my notebook." He read it and translated it to me — because it was recorded in

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 French — "First class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene."

Mr. VALTE —

I move to strike out the last part of the testimony of the witness because the best evidence would be the
notes. Your Honor.

COURT —

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading
"First class passenger was forced to go to the tourist class against his will, and that the captain refused to
intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not think
so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within
the proscription of the best evidence rule. Such testimony is admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling
occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in
this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and
mental and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the
notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been
guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have
been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such
entry was made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary
damages — in contracts and quasi- contracts. The only condition is that defendant should have "acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent
Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages. 54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment
for attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that
attorneys' fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised — as
it was here — should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus:
P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees.
The task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with
the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and
circumstances point to the reasonableness thereof. 57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against petitioner. So ordered.

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 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 157658 October 15, 2007
PHILIPPINE NATIONAL RAILWAYS and VIRGILIO J. BORJA, Petitioners,
vs.
COURT OF APPEALS (Second Division), CORAZON C. AMORES, MA. EMILIE A. MOJICA,
CECILE C. SISON, DINO C. AMORES, LARISA C. AMORES, ARMAND JINO C. AMORES and
JOHN C. AMORES, Respondents.
DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, seeking to annul and set aside the Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 54906
which reversed the Decision2 of the Regional Trial Court (RTC) of Manila, Branch 28, in Civil Case No. 92-
61987.
The factual antecedents are as follows:
In the early afternoon of April 27, 1992, Jose Amores (Amores) was traversing the railroad tracks in Kahilum II
Street, Pandacan, Manila. Before crossing the railroad track, he stopped for a while then proceeded accordingly.
Unfortunately, just as Amores was at the intersection, a Philippine National Railways‘ (PNR) train with
locomotive number T-517 turned up and collided with the car.
At the time of the mishap, there was neither a signal nor a crossing bar at the intersection to warn motorists of
an approaching train. Aside from the railroad track, the only visible warning sign at that time was the defective
standard signboard ―STOP, LOOK and LISTEN‖ wherein the sign ―Listen‖ was lacking while that of ―Look‖
was bent. No whistle blow from the train was likewise heard before it finally bumped the car of Amores. After
impact, the car was dragged about ten (10) meters beyond the center of the crossing. Amores died as a
consequence thereof.
On July 22, 1992, the heirs of Amores, consisting of his surviving wife and six children, herein respondents,
filed a Complaint for Damages against petitioners PNR and Virgilio J. Borja (Borja), PNR‘s locomotive driver
at the time of the incident, before the RTC of Manila. The case was raffled to Branch 28 and was docketed as
Civil Case No. 92-61987. In their complaint, respondents averred that the train‘s speedometer was defective,
and that the petitioners‘ negligence was the proximate cause of the mishap for their failure to take precautions to
Page | 9
prevent injury to persons and property despite the dense population in the vicinity. They then prayed for actual
and moral damages, as well as attorney‘s fees.
In their Answer, the petitioners denied the allegations, stating that the train was railroad-worthy and without any
defect. According to them, the proximate cause of the death of Amores was his own carelessness and
negligence, and Amores wantonly disregarded traffic rules and regulations in crossing the railroad tracks and
trying to beat the approaching train. They admitted that there was no crossing bar at the site of the accident
because it was merely a barangay road. PNR stressed that it exercised the diligence of a good father of a family
in the selection and supervision of the locomotive driver and train engineer, Borja, and that the latter likewise
used extraordinary diligence and caution to avoid the accident. Petitioners further asserted that respondents had
the last clear chance to avoid the accident but recklessly failed to do so.
After trial on the merits, on August 22, 1996, the RTC rendered judgment in favor of the petitioners, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered dismissing the complaint of the plaintiffs and the defendants‘
counterclaim.
The costs shall be halved and paid equally by the parties.
The counsel for the defendants is hereby ordered to inform this court who is the legal representative of the
deceased defendant, Virgilio Borja, within ten (10) days from receipt of a copy of this decision.
SO ORDERED.
The RTC rationalized that the proximate cause of the collision was Amores‘ fatal misjudgment and the reckless
course of action he took in crossing the railroad track even after seeing or hearing the oncoming train.
On appeal, the CA reversed the RTC decision, as follows:
WHEREFORE, the assailed Decision of the Regional Trial Court of Manila, Branch 28 is hereby REVERSED.
The defendants PNR and the estate of Virgilio J. Borja are jointly and severally liable to pay plaintiffs the
following:
1) The amount of ₱122,300.00 for the cost of damage to the car; and,
2) The amount of ₱50,000 as moral damages.
For lack of official receipts for funeral expenses and specimen of the last pay slip of the deceased, the claim for
reimbursement of funeral expenses and claim for payment of support is hereby DENIED for lack of basis. Costs
against Defendants.
SO ORDERED.
In reversing the trial court‘s decision, the appellate court found the petitioners negligent. The court based the
petitioners‘ negligence on the failure of PNR to install a semaphore or at the very least, to post a flagman,
considering that the crossing is located in a thickly populated area. Moreover, the signboard ―Stop, Look and
Listen‖ was found insufficient because of its defective condition as described above. Lastly, no negligence
could be attributed to Amores as he exercised reasonable diligence in crossing the railroad track.
Aggrieved by this reversal, the petitioners filed the present petition for review on certiorari, raising the
following grounds:
I
THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN RENDERING
ITS DECISION REVERSING THE DECISION OF THE REGIONAL TRIAL COURT OF MANILA
BRANCH 28, IN NOT TAKING INTO CONSIDERATION THE PROVISION OF SECTION 42, R.A.
4136 OF THE LAND TRANSPORTATION AND TRAFFIC CODE.
II
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 THE DECISION OF THE COURT OF APPEALS IS CONTRARY TO THE EVIDENCE ON
RECORD ADDUCED IN THE TRIAL ON THE MERIT IN CIVIL CASE NO. 92-61987.14
The petitioners insist that Amores must have heard the train‘s whistle and heeded the warning but, noting that
the train was still a distance away and moving slowly, he must have calculated that he could beat it to the other
side of the track before the train would arrive at the intersection. The petitioners likewise add that the train was
railroad-worthy and that its defective speedometer did not affect the train‘s operation. Lastly, they insist that
evidence showed sufficient warning signs strategically installed at the crossing to alert both motorists and
pedestrians.
Respondents, on the other hand, argue that the cause of the accident was petitioners‘ carelessness, imprudence
and laxity in failing to provide a crossing bar and keeper at the Kahilum II railway intersection. Considering
that Kahilum II Street is in the middle of a thickly populated squatters‘ area, and many pedestrians cross the
railroad track, notwithstanding the fact that it is a public street and a main thoroughfare utilized in going to
Herran Street, the presence of adequate warning signals would have prevented the untimely death of Amores.
Another crucial point raised by the respondents is the manner in which Borja applied the brakes of the train only
when the locomotive was already very near Amores‘ car, as admitted by witness Querimit. Finally, respondents
claim that Borja‘s failure to blow the locomotive‘s horn, pursuant to the usual practice of doing the same 100
meters before reaching the Kahilum II crossing point is an earmark of recklessness on the part of the petitioners.
The petition must fail.
The only issue to be resolved in the present case is whether the appellate court was correct in ascribing
negligence on the part of the petitioners. It was ascertained beyond quandary that the proximate cause of the
collision is the negligence and imprudence of the petitioner PNR and its locomotive driver, Borja, in operating
the passenger train.
As the action is predicated on negligence, the relevant provision is Article 2176 of the New Civil Code, which
states that:
Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there was no pre-existing contractual relation between the parties, is
called quasi-delict and is governed by the provisions of this chapter.
We have thoroughly reviewed the records of the case and we find no cogent reason to reverse the appellate
court‘s decision. Negligence has been defined as ―the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby
such other person suffers injury.‖ Using the aforementioned philosophy, it may be reliably concluded that there
is no hard and fast rule whereby such degree of care and vigilance is calibrated; it is dependent upon the
circumstances in which a person finds himself. All that the law requires is that it is perpetually compelling upon
a person to use that care and diligence expected of sensible men under comparable circumstances.
We hold that the petitioners were negligent when the collision took place. The transcript of stenographic notes
reveals that the train was running at a fast speed because notwithstanding the application of the ordinary and
emergency brakes, the train still dragged the car some distance away from the point of impact. Evidence
likewise unveils the inadequate precautions taken by petitioner PNR to forewarn the public of the impending
danger. Aside from not having any crossing bar, no flagman or guard to man the intersection at all times was
posted on the day of the incident. A reliable signaling device in good condition, not just a dilapidated ―Stop,
Look and Listen‖ signage because of many years of neglect, is needed to give notice to the public. It is the
responsibility of the railroad company to use reasonable care to keep the signal devices in working order.
Failure to do so would be an indication of negligence.
As held in the case of Philippine National Railway v. Brunty, it may broadly be stated that railroad companies
owe to the public a duty of exercising a reasonable degree of care to avoid injury to persons and property at
railroad crossings, which duties pertain both to the operation of trains and to the maintenance of the crossings.

Page | 11
Moreover, every corporation constructing or operating a railway shall make and construct at all points where
such railway crosses any public road, good, sufficient, and safe crossings, and erect at such points, at sufficient
elevation from such road as to admit a free passage of vehicles of every kind, a sign with large and distinct
letters placed thereon, to give notice of the proximity of the railway, and warn persons of the necessity of
looking out for trains. The failure of the PNR to put a cross bar, or signal light, flagman or switchman, or
semaphore is evidence of negligence and disregard of the safety of the public, even if there is no law or
ordinance requiring it, because public safety demands that said device or equipment be installed.
The petitioners insist that a train has a right-of-way in a railroad crossing under the existing laws. They derive
their theory from Section 42 (d), Article III of R.A. 4136, otherwise known as the Land Transportation and
Traffic Code, which states that:
The driver of a vehicle upon a highway shall bring to a full stop such vehicle before traversing any ―through
highway‖ or railroad crossing: Provided, That when it is apparent that no hazard exists, the vehicle may be
slowed down to five miles per hour instead of bringing it to a full stop.
They claim that motorists are enjoined by law to stop, look and listen before crossing railroad tracks and that a
heavier responsibility rests upon the motorists in avoiding accidents at level crossings.
It is true that one driving an automobile must use his faculties of seeing and hearing when nearing a railroad
crossing. However, the obligation to bring to a full stop vehicles moving in public highways before traversing
any ―through street‖ only accrues from the time the said ―through street‖ or crossing is so designated and sign-
posted. From the records of the case, it can be inferred that Amores exercised all the necessary precautions
required of him as to avoid injury to himself and to others. The witnesses‘ testimonies showed that Amores
slackened his speed, made a full stop, and then proceeded to cross the tracks when he saw that there was no
impending danger to his life. Under these circumstances, we are convinced that Amores did everything, with
absolute care and caution, to avoid the collision.
It is settled that every person or motorist crossing a railroad track should use ordinary prudence and alertness to
determine the proximity of a train before attempting to cross. We are persuaded that the circumstances were
beyond the control of Amores for no person would sacrifice his precious life if he had the slightest opportunity
to evade the catastrophe. Besides, the authority in this jurisdiction is that the failure of a railroad company to
install a semaphore or at the very least, to post a flagman or watchman to warn the public of the passing train
amounts to negligence.
In view of the foregoing, we will now discuss the liability of petitioner PNR. Article 2180 of the New Civil
Code discusses the liability of the employer once negligence or fault on the part of the employee has been
established. The employer is actually liable on the assumption of juris tantum that the employer failed to
exercise diligentissimi patris families in the selection and supervision of its employees. The liability is primary
and can only be negated by showing due diligence in the selection and supervision of the employee, a factual
matter that has not been demonstrated. Even the existence of hiring procedures and supervisory employees
cannot be incidentally invoked to overturn the presumption of negligence on the part of the employer.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated March 31, 2003 in CA-
G.R. CV No. 54906 is hereby AFFIRMED.
SO ORDERED.

Page | 12
G.R. No. 169891 November 2, 2006
PHILIPPINE NATIONAL RAILWAYS, Petitioner,
vs.
ETHEL BRUNTY and JUAN MANUEL M. GARCIA, Respondents.
DECISION
CALLEJO, SR., J.:
This is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. CV No.
47567 and its Resolution2 denying the motion for reconsideration thereof. The assailed decision affirmed with
partial modification the ruling3 of the Regional Trial Court (RTC) of Manila, Branch 20, directing petitioner
Philippine National Railways (PNR) to indemnify respondents Ethel Brunty and Juan Manuel M. Garcia for the
death of Rhonda Brunty, and to pay actual and moral damages, attorney‘s fees and cost of suit.
Rhonda Brunty, daughter of respondent Ethel Brunty and an American citizen, came to the Philippines for a
visit sometime in January 1980. Prior to her departure, she, together with her Filipino host Juan Manuel M.
Garcia, traveled to Baguio City on board a Mercedes Benz sedan with plate number FU 799, driven by Rodolfo
L. Mercelita. It was about 12:00 midnight, January 25, 1980. By then, PNR Train No. T-71, driven by Alfonso
Reyes, was on its way to Tutuban, Metro Manila4 as it had left the La Union station at 11:00 p.m., January 24,
1980.
By 2:00 a.m., Rhonda Brunty, Garcia and Mercelita were already approaching the railroad crossing at Barangay
Rizal, Moncada, Tarlac. Mercelita, driving at approximately 70 km/hr, drove past a vehicle, unaware of the
railroad track up ahead and that they were about to collide with PNR Train No. T-71. Mercelita was instantly
killed when the Mercedes Benz smashed into the train; the two other passengers suffered serious physical
injuries.5 A certain James Harrow6 brought Rhonda Brunty to the Central Luzon Doctor‘s Hospital in Tarlac,
where she was pronounced dead after ten minutes from arrival. Garcia, who had suffered severe head injuries,

Page | 13
was brought via ambulance to the same hospital. He was transferred to the Manila Doctor‘s Hospital, and later
to the Makati Medical Center for further treatment. 7
On July 28, 1981, Ethel Brunty sent a demand letter8 to the PNR demanding payment of actual, compensatory,
and moral damages, as a result of her daughter‘s death. When PNR did not respond, Ethel Brunty and Garcia,
filed a complaint 9 for damages against the PNR before the RTC of Manila. The case was raffled to Branch 20
and was docketed as Civil Case No. 83-18645. They alleged that the death of Mercelita and Rhonda Brunty, as
well as the physical injuries suffered by Garcia, were the direct and proximate result of the gross and reckless
negligence of PNR in not providing the necessary equipment at the railroad crossing in Barangay Rizal,
Municipality of Moncada, Tarlac. They pointed out that there was no flagbar or red light signal to warn
motorists who were about to cross the railroad track, and that the flagman or switchman was only equipped with
a hand flashlight.10 Plaintiffs likewise averred that PNR failed to supervise its employees in the performance of
their respective tasks and duties, more particularly the pilot and operator of the train. 11 They prayed for the
payment of the following damages:
1.) ₱200,000.00 as actual and compensatory damages to plaintiff Ethel Brunty;
2.) ₱2,800,000.00 for compensatory damages to plaintiff Ethel Brunty representing lost or unearned
income of Rhonda Brunty;
3.) Such amounts of moral and exemplary damages as may be warranted by the evidence adduced, to
plaintiff Ethel Brunty;
4.) At least ₱64,057.61 as actual damages representing medical expenses to plaintiff Juan Manuel M.
Garcia and at least ₱1,000,000.00 as unearned or lost income of said plaintiff;
5.) At least ₱72,760.00 as actual damages representing cost of the Mercedes Benz car to plaintiff Juan
Manuel M. Garcia;
6.) Such amounts of moral and exemplary damages as may be warranted by the evidence adduced, to
plaintiff Juan Manuel M. Garcia; and
7.) Attorney‘s fees equivalent to at least 15% of the total award to plaintiffs herein. 12
In its Answer,13 PNR claimed that it exercised the diligence of a good father of a family not only in the selection
but also in the supervision of its employees. 14 By way of special and affirmative defense, it stressed that it had
the right of way on the railroad crossing in question, and that it has no legal duty to put up a bar or red light
signal in any such crossing. It insisted that there were adequate, visible, and clear warning signs strategically
posted on the sides of the road before the railroad crossing. It countered that the immediate and proximate cause
of the accident was Mercelita‘s negligence, and that he had the last clear chance to avoid the accident. The
driver disregarded the warning signs, the whistle blasts of the oncoming train and the flashlight signals to stop
given by the guard.15 As counterclaim, it prayed that it be awarded actual and compensatory damages, and
litigation expenses.16
Plaintiffs filed an Amended Complaint 17 dated July 28, 1986 to include, as party plaintiff, Chemical Industries
of the Philippines, Inc. (Chemphil), Garcia‘s employer, who claimed to have paid for the latter‘s medical and
hospitalization expenses, the services rendered by the funeral parlor of the deceased, and the expenses in
transferring the remains of Rhonda Brunty to the United States. 18
After trial on the merits, the RTC rendered its Decision19 on May 21, 1990 in favor of plaintiffs. The fallo reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs Ethel Brunty and Juan Manuel M. Garcia
and against the defendant Philippine National Railways directing the latter to pay the former the sum of:
1. Thirty Thousand Pesos (₱30,000.00) Philippine Currency, for the death of Rhonda Brunty formerly a
resident of 1595 Ashland Avenue, Des Plaines, Illinois, U.S.A.;
2. One Million Pesos (₱1,000,000.00) Philippine Currency for moral and actual damages due the heirs
of Rhonda Brunty;
Page | 14
 3. Seventy-Two Thousand Seven Hundred Sixty Pesos (₱72,760.00) Philippine Currency for damages
sustained by the Mercedes Benz;
4. Fifty Thousand Pesos (₱50,000.00) Philippine Currency as and for attorney's fees, and;
5. Costs of suit.
SO ORDERED.20
Aggrieved, the PNR appealed the case to the CA, raising the following errors:
I.
THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT PNR LIABLE FOR
THE DEATH OF RHONDA BRUNTY AND THE CONSEQUENT AWARD OF DAMAGES DUE
THE HEIRS OF RHONDA BRUNTY.
II.
THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT PNR LIABLE FOR
THE DAMAGES SUFFERED BY PLAINTIFF-APPELLEE‘S MERCEDES BENZ IN THE AMOUNT
OF SEVENTY-TWO THOUSAND SEVEN HUNDRED AND SIXTY PESOS (₱72,760.00).
III.
THE LOWER COURT ERRED IN AWARDING ATTORNEY‘S FEES TO THE PLAINTIFFS-
APPELLEES.21
In its Brief, PNR insisted that the sole and proximate cause of the accident was the negligence and recklessness
of Garcia and Mercelita.22 It insisted that it had provided adequate warning signals at the railroad crossing23 and
had exercised due care in the selection and supervision of its employees. 24 The RTC erred in awarding damages
to Rhonda Brunty as she cannot be allowed to receive what she is not in a position to give, having been a non-
resident alien who did not own a property in the Philippines.25 It likewise questioned the award of damages on
the Mercedes Benz as well as the grant of attorney‘s fees. 26 At the very least, Mercelita was guilty of
contributory negligence.27
For their part, appellees countered that appellant was grossly and recklessly negligent in not properly providing
the necessary equipment at the railroad crossing in Rizal, Moncada, Tarlac;28 appellant was negligent in not
exercising due diligence of a good father of a family in the supervision of its employees, particularly the train
operator Alfonso Reyes;29 the car was driven in a careful and diligent manner, and at a moderate speed, with
due regard to all traffic rules and regulations at that particular time;30 the doctrine of "last clear chance" is not
applicable;31 Ethel Brunty is a non-resident alien who can rightfully file the instant case;32 and they are entitled
to recover damages from appellant.33
The CA rendered the assailed Decision34 on August 15, 2005. The dispositive portion reads:
WHEREFORE, premises considered, the assailed decision is hereby AFFIRMED with PARTIAL
MODIFICATIONS, increasing the death indemnity award from ₱30,000.00 to ₱50,000.00, and deleting the
award for damages sustained by the Mercedes Benz.
SO ORDERED.35
The appellate court affirmed the findings of the RTC as to the negligence of the PNR. Considering the
circumstances prevailing at the time of the fatal accident, it ruled that the alleged safety measures installed by
the PNR at the railroad crossing were not merely inadequate – they did not satisfy the well-settled safety
standards in transportation.36 However, the CA did not agree with the RTC‘s findings on the contributory
negligence of Mercelita, the driver of the Mercedes Benz. It held that Mercelita could not have foreseen the
harm that would befall him and the two other passengers under the prevailing circumstances, thus, could not be
considered guilty of contributory negligence. 37

Page | 15
The PNR, now petitioner, comes before this Court in this Petition for Review on Certiorari on the following
grounds:
I.
THE COURT OF APPEALS ERRED IN MANIFESTLY OVERLOOKING CERTAIN RELEVANT FACTS
NOT DISPUTED BY THE PARTIES AND WHICH, IF PROPERLY CONSIDERED, WOULD JUSTIFY A
DIFFERENT CONCLUSION SUCH AS:
THE RESPONDENTS‘ DRIVER OVERTOOK ANOTHER VEHICLE BY ACCELERATING AT 70
KILOMETERS PER HOUR WITHIN JUST 50 YARDS AWAY FROM THE RAILROAD TRACKS.
II.
THE FINDINGS OF FACT OF THE COURT OF APPEALS ARE CONTRARY TO THOSE OF THE TRIAL
COURT REGARDING CONTRIBUTORY NEGLIGENCE OF THE RESPONDENTS‘ DRIVER.
III.
THE COURT OF APPEALS ERRED IN NOT APPLYING THE DOCTRINE OF LAST CLEAR CHANCE
IN THE INSTANT CASE.38
Petitioner insists that the proximate cause of the mishap was Mercelita‘s disregard of traffic rules and
regulations. Had the court considered the fact that Mercelita had overtaken another vehicle a few yards before
the railroad track, it would have reached a different conclusion.39 Moreover, petitioner asserts, considering that
the decisions of the RTC and the CA vary as to whether or not Mercelita was guilty of contributory negligence,
the findings of the RTC should prevail. Thus, Mercelita‘s contributory negligence should not have been
ignored.40 Lastly, petitioner avers that since there is freedom of control and greater maneuverability on the part
of motor vehicles, it is obvious that in railroad crossings, they have the last clear chance to prevent or avoid an
unwanted accident from taking place.41
In their Comment 42 on the petition, respondents reiterate the findings of the RTC and the CA that the breach by
petitioner of its legal duty to provide adequate and necessary public safety device and equipment within the area
or scene of the accident was the proximate cause of the mishap. 43 While it is true that as a general rule, the trial
court is in the best position to evaluate and observe the conduct and demeanor of the witnesses presented during
the trial, the CA, in the exercise of its appellate jurisdiction, has the vested right to modify, reject, or set aside
the trial court‘s evaluation and findings. 44 As to the application of the doctrine of last clear chance, respondents
claim that said issue is being raised for the first time in this petition. 45 Lastly, respondents cite foreign
jurisprudence stating that if the violation is one which gives rise to liability per se for any resulting injury, the
defenses ordinarily available in actions for diligence are barred and the contributory negligence of the person
injured is no defense.46
The Court is thus tasked to answer the following factual questions: (1) As between petitioner and Mercelita,
whose negligence resulted in the unfortunate collision? (2) Is Mercelita (the driver of the Mercedes Benz) guilty
of contributory negligence? Finally, the application in this case of the doctrine of last clear chance is likewise in
question.
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.47 In Corliss v. Manila Railroad Company, 48 this Court held that negligence is
want of the care required by the circumstances. It is a relative or comparative, not an absolute, term and its
application depends upon the situation of the parties and the degree of care and vigilance which the
circumstances reasonably require.49 In determining whether or not there is negligence on the part of the parties
in a given situation, jurisprudence50 has laid down the following test: Did 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, the person is guilty of negligence. The law, in effect, adopts the standard supposed to be
supplied by the imaginary conduct of the discreet pater familias of the Roman law.
Page | 16
The issue of who, between the parties, was negligent was thoroughly discussed by both the RTC and the CA. In
petitions for review under Rule 45 of the Revised Rules of Court, only questions of law may be put into issue,
and questions of fact as a general rule, cannot be entertained. The finding of negligence by the RTC, as affirmed
by the CA, is a question of fact which this Court cannot pass upon as it would entail going into factual matters
on which the finding of negligence was based.51 The established rule is that factual findings of the CA affirming
those of the trial court are conclusive and binding on this Court.52
The records of the instant case show that both the RTC and the CA carefully examined the factual
circumstances surrounding the case, and we find no cogent reason to disturb the same. It is, however, worthy to
emphasize that petitioner was found negligent because of its failure to provide the necessary safety device to
ensure the safety of motorists in crossing the railroad track. As such, it is liable for damages for violating the
provisions of Article 2176 of the New Civil Code, viz:
Article 2176. Whoever, by act or omission, causes damage to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this Chapter.
In a long line of cases, the Court held that in order to sustain a claim based on quasi-delict, the following
requisites must concur: (1) damage to plaintiff; (2) negligence, by act or omission, of which defendant, or some
person for whose acts he must respond was guilty; and (3) connection of cause and effect between such
negligence and damage.53 Applying the foregoing requisites, the CA correctly made the following conclusions:
It was clearly established that plaintiffs-appellees (respondents herein) sustained damage or injury as a result of
the collision. That there was negligence on the part of PNR is, likewise, beyond cavil. Considering the
circumstances prevailing at the time of the fatal accident, the alleged safety measures installed by the PNR at
the railroad crossing is not only inadequate but does not satisfy well-settled safety standards in transportation. x
xx
xxxx
x x x An examination of the photographs of the railroad crossing at Moncada, Tarlac presented as evidence by
PNR itself would yield the following: (1.) absence of flagbars or safety railroad bars; (2.) inadequacy of the
installed warning signals; and (3.) lack of proper lighting within the area. Thus, even if there was a flagman
stationed at the site as claimed by PNR (petitioner), it would still be impossible to know or see that there is a
railroad crossing/tracks ahead, or that there is an approaching train from the Moncada side of the road since
one‘s view would be blocked by a cockpit arena. x x x54
Moreover, the CA held that a vehicle coming from the Moncada side would have difficulty in knowing that
there is an approaching train because of the slight curve, more so, at an unholy hour as 2:00 a.m. Thus, it is
imperative on the part of the PNR to provide adequate safety equipment in the area.55
It may broadly be stated that railroad companies owe to the public a duty of exercising a reasonable degree of
care to avoid injury to persons and property at railroad crossings, which duties pertain both in the operation of
trains and in the maintenance of the crossings. 56 Moreover, every corporation constructing or operating a
railway shall make and construct at all points where such railway crosses any public road, good, sufficient, and
safe crossings and erect at such points, at a sufficient elevation from such road as to admit a free passage of
vehicles of every kind, a sign with large and distinct letters placed thereon, to give notice of the proximity of the
railway, and warn persons of the necessity of looking out for trains. 57
This Court has previously determined the liability of the PNR for damages for its failure to put a cross bar, or
signal light, flagman or switchman, or semaphores. Such failure is evidence of negligence and disregard of the
safety of the public, even if there is no law or ordinance requiring it because public safety demands that said
device or equipment be installed.58
In view of the foregoing, we affirm the factual findings of the CA as well as its conclusion on petitioner‘s
negligence.
Page | 17
As to whether or not Mercelita was guilty of contributory negligence, we agree with petitioner. Contributory
negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered,
which falls below the standard to which he is required to conform for his own protection. 59 To hold a person as
having contributed to his injuries, it must be shown that he performed an act that brought about his injuries in
disregard of warning or signs of an impending danger to health and body.60 To prove contributory negligence, it
is still necessary to establish a causal link, although not proximate, between the negligence of the party and the
succeeding injury. In a legal sense, negligence is contributory only when it contributes proximately to the
injury, and not simply a condition for its occurrence. 61
The court below found that there was a slight curve before approaching the tracks; the place was not properly
illuminated; one‘s view was blocked by a cockpit arena; and Mercelita was not familiar with the road. Yet, it
was also established that Mercelita was then driving the Mercedes Benz at a speed of 70 km/hr and, in fact, had
overtaken a vehicle a few yards before reaching the railroad track. Mercelita should not have driven the car the
way he did. However, while his acts contributed to the collision, they nevertheless do not negate petitioner‘s
liability. Pursuant to Article 217962 of the New Civil Code, the only effect such contributory negligence could
have is to mitigate liability, which, however, is not applicable in this case, as will be discussed later.
As to whether or not the doctrine of last clear chance is applicable, we rule in the negative. The doctrine of last
clear chance states that where both parties are negligent but the negligent act of one is appreciably later than
that of the other, or where it is impossible to determine whose fault or negligence caused the loss, the one who
had the last clear opportunity to avoid the loss but failed to do so, is chargeable with the loss. Stated differently,
the antecedent negligence of plaintiff does not preclude him from recovering damages caused by the
supervening negligence of defendant, who had the last fair chance to prevent the impending harm by the
exercise of due diligence.63 The proximate cause of the injury having been established to be the negligence of
petitioner, we hold that the above doctrine finds no application in the instant case.
We note that the damages awarded by the appellate court consist of (1) ₱50,000.00 as indemnity for the death of
Rhonda Brunty; (2) ₱1,000,000.00 as actual and moral damages due the heirs of Rhonda Brunty; and (3)
₱50,000.00 as and by way of attorney‘s fees. No damages, however, were awarded for the injuries suffered by
Garcia, yet, the latter never interposed an appeal before the CA nor even before this Court. The record is,
likewise, bereft of any allegation and proof as to the relationship between Mercelita (the driver) and Rhonda
Brunty. Hence, the earlier finding of contributory negligence on the part of Mercelita, which generally has the
effect of mitigation of liability, does not apply.
As to the amount of damages awarded, a modification of the same is in order, specifically on the award of
actual and moral damages in the aggregate amount of ₱1,000,000.00.
Actual or compensatory damages are those awarded in order to compensate a party for an injury or loss he
suffered. They arise out of a sense of natural justice, aimed at repairing the wrong done. To be recoverable, they
must be duly proved with a reasonable degree of certainty. A court cannot rely on speculation, conjecture, or
guesswork as to the fact and amount of damages, but must depend upon competent proof that they have
suffered, and on evidence of the actual amount thereof. 64 Respondents, however, failed to present evidence for
such damages; hence, the award of actual damages cannot be sustained. However, as the heirs of Rhonda
Brunty undeniably incurred expenses for the wake and burial of the latter, we deem it proper to award temperate
damages in the amount of ₱25,000.00 pursuant to prevailing jurisprudence. 65 This is in lieu of actual damages
as it would be unfair for the victim‘s heirs to get nothing, despite the death of their kin, for the reason alone that
they cannot produce receipts.66
The relatives of the victim who incurred physical injuries in a quasi-delict are not proscribed from recovering
moral damages in meritorious cases.67 We, therefore, sustain the award of moral damages in favor of the heirs
of Rhonda Brunty.
Moral damages are not punitive in nature, but are designed to compensate and alleviate in some way the
physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral
Page | 18
shock, social humiliation, and similar injury unjustly caused a person. Although incapable of pecuniary
computation, moral damages must nevertheless be somehow proportional to and in approximation of the
suffering inflicted.68 In the instant case, the moral suffering of the heirs of Rhonda Brunty was sufficiently
established by Ethel Brunty in her deposition, 69 viz:
Q: What have you felt as a result of the death of Rhonda?
A: I felt earnest anguish and mixed feelings of anger and extreme sorrow because she died so far away and
alone, and because her death could so easily be prevented if there had been adequate and appropriate warning
signals at the railroad crossing and it is just an unbearable and irreparable loss. In so many ways, she was my
life. It seemed to me that losing her was just like losing my own life, or worst, and even now, there is no end to
our bereavement. I am still on constant medication to be able to sleep and to be able to perform my duties
effectively in my job but it does not take away the pain of loss. 70
In People v. Teehankee, Jr.,71 and in Metro Manila Transit Corporation v. Court of Appeals, 72 we awarded
moral damages in the amount of ₱1,000,000.00 to the heirs of the deceased. In Victory Liner, Inc. v. Heirs of
Malecdan,73the award of ₱100,000.00 as moral damages was held in keeping with the purpose of the law, while
in Macalinao v. Ong,74 the amount of ₱50,000.00 was held sufficient.1âwphi1
Considering the circumstances attendant in this case, we find that an award of ₱500,000.00 as moral damages to
the heirs of Rhonda Brunty is proper. In view of recent jurisprudence, indemnity of ₱50,000.00 for the death of
Rhonda Brunty and attorney‘s fees amounting to ₱50,000.00 is likewise proper.
WHEREFORE, premises considered, the Decision of the Court of Appeals dated August 15, 2005 is
AFFIRMED WITH MODIFICATIONS. The award of actual damages is deleted, and in lieu thereof, temperate
damages of ₱25,000.00 is awarded to the heirs of Rhonda Brunty. The award of moral damages is reduced to
₱500,000.00.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 172406 October 11, 2007

CONCEPCION ILAO-ORETA, Petitioner,

vs.
SPOUSES EVA MARIE and BENEDICTO NOEL RONQUILLO, Respondents.

DECISION

CARPIO MORALES, J.:

Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel Benedicto (Noel) Ronquillo (the Ronquillo
spouses or the spouses), had not been blessed with a child despite several years of marriage. They thus
consulted petitioner, Dr. Concepcion Ilao-Oreta (Dr. Ilao-Oreta), an obstetrician-gynecologist-consultant at the
St. Luke‘s Medical Center where she was, at the time material to the case, the chief of the Reproductive
Endocrinology and Infertility Section.

Upon Dr. Ilao-Oreta‘s advice, Eva Marie agreed to undergo a laparoscopic procedure whereby a laparascope
would be inserted through the patient‘s abdominal wall to get a direct view of her internal reproductive organ in
order to determine the real cause of her infertility.
Page | 19
 The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be performed by Dr. Ilao-Oreta. At around 7:00
a.m. of said date, Eva Marie, accompanied by her husband Noel, checked in at the St. Luke‘s Medical Center
and underwent pre-operative procedures including the administration of intravenous fluid and enema.

Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure, however, and no prior notice of its
cancellation was received. It turned out that the doctor was on a return flight from Hawaii to, and arrived at
10:00 p.m. of April 5, 1999 in, Manila.

On May 18, 1999, the Ronquillo spouses filed a complaint 1 against Dr. Ilao-Oreta and the St. Luke‘s Medical
Center for breach of professional and service contract and for damages before the Regional Trial Court (RTC)
of Batangas City. They prayed for the award of actual damages including alleged loss of income of Noel while
accompanying his wife to the hospital, moral damages, exemplary damages, the costs of litigation, attorney‘s
fees, and other available reliefs and remedies. 2

In her Answer,3 Dr. Ilao-Oreta gave her side of the case as follows: She went on a honeymoon to Hawaii and
was scheduled to leave Hawaii at 3:00 p.m. of April 4, 1999 for Manila. Aware that her trip from Hawaii to
Manila would take about 12 hours, inclusive of a stop-over at the Narita Airport in Japan, she estimated that she
would arrive in Manila in the early morning of April 5, 1999. She thus believed in utmost good faith that she
would be back in Manila in time for the scheduled conduct of the laparoscopic procedure. She failed to consider
the time difference between Hawaii and the Philippines, however.

In its Answer,4 the St. Luke‘s Medical Center contended that the spouses have no cause of action against it
since it performed the pre-operative procedures without delay, and any cause of action they have would be
against Dr. Ilao-Oreta.

By Decision5 of March 9, 2001, Branch 84 of the Batangas RTC, finding that the failure of the doctor to arrive
on time was not intentional, awarded Eva Marie only actual damages in the total amount of ₱9,939 and costs of
suit. It found no adequate proof that Noel had been deprived of any job contract while attending to his wife in
the hospital.

On appeal by the spouses, the Court of Appeals, by Decision6 of April 21, 2006, finding Dr. Ilao-Oreta grossly
negligent,7 modified the trial court‘s decision as follows:

WHEREFORE, the trial Court‘s decision dated March 9, 2001 is affirmed, subject to the modification that the
amount of actual damages, for which both defendants-appellees are jointly and severally liable to plaintiffs-
appellants, is increased to P16,069.40. Furthermore, defendant-appellee Dr. Ilao-Oreta is also held liable to pay
plaintiff-appellants the following:

(a) P50,000.00 as moral damages;

(b) P25,000.00 as exemplary damages; and
(c) P20,000.00 as attorney‘s fees.

SO ORDERED.8 (Underscoring supplied)

Hence, the present Petition for Review9 of Dr. Ilao-Oreta raising the following arguments:

The court a quo erred in finding petitioner to have acted with gross negligence and awarding moral damages to
respondents.10

Page | 20
The court a quo erred in awarding Exemplary Damages to respondents. 11

The court a quo [erred] in awarding Attorney‘s Fees to respondents. 12

The court a quo erred in increasing the award of actual damages in favor of respondents.13

"Gross negligence" implies a want or absence of or failure to exercise slight care or diligence, or the entire
absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. 14
It is characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act,
not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other
persons may be affected.15

The records show that before leaving for Hawaii, Dr. Ilao-Oreta left an admitting order with her secretary for
one of the spouses to pick up, apprised Eva Marie of the necessary preparations for the procedure, and
instructed the hospital staff to perform pre-operative treatments.16 These acts of the doctor reflect an earnest
intention to perform the procedure on the day and time scheduled.

The records also show that on realizing that she missed the scheduled procedure, Dr. Ilao-Oreta, upon arrival in
Manila, immediately sought to rectify the same, thus:

[ATTY SINJAN] Q: So, can you tell us the reason why you missed that operation?

[DR. ILAO-ORETA] A: When I scheduled her for the surgery, I looked at my ticket and so I was to leave
Hawaii on April 4 at around 4:00 o‘clock in the afternoon, so I was computing 12 hours of travel including
stop-over, then probably I would be in Manila early morning of April 5, then I have so much time and I can
easily do the case at 2:00 o‘clock, you know it skipped my mind the change in time.

Q: So when you arrived at 10:00 [PM] in Manila, what did you do?

A: I called immediately the hospital and I talked with the nurses, I asked about the patient, Mrs. Ronquillo, and
they told me that she has already left at around 7:00.

Q: And after calling the hospital, what happened?

A: I wanted to call the plaintiffs, but I didn‘t have their number at that time, so in the morning I went to my
office early at 8:00 and looked for her chart, because her telephone number was written in the chart. So, I called
them right away.

Q: Were you able to contact them?

A: I was able to reach Mr. Ronquillo.

Q: In the course of your conversation, what did you tell Mr. Ronquillo?

A: I apologized to him, I said I was sorry about the time that I missed the surgery, and I told him that I can do
the case right that same day without Mrs. Ronquillo having to undergo another [b]arium enema.

Q: What else did you tell him, if any?

A: I asked him whether I can talk with Mrs. Ronquillo because I wanted to apologize to her personally.
Page | 21
Q: And what did he say?

A: I could hear on the background that Mrs. Ronquillo was shouting angrily that she didn‘t want to talk to me,
and that she didn‘t want re-scheduling of the surgery . . .

ATTY LONTOK: May we move, your Honor, for the striking out of the answer, this is purely hearsay.

COURT: Remain on the record.

WITNESS [DR. ILAO-ORETA]: . . . and then Mr. Ronquillo told me "I‘m sorry, Dra., we cannot re-schedule
the surgery."17 (Underscoring supplied)

Noel admitted that indeed Dr. Ilao-Oreta called him up after she arrived in Manila as related by her. 18

The evidence then shows that Dr. Ilao-Oreta, who had traveled more than twice to the United States where she
obtained a fellowship in Reproductive Endocrinology and Infertility was indeed negligent when she scheduled
to perform professional service at 2:00 p.m. on April 5, 1999 without considering the time difference between
the Philippines and Hawaii.

The doctor‘s act did not, however, reflect gross negligence as defined above. Her argument that

Although petitioner failed to take into consideration the time difference between the Philippines and Hawaii, the
situation then did not present any clear and apparent harm or injury that even a careless person may perceive.
Unlike in situations where the Supreme Court had found gross negligence to exist, petitioner could not have
been conscious of any foreseeable danger that may occur since she actually believed that she would make it to
the operation that was elective in nature, the only purpose of which was to determine the real cause of infertility
and not to treat and cure a life threatening disease. Thus, in merely fixing the date of her appointment with
respondent Eva Marie Ronquillo, petitioner was not in the pursuit or performance of conduct which any
ordinary person may deem to probably and naturally result in injury, 19 (Underscoring in original)

thus persuades.

It bears noting that when she was scheduling the date of her performance of the procedure, Dr. Ilao-Oreta had
just gotten married and was preparing for her honeymoon, 20 and it is of common human knowledge that
excitement attends its preparations. Her negligence could then be partly attributed to human frailty which rules
out its characterization as gross.

The doctor‘s negligence not being gross, the spouses are not entitled to recover moral damages.

Neither are the spouses entitled to recover exemplary damages in the absence of a showing that Dr. Ilao-Oreta
acted in a wanton, fraudulent, reckless, oppressive or malevolent manner,21 nor to award of attorney‘s fees as,
contrary to the finding of the Court of Appeals that the spouses "were compelled to litigate and incur expenses
to protect their interest,"22 the records show that they did not exert enough efforts to settle the matter before
going to court. Eva Marie herself testified:

ATTY. SINJIAN:

Q: Isn‘t it true that before instituting this present case, you did not make any demand on Dr. Ilao-Oreta
regarding the claims which you have allegedly incurred, because of the failed laparoscopic surgery operation?
Page | 22
A [EVA MARIE]: I will tell the truth. Dr. Augusto Reyes of St. Luke‘s . . .

Q: But did you demand?

A: No, I did not demand because…

ATTY. SINJIAN: That will be all, your Honor.

ATTY. LONTOK: The witness is still explaining.

WITNESS: I‘m explaining first. Dr. Augusto Reyes told me that he will hold the meeting for me and Dr. Oreta
to settle things and reimburse all the money that I spent from the hospital, and he even suggested Dr. Oreta to
personally talk to me.

ATTY. SINJIAN:

Q: So it was to Dr. Augusto Reyes that you talked?

A: Yes.

Q: But you did not demand anything or write to Dr. Oreta?

A: No.

Q: Before instituting this case?

A: No.23 (Underscoring supplied)

Finally, Dr. Ilao-Oreta‘s prayer for the reduction of actual damages is well-taken. Article 2201 of the Civil Code
provides:

In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be
those which are the natural and probable consequences of the breach of the obligation, and which the parties
have foreseen or could have reasonably foreseen at the time the obligation was constituted.

In fixing the amount of actual damages, the Court of Appeals and the trial court included expenses which the
spouses incurred prior to April 5, 1999 when the breach of contract complained of occurred. 24 The Court of
Appeals also included the alleged ₱300 spent on fuel consumption from the spouses‘ residence at San Pascual,
Batangas to the St. Luke‘s Medical Center in Quezon City and the alleged ₱500 spent on food in the hospital
canteen, both of which are unsubstantiated by independent or competent proof. 25 The only piece of
documentary evidence supporting the food and fuel expenses is an unsigned listing. 26 As the fuel and food
expenses are not adequately substantiated, they cannot be included in the computation of the amount of actual
damages. So Premiere Development Bank v. Court of Appeals27 instructs:

In the instant case, the actual damages were proven through the sole testimony of Themistocles Ruguero, the
vice president for administration of Panacor. In his testimony, the witness affirmed that Panacor incurred losses,
specifically, in terms of training and seminars, leasehold acquisition, procurement of vehicles and office
equipment without, however, adducing receipts to substantiate the same. The documentary evidence marked as
Exhibit "W," which was an ordinary private writing allegedly itemizing the capital expenditures and losses from
Page | 23
the failed operation of Panacor, was not testified to by any witness to ascertain the veracity of its content.
Although the lower court fixed the sum of P4,520,000.00 as the total expenditures incurred by Panacor, it failed
to show how and in what manner the same were substantiated by the claimant with reasonable certainty. Hence,
the claim for actual damages should be received with extreme caution since it is only based on bare assertion
without support from independent evidence. Premiere‘s failure to prove actual expenditure consequently
conduces to a failure of its claim. In determining actual damages, the court cannot rely on mere assertions,
speculations, conjectures or guesswork but must depend on competent proof and on the best evidence
obtainable regarding the actual amount of loss.28 (Underscoring supplied)

The list of expenses cannot replace receipts when they should have been issued as a matter of course in business
transactions29 as in the case of purchase of gasoline and of food.

The documented claim for hospital and medical expenses of the spouses is detailed in the Statement of Account
issued by the hospital, the pertinent entries of which read:
xxxx
GROSS HOSPITAL CHARGES 2,416.50
4/5/1999 1699460 DEPOSIT–OFFICIAL
RECEIPT (5,000.00)
(5,000.00)

4/5/1999 SECOND 0284893 UNUSED MED 0439534 (65.55)

FLOOR HINOX 500 MG CAP
SECOND 0284894 UNUSED MED 0439893 (62.25)
FLOOR PHENERGAN 2 ML
50MG ________ (127.80)

BALANCE DUE (2,711.30)30

==========

As extrapolated from the above-quoted entries in the Statement of Account, ₱2,288.70 (the gross hospital
charges of ₱2,416.50 less the unused medicine in the amount of ₱127.80) was debited from the ₱5,000 deposit 31
to thus leave a balance of the deposit in the amount of ₱2,711.30, which the trial court erroneously denominated
as "confinement fee." The remaining balance of ₱2,711.30 was the amount refundable to the spouses.

Following Eastern Shipping Lines, Inc. v. Court of Appeals,32 this Court awards interest on the actual damages
to be paid by Dr. Ilao-Oreta at the rate of 6% per annum from the time of the filing of the complaint on May 18,
1999, and at 12% per annum from the finality of this judgment until its satisfaction.

WHEREFORE, the petition is GRANTED. The decision appealed from is MODIFIED in that

1. The award to respondents-spouses Noel and Eva Marie Ronquillo of actual damages is REDUCED to
₱2,288.70, to bear interest at a rate of 6% per annum from the time of the filing of the
complaint on May 18, 1999 and, upon finality of this judgment, at the rate of 12% per annum
until satisfaction; and

2. The award of moral and exemplary damages and attorney‘s fees is DELETED.

SO ORDERED.

Page | 24
\

Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION

ROBERTO C. SICAM and AGENCIA G.R. NO. 159617

de R.C. SICAM, INC.,
Petitioners,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO, and
NACHURA, JJ.

LULU V. JORGE and CESAR

JORGE, Promulgated:
Respondents. August 8, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

AUSTRIA-MARTINEZ, J.:

Page | 25
 Before us is a Petition for Review on Certiorari filed by Roberto C. Sicam, Jr. (petitioner Sicam)
and Agencia de R.C. Sicam, Inc. (petitioner corporation) seeking to annul the Decision of the Court of Appeals
dated March 31, 2003, and its Resolution dated August 8, 2003, in CA G.R. CV No. 56633.

It appears that on different dates from September to October 1987, Lulu V. Jorge (respondent Lulu) pawned
several pieces of jewelry with Agencia de R. C. Sicam located at No. 17 Aguirre Ave., BF Homes Paraaque,
Metro Manila, to secure a loan in the total amount of P59,500.00.

On October 19, 1987, two armed men entered the pawnshop and took away whatever cash and jewelry were
found inside the pawnshop vault. The incident was entered in the police blotter of the Southern Police
District, Paraaque Police Station as follows:

Investigation shows that at above TDPO, while victims were inside the office, two (2) male unidentified persons
entered into the said office with guns drawn. Suspects(sic) (1) went straight inside and poked his gun
toward Romeo Sicam and thereby tied him with an electric wire while suspects (sic) (2) poked his gun
toward Divina Mata and Isabelita Rodriguez and ordered them to lay (sic) face flat on the floor. Suspects
asked forcibly the case and assorted pawned jewelries items mentioned above.

Suspects after taking the money and jewelries fled on board a Marson Toyota unidentified plate number.

Petitioner Sicam sent respondent Lulu a letter dated October 19, 1987 informing her of the loss of her jewelry
due to the robbery incident in the pawnshop. On November 2, 1987, respondent Lulu then wrote a letter to
petitioner Sicam expressing disbelief stating that when the robbery happened, all jewelry pawned were
deposited with Far East Bank near the pawnshop since it had been the practice that before they could withdraw,
advance notice must be given to the pawnshop so it could withdraw the jewelry from the bank. Respondent
Lulu then requested petitioner Sicam to prepare the pawned jewelry for withdrawal on November
6, 1987 but petitioner Sicam failed to return the jewelry.

On September 28, 1988, respondent Lulu joined by her husband, Cesar Jorge, filed a complaint against
petitioner Sicam with the Regional Trial Court of Makati seeking indemnification for the loss of pawned
jewelry and payment of actual, moral and exemplary damages as well as attorney's fees. The case was docketed
as Civil Case No. 88-2035.

Petitioner Sicam filed his Answer contending that he is not the real party-in-interest as the pawnshop was
incorporated on April 20, 1987 and known as Agencia de R.C. Sicam, Inc; that petitioner corporation had
exercised due care and diligence in the safekeeping of the articles pledged with it and could not be made liable
for an event that is fortuitous.

Respondents subsequently filed an Amended Complaint to include petitioner corporation.

Thereafter, petitioner Sicam filed a Motion to Dismiss as far as he is concerned considering that he is not the
real party-in-interest. Respondents opposed the same. The RTC denied the motion in an Order dated November
8, 1989.

After trial on the merits, the RTC rendered its Decision dated January 12, 1993, dismissing respondents
complaint as well as petitioners counterclaim. The RTC held that petitioner Sicam could not be made
personally liable for a claim arising out of a corporate transaction; that in the Amended Complaint of
respondents, they asserted that plaintiff pawned assorted jewelries in defendants' pawnshop; and that as a

Page | 26
 consequence of the separate juridical personality of a corporation, the corporate debt or credit is not the debt or
credit of a stockholder.

The RTC further ruled that petitioner corporation could not be held liable for the loss of the pawned jewelry
since it had not been rebutted by respondents that the loss of the pledged pieces of jewelry in the possession of
the corporation was occasioned by armed robbery; that robbery is a fortuitous event which exempts the victim
from liability for the loss, citing the case of Austria v. Court of Appeals; and that the parties transaction was that
of a pledgor and pledgee and under Art. 1174 of the Civil Code, the pawnshop as a pledgee is not responsible
for those events which could not be foreseen.

Respondents appealed the RTC Decision to the CA. In a Decision dated March 31, 2003,
the CA reversed the RTC, the dispositive portion of which reads as follows:

WHEREFORE, premises considered, the instant Appeal is GRANTED, and the Decision dated January 12,
1993,of the Regional Trial Court of Makati, Branch 62, is hereby REVERSED and SET ASIDE, ordering
the appellees to pay appellants the actual value of the lost jewelry amounting to P272,000.00, and
attorney' fees of P27,200.00.

In finding petitioner Sicam liable together with petitioner corporation, the CA applied the doctrine of piercing
the veil of corporate entity reasoning that respondents were misled into thinking that they were dealing with the
pawnshop owned by petitioner Sicam as all the pawnshop tickets issued to them bear the
words Agencia de R.C. Sicam; and that there was no indication on the pawnshop tickets that it was the
petitioner corporation that owned the pawnshop which explained why respondents had to amend their
complaint impleading petitioner corporation.

The CA further held that the corresponding diligence required of a pawnshop is that it should take steps to
secure and protect the pledged items and should take steps to insure itself against the loss of articles which are
entrusted to its custody as it derives earnings from the pawnshop trade which petitioners failed to do;
that Austria is not applicable to this case since the robbery incident happened in 1961 when the criminality had
not as yet reached the levels attained in the present day; that they are at least guilty of contributory negligence
and should be held liable for the loss of jewelries; and that robberies and hold-ups are foreseeable risks in that
those engaged in the pawnshop business are expected to foresee.

The CA concluded that both petitioners should be jointly and severally held liable to respondents for the loss of
the pawned jewelry.

Petitioners motion for reconsideration was denied in a Resolution dated August 8, 2003.

Hence, the instant petition for review with the following assignment of errors:

THE COURT OF APPEALS ERRED AND WHEN IT DID, IT OPENED ITSELF TO REVERSAL, WHEN IT
ADOPTED UNCRITICALLY (IN FACT IT REPRODUCED AS ITS OWN WITHOUT IN THE
MEANTIME ACKNOWLEDGING IT) WHAT THE RESPONDENTS ARGUED IN THEIR BRIEF,
WHICH ARGUMENT WAS PALPABLY UNSUSTAINABLE.

THE COURT OF APPEALS ERRED, AND WHEN IT DID, IT OPENED ITSELF TO REVERSAL BY THIS
HONORABLE COURT, WHEN IT AGAIN ADOPTED UNCRITICALLY (BUT WITHOUT
ACKNOWLEDGING IT) THE SUBMISSIONS OF THE RESPONDENTS IN THEIR BRIEF
WITHOUT ADDING ANYTHING MORE THERETO DESPITE THE FACT THAT THE SAID
Page | 27
 ARGUMENT OF THE RESPONDENTS COULD NOT HAVE BEEN SUSTAINED IN VIEW OF
UNREBUTTED EVIDENCE ON RECORD.

Anent the first assigned error, petitioners point out that the CAs finding that petitioner Sicam is personally liable
for the loss of the pawned jewelries is a virtual and uncritical reproduction of the arguments set out on pp. 5-6
of the Appellants brief.

Petitioners argue that the reproduced arguments of respondents in their Appellants Brief suffer from infirmities,
as follows:

(1) Respondents conclusively asserted in paragraph 2 of their Amended Complaint that Agencia de R.C. Sicam,
Inc. is the present owner of Agencia de R.C. Sicam Pawnshop, and therefore, the CA cannot rule against
said conclusive assertion of respondents;

(2) The issue resolved against petitioner Sicam was not among those raised and litigated in the trial court; and

(3) By reason of the above infirmities, it was error for the CA to have pierced the corporate veil since a
corporation has a personality distinct and separate from its individual stockholders or members.

Anent the second error, petitioners point out that the CA finding on their negligence is likewise an unedited
reproduction of respondents brief which had the following defects:

(1) There were unrebutted evidence on record that petitioners had observed the diligence required of them, i.e,
they wanted to open a vault with a nearby bank for purposes of safekeeping the pawned articles but was
discouraged by the Central Bank (CB) since CB rules provide that they can only store the pawned
articles in a vault inside the pawnshop premises and no other place;

(2) Petitioners were adjudged negligent as they did not take insurance against the loss of the pledged jelweries,
but it is judicial notice that due to high incidence of crimes, insurance companies refused to cover
pawnshops and banks because of high probability of losses due to robberies;

(3) In Hernandez v. Chairman, Commission on Audit (179 SCRA 39, 45-46), the victim of robbery was
exonerated from liability for the sum of money belonging to others and lost by him to robbers.

Respondents filed their Comment and petitioners filed their Reply thereto. The parties subsequently submitted
their respective Memoranda.

We find no merit in the petition.

To begin with, although it is true that indeed the CA findings were exact reproductions of the arguments raised
in respondents (appellants) brief filed with the CA, we find the same to be not fatally infirmed. Upon
examination of the Decision, we find that it expressed clearly and distinctly the facts and the law on which it is
based as required by Section 8, Article VIII of the Constitution. The discretion to decide a case one way or
another is broad enough to justify the adoption of the arguments put forth by one of the parties, as long as these
are legally tenable and supported by law and the facts on records.

Our jurisdiction under Rule 45 of the Rules of Court is limited to the review of errors of law committed by the
appellate court.Generally, the findings of fact of the appellate court are deemed conclusive and we are not duty-
Page | 28
 bound to analyze and calibrate all over again the evidence adduced by the parties in the court a quo. This rule,
however, is not without exceptions, such as where the factual findings of the Court of Appeals and the trial
court are conflicting or contradictory as is obtaining in the instant case.

However, after a careful examination of the records, we find no justification to absolve petitioner Sicam from
liability.

The CA correctly pierced the veil of the corporate fiction and adjudged petitioner Sicam liable together
with petitioner corporation. The rule is that the veil of corporate fiction may be pierced when made as a shield
to perpetrate fraud and/or confuse legitimate issues. The theory of corporate entity was not meant to promote
unfair objectives or otherwise to shield them.

Notably, the evidence on record shows that at the time respondent Lulu pawned her jewelry, the pawnshop was
owned by petitioner Sicam himself. As correctly observed by the CA, in all the pawnshop receipts issued to
respondent Lulu in September 1987, all bear the words Agencia de R. C. Sicam, notwithstanding that the
pawnshop was allegedly incorporated in April 1987. The receipts issued after such alleged incorporation were
still in the name of Agencia de R. C. Sicam, thus inevitably misleading, or at the very least, creating the wrong
impression to respondents and the public as well, that the pawnshop was owned solely by petitioner Sicam and
not by a corporation.

Even petitioners counsel, Atty. Marcial T. Balgos, in his letter dated October 15, 1987 addressed to the Central
Bank, expressly referred to petitioner Sicam as the proprietor of the pawnshop notwithstanding the alleged
incorporation in April 1987.

We also find no merit in petitioners' argument that since respondents had alleged in their Amended Complaint
that petitioner corporation is the present owner of the pawnshop, the CA is bound to decide the case on that
basis.

Section 4 Rule 129 of the Rules of Court provides that an admission, verbal or written, made by a party in the
course of the proceedings in the same case, does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such admission was made.
Thus, the general rule that a judicial admission is conclusive upon the party making it and does not require
proof, admits of two exceptions, to wit: (1) when it is shown that such admission was made through palpable
mistake, and (2) when it is shown that no such admission was in fact made. The latter exception allows one to
contradict an admission by denying that he made such an admission.
The Committee on the Revision of the Rules of Court explained the second exception in this wise:

x x x if a party invokes an admission by an adverse party, but cites the admission out of context, then the one
making the admission may show that he made no such admission, or that his admission was taken out
of context.

x x x that the party can also show that he made no such admission, i.e., not in the sense in which the
admission is made to appear.

That is the reason for the modifier such because if the rule simply states that the admission may be contradicted
by showing that no admission was made, the rule would not really be providing for a contradiction of the
admission but just a denial. (Emphasis supplied).

Page | 29
 While it is true that respondents alleged in their Amended Complaint that petitioner corporation is the present
owner of the pawnshop, they did so only because petitioner Sicam alleged in his Answer to the
original complaint filed against him that he was not the real party-in-interest as the pawnshop was incorporated
in April 1987. Moreover, a reading of the Amended Complaint in its entirety shows that respondents referred to
both petitioner Sicam and petitioner corporation where they (respondents) pawned their assorted pieces of
jewelry and ascribed to both the failure to observe due diligence commensurate with the business which resulted
in the loss of their pawned jewelry.

Markedly, respondents, in their Opposition to petitioners Motion to Dismiss Amended Complaint, insofar as
petitioner Sicamis concerned, averred as follows:

Roberto C. Sicam was named the defendant in the original complaint because the pawnshop tickets involved in
this case did not show that the R.C. Sicam Pawnshop was a corporation. In paragraph 1 of his Answer,
he admitted the allegations in paragraph 1 and 2 of the Complaint. He merely added that defendant is not
now the real party in interest in this case.
It was defendant Sicam's omission to correct the pawnshop tickets used in the subject transactions in this case
which was the cause of the instant action. He cannot now ask for the dismissal of the
complaint against him simply on the mere allegation that his pawnshop business is now incorporated. It
is a matter of defense, the merit of which can only be reached after consideration of the evidence to be
presented in due course.
Unmistakably, the alleged admission made in respondents' Amended Complaint was taken out of context by
petitioner Sicam to suit his own purpose. Ineluctably, the fact that petitioner Sicam continued to issue pawnshop
receipts under his name and not under the corporation's name militates for the piercing of the corporate veil.
We likewise find no merit in petitioners' contention that the CA erred in piercing the veil of corporate fiction of
petitioner corporation, as it was not an issue raised and litigated before the RTC.

Petitioner Sicam had alleged in his Answer filed with the trial court that he was not the real party-in-interest
because since April 20, 1987, the pawnshop business initiated by him was incorporated and known
as Agencia de R.C. Sicam. In the pre-trial brief filed by petitioner Sicam, he submitted that as far as he was
concerned, the basic issue was whether he is the real party in interest against whom the complaint should be
directed. In fact, he subsequently moved for the dismissal of the complaint as to him but was not favorably
acted upon by the trial court. Moreover, the issue was squarely passed upon, although erroneously, by the trial
court in its Decision in this manner:

x x x The defendant Roberto Sicam, Jr likewise denies liability as far as he is concerned for the reason that he
cannot be made personally liable for a claim arising from a corporate transaction.

This Court sustains the contention of the defendant Roberto C. Sicam, Jr. The amended complaint itself asserts
that plaintiff pawned assorted jewelries in defendant's pawnshop. It has been held that as a consequence
of the separate juridical personality of a corporation, the corporate debt or credit is not the debt or credit
of the stockholder, nor is the stockholder's debt or credit that of a corporation.

Clearly, in view of the alleged incorporation of the pawnshop, the issue of whether petitioner Sicam is
personally liable is inextricably connected with the determination of the question whether the doctrine of
piercing the corporate veil should or should not apply to the case.

The next question is whether petitioners are liable for the loss of the pawned articles in their possession.

Petitioners insist that they are not liable since robbery is a fortuitous event and they are not negligent at all.
Page | 30
 We are not persuaded.

Article 1174 of the Civil Code provides:

Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or
when the nature of the obligation requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen or which, though foreseen, were inevitable.

Fortuitous events by definition are extraordinary events not foreseeable or avoidable. It is therefore, not enough
that the event should not have been foreseen or anticipated, as is commonly believed but it must be one
impossible to foresee or to avoid. The mere difficulty to foresee the happening is not impossibility to foresee the
same.

To constitute a fortuitous event, the following elements must concur: (a) the cause of the unforeseen and
unexpected occurrence or of the failure of the debtor to comply with obligations must be independent of human
will; (b) it must be impossible to foresee the event that constitutes the caso fortuito or, if it can be foreseen, it
must be impossible to avoid; (c) the occurrence must be such as to render it impossible for the debtor to fulfill
obligations in a normal manner; and, (d) the obligor must be free from any participation in the aggravation of
the injury or loss.

The burden of proving that the loss was due to a fortuitous event rests on him who invokes it. And, in order for
a fortuitous event to exempt one from liability, it is necessary that one has committed no negligence or
misconduct that may have occasioned the loss.

It has been held that an act of God cannot be invoked to protect a person who has failed to take steps to forestall
the possible adverse consequences of such a loss. One's negligence may have concurred with an act of God in
producing damage and injury to another; nonetheless, showing that the immediate or proximate cause of the
damage or injury was a fortuitous event would not exempt one from liability. When the effect is found to be
partly the result of a person's participation -- whether by active intervention, neglect or failure to act -- the
whole occurrence is humanized and removed from the rules applicable to acts of God.

Petitioner Sicam had testified that there was a security guard in their pawnshop at the time of the robbery. He
likewise testified that when he started the pawnshop business in 1983, he thought of opening a vault with the
nearby bank for the purpose of safekeeping the valuables but was discouraged by the Central Bank since
pawned articles should only be stored in a vault inside the pawnshop. The very measures which petitioners had
allegedly adopted show that to them the possibility of robbery was not only foreseeable, but actually foreseen
and anticipated. Petitioner Sicams testimony, in effect, contradicts petitioners defense of fortuitous event.

Moreover, petitioners failed to show that they were free from any negligence by which the loss of the pawned
jewelry may have been occasioned.

Robbery per se, just like carnapping, is not a fortuitous event. It does not foreclose the possibility of negligence
on the part of herein petitioners. In Co v. Court of Appeals, the Court held:

It is not a defense for a repair shop of motor vehicles to escape liability simply because
the damage or loss of a thing lawfully placed in its possession was due
to carnapping. Carnapping per se cannot be considered as a fortuitous event. The fact that a
thing was unlawfully and forcefully taken from another's rightful possession, as in cases
Page | 31
 of carnapping, does not automatically give rise to a fortuitous event. To be considered as
such, carnapping entails more than the mere forceful taking of another's property. It must
be proved and established that the event was an act of God or was done solely by third
parties and that neither the claimant nor the person alleged to be negligent has any
participation. In accordance with the Rules of Evidence, the burden of proving that the
loss was due to a fortuitous event rests on him who invokes it which in this case is the
private respondent. However, other than the police report of the alleged carnapping incident,
no other evidence was presented by private respondent to the effect that the incident was not
due to its fault. A police report of an alleged crime, to which only private respondent is privy,
does not suffice to establish the carnapping. Neither does it prove that there was no fault on the
part of private respondent notwithstanding the parties' agreement at the pre-trial that the car
was carnapped. Carnapping does not foreclose the possibility of fault or negligence on the part
of private respondent.

Just like in Co, petitioners merely presented the police report of the Paranaque Police Station on the
robbery committed based on the report of petitioners' employees which is not sufficient to establish robbery.
Such report also does not prove that petitioners were not at fault.

On the contrary, by the very evidence of petitioners, the CA did not err in finding that petitioners are guilty of
concurrent or contributory negligence as provided in Article 1170 of the Civil Code, to wit:

Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those
who in any manner contravene the tenor thereof, are liable for damages.

Article 2123 of the Civil Code provides that with regard to pawnshops and other establishments which are
engaged in making loans secured by pledges, the special laws and regulations concerning them shall be
observed, and subsidiarily, the provisions on pledge, mortgage and antichresis.

The provision on pledge, particularly Article 2099 of the Civil Code, provides that the creditor shall take care of
the thing pledged with the diligence of a good father of a family. This means that petitioners must take care of
the pawns the way a prudent person would as to his own property.

In this connection, Article 1173 of the Civil Code further provides:

Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by
the nature of the obligation and corresponds with the circumstances of the persons, of time and of the
place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2 shall
apply.

If the law or contract does not state the diligence which is to be observed in the
performance, that which is expected of a goodfather of a family shall be required.
We expounded in Cruz v. Gangan that 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. It is want of care required by the
circumstances.

A review of the records clearly shows that petitioners failed to exercise reasonable care and caution that an
ordinarily prudent person would have used in the same situation. Petitioners were guilty of negligence in the
operation of their pawnshop business. Petitioner Sicam testified, thus:
Page | 32
Court:
Q. Do you have security guards in your pawnshop?
A. Yes, your honor.

Q. Then how come that the robbers were able to enter the premises when according to you there was a
security guard?
A. Sir, if these robbers can rob a bank, how much more a pawnshop.

Q. I am asking you how were the robbers able to enter despite the fact that there was a security guard?
A. At the time of the incident which happened about 1:00 and 2:00 o'clock in the afternoon and it
happened on a Saturday and everything was quiet in the area BF Homes Paraaque they pretended
to pawn an article in the pawnshop, so one of my employees allowed him to come in and it was
only when it was announced that it was a hold up.

Q. Did you come to know how the vault was opened?

A. When the pawnshop is official (sic) open your honor the pawnshop is partly open. The
combination is off.

Q. No one open (sic) the vault for the robbers?

A. No one your honor it was open at the time of the robbery.

Q. It is clear now that at the time of the robbery the vault was open the reason why the robbers were
able to get all the items pawned to you inside the vault.
A. Yes sir.

revealing that there were no security measures adopted by petitioners in the operation of the pawnshop.
Evidently, no sufficient precaution and vigilance were adopted by petitioners to protect the pawnshop from
unlawful intrusion. There was no clear showing that there was any security guard at all. Or if there was one, that
he had sufficient training in securing a pawnshop. Further, there is no showing that the alleged security guard
exercised all that was necessary to prevent any untoward incident or to ensure that no suspicious individuals
were allowed to enter the premises. In fact, it is even doubtful that there was a security guard, since it is quite
impossible that he would not have noticed that the robbers were armed with caliber .45 pistols each, which were
allegedly poked at the employees. Significantly, the alleged security guard was not presented at all to
corroborate petitioner Sicam's claim; not one of petitioners' employees who were present during the robbery
incident testified in court.

Furthermore, petitioner Sicam's admission that the vault was open at the time of robbery is clearly a proof of
petitioners' failure to observe the care, precaution and vigilance that the circumstances justly demanded.
Petitioner Sicam testified that once the pawnshop was open, the combination was already off. Considering
petitioner Sicam's testimony that the robbery took place on a Saturday afternoon and the area in BF
Homes Paranaque at that time was quiet, there was more reason for petitioners to have exercised reasonable
foresight and diligence in protecting the pawned jewelries. Instead of taking the precaution to protect them, they
let open the vault, providing no difficulty for the robbers to cart away the pawned articles.

We, however, do not agree with the CA when it found petitioners negligent for not taking steps to insure
themselves against loss of the pawned jewelries.

Page | 33
 Under Section 17 of Central Bank Circular No. 374, Rules and Regulations for Pawnshops, which took effect
on July 13, 1973, and which was issued pursuant to Presidential Decree No. 114, Pawnshop Regulation Act, it
is provided that pawns pledged must be insured, to wit:

Sec. 17. Insurance of Office Building and Pawns- The place of business of a pawnshop and the pawns pledged
to it must be insured against fire and against burglary as well as for the latter(sic), by an insurance
company accredited by the Insurance Commissioner.

However, this Section was subsequently amended by CB Circular No. 764 which took effect on October 1,
1980, to wit:

Sec. 17 Insurance of Office Building and Pawns The office building/premises and pawns of a pawnshop must
be insured against fire.(emphasis supplied).
where the requirement that insurance against burglary was deleted. Obviously, the Central Bank considered it
not feasible to require insurance of pawned articles against burglary.
The robbery in the pawnshop happened in 1987, and considering the above-quoted amendment, there is no
statutory duty imposed on petitioners to insure the pawned jewelry in which case it was error for the CA to
consider it as a factor in concluding that petitioners were negligent.

Nevertheless, the preponderance of evidence shows that petitioners failed to exercise the diligence required of
them under the Civil Code.
The diligence with which the law requires the individual at all times to govern his conduct varies with the
nature of the situation in which he is placed and the importance of the act which he is to perform. Thus, the
cases of Austria v. Court of Appeals, Hernandez v. Chairman, Commission on Audit and Cruz v. Gangan cited
by petitioners in their pleadings, where the victims of robbery were exonerated from liability, find no
application to the present case.

In Austria, Maria Abad received from Guillermo Austria a pendant with diamonds to be sold on commission
basis, but which Abad failed to subsequently return because of a robbery committed upon her in 1961. The
incident became the subject of a criminal case filed against several persons. Austria filed an action
against Abad and her husband (Abads) for recovery of the pendant or its value, but the Abads set up the defense
that the robbery extinguished their obligation. The RTC ruled in favor of Austria, as the Abads failed to prove
robbery; or, if committed, that Maria Abad was guilty of negligence. The CA, however, reversed the RTC
decision holding that the fact of robbery was duly established and declared the Abads not responsible for the
loss of the jewelry on account of a fortuitous event. We held that for the Abads to be relieved from the civil
liability of returning the pendant under Art. 1174 of the Civil Code, it would only be sufficient that the
unforeseen event, the robbery, took place without any concurrent fault on the debtors part, and this can be done
by preponderance of evidence; that to be free from liability for reason of fortuitous event, the debtor must, in
addition to the casus itself, be free of any concurrent or contributory fault or negligence.

We found in Austria that under the circumstances prevailing at the time the Decision was promulgated in
1971, the City of Manila and its suburbs had a high incidence of crimes against persons and property that
rendered travel after nightfall a matter to be sedulously avoided without suitable precaution and protection; that
the conduct of Maria Abad in returning alone to her house in the evening carrying jewelry of considerable value
would have been negligence per se and would not exempt her from responsibility in the case of robbery.
However we did not hold Abad liable for negligence since, the robbery happened ten years previously; i.e.,
1961, when criminality had not reached the level of incidence obtaining in 1971.

Page | 34
In contrast, the robbery in this case took place in 1987 when robbery was already prevalent and
petitioners in fact had already foreseen it as they wanted to deposit the pawn with a nearby bank for
safekeeping. Moreover, unlike in Austria, where no negligence was committed, we found petitioners negligent
in securing their pawnshop as earlier discussed.

In Hernandez, Teodoro Hernandez was the OIC and special disbursing officer of the Ternate Beach Project of
the Philippine Tourism in Cavite. In the morning of July 1, 1983, a Friday, he went to Manila to encash two
checks covering the wages of the employees and the operating expenses of the project. However for some
reason, the processing of the check was delayed and was completed at about 3 p.m. Nevertheless, he decided
to encash the check because the project employees would be waiting for their pay the following day; otherwise,
the workers would have to wait until July 5, the earliest time, when the main office would open. At that
time, he had two choices: (1) return to Ternate, Cavite that same afternoon and arrive early evening; or (2) take
the money with him to his house in Marilao, Bulacan, spend the night there, and leave for Ternate the following
day. He chose the second option, thinking it was the safer one. Thus, a little past 3 p.m., he took a passenger
jeep bound for Bulacan. While the jeep was on Epifanio de los Santos Avenue, the jeep was held up and the
money kept by Hernandez was taken, and the robbers jumped out of the jeep and ran. Hernandez chased the
robbers and caught up with one robber who was subsequently charged with robbery and pleaded guilty. The
other robber who held the stolen money escaped. The Commission on Audit found Hernandez negligent
because he had not brought the cash proceeds of the checks to his office in Ternate, Cavite for safekeeping,
which is the normal procedure in the handling of funds. We held that Hernandez was not negligent in deciding
to encash the check and bringing it home to Marilao, Bulacan instead of Ternate, Cavite due to the lateness of
the hour for the following reasons: (1) he was moved by unselfish motive for his co-employees to collect their
wages and salaries the following day, a Saturday, a non-working, because to encash the check on July 5, the
next working day after July 1, would have caused discomfort to laborers who were dependent on their wages for
sustenance; and (2) that choosing Marilao as a safer destination, being nearer, and in view of the comparative
hazards in the trips to the two places, said decision seemed logical at that time. We further held that the fact that
two robbers attacked him in broad daylight in the jeep while it was on a busy highway and in the presence of
other passengers could not be said to be a result of his imprudence and negligence.

Unlike in Hernandez where the robbery happened in a public utility, the robbery in this case took place in the
pawnshop which is under the control of petitioners. Petitioners had the means to screen the persons who
were allowed entrance to the premises and to protect itself from unlawful intrusion. Petitioners had failed
to exercise precautionary measures in ensuring that the robbers were prevented from entering
the pawnshop and for keeping the vault open for the day, which paved the way for the robbers to easily
cart away the pawned articles.

In Cruz, Dr. Filonila O. Cruz, Camanava District Director of Technological Education and Skills Development
Authority (TESDA), boarded the Light Rail Transit (LRT) from Sen. Puyat Avenue to Monumento when her
handbag was slashed and the contents were stolen by an unidentified person. Among those stolen were her
wallet and the government-issued cellular phone. She then reported the incident to the police
authorities; however, the thief was not located, and the cellphone was not recovered. She also reported the loss
to the Regional Director of TESDA, and she requested that she be freed from accountability for the cellphone.
The Resident Auditor denied her request on the ground that she lacked the diligence required in the custody of
government property and was ordered to pay the purchase value in the total amount of P4,238.00. The COA
found no sufficient justification to grant the request for relief from accountability. We reversed the ruling and
found that riding the LRT cannot per se be denounced as a negligent act more so because Cruzs mode of transit
was influenced by time and money considerations; that she boarded the LRT to be able to arrive in Caloocan in
time for her 3 pm meeting; that any prudent and rational person under similar circumstance can reasonably be
expected to do the same; that possession of a cellphone should not hinder one from boarding the LRT coach as
Cruz did considering that whether she rode a jeep or bus, the risk of theft would have also been present; that
Page | 35
because of her relatively low position and pay, she was not expected to have her own vehicle or to ride a
taxicab; she did not have a government assigned vehicle; that placing the cellphone in a bag away from
covetous eyes and holding on to that bag as she did is ordinarily sufficient care of a cellphone while traveling on
board the LRT; that the records did not show any specific act of negligence on her part and negligence can
never be presumed.

Unlike in the Cruz case, the robbery in this case happened in petitioners' pawnshop and they were
negligent in not exercising the precautions justly demanded of a pawnshop.

WHEREFORE, except for the insurance aspect, the Decision of the Court of Appeals dated March 31,
2003 and its Resolution dated August 8, 2003, are AFFIRMED.

Costs against petitioners.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-4977 March 22, 1910

Page | 36
DAVID TAYLOR, plaintiff-appellee,
vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a minor, by
his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system
in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig River within the
city of Manila, known as the Isla del Provisor. The power plant may be reached by boat or by crossing a
footbridge, impassable for vehicles, at the westerly end of the island.
The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age, the
son of a mechanical engineer, more mature than the average boy of his age, and having considerable aptitude
and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed
the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of the defendant,
who and promised to make them a cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not
in his quarters, the boys, impelled apparently by youthful curiosity and perhaps by the unusual interest which
both seem to have taken in machinery, spent some time in wandering about the company's premises. The visit
was made on a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the
power house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's coal, they walked across
the open space in the neighborhood of the place where the company dumped in the cinders and ashes from its
furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the ground. These caps are
approximately of the size and appearance of small pistol cartridges and each has attached to it two long thin
wires by means of which it may be discharged by the use of electricity. They are intended for use in the
explosion of blasting charges of dynamite, and have in themselves a considerable explosive power. After some
discussion as to the ownership of the caps, and their right to take them, the boys picked up all they could find,
hung them on stick, of which each took end, and carried them home. After crossing the footbridge, they met a
little girl named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The
boys then made a series of experiments with the caps. They trust the ends of the wires into an electric light
socket and obtained no result. They next tried to break the cap with a stone and failed. Manuel looked for a
hammer, but could not find one. Then they opened one of the caps with a knife, and finding that it was filled
with a yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to
the contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who when the
boys proposed putting a match to the contents of the cap, became frightened and started to run away, received a
slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by several
particles of the metal capsule, one of which injured his right eye to such an extent as to the necessitate its
removal by the surgeons who were called in to care for his wounds.
The evidence does definitely and conclusively disclose how the caps came to be on the defendant's premises,
nor how long they had been there when the boys found them. It appears, however, that some months before the
accident, during the construction of the defendant's plant, detonating caps of the same size and kind as those
found by the boys were used in sinking a well at the power plant near the place where the caps were found; and
it also appears that at or about the time when these caps were found, similarly caps were in use in the
construction of an extension of defendant's street car line to Fort William McKinley. The caps when found
appeared to the boys who picked them up to have been lying for a considerable time, and from the place where
Page | 37
they were found would seem to have been discarded as detective or worthless and fit only to be thrown upon the
rubbish heap.
No measures seems to have been adopted by the defendant company to prohibit or prevent visitors from
entering and walking about its premises unattended, when they felt disposed so to do. As admitted in defendant
counsel's brief, "it is undoubtedly true that children in their play sometimes crossed the foot bridge to the
islands;" and, we may add, roamed about at will on the uninclosed premises of the defendant, in the
neighborhood of the place where the caps were found. There is evidence that any effort ever was made to forbid
these children from visiting the defendant company's premises, although it must be assumed that the company
or its employees were aware of the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the interisland
transports. Later he took up work in his father's office, learning mechanical drawing and mechanical
engineering. About a month after his accident he obtained employment as a mechanical draftsman and
continued in that employment for six months at a salary of P2.50 a day; and it appears that he was a boy of more
than average intelligence, taller and more mature both mentally and physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively established by the evidence
of record, and are substantially admitted by counsel. The only questions of fact which are seriously disputed are
plaintiff's allegations that the caps which were found by plaintiff on defendant company's premises were the
property of the defendant, or that they had come from its possession and control, and that the company or some
of its employees left them exposed on its premises at the point where they were found.
The evidence in support of these allegations is meager, and the defendant company, apparently relying on the
rule of law which places the burden of proof of such allegations upon the plaintiff, offered no evidence in
rebuttal, and insists that plaintiff failed in his proof. We think, however, that plaintiff's evidence is sufficient to
sustain a finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on the
McKinley extension of the defendant company's track; that some of these caps were used in blasting a well on
the company's premises a few months before the accident; that not far from the place where the caps were found
the company has a storehouse for the materials, supplies and so forth, used by it in its operations as a street
railway and a purveyor of electric light; and that the place, in the neighborhood of which the caps were found,
was being used by the company as a sort of dumping ground for ashes and cinders. Fulminating caps or
detonators for the discharge by electricity of blasting charges by dynamite are not articles in common use by the
average citizen, and under all the circumstances, and in the absence of all evidence to the contrary, we think that
the discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on defendant's
premises fairly justifies the inference that the defendant company was either the owner of the caps in question
or had the caps under its possession and control. We think also that the evidence tends to disclose that these
caps or detonators were willfully and knowingly thrown by the company or its employees at the spot where they
were found, with the expectation that they would be buried out of the sight by the ashes which it was engaged in
dumping in that neighborhood, they being old and perhaps defective; and, however this may be, we are satisfied
that the evidence is sufficient to sustain a finding that the company or some of its employees either willfully or
through an oversight left them exposed at a point on its premises which the general public, including children at
play, where not prohibited from visiting, and over which the company knew or ought to have known that young
boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these
conclusions are based by intimidating or rather assuming that the blasting work on the company's well and on
its McKinley extension was done by contractors. It was conclusively proven, however, that while the workman
employed in blasting the well was regularly employed by J. G. White and Co., a firm of contractors, he did the
work on the well directly and immediately under the supervision and control of one of defendant company's
foremen, and there is no proof whatever in the record that the blasting on the McKinley extension was done by
independent contractors. Only one witness testified upon this point, and while he stated that he understood that
Page | 38
a part of this work was done by contract, he could not say so of his own knowledge, and knew nothing of the
terms and conditions of the alleged contract, or of the relations of the alleged contractor to the defendant
company. The fact having been proven that detonating caps were more or less extensively employed on work
done by the defendant company's directions and on its behalf, we think that the company should have
introduced the necessary evidence to support its contention if it wished to avoid the not unreasonable inference
that it was the owner of the material used in these operations and that it was responsible for tortious or negligent
acts of the agents employed therein, on the ground that this work had been intrusted to independent contractors
as to whose acts the maxim respondent superior should not be applied. If the company did not in fact own or
make use of caps such as those found on its premises, as intimated by counsel, it was a very simple matter for it
to prove that fact, and in the absence of such proof we think that the other evidence in the record sufficiently
establishes the contrary, and justifies the court in drawing the reasonable inference that the caps found on its
premises were its property, and were left where they were found by the company or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon the
provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts and
omissions or by those in which any kind of fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.(OLD CIVIL CODE)
 NEW CIVIL CODE: Art. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
ART. 1903 The obligation imposed by the preceding article is demandable, not only for personal acts
and omissions, but also for those of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the damages caused by the minors
who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable for damages caused by their
employees in the service of the branches in which the latter may be employed or on account of their
duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons mentioned therein prove that they
employed all the diligence of a good father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused —
1 By the explosion of machines which may not have been cared for with due diligence, and for kindling
of explosive substances which may not have been placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts proven at the
trial do not established the liability of the defendant company under the provisions of these articles, and since
we agree with this view of the case, it is not necessary for us to consider the various questions as to form and
the right of action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil.
Rep., 359), which would, perhaps, be involved in a decision affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the
United States, the plaintiff in an action such as that under consideration, in order to establish his right to a
recovery, must establish by competent evidence:

Page | 39
 (1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must
respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
These proposition are, of course, elementary, and do not admit of discussion, the real difficulty arising in the
application of these principles to the particular facts developed in the case under consideration.
It is clear that the accident could not have happened and not the fulminating caps been left exposed at the point
where they were found, or if their owner had exercised due care in keeping them in an appropriate place; but it
is equally clear that plaintiff would not have been injured had he not, for his own pleasure and convenience,
entered upon the defendant's premises, and strolled around thereon without the express permission of the
defendant, and had he not picked up and carried away the property of the defendant which he found on its
premises, and had he not thereafter deliberately cut open one of the caps and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon defendant
company's premises, and the intervention of his action between the negligent act of defendant in leaving the
caps exposed on its premises and the accident which resulted in his injury should not be held to have
contributed in any wise to the accident, which should be deemed to be the direct result of defendant's negligence
in leaving the caps exposed at the place where they were found by the plaintiff, and this latter the proximate
cause of the accident which occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts of last
resort in the United States in the cases known as the "Torpedo" and "Turntable" cases, and the cases based
thereon.
In a typical cases, the question involved has been whether a railroad company is liable for an injury received by
an infant of tender years, who from mere idle curiosity, or for the purposes of amusement, enters upon the
railroad company's premises, at a place where the railroad company knew, or had good reason to suppose,
children would be likely to come, and there found explosive signal torpedoes left unexposed by the railroad
company's employees, one of which when carried away by the visitor, exploded and injured him; or where such
infant found upon the premises a dangerous machine, such as a turntable, left in such condition as to make it
probable that children in playing with it would be exposed to accident or injury therefrom and where the infant
did in fact suffer injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds the owner of the premises
liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was whether a
railroad company was liable for in injury received by an infant while upon its premises, from idle curiosity, or
for purposes of amusement, if such injury was, under circumstances, attributable to the negligence of the
company), the principles on which these cases turn are that "while a railroad company is not bound to the same
degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers
conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or
from its tortious acts;" and that "the conduct of an infant of tender years is not to be judged by the same rule
which governs that of adult. While it is the general rule in regard to an adult that to entitle him to recover
damages for an injury resulting from the fault or negligence of another he must himself have been free from
fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to be determined in each case by the circumstances of
the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply criticized in
several state courts, and the supreme court of Michigan in the case of Ryan vs. Towar (128 Mich., 463) formally
repudiated and disapproved the doctrine of the Turntable cases, especially that laid down in Railroad Company
Page | 40
vs. Stout, in a very able decision wherein it held, in the language of the syllabus: (1) That the owner of the land
is not liable to trespassers thereon for injuries sustained by them, not due to his wanton or willful acts; (2) that
no exception to this rule exists in favor of children who are injured by dangerous machinery naturally calculated
to attract them to the premises; (3) that an invitation or license to cross the premises of another can not be
predicated on the mere fact that no steps have been taken to interfere with such practice; (4) that there is no
difference between children and adults as to the circumstances that will warrant the inference of an invitation or
a license to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the courts in
Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has
been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in the United States, citing and approving the
doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule
in these cases in accord with that announced in the Railroad Company vs. Stout (supra), and the Supreme Court
of the United States, in a unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway
Co. vs. McDonal and reconsidered the doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and
critical analysis and review of many of the adjudged cases, both English and American, formally declared that it
adhered "to the principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The plaintiff, a boy
12 years of age, out of curiosity and for his own pleasure, entered upon and visited the defendant's premises,
without defendant's express permission or invitation, and while there, was by accident injured by falling into a
burning slack pile of whose existence he had no knowledge, but which had been left by defendant on its
premises without any fence around it or anything to give warning of its dangerous condition, although
defendant knew or had reason the interest or curiosity of passers-by. On these facts the court held that the
plaintiff could not be regarded as a mere trespasser, for whose safety and protection while on the premises in
question, against the unseen danger referred to, the defendant was under no obligation to make provision.
We quote at length from the discussion by the court of the application of the principles involved to the facts in
that case, because what is said there is strikingly applicable in the case at bar, and would seem to dispose of
defendant's contention that, the plaintiff in this case being a trespasser, the defendant company owed him no
duty, and in no case could be held liable for injuries which would not have resulted but for the entry of plaintiff
on defendant's premises.
We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case now before
us, they require us to hold that the defendant was guilty of negligence in leaving unguarded the slack
pile, made by it in the vicinity of its depot building. It could have forbidden all persons from coming to
its coal mine for purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it
permitted all, without regard to age, to visit its mine, and witness its operation. It knew that the usual
approach to the mine was by a narrow path skirting its slack pit, close to its depot building, at which the
people of the village, old and young, would often assemble. It knew that children were in the habit of
frequenting that locality and playing around the shaft house in the immediate vicinity of the slack pit.
The slightest regard for the safety of these children would have suggested that they were in danger from
being so near a pit, beneath the surface of which was concealed (except when snow, wind, or rain
prevailed) a mass of burning coals into which a child might accidentally fall and be burned to death.
Under all the circumstances, the railroad company ought not to be heard to say that the plaintiff, a mere
lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it
owed no duty, or for whose protection it was under no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited with flesh,
in his own ground, so near to a highway, or to the premises of another, that dogs passing along the
highway, or kept in his neighbors premises, would probably be attracted by their instinct into the traps,
and in consequence of such act his neighbor's dogs be so attracted and thereby injured, an action on the
Page | 41
 case would lie. "What difference," said Lord Ellenborough, C.J., "is there in reason between drawing the
animal into the trap by means of his instinct which he can not resist, and putting him there by manual
force?" What difference, in reason we may observe in this case, is there between an express license to
the children of this village to visit the defendant's coal mine, in the vicinity of its slack pile, and an
implied license, resulting from the habit of the defendant to permit them, without objection or warning,
to do so at will, for purposes of curiosity or pleasure? Referring it the case of Townsend vs. Wathen,
Judge Thompson, in his work on the Law of Negligence, volume 1, page 305, note, well says: "It would
be a barbarous rule of law that would make the owner of land liable for setting a trap thereon, baited
with stinking meat, so that his neighbor's dog attracted by his natural instinct, might run into it and be
killed, and which would exempt him from liability for the consequence of leaving exposed and
unguarded on his land a dangerous machine, so that his neighbor's child attracted to it and tempted to
intermeddle with it by instincts equally strong, might thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs. Harlow
(53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others
who are chargeable with a duty of care and caution toward them must calculate upon this, and take
precautions accordingly. If they leave exposed to the observation of children anything which would be
tempting to them, and which they in their immature judgment might naturally suppose they were at
liberty to handle or play with, they should expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit the
premises of another, says:
In the case of young children, and other persons not fully sui juris, an implied license might sometimes
arise when it would not on behalf of others. Thus leaving a tempting thing for children to play with
exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to
them to make use of it; and, perhaps, if one were to throw away upon his premises, near the common
way, things tempting to children, the same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in the cases of Railroad Co.
vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less cogent and convincing in this
jurisdiction than in that wherein those cases originated. Children here are actuated by similar childish instincts
and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here as well as there will
usually be found whenever the public is permitted to congregate. The movement of machinery, and indeed
anything which arouses the attention of the young and inquiring mind, will draw them to the neighborhood as
inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. The
owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are
expressly or impliedly permitted to enter or upon which the owner knows or ought to know children are likely
to roam about for pastime and in play, " must calculate upon this, and take precautions accordingly." In such
cases the owner of the premises can not be heard to say that because the child has entered upon his premises
without his express permission he is a trespasser to whom the owner owes no duty or obligation whatever. The
owner's failure to take reasonable precautions to prevent the child from entering his premises at a place where
he knows or ought to know that children are accustomed to roam about of to which their childish instincts and
impulses are likely to attract them is at least equivalent to an implied license to enter, and where the child does
enter under such conditions the owner's failure to take reasonable precautions to guard the child against injury
from unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty,
responsible, if the child is actually injured, without other fault on its part than that it had entered on the premises
of a stranger without his express invitation or permission. To hold otherwise would be expose all the children in
the community to unknown perils and unnecessary danger at the whim of the owners or occupants of land upon
which they might naturally and reasonably be expected to enter.

Page | 42
This conclusion is founded on reason, justice, and necessity, and neither is contention that a man has a right to
do what will with his own property or that children should be kept under the care of their parents or guardians,
so as to prevent their entering on the premises of others is of sufficient weight to put in doubt. In this
jurisdiction as well as in the United States all private property is acquired and held under the tacit condition that
it shall not be so used as to injure the equal rights and interests of the community (see U. S. vs. Toribio,1 No.
5060, decided January 26, 1910), and except as to infants of very tender years it would be absurd and
unreasonable in a community organized as is that in which we lived to hold that parents or guardian are guilty
of negligence or imprudence in every case wherein they permit growing boys and girls to leave the parental roof
unattended, even if in the event of accident to the child the negligence of the parent could in any event be
imputed to the child so as to deprive it a right to recover in such cases — a point which we neither discuss nor
decide.
But while we hold that the entry of the plaintiff upon defendant's property without defendant's express invitation
or permission would not have relieved defendant from responsibility for injuries incurred there by plaintiff,
without other fault on his part, if such injury were attributable to the negligence of the defendant, we are of
opinion that under all the circumstances of this case the negligence of the defendant in leaving the caps exposed
on its premises was not the proximate cause of the injury received by the plaintiff, which therefore was not,
properly speaking, "attributable to the negligence of the defendant," and, on the other hand, we are satisfied that
plaintiffs action in cutting open the detonating cap and putting match to its contents was the proximate cause of
the explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not
civilly responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's youth the
intervention of his action between the negligent act of the defendant in leaving the caps exposed on its premises
and the explosion which resulted in his injury should not be held to have contributed in any wise to the accident;
and it is because we can not agree with this proposition, although we accept the doctrine of the Turntable and
Torpedo cases, that we have thought proper to discuss and to consider that doctrine at length in this decision. As
was said in case of Railroad Co. vs. Stout (supra), "While it is the general rule in regard to an adult that to
entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself
have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity only, and this is to be determined in each case by
the circumstances of the case." As we think we have shown, under the reasoning on which rests the doctrine of
the Turntable and Torpedo cases, no fault which would relieve defendant of responsibility for injuries resulting
from its negligence can be attributed to the plaintiff, a well-grown boy of 15 years of age, because of his entry
upon defendant's uninclosed premises without express permission or invitation' but it is wholly different
question whether such youth can be said to have been free from fault when he willfully and deliberately cut
open the detonating cap, and placed a match to the contents, knowing, as he undoubtedly did, that his action
would result in an explosion. On this point, which must be determined by "the particular circumstances of this
case," the doctrine laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of
observation that in all of the "Torpedo" and analogous cases which our attention has been directed, the record
discloses that the plaintiffs, in whose favor judgments have been affirmed, were of such tender years that they
were held not to have the capacity to understand the nature or character of the explosive instruments which fell
into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both mentally
and physically than the average boy of his age; he had been to sea as a cabin boy; was able to earn P2.50 a day
as a mechanical draftsman thirty days after the injury was incurred; and the record discloses throughout that he
was exceptionally well qualified to take care of himself. The evidence of record leaves no room for doubt that,
despite his denials on the witness stand, he well knew the explosive character of the cap with which he was
amusing himself. The series of experiments made by him in his attempt to produce an explosion, as described
by the little girl who was present, admit of no other explanation. His attempt to discharge the cap by the use of
electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors
Page | 43
brought about by the application of a match to the contents of the caps, show clearly that he knew what he was
about. Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be
dangerous, in view of the fact that the little girl, 9 years of age, who was within him at the time when he put the
match to the contents of the cap, became frightened and ran away.
True, he may not have known and probably did not know the precise nature of the explosion which might be
expected from the ignition of the contents of the cap, and of course he did not anticipate the resultant injuries
which he incurred; but he well knew that a more or less dangerous explosion might be expected from his act,
and yet he willfully, recklessly, and knowingly produced the explosion. It would be going far to say that
"according to his maturity and capacity" he exercised such and "care and caution" as might reasonably be
required of him, or that defendant or anyone else should be held civilly responsible for injuries incurred by him
under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand and
appreciate the nature and consequences of his own acts, so as to make it negligence on his part to fail to exercise
due care and precaution in the commission of such acts; and indeed it would be impracticable and perhaps
impossible so to do, for in the very nature of things the question of negligence necessarily depends on the ability
of the minor to understand the character of his own acts and their consequences; and the age at which a minor
can be said to have such ability will necessarily depends of his own acts and their consequences; and at the age
at which a minor can be said to have such ability will necessarily vary in accordance with the varying nature of
the infinite variety of acts which may be done by him. But some idea of the presumed capacity of infants under
the laws in force in these Islands may be gathered from an examination of the varying ages fixed by our laws at
which minors are conclusively presumed to be capable of exercising certain rights and incurring certain
responsibilities, though it can not be said that these provisions of law are of much practical assistance in cases
such as that at bar, except so far as they illustrate the rule that the capacity of a minor to become responsible for
his own acts varies with the varying circumstances of each case. Under the provisions of the Penal Code a
minor over fifteen years of age is presumed to be capable of committing a crime and is to held criminally
responsible therefore, although the fact that he is less than eighteen years of age will be taken into consideration
as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a child may, under certain
circumstances, choose which parent it prefers to live with (Code of Civil Procedure, sec. 771). At 14 may
petition for the appointment of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec.
765). And males of 14 and females of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G. O.,
No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of the
danger to which he exposed himself when he put the match to the contents of the cap; that he was sui juris in
the sense that his age and his experience qualified him to understand and appreciate the necessity for the
exercise of that degree of caution which would have avoided the injury which resulted from his own deliberate
act; and that the injury incurred by him must be held to have been the direct and immediate result of his own
willful and reckless act, so that while it may be true that these injuries would not have been incurred but for the
negligence act of the defendant in leaving the caps exposed on its premises, nevertheless plaintiff's own act was
the proximate and principal cause of the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire. (Digest, book
50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his own fault, and
that he can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his own acts the grievance should be
against himself and not against another. (Law 2, tit. 7, Partida 2.)

Page | 44
 According to ancient sages, when a man received an injury through his own acts the grievance should be
against himself and not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly lays down the law touching
contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its provisions by the
supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep.,
359), clearly deny to the plaintiff in the case at bar the right to recover damages from the defendant, in whole or
in part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is
directly in point. In that case the court said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of
obligation when between such negligence and the injury there exists the relation of cause and effect; but
if the injury produced should not be the result of acts or omissions of a third party, the latter has no
obligation to repair the same, although such acts or omission were imprudent or unlawful, and much less
when it is shown that the immediate cause of the injury was the negligence of the injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or negligence is not
sufficient without proof that it, and no other cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that title in his Jurisprudencia del
Codigo Civil (1902 Anuario, p. 455), commenting on the decision of March 7, 1902 of the Civil Code,
fault or negligence gives rise to an obligation when between it and the damage there exists the relation
of cause and effect; but if the damage caused does not arise from the acts or omissions of a third person,
there is no obligation to make good upon the latter, even though such acts or omissions be imprudent or
illegal, and much less so when it is shown that the immediate cause of the damage has been the
recklessness of the injured party himself.
And again —
In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is
apparent that it is duty of him who shall claim damages to establish their existence. The decisions of
April 9, 1896, and March 18, July, and September 27, 1898, have especially supported the principle, the
first setting forth in detail the necessary points of the proof, which are two: An act or omission on the
part of the person who is to be charged with the liability, and the production of the damage by said act or
omission.
This includes, by inference, the establishment of a relation of cause or effect between the act or omission
and the damage; the latter must be the direct result of one of the first two. As the decision of March 22,
1881, said, it is necessary that the damages result immediately and directly from an act performed
culpably and wrongfully; "necessarily presupposing a legal ground for imputability." (Decision of
October 29, 1887.)
Negligence is not presumed, but must be proven by him who alleges it. (Scavoela, Jurisprudencia del
Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in this court
in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra), wherein we held that while
"There are many cases (personal injury cases) was exonerated," on the ground that "the negligence of the
plaintiff was the immediate cause of the casualty" (decisions of the 15th of January, the 19th of February, and
the 7th of March, 1902, stated in Alcubilla's Index of that year); none of the cases decided by the supreme court
of Spain "define the effect to be given the negligence of its causes, though not the principal one, and we are left

Page | 45
to seek the theory of the civil law in the practice of other countries;" and in such cases we declared that law in
this jurisdiction to require the application of "the principle of proportional damages," but expressly and
definitely denied the right of recovery when the acts of the injured party were the immediate causes of the
accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered
immediate causes of the accident. The test is simple. Distinction must be made between the accident and
the injury, between the event itself, without which there could have been no accident, and those acts of
the victim not entering into it, independent of it, but contributing to his own proper hurt. For instance,
the cause of the accident under review was the displacement of the crosspiece or the failure to replace it.
This produces the event giving occasion for damages—that is, the sinking of the track and the sliding of
the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute,
although it was an element of the damage which came to himself. Had the crosspiece been out of place
wholly or partly through his act or omission of duty, that would have been one of the determining causes
of the event or accident, for which he would have been responsible. Where he contributes to the
principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with
the occurrence, he contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own
imprudence.
We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the accident
which resulted in plaintiff's injury, was in his own act in putting a match to the contents of the cap, and that
having "contributed to the principal occurrence, as one of its determining factors, he can not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon defendant's
premises the detonating caps, the property of defendant, and carrying the relation of cause and effect between
the negligent act or omission of the defendant in leaving the caps exposed on its premises and the injuries
inflicted upon the plaintiff by the explosion of one of these caps. Under the doctrine of the Torpedo cases, such
action on the part of an infant of very tender years would have no effect in relieving defendant of responsibility,
but whether in view of the well-known fact admitted in defendant's brief that "boys are snappers-up of
unconsidered trifles," a youth of the age and maturity of plaintiff should be deemed without fault in picking up
the caps in question under all the circumstances of this case, we neither discuss nor decide.
Twenty days after the date of this decision let judgment be entered reversing the judgment of the court below,
without costs to either party in this instance, and ten days thereafter let the record be returned to the court
wherein it originated, where the judgment will be entered in favor of the defendant for the costs in first instance
and the complaint dismissed without day. So ordered.
 Art. 2179. When the plaintiff's own negligence was the immediate and proximate cause of his injury, he
cannot recover damages. But if his negligence was only contributory, the immediate and proximate
cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the
courts shall mitigate the damages to be awarded.
(Not explicitly stated in the case however it is an applicable provision)

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G.R. No. 129792 December 21, 1999

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO,
petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R. AGUILAR,
respondents.

DAVIDE, JR., J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek the reversal of the
17 June 1996 decision 1 of the Court of Appeals in C.A. G.R. No. CV 37937 and the resolution 2 denying their
motion for reconsideration. The assailed decision set aside the 15 January 1992 judgment of the Regional Trial
Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages and
attorney's fees to private respondents Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City. Petitioners
Leonardo Kong, Jose Tiope and Elisa Panelo are the store's branch manager, operations manager, and
supervisor, respectively. Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvel's Department
Store, Makati City. CRISELDA was signing her credit card slip at the payment and verification counter when
she felt a sudden gust of wind and heard a loud thud. She looked behind her. She then beheld her daughter
ZHIENETH on the floor, her young body pinned by the bulk of the store's gift-wrapping counter/structure.
ZHIENETH was crying and screaming for help. Although shocked, CRISELDA was quick to ask the assistance
of the people around in lifting the counter and retrieving ZHIENETH from the floor.
ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day
ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing on a magic slate. The
injuries she sustained took their toil on her young body. She died fourteen (14) days after the accident or on 22
May 1983, on the hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained. The provisional medical certificate 5 issued
by ZHIENETH's attending doctor described the extent of her injuries:

Page | 47
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe

CRITICAL
After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the
hospitalization, medical bills and wake and funeral expenses 6 which they had incurred. Petitioners refused to
pay. Consequently, private respondents filed a complaint for damages, docketed as Civil Case No. 7119
wherein they sought the payment of P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for
attorney's fees and an unspecified amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the injuries and consequent death of
ZHIENETH. They claimed that CRISELDA was negligent in exercising care and diligence over her daughter
by allowing her to freely roam around in a store filled with glassware and appliances. ZHIENETH too, was
guilty of contributory negligence since she climbed the counter, triggering its eventual collapse on her.
Petitioners also emphasized that the counter was made of sturdy wood with a strong support; it never fell nor
collapsed for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence of a good father
of a family in the selection, supervision and control of its employees. The other petitioners likewise raised due
care and diligence in the performance of their duties and countered that the complaint was malicious for which
they suffered besmirched reputation and mental anguish. They sought the dismissal of the complaint and an
award of moral and exemplary damages and attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and counterclaim after finding that the preponderance of
the evidence favored petitioners. It ruled that the proximate cause of the fall of the counter on ZHIENETH was
her act of clinging to it. It believed petitioners' witnesses who testified that ZHIENETH clung to the counter,
afterwhich the structure and the girl fell with the structure falling on top of her, pinning her stomach. In
contrast, none of private respondents' witnesses testified on how the counter fell. The trial court also held that
CRISELDA's negligence contributed to ZHIENETH's accident.
In absolving petitioners from any liability, the trial court reasoned that the counter was situated at the end or
corner of the 2nd floor as a precautionary measure hence, it could not be considered as an attractive nuisance. 8
The counter was higher than ZHIENETH. It has been in existence for fifteen years. Its structure was safe and
well-balanced. ZHIENETH, therefore, had no business climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial court its findings that: (1) the
proximate cause of the fall of the counter was ZHIENETH's misbehavior; (2) CRISELDA was negligent in her
care of ZHIENETH; (3) petitioners were not negligent in the maintenance of the counter; and (4) petitioners
were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to the conclusive presumption that a
child below nine (9) years is incapable of contributory negligence. And even if ZHIENETH, at six (6) years old,
was already capable of contributory negligence, still it was physically impossible for her to have propped
Page | 48
herself on the counter. She had a small frame (four feet high and seventy pounds) and the counter was much
higher and heavier than she was. Also, the testimony of one of the store's former employees, Gerardo Gonzales,
who accompanied ZHIENETH when she was brought to the emergency room of the Makati Medical Center
belied petitioners' theory that ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH was
asked by the doctor what she did, ZHIENETH replied, "[N]othing, I did not come near the counter and the
counter just fell on me." 9 Accordingly, Gonzales' testimony on ZHIENETH's spontaneous declaration should
not only be considered as part of res gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of
ZHIENETH at the precise moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause of ZHIENETH's death, was
petitioners' negligence in failing to institute measures to have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised purely factual issues which could no longer
be disturbed. They explained that ZHIENETH's death while unfortunate and tragic, was an accident for which
neither CRISELDA nor even ZHIENETH could entirely be held faultless and blameless. Further, petitioners
adverted to the trial court's rejection of Gonzales' testimony as unworthy of credence.
As to private respondent's claim that the counter should have been nailed to the ground, petitioners justified that
it was not necessary. The counter had been in existence for several years without any prior accident and was
deliberately placed at a corner to avoid such accidents. Truth to tell, they acted without fault or negligence for
they had exercised due diligence on the matter. In fact, the criminal case 10 for homicide through simple
negligence filed by private respondents against the individual petitioners was dismissed; a verdict of acquittal
was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents and reversed the appealed judgment. It
found that petitioners were negligent in maintaining a structurally dangerous counter. The counter was shaped
like an inverted "L" 11 with a top wider than the base. It was top heavy and the weight of the upper portion was
neither evenly distributed nor supported by its narrow base. Thus, the counter was defective, unstable and
dangerous; a downward pressure on the overhanging portion or a push from the front could cause the counter to
fall. Two former employees of petitioners had already previously brought to the attention of the management
the danger the counter could cause. But the latter ignored their concern. The Court of Appeals faulted the
petitioners for this omission, and concluded that the incident that befell ZHIENETH could have been avoided
had petitioners repaired the defective counter. It was inconsequential that the counter had been in use for some
time without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the time of the incident,
was absolutely incapable of negligence or other tort. It reasoned that since a child under nine (9) years could not
be held liable even for an intentional wrong, then the six-year old ZHIENETH could not be made to account for
a mere mischief or reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of
the ordinary in momentarily allowing ZHIENETH to walk while she signed the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found them biased and
prejudiced. It instead gave credit to the testimony of disinterested witness Gonzales. The Court of Appeals then
awarded P99,420.86 as actual damages, the amount representing the hospitalization expenses incurred by
private respondents as evidenced by the hospital's statement of account. 12 It denied an award for funeral
expenses for lack of proof to substantiate the same. Instead, a compensatory damage of P50,000 was awarded
for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision, 13 thus:
WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another one is entered
against [petitioners], ordering them to pay jointly and severally unto [private respondents] the following:
Page | 49
1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar, with legal interest (6%
p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal interest (6% p.a.) from 27
April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorney's fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the same was denied in the Court of Appeals'
resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals' decision and the reinstatement of the judgment of the
trial court. Petitioners primarily argue that the Court of Appeals erred in disregarding the factual findings and
conclusions of the trial court. They stress that since the action was based on tort, any finding of negligence on
the part of the private respondents would necessarily negate their claim for damages, where said negligence was
the proximate cause of the injury sustained. The injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETH's act of clinging to the counter. This act in turn caused the counter to fall on
her. This and CRISELDA's contributory negligence, through her failure to provide the proper care and attention
to her child while inside the store, nullified private respondents' claim for damages. It is also for these reasons
that parents are made accountable for the damage or injury inflicted on others by their minor children. Under
these circumstances, petitioners could not be held responsible for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated from Syvel's at the time he
testified; hence, his testimony might have been tarnished by ill-feelings against them.
For their part, private respondents principally reiterated their arguments that neither ZHIENETH nor
CRISELDA was negligent at any time while inside the store; the findings and conclusions of the Court of
Appeals are substantiated by the evidence on record; the testimony of Gonzales, who heard ZHIENETH
comment on the incident while she was in the hospital's emergency room should receive credence; and finally,
ZHIENETH's part of the res gestae declaration "that she did nothing to cause the heavy structure to fall on her"
should be considered as the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or attributable to
negligence; and (2) in case of a finding of negligence, whether the same was attributable to private respondents
for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to exercise due and reasonable
care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. 15 It is "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." 16
On the other hand, 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. 17 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." 18

Page | 50
Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when
the person concerned is exercising ordinary care, which is not caused by fault of any person and which could
not have been prevented by any means suggested by common prudence. 19
The test in determining the existence of negligence is enunciated in the landmark case of Plicart v. Smith, 20
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. 21
We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH's death could only be
attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of the incident and accompanied
CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice anything while the child was being treated?
A At the emergency room we were all surrounding the child. And when the doctor asked the child "what
did you do," the child said "nothing, I did not come near the counter and the counter just fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's statement formed (and should be admitted as) part of
the res gestae under Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior
or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res
gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are
generally considered declarations and admissions. 23 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. Under the circumstances thus
described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a
doctor whom she trusted with her life. We therefore accord credence to Gonzales' testimony on the matter, i.e.,
ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through their negligence or
omission to secure or make stable the counter's base.

Gonzales' earlier testimony on petitioners' insistence to keep and maintain the structurally unstable gift-
wrapping counter proved their negligence, thus:
Q When you assumed the position as gift wrapper at the second floor, will you please describe the gift
wrapping counter, were you able to examine?
A Because every morning before I start working I used to clean that counter and since not nailed and it was
only standing on the floor, it was shaky.
Page | 51
xxx xxx xxx
Q Will you please describe the counter at 5:00 o'clock [sic] in the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside the verification counter. And since the
top of it was heavy and considering that it was not nailed, it can collapse at anytime, since the top is heavy.
xxx xxx xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is fond of putting
display decorations on tables, he even told me that I would put some decorations. But since I told him that it not
[sic] nailed and it is shaky he told me "better inform also the company about it." And since the company did not
do anything about the counter, so I also did not do anything about the counter. 24 [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus:
Q Will you please described [sic] to the honorable Court the counter where you were assigned in January
1983?
xxx xxx xxx
A That counter assigned to me was when my supervisor ordered me to carry that counter to another place.
I told him that the counter needs nailing and it has to be nailed because it might cause injury or accident to
another since it was shaky.
Q When that gift wrapping counter was transferred at the second floor on February 12, 1983, will you
please describe that to the honorable Court?
A I told her that the counter wrapper [sic] is really in good [sic] condition; it was shaky. I told her that we
had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that the counter was shaky?
A She told me "Why do you have to teach me. You are only my subordinate and you are to teach me?"
And she even got angry at me when I told her that.

xxx xxx xxx

Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of the
management do to that (sic)
xxx xxx xxx
Witness:
None, sir. They never nailed the counter. They only nailed the counter after the accident happened. 25
[Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger posed by
the unstable counter. Yet, neither initiated any concrete action to remedy the situation nor ensure the safety of
the store's employees and patrons as a reasonable and ordinary prudent man would have done. Thus, as

Page | 52
confronted by the situation petitioners miserably failed to discharge the due diligence required of a good father
of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that the former's
testimonies were biased and tainted with partiality. Therefore, the allegation that Gonzales and Guevarra's
testimonies were blemished by "ill feelings" against petitioners — since they (Gonzales and Guevarra) were
already separated from the company at the time their testimonies were offered in court — was but mere
speculation and deserved scant consideration.
It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general
rule disturb the findings of the trial court, which is in a better position to determine the same. The trial court has
the distinct advantage of actually hearing the testimony of and observing the deportment of the witnesses. 26
However, the rule admits of exceptions such as when its evaluation was reached arbitrarily or it overlooked or
failed to appreciate some facts or circumstances of weight and substance which could affect the result of the
case. 27 In the instant case, petitioners failed to bring their claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below
nine (9) years old in that they are incapable of contributory negligence. In his book, 28 former Judge Cezar S.
Sangco stated:
In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without
discernment, and is, on that account, exempt from criminal liability. The same presumption and a like
exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless it
is shown that he has acted with discernment. Since negligence may be a felony and a quasi-delict and required
discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy,
conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or
incapacity for negligence in the case of a child over nine but under fifteen years of age is a rebuttable one, under
our law. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of
contributory negligence as a matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the counter, no
injury should have occurred if we accept petitioners' theory that the counter was stable and sturdy. For if that
was the truth, a frail six-year old could not have caused the counter to collapse. The physical analysis of the
counter by both the trial court and Court of Appeals and a scrutiny of the evidence 29 on record reveal
otherwise, i.e., it was not durable after all. Shaped like an inverted "L," the counter was heavy, huge, and its top
laden with formica. It protruded towards the customer waiting area and its base was not secured. 30
CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to
CRISELDA's waist, later to the latter's hand. 31 CRISELDA momentarily released the child's hand from her
clutch when she signed her credit card slip. At this precise moment, it was reasonable and usual for CRISELDA
to let go of her child. Further, at the time ZHIENETH was pinned down by the counter, she was just a foot away
from her mother; and the gift-wrapping counter was just four meters away from CRISELDA. 32 The time and
distance were both significant. ZHIENETH was near her mother and did not loiter as petitioners would want to
impress upon us. She even admitted to the doctor who treated her at the hospital that she did not do anything;
the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of the
Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.

Page | 53
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12858 January 22, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
SANTIAGO PINEDA, defendant-appellant.
Francisco and Lualhati for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This appeal requires a construction and an application, for the first time, of the penal provisions of the
Pharmacy Law.
Santiago Pineda, the defendant, is a registered pharmacist of long standing and the owner of a drug store located
at Nos. 442, 444, Calle Santo Cristo, city of Manila. One Feliciano Santos, having some sick horses, presented a
copy of a prescription obtained from Dr. Richardson, and which on other occasions Santos had given to his
horses with good results, at Pineda's drug store for filling. The prescription read — "clorato de potasa — 120
gramos — en seis papelitos de 20 gramos, para caballo." Under the supervision of Pineda, the prescription was
prepared and returned to Santos in the form of six papers marked, "Botica Pineda — Clorato potasa — 120.00
— en seis papeles — para caballo — Sto. Cristo 442, 444, Binondo, Manila." Santos, under the belief that he
Page | 54
had purchased the potassium chlorate which he had asked for, put two of the packages in water the doses to two
of his sick horses. Another package was mixed with water for another horse, but was not used. The two horses,
to which had been given the preparation, died shortly afterwards. Santos, thereupon, took the three remaining
packages to the Bureau of Science for examination. Drs. Peña and Darjuan, of the Bureau of Science, on
analysis found that the packages contained not potassium chlorate but barium chlorate. At the instance of
Santos, the two chemists also went to the drug store of the defendant and bought potassium chlorate, which
when analyzed was found to be barium chlorate. (Barium chlorate, it should be noted, is a poison; potassium
chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy on the horses, and found that death was
the result of poisoning.
Four assignments of error are made. The first is that the lower court erred in admitting the testimony of the
chemist Pena and Darjuan as to their purchase of potassium chlorate at the drug store of the accused, which
substance proved on analysis to be barium chlorate. What the appellant is here relying on is the maxim res inter
alios acta. As a general rule, the evidence of other offenses committed by a defendant is inadmissible. But
appellant has confused this maxim and this rule with certain exceptions thereto. The effort is not to convict the
accused of a second offense. Nor is there an attempt to draw the mind away from the point at issue and thus to
prejudice defendant's case. The purpose is to ascertain defendant's knowledge and intent, and to fix his
negligence. If the defendant has on more than one occasion performed similar acts, accident in good faith is
possibly excluded, negligence is intensified, and fraudulent intent may even be established. It has been said that
there is no better evidence of negligence than the frequency of accidents. (See 10 R. C. L., pp. 938, 940.) The
United States Supreme Court has held that:
On the trial of a criminal case the question relates to the tendency of certain testimony to throw light
upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the
part of the trial judge which a court of errors will not interfere with, unless it manifestly appear that the
testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the
accused.
Whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the
inquiry or the failure of direct proof, objections to the testimony on the ground of irrelevancy are not
favored.
Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the
commission of another offense by the defendant. (Moore vs. U. S. [1893], 150 U. S., 57.)
The second assignment of error is that the lower court erred in finding that the substance sold by the accused to
Feliciano Santos on the 22d of June, 1916, was barium chlorate and not potassium chlorate. The proof
demonstrates the contrary.
The third and fourth assignments of error that the lower court erred in finding that the accused has been proved
guilty beyond a reasonable doubt of an infraction of Act No. 597, section 17, as amended. The third assignment
contains the points we should consider, including, we may remark, a somewhat difficult question concerning
which the briefs have given little assistance.
The Pharmacy Law was first enacted as Act No. 597, was later amended by Act Nos. 1921, 2236, and 2382, and
is now found as Chapter 30 of the Administrative Code. The law provides for a board of pharmaceutical
examiners, and the examination and registration of pharmacists, and finally contains sundry provisions relative
to the practice of pharmacy. High qualification for applicants for the pharmaceutical; examination are
established. The program of subjects for the examination is wide. Responsibility for the quality of drugs is fixed
by section 17 of the Pharmacy Law, as amended (now Administrative Code [1917], section 751), in the
following term:
Every pharmacist shall be responsible for the quality of all drugs, chemicals, medicines, and poisons he
may sell or keep for sale; and it shall be unlawful for any person whomsoever to manufacture, prepare,
sell, or administer any prescription, drug, chemical, medicine, or poison under any fraudulent name,
Page | 55
 direction, or pretense, or to adulterate any drug, chemical, medicine, or poison so used, sold or offered
for sale. Any drug, chemical, medicine, or poison shall be held to be adulterated or deteriorated within
the meaning of this section if it differs from the standard of quality or purity given in the United States
Pharmacopoeia.
The same section of the Pharmacy Law also contains the following penal provision: "Any person violating the
provisions of this Act shall, upon conviction, be punished by a fine of not more than five hundred dollar." The
Administrative Code, section 2676, changes the penalty somewhat by providing that:
Any person engaging in the practice of pharmacy in the Philippine Islands contrary to any provision of
the Pharmacy Law or violating any provisions of said law for which no specific penalty s provided shall,
for each offense, be punished by a fine not to exceed two hundred pesos, or by imprisonment for not
more than ninety days, or both, in the discretion of the court.
These are the provisions of law, pursuant to which prosecution has been initiated and which it is now incumbent
upon us to construe.
Turning to the law, certain points therein as bearing on our present facts must be admitted. Thus, defendant is a
pharmacist. As a pharmacist, he is made responsible for the quality of all drugs and poisons which he sells. And
finally it is provided that it shall be unlawful for him to sell any drug or poison under any "fraudulent name." It
is the one word "fraudulent" which has given the court trouble. What did the Legislature intend to convey by
this restrictive adjective?
Were we to adhere to the technical definition of fraud, which the appellant vigorously insists upon, 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
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 purchased thereby 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 profession of pharmacy, it has been said again and again, is one demanding care and skill. The
responsibility of the druggist to use care has been variously qualified as "ordinary care," "care of a special high
degree," "the highest degree of care known to practical men." Even under the first conservative expression,
"ordinary care" with reference to the business of a druggist, the Supreme Court of Connecticut has said must be
held to signify "the highest practicable degree of prudence, thoughtfulness, and vigilance, and most exact and
reliable safeguards consistent with the reasonable conduct of the business, in order that human life may not be
constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicine."
(Tombari vs. Connors [1912], 85 Conn., 235. See also Willson vs. Faxon, Williams and Faxon [1913], 208 N.
Y., 108; Knoefel vs. Atkins [1907], 81 N. E., 600.) The "skill" required of a druggist is denominated as "high"
or "ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57 L. R. A., 428.) In other words, 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.
Under one conception, and it should not be forgotten that the case we consider are civil in nature, the question
of negligence or ignorance is irrelevant. The druggist is responsible as an absolute guarantor of what he sells. In
a decision which stands alone, the Supreme Court of Kentucky said:
As applicable to the owners of drug stores, or persons engaged in vending drugs and medicines by retail,
the legal maxim should be reversed. Instead of caveat emptor, it should be caveat venditor. That is to
say, let him be certain that he does not sell to a purchaser or send to a patient one drug for another, as
arsenic for calomel, cantharides for or mixed with snakeroot and Peruvian bark, or even one innocent
Page | 56
 drug, calculated to produce a certain effect, in place of another sent for and designed to produce a
different effect. If he does these things, he cannot escape civil responsibility, upon the alleged pretext
that it was an accidental or an innocent mistake; that he had been very careful and particular, and had
used extraordinary care and diligence in preparing or compounding the medicines as required, etc. Such
excuses will not avail him. (Fleet vs. Hollenkemp [1852], 56 Am. Dec., 563.)
Under the other conception, in which the proof of negligence is considered as material, where a customer calls
upon a druggist for a harmless remedy, delivery of a poisonous drug by mistake by the druggist is prima
facie negligence, placing the burden on him to show that the mistake was under the circumstances consistent
with the exercise of due care. (See Knoefel vs. Atkins, supra,) The druggist cannot, for example in filling a
prescription calling for potassium chlorate give instead to the customer barium chlorate, a poison, place this
poison in a package labeled "potassium chlorate," and expect to escape responsibility on plea of mistake. His
mistake, under the most favorable aspect for himself, was negligence. So in a case where a druggist filled an
order for calomel tablets with morphine and placed the morphine in a box labeled calomel, it was said:
It is not suggested, nor can we apprehend that it is in any wise probable, that the act of furnishing the
wrong drug in this case was willful. If it was furnished by the clerk, it was undoubtedly a mistake and
unintentional. However, it was a mistake of the gravest kind, and of the most disastrous effect. We
cannot say that one holding himself out as competent to handle such drugs, and who does so, having
rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution
and care called for by the peculiarly dangerous nature of this business, can be heard to say that his
mistakes by which he furnishes a customer the most deadly of drugs for those comparatively harmless is
not, in and of itself, gross negligence, and that of an aggravated form. (Smith's Admrx. vs. Middleton
[1902], 56 L. R. A., 484.)
The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the vendee do not
stand at arms length as in ordinary transactions. An imperative duty is on the druggist to take precautions to
prevent death or serious injury to anyone who relies on his absolute honesty and peculiar leaning. The nature of
drugs is such that examination would not avail the purchaser anything. 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.
In civil cases, the druggist is made liable for any injury approximately resulting from his negligence. If B
negligently sells poison under the guise of a beneficial drug to A, he is liable for the injury done to A. In a case,
which has repeatedly been termed the leading case on the subject and which has been followed by the United
States Supreme Court, it was said, "Pharmacists or apothecaries who compound or sell medicines, if they
carelessly label a poison as a harmless medicine, and sent it so labeled into the market, are liable to all persons
who, without fault on their part, are injured by using it as such medicine, in consequence of the false label; the
rule being that the liability in such a case arises not out of any contract or direct privity between the wrong-doer
and the person injured, but out of the duty which the law imposes on him to avoid acts in their nature dangerous
to the lives of others." (Nat. Savings Bank vs. Ward [1879], 100 U. S., 195, following Thomas vs. Winchester
[1852], 2 Seld. [N. Y.], 387.) In reality, for the druggist, mistake is negligence and care is no defense.
Throughout the criminal law, run the same rigorous rules. For example, apothecaries or apothecary clerks, who
are guilty of negligence in the sale of medicine when death ensues in consequence, have been held guilty of
manslaughter. (See Tessymond's Case [1828], 1 Lewin, C. C., 169.)
Bearing these general principles in mind, and remembering particularly the care and skill which are expected of
druggist, that in some jurisdictions they are liable even for their mistake and in others have the burden placed
upon them to establish that they were not negligent, it cannot be that the Philippine Legislature intended to use
the word "fraudulent" in all its strictness. A plea of accident and mistake cannot excuse for they cannot take
place unless there be wanton and criminal carelessness and neglect. How the misfortune occurs is unimportant,
if under all the circumstances the fact of occurrence is attributed to the druggist as a legal fault. Rather
considering the responsibility for the quality of drugs which the law imposes on druggists and the position of
Page | 57
the word "fraudulent" in juxtaposition to "name," what is made unlawful is the giving of a false name to the
drug asked for. This view is borne out by Spanish translation, which we are permitted to consult to explain the
English text. In the Spanish "supuesto" is used, and this word is certainly not synonymous with "fraudulent."
The usual badges of fraud, falsify, deception, and injury must be present-but not scienter.
In view of the tremendous an imminent danger to the public from the careless sale of poisons and medicines, 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 judgment of the lower court, sentencing the defendant to pay a fine of P100, with subsidiary imprisonment
in case of insolvency, and to pay the costs, is affirmed with the cost of this instance against the appellant,
without prejudice to any civil action which may be instituted. So ordered.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 165622 October 17, 2008
MERCURY DRUG CORPORATION and AURMELA GANZON, petitioners,
vs.
RAUL DE LEON, respondents.
DECISION
REYES, R.T., J.:
IN REALITY, for the druggist, mistake is negligence and care is no defense. 1 Sa isang parmasyutika, ang
pagkakamali ay kapabayaan at ang pagkalinga ay hindi angkop na dipensa.

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This is a petition for review on certiorari2 of two Resolutions3 of the Court of Appeals (CA). The first
Resolution granted respondent‘s motion to dismiss while the second denied petitioner‘s motion for
reconsideration.
The Facts
Respondent Raul T. De Leon was the presiding judge of Branch 258, Regional Trial Court (RTC) in
Parañaque.4 On October 17, 1999, he noticed that his left eye was reddish. He also had difficulty reading. 5 On
the same evening, he met a friend for dinner at the Foohyui Restaurant. The same friend happened to be a
doctor, Dr. Charles Milla, and had just arrived from abroad. 6
Aside from exchanging pleasantries, De Leon consulted Dr. Milla about his irritated left eye. 7 The latter
prescribed the drugs "Cortisporin Opthalmic" and "Ceftin" to relieve his eye problems. 8 Before heading to work
the following morning, De Leon went to the Betterliving, Parañaque, branch of Mercury Drug Store
Corporation to buy the prescribed medicines. 9 He showed his prescription to petitioner Aurmela Ganzon, a
pharmacist assistant.10Subsequently, he paid for and took the medicine handed over by Ganzon.11
At his chambers, De Leon requested his sheriff to assist him in using the eye drops. 12 As instructed, the sheriff
applied 2-3 drops on respondent‘s left eye.13 Instead of relieving his irritation, respondent felt searing pain. 14 He
immediately rinsed the affected eye with water, but the pain did not subside. 15 Only then did he discover that he
was given the wrong medicine, "Cortisporin Otic Solution."16
De Leon returned to the same Mercury Drug branch, with his left eye still red and teary. 17 When he confronted
Ganzon why he was given ear drops, instead of the prescribed eye drops,18 she did not apologize and instead
brazenly replied that she was unable to fully read the prescription. 19 In fact, it was her supervisor who
apologized and informed De Leon that they do not have stock of the needed Cortisporin Opthalmic. 20
De Leon wrote Mercury Drug, through its president, Ms. Vivian K. Askuna, about the day‘s incident. 21 It did
not merit any response.22 Instead, two sales persons went to his office and informed him that their supervisor
was busy with other matters.23 Having been denied his simple desire for a written apology and explanation, 24 De
Leon filed a complaint for damages against Mercury Drug. 25
Mercury Drug denied that it was negligent and therefore liable for damages. 26 It pointed out that the proximate
cause of De Leon‘s unfortunate experience was his own negligence. 27 He should have first read and checked to
see if he had the right eye solution before he used any on his eye. 28 He could have also requested his sheriff to
do the same before the latter applied the medicine on such a delicate part of his body. 29
Also, Mercury Drug explained that there is no available medicine known as "Cortisporin Opthalmic" in the
Philippine market.30 Furthermore, what was written on the piece of paper De Leon presented to Ganzon was
"Cortisporin Solution."31 Accordingly, she gave him the only available "Cortisporin Solution" in the market.
Moreover, even the piece of paper De Leon presented upon buying the medicine can not be considered as
proper prescription.32 It lacked the required information concerning the attending doctor‘s name and license
number.33According to Ganzon, she entertained De Leon‘s purchase request only because he was a regular
customer of their branch.34
RTC Disposition
On April 30, 2003, the RTC rendered judgment in favor of respondent, the dispositive portion of which reads:
WHEREFORE, the court finds for the plaintiff.
For pecuniary loss suffered, Mercury Drug Store is to pay ONE HUNDRED FIFTY-THREE PESOS AND
TWENTY-FIVE CENTAVOS (Php 153.25), the value of the medicine.
As moral damages defendants is (sic) ordered to pay ONE HUNDRED THOUSAND PESOS (Php 100,000.00).

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To serve as a warning to those in the field of dispensing medicinal drugs discretion of the highest degree is
expected of them, Mercury Drug Store and defendant Aurmila (sic) Ganzon are ordered to pay plaintiff the
amount of THREE HUNDRED THOUSAND PESOS (Php 300,000.00) as exemplary damages.
Due to defendants callous reaction to the mistake done by their employee which forced plaintiff to litigate,
Defendant (sic) Mercury Drug Store is to pay plaintiff attorney‘s fees of ₱50,000.00 plus litigation expenses.
SO ORDERED.35
In ruling in favor of De Leon, the RTC ratiocinated:
The proximate cause of the ill fate of plaintiff was defendant Aurmila (sic) Ganzon‘s negligent exercise of said
discretion. She gave a prescription drug to a customer who did not have the proper form of prescription, she did
not take a good look at said prescription, she merely presumed plaintiff was looking for Cortisporin Otic
Solution because it was the only one available in the market and she further presumed that by merely putting the
drug by the counter wherein plaintiff looked at it, paid and took the drug without any objection meant he
understood what he was buying.36
The RTC ruled that although De Leon may have been negligent by failing to read the medicine‘s label or to
instruct his sheriff to do so, Mercury Drug was first to be negligent. 37 Ganzon dispensed a drug without the
requisite prescription.38 Moreover, she did so without fully reading what medicine was exactly being
bought.39 In fact, she presumed that since what was available was the drug Cortisporin Otic Solution, it was
what De Leon was attempting to buy.40 Said the court:
When the injury is caused by the negligence of a servant or employee, there instantly arises a presumption of
law that there was negligence on the part of the employer or employer either in the selection of the servant or
employee, or in the supervision over him after the selection or both.
xxxx
The theory bases the responsibility of the master ultimately on his own negligence and not on that of his
servant.41
Dissatisfied with the RTC ruling, Mercury Drug and Ganzon elevated the matter to the CA. Accordingly, they
filed their respective briefs. Raising technical grounds, De Leon moved for the appeal‘s dismissal.
CA Disposition
On July 4, 2008, the CA issued a resolution which granted De Leon‘s motion and dismissed the appeal. Said the
appellate court:
As pointed out by the plaintiff-appellee, the Statement of Facts, Statement of the Case, Assignment of
Errors/issues, Arguments/ Discussions in the Brief make no references to the pages of the records. We find this
procedural lapse justify the dismissal of the appeal, pursuant to Section 1(f), Rule 50 of the 1997 Rules of Civil
Procedure x x x.42
xxxx
"The premise that underlies all appeals is that they are merely rights which arise form a statute; therefore, they
must be exercised in the manner prescribed by law. It is to this end that rules governing pleadings and practice
before the appellate court were imposed. These rules were designed to assist the appellate court in the
accomplishment of its tasks, and overall, to enhance the orderly administration of justice."
xxxx
x x x If the statement of fact is unaccompanied by a page reference to the record, it may be stricken or
disregarded all together.43
On October 5, 2004, the CA denied Mercury Drug‘s and Ganzon‘s joint motion for reconsideration. Although
mindful that litigation is not a game of technicalities, 44 the CA found no persuasive reasons to relax procedural
rules in favor of Mercury Drug and Ganzon. 45 The CA opined:
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In the case under consideration, We find no faithful compliance on the part of the movants that will call for the
liberal application of the Rules. Section 1(f) of Rule 50 of the 1997 Rules of Civil Procedure explicitly provides
that an appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, for want
of page references to the records as required in Section 13 of Rule 44 of the same rules 46
Issues
Petitioner has resorted to the present recourse and assigns to the CA the following errors:
I
THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING PETITIONER‘S APPEAL BASED
ON THE CASES OF DE LIANA VS. CA (370 SCRA 349) AND HEIRS OF PALOMINIQUE VS. CA (134
SCRA 331).
II
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN
DISMISSING PETITIONER‘S APPEAL DESPITE SUBSTANTIAL COMPLIANCE WITH SECTION 1(F),
RULE 60 AND SECTION 13, RULE 44 OF THE RULES OF COURT.
III
THE HONORABLE COURT OF APPEALS ERRED WHEN IT FAVORED MERE TECHNICALITY OVER
SUBSTANTIAL JUSTICE WHICH WILL CERTAINLY CAUSE GRAVE INJUSTICE AND GREAT
PREJUDICE TO PETITIONER CONSIDERING THAT THE ASSAILED DECISION ON APPEAL IS
CLUSTERED WITH ERRORS AND IN CONTRAST with the DECISIONS OF THIS HONORABLE
SUPREME COURT.47 (Underscoring supplied)
Our Ruling
The appeal succeeds in part.
Dismissal of an appeal under Rule 50 is discretionary.
In several cases,48 this Court stressed that the grounds for dismissal of an appeal under Section 1 of Rule
5049 are discretionary upon the appellate court. The very wording of the rule uses the word "may" instead of
"shall." This indicates that it is only directory and not mandatory. 50 Sound discretion must be exercised in
consonance with the tenets of justice and fair play, keeping in mind the circumstances obtaining in each case. 51
The importance of an appellant‘s brief cannot be gainsaid. Its purpose is two-fold: (1) to present to the court in
coherent and concise form the point and questions in controversy; and (2) to assist the court in arriving at a just
and proper conclusion.52 It is considered a vehicle of counsel to convey to the court the essential facts of a
client‘s case, a statement of the questions of law involved, the law to be applied, and the application one desires
of it by the court.53
The absence of page reference to the record is a ground for dismissal. It is a requirement intended to ultimately
aid the appellate court in arriving at a just and proper conclusion of the case. 54 However, as earlier discussed,
such dismissal is not mandatory, but discretionary on the part of the appellate court.
This Court has held that the failure to properly cite reference to the original records is not a fatal procedural
lapse.55 When citations found in the appellant‘s brief enable the court to expeditiously locate the portions of the
record referred to, there is substantial compliance with the requirements of Section 13(c), (d), and (f) of Rule
44.56
In De Leon v. CA,57 this Court ruled that the citations contained in the appellant‘s brief sufficiently enabled the
appellate court to expeditiously locate the portions of the record referred to. They were in substantial
compliance with the rules. The Court said:
Nothing in the records indicate that it was exercised capriciously, whimsically, or with a view of permitting
injury upon a party litigant. For the same reasons, we hold that the respondent Court of Appeals did not err
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when it did not dismiss the appeal based on the allegation that appellant‘s brief failed to comply with the
internal rules of said court.58
Similar to the instant case, the appellant‘s brief in Yuchengco v. Court of Appeals59 contained references to
Exhibits and Transcript of Stenographic Notes and attachments. These were found to have substantially
complied with the requirements of Section 13(c) and (d) of Rule 44.
x x x The Appellant‘s brief may not have referred to the exact pages of the records, however, the same is not
fatal to their cause since the references they made enabled the appellate court to expeditiously locate the
portions referred to. x x x60
It is true that in De Liano v. Court of Appeals,61 this Court held that a statement of facts unaccompanied by a
page reference to the record may be presumed to be without support in the record and may be stricken or
disregarded altogether. However, the instant case is not on all fours with De Liano.
In De Liano, the appellant‘s brief lacked a Subject Index and a Table of Cases and Authorities. 62 Moreover, the
Statement of the Case, Statements of Facts, and Statements of Arguments had no page references to the
record.63When notified of such defects, defendants-appellants failed to amend their brief to conform to the
rules.64 Instead, they continued to argue that their errors were harmless. 65 All these omissions and non-
compliance justified the dismissal of the appeal by the CA. 66
In the case under review, although there were no page references to the records, Mercury Drug and Ganzon
referred to the exhibits, TSN, and attachments of the case. Despite its deficiencies, the brief is sufficient in form
and substance as to apprise the appellate court of the essential facts, nature of the case, the issues raised, and the
laws necessary for the disposition of the same.
Reliance on Heirs of Palomique v. Court of Appeals67 is likewise misplaced. In Heirs of Palomique, the
appellant‘s brief did not at all contain a separate statement of facts. 68 This critical omission, together with the
failure to make page references to the record to support the factual allegations, justified the dismissal of the
appeal.69
Rules of procedure are intended to promote, not to defeat, substantial justice. They should not be applied in a
very rigid and technical sense.70 For reasons of justice and equity, this Court has allowed exceptions to the
stringent rules governing appeals.71 It has, in the past, refused to sacrifice justice for technicality. 72
However, brushing aside technicalities, petitioners are still liable. Mercury Drug and Ganzon failed to exercise
the highest degree of diligence expected of them.
Denying that they were negligent, Mercury Drug and Ganzon pointed out that De Leon‘s own negligence was
the proximate cause of his injury. They argued that any injury would have been averted had De Leon exercised
due diligence before applying the medicine on his eye. Had he cautiously read the medicine bottle label, he
would have known that he had the wrong medicine.
Mercury Drug and Ganzon can not exculpate themselves from any liability. As active players in the field of
dispensing medicines to the public, the highest degree of care and diligence is expected of them. 73 Likewise,
numerous decisions, both here and abroad, have laid salutary rules for the protection of human life and human
health.74 In the United States case of Tombari v. Conners,75 it was ruled that the profession of pharmacy
demands care and skill, and druggists must exercise care of a specially high degree, the highest degree of care
known to practical men. In other words, druggists must exercise the highest practicable degree of prudence and
vigilance, and the most exact and reliable safeguards consistent with the reasonable conduct of the business, so
that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for
harmless medicines.76
In Fleet v. Hollenkemp,77 the US Supreme Court ruled that a druggist that sells to a purchaser or sends to a
patient one drug for another or even one innocent drug, calculated to produce a certain effect, in place of
another sent for and designed to produce a different effect, cannot escape responsibility, upon the alleged
pretext that it was an accidental or innocent mistake. His mistake, under the most favorable aspect for himself,
Page | 62
is negligence. And such mistake cannot be countenanced or tolerated, as it is a mistake of the gravest kind and
of the most disastrous effect.78
Smith‘s Admrx v. Middelton79 teaches Us that one holding himself out as competent to handle drugs, having
rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution and
care called for by the peculiarly dangerous nature of the business, cannot be heard to say that his mistake by
which he furnishes a customer the most deadly of drugs for those comparatively harmless, is not in itself gross
negligence.80
In our own jurisdiction, United States v. Pineda81 and Mercury Drug Corporation v. Baking are
illustrative.82 In Pineda, the potassium chlorate demanded by complainant had been intended for his race horses.
When complainant mixed with water what he thought and believed was potassium chlorate, but which turned
out to be the potently deadly barium chlorate, his race horses died of poisoning only a few hours after.
The wisdom of such a decision is unquestionable. If the victims had been human beings instead of horses, the
damage and loss would have been irreparable. 83
In the more recent Mercury Drug, involving no less than the same petitioner corporation, Sebastian Baking went
to the Alabang branch of Mercury Drug84 and presented his prescription for Diamicron, which the pharmacist
misread as Dormicum.85 Baking was given a potent sleeping tablet, instead of medicines to stabilize his blood
sugar.86 On the third day of taking the wrong medicine, Baking figured in a vehicular accident. 87 He fell asleep
while driving.88
This Court held that the proximate cause of the accident was the gross negligence of the pharmacist who gave
the wrong medicine to Baking. The Court said:
x x x Considering that a fatal mistake could be a matter of life and death for a buying patient, the said employee
should have been very cautious in dispensing medicines. She should have verified whether the medicine she
gave respondent was indeed the one prescribed by his physician. 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.89
This Court once more reiterated that the profession of pharmacy demands great care and skill. It reminded
druggists to exercise the highest degree of care known to practical men.
In cases where an injury is caused by the negligence of an employee, there instantly arises a presumption of law
that there has been negligence on the part of the employer, either in the selection or supervision of one‘s
employees. This presumption may be rebutted by a clear showing that the employer has exercised the care and
diligence of a good father of the family. 90 Mercury Drug failed to overcome such presumption. 91
Petitioners Mercury Drug and Ganzon have similarly failed to live up to high standard of diligence expected of
them as pharmacy professionals. They were grossly negligent in dispensing ear drops instead of the prescribed
eye drops to De Leon. Worse, they have once again attempted to shift the blame to their victim by underscoring
his own failure to read the label.
As a buyer, De Leon relied on the expertise and experience of Mercury Drug and its employees in dispensing to
him the right medicine.92 This Court has ruled that in the purchase and sale of drugs, the buyer and seller do not
stand at arms length.93 There exists an imperative duty on the seller or the druggist to take precaution to prevent
death or injury to any person who relies on one‘s absolute honesty and peculiar learning. 94 The Court
emphasized:
x x x The nature of drugs is such that examination would not avail the purchaser anything. 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. 95
Mercury Drug and Ganzon‘s defense that the latter gave the only available Cortisporin solution in the market
deserves scant consideration. Ganzon could have easily verified whether the medicine she gave De Leon was,

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indeed, the prescribed one or, at the very least, consulted her supervisor. Absent the required certainty in the
dispensation of the medicine, she could have refused De Leon‘s purchase of the drug.
The award of damages is proper and shall only be reduced considering the peculiar facts of the case. Moral
damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of defendant‘s wrongful act or omission. 96
Moral damages are not intended to impose a penalty to the wrongdoer or to enrich the claimant at the expense
of defendant.97 There is no hard and fast rule in determining what would be a fair and reasonable amount of
moral damages since each case must be governed by its peculiar circumstances. 98 However, the award of
damages must be commensurate to the loss or injury suffered. 99
Taking into consideration the attending facts of the case under review, We find the amount awarded by the trial
court to be excessive. Following the precedent case of Mercury Drug, We reduce the amount from ₱100,000.00
to ₱50,000.00 only.100 In addition, We also deem it necessary to reduce the award of exemplary damages from
the exorbitant amount of ₱300,000.00 to ₱25,000.00 only.
This Court explained the propriety of awarding exemplary damages in the earlier Mercury Drug case:
x x x Article 2229 allows the grant of exemplary damages by way of example or correction for the public good.
As mentioned earlier, the drugstore business is affected by public interest. Petitioner should have exerted utmost
diligence in the selection and supervision of its employees. On the part of the employee concerned, she should
have been extremely cautious in dispensing pharmaceutical products. Due to the sensitive nature of its business,
petitioner must at all times maintain a high level of meticulousness. Therefore, an award of exemplary damages
in the amount of ₱25,000.00 is in order. 101 (Emphasis supplied)
It is generally recognized that the drugstore business is imbued with public interest. This can not be more real
for Mercury Drug, the country‘s biggest drugstore chain. This Court can not tolerate any form of negligence
which can jeopardize the health and safety of its loyal patrons. Moreover, this Court will not countenance the
cavalier manner it treated De Leon. Not only does a pharmacy owe a customer the duty of reasonable care, but
it is also duty-bound to accord one with respect.
WHEREFORE, the petition is PARTIALLY GRANTED. The Decisions of the CA and the RTC in Parañaque
City are AFFIRMED WITH MODIFICATION, in that the award of moral and exemplary damages is reduced
to ₱50,000.00 and ₱25,000.00, respectively.
SO ORDERED.

THIRD DIVISION
[G.R. No. 122445. November 18, 1997]
DR. NINEVETCH CRUZ, petitioner, vs. COURT OF APPEALS and LYDIA UMALI, respondents.
Page | 64
 DECISION
FRANCISCO, J.:
"Doctors are protected by a special law. They are not guarantors of care. They do not even warrant a
good result. They are not insurers against mishap or unusual consequences. Furthermore they are not liable for
honest mistake of judgment"[1]

The present case against petitioner is in the nature of a medical malpractice suit, which in simplest term
is the type of claim which a victim has available to him or her to redress a wrong committed by a medical
professional which has cause bodily harm. [2] In this jurisdiction, however, such claims are most often brought as
a civil action for damages under Article 2176 of the Civil Code, [3] and in some instances, as a criminal case
under Article 365 of the Revised Penal Code[4] with which the civil action for damages is impliedly instituted. It
is via the latter type of action that the heirs of the deceased sought redress for the petitioner's alleged
imprudence and negligence in treating the deceased thereby causing her death. The petitioner and one Dr. Lina
Ercillo who was the attending anaesthesiologist during the operation of the deceased were charged with
"reckless imprudence and negligence resulting to (sic) homicide" in an information which reads:

"That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the accused above named, being then the attending anaesthesiologist and
surgeon, respectively, did then and there, in a negligence (sic), careless, imprudent, and incompetent manner,
and failing to supply or store sufficient provisions and facilities necessary to meet any and all exigencies apt to
arise before, during and/or after a surgical operation causing by such negligence, carelessness, imprudence, and
incompetence, and causing by such failure, including the lack of preparation and foresight needed to avert a
tragedy, the untimely death of said Lydia Umali on the day following said surgical operation." [5]
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the above-mentioned charge. On
March 4, 1994, the Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a decision, the
dispositive portion of which is hereunder quoted as follows:

"WHEREFORE, the court finds the accused Dr. Lina Ercillo not guilty of the offense charged for
insufficiency of evidence while her co-accused Dra. Ninevetch Cruz is hereby held responsible for the death of
Lydia Umali on March 24, 1991, and therefore guilty under Art. 365 of the Revised Penal Code, and she is
hereby sentenced to suffer the penalty of 2 months and 1 day imprisonment of arresto mayor with costs." [6]
The petitioner appealed her conviction to the Regional Trial Court (RTC) which affirmed in toto the decision of
the MTCC[7] prompting the petitioner to file a petition for review with the Court of Appeals but to no avail.
Hence this petition for review on certiorari assailing the decision promulgated by the Court of Appeals on
October 24, 1995 affirming petitioner's conviction with modification that she is further directed to pay the heirs
of Lydia Umali P50,000.00 as indemnity for her death. [8]
In substance, the petition brought before this Court raises the issue of whether or not petitioner's conviction of
the crime of reckless imprudence resulting in homicide, arising from an alleged medical malpractice, is
supported by the evidence on record.
First the antecedent facts.

On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother to the
Perpetual Help Clinic and General Hospital situated in Balagtas Street, San Pablo City, Laguna. They arrived at
the said hospital at around 4:30 in the afternoon of the same day. [9] Prior to March 22, 1991, Lydia was
examined by the petitioner who found a "myoma" [10] in her uterus, and scheduled her for a hysterectomy
operation on March 23, 1991.[11] Rowena and her mother slept in the clinic on the evening of March 22, 1991 as
the latter was to be operated on the next day at 1:00 o'clock in the afternoon. [12] According to Rowena, she
Page | 65
noticed that the clinic was untidy and the window and the floor were very dusty prompting her to ask the
attendant for a rag to wipe the window and the floor with. [13] Because of the untidy state of the clinic, Rowena
tried to persuade her mother not to proceed with the operation.[14] The following day, before her mother was
wheeled into the operating room, Rowena asked the petitioner if the operation could be postponed. The
petitioner called Lydia into her office and the two had a conversation. Lydia then informed Rowena that the
petitioner told her that she must be operated on as scheduled. [15]

Rowena and her other relatives, namely her husband, her sister and two aunts waited outside the
operating room while Lydia underwent operation. While they were waiting, Dr. Ercillo went out of the
operating room and instructed them to buy tagamet ampules which Rowena's sister immediately bought. About
one hour had passed when Dr. Ercillo came out again this time to ask them to buy blood for Lydia. They bought
type "A" blood from the St. Gerald Blood Bank and the same was brought by the attendant into the operating
room. After the lapse of a few hours, the petitioner informed them that the operation was finished. The
operating staff then went inside the petitioner's clinic to take their snacks. Some thirty minutes after, Lydia was
brought out of the operating room in a stretcher and the petitioner asked Rowena and the other relatives to buy
additional blood for Lydia. Unfortunately, they were not able to comply with petitioner's order as there was no
more type "A" blood available in the blood bank. Thereafter, a person arrived to donate blood which was later
transfused to Lydia. Rowena then noticed her mother, who was attached to an oxygen tank, gasping for breath.
Apparently the oxygen supply had run out and Rowena's husband together with the driver of the accused had to
go to the San Pablo District Hospital to get oxygen. Lydia was given the fresh supply of oxygen as soon as it
arrived.[16] But at around 10:00 o'clock P.M. she went into shock and her blood pressure dropped to 60/50.
Lydia's unstable condition necessitated her transfer to the San Pablo District Hospital so she could be connected
to a respirator and further examined. [17] The transfer to the San Pablo City District Hospital was without the
prior consent of Rowena nor of the other relatives present who found out about the intended transfer only when
an ambulance arrived to take Lydia to the San Pablo District Hospital. Rowena and her other relatives then
boarded a tricycle and followed the ambulance. [18]

Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating room and the
petitioner and Dr. Ercillo re-operated on her because there was blood oozing from the abdominal incision. [19]
The attending physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and Gynecology
Department of the San Pablo District Hospital. However, when Dr. Angeles arrived, Lydia was already in shock
and possibly dead as her blood pressure was already 0/0. Dr. Angeles then informed petitioner and Dr. Ercillo
that there was nothing he could do to help save the patient. [20] While petitioner was closing the abdominal wall,
the patient died.[21] Thus, on March 24, 1991, at 3:00 o'clock in the morning, Lydia Umali was pronounced
dead. Her death certificate states "shock" as the immediate cause of death and "Disseminated Intravascular
Coagulation (DIC)" as the antecedent cause. [22]

In convicting the petitioner, the MTCC found the following circumstances as sufficient basis to
conclude that she was indeed negligent in the performance of the operation:
"x x x, the clinic was untidy, there was lack of provision like blood and oxygen to prepare for any contingency
that might happen during the operation. The manner and the fact that the patient was brought to the San Pablo
District Hospital for reoperation indicates that there was something wrong in the manner in which Dra. Cruz
conducted the operation. There was no showing that before the operation, accused Dr. Cruz had conducted a
cardio pulmonary clearance or any typing of the blood of the patient. It was (sic) said in medical parlance that
the "abdomen of the person is a temple of surprises" because you do not know the whole thing the moment it
was open (sic) and surgeon must be prepared for any eventuality thereof. The patient (sic) chart which is a
public document was not presented because it is only there that we could determine the condition of the patient
before the surgery. The court also noticed in Exh. "F-1" that the sister of the deceased wished to postpone the
Page | 66
operation but the patient was prevailed upon by Dra. Cruz to proceed with the surgery. The court finds that
Lydia Umali died because of the negligence and carelessness of the surgeon Dra. Ninevetch Cruz because of
loss of blood during the operation of the deceased for evident unpreparedness and for lack of skill, the reason
why the patient was brought for operation at the San Pablo City District Hospital. As such, the surgeon should
answer for such negligence. With respect to Dra. Lina Ercillo, the anaesthesiologist, there is no evidence to
indicate that she should be held jointly liable with Dra. Cruz who actually did the operation."[23]

The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration of
"incompetency, negligence and lack of foresight and skill of appellant (herein petitioner) in handling the subject
patient before and after the operation."[24] And likewise affirming the petitioner's conviction, the Court of
Appeals echoed similar observations, thus:
"x x x. While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence,
it nevertheless shows the absence of due care and supervision over her subordinate employees. Did this
unsanitary condition permeate the operating room? Were the surgical instruments properly sterilized? Could the
conditions in the OR have contributed to the infection of the patient? Only the petitioner could answer these, but
she opted not to testify. This could only give rise to the presumption that she has nothing good to testify on her
defense. Anyway, the alleged "unverified statement of the prosecution witness" remains unchallenged and
unrebutted.

Likewise undisputed is the prosecution's version indicating the following facts: that the accused asked
the patient's relatives to buy Tagamet capsules while the operation was already in progress; that after an hour,
they were also asked to buy type "A" blood for the patient; that after the surgery, they were again asked to
procure more type "A" blood, but such was not anymore available from the source; that the oxygen given to the
patient was empty; and that the son-in-law of the patient, together with a driver of the petitioner, had to rush to
the San Pablo City District Hospital to get the much-needed oxygen. All these conclusively show that the
petitioner had not prepared for any unforeseen circumstances before going into the first surgery, which was not
emergency in nature, but was elective or pre-scheduled; she had no ready antibiotics, no prepared blood,
properly typed and cross-matched, and no sufficient oxygen supply.

Moreover, there are a lot of questions that keep nagging Us. Was the patient given any cardio-
pulmonary clearance, or at least a clearance by an internist, which are standard requirements before a patient is
subjected to surgery. Did the petitioner determine as part of the pre-operative evaluation, the bleeding
parameters of the patient, such as bleeding time and clotting time? There is no showing that these were done.
The petitioner just appears to have been in a hurry to perform the operation, even as the family wanted the
postponement to April 6, 1991. Obviously, she did not prepare the patient; neither did she get the family's
consent to the operation. Moreover, she did not prepare a medical chart with instructions for the patient's care. If
she did all these, proof thereof should have been offered. But there is none. Indeed, these are overwhelming
evidence of recklessness and imprudence."[25]
This court, however, holds differently and finds the foregoing circumstances insufficient to sustain a judgment
of conviction against the petitioner for the crime of reckless imprudence resulting in homicide. The elements of
reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do
that act is voluntary; (3) that it be without malice; (4) that material damage results from the reckless
imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into
consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances
regarding persons, time and place.

Page | 67
 Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his
patient is to be determined according to the standard of care observed by other members of the profession in
good standing under similar circumstances bearing in mind the advanced state of the profession at the time of
treatment or the present state of medical science. [26] In the recent case of Leonila Garcia-Rueda v. Wilfred L.
Pacasio, et. al.,[27] this Court stated that in accepting a case, a doctor in effect represents that, having the needed
training and skill possessed by physicians and surgeons practicing in the same field, he will employ such
training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of
care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It
is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of
care of the profession but also that the physician's conduct in the treatment and care falls below such
standard.[28] Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable
only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to
support the conclusion as to causation. [29]

Immediately apparent from a review of the records of this case is the absence of any expert testimony on
the matter of the standard of care employed by other physicians of good standing in the conduct of similar
operations. The prosecution's expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr.
of the National Bureau of Investigation (NBI) only testified as to the possible cause of death but did not venture
to illuminate the court on the matter of the standard of care that petitioner should have exercised.

All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of
provisions such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary
test prior to the operation; the omission of any form of blood typing before transfusion; and even the subsequent
transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it
may be true that the circumstances pointed out by the courts below seemed beyond cavil to constitute reckless
imprudence on the part of the surgeon, this conclusion is still best arrived at not through the educated surmises
nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For
whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient
is, in the generality of cases, a matter of expert opinion. [30] The deference of courts to the expert opinion of
qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in
most instances are incapable of intelligently evaluating.[31] Expert testimony should have been offered to prove
that the circumstances cited by the courts below are constitutive of conduct falling below the standard of care
employed by other physicians in good standing when performing the same operation. It must be remembered
that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption
that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in
attending to his clients, unless the contrary is sufficiently established. [32] This presumption is rebuttable by
expert opinion which is so sadly lacking in the case at bench.

Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack of
provisions; the failure to conduct pre-operation tests on the patient; and the subsequent transfer of Lydia to the
San Pablo Hospital and the reoperation performed on her by the petitioner do indicate, even without expert
testimony, that petitioner was recklessly imprudent in the exercise of her duties as a surgeon, no cogent proof
exists that any of these circumstances caused petitioner's death. Thus, the absence of the fourth element of
reckless imprudence: that the injury to the person or property was a consequence of the reckless imprudence.

In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's
negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of
Page | 68
the surgeon as well as a casual connection of such breach and the resulting death of his patient. [33] In Chan
Lugay v. St Luke's Hospital, Inc.,[34] where the attending physician was absolved of liability for the death of the
complainant's wife and newborn baby, this court held that:

"In order that there may be a recovery for an injury, however, it must be shown that the 'injury for which
recovery is sought must be the legitimate consequence of the wrong done; the connection between the
negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient
causes.' In other words, the negligence must be the proximate cause of the injury. For, 'negligence, no matter in
what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of.' And
'the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result would not have occurred.''' [35]
(Underscoring supplied.)
Dr. Arizala who conducted an autopsy on the body of the deceased summarized his findings as follows:
"Atty. Cachero:
Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1-b". There appears here a
signature above the typewritten name Floresto Arizala, Jr., whose signature is that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?
A. Only as to the autopsy report no. 91-09, the time and place and everything after the post mortem findings,
sir.
Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm., infraumbilical area,
anterior abdominal area, midline, will you please explain that in your own language?
A. There was incision wound (sic) the area just below the navel, sir.
Q. And the last paragraph of the postmortem findings which I read: Uterus, pear-shaped and pale measuring 7.5
x 5.5 x 5.0 cm, with some surface nodulation of the fundic area posteriorly. Cut-section shows diffusely pale
myometrium with areas of streak induration. The ovaries and adnexal structures are missing with the raw
surfaces patched with clotted blood. Surgical sutures were noted on the operative site.
Intestines and mesenteries are pale with blood clots noted between the mesentric folds.
Hemoperitonium: 300 s.s.,
right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.',
will you please explain that on (sic) your own language or in ordinary
A. There was a uterus which was not attached to the adnexal structures namely ovaries which were not present
and also sign of previous surgical operation and there were (sic) clotted blood, sir.
Q. How about the ovaries and adnexal structures?
A. They are missing, sir.
Q. You mean to say there are no ovaries?
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical sutures?
A. Yes, sir.
Q. How about the intestines and mesenteries are place (sic) with blood clots noted between the mesenteric folds,
will you please explain on (sic) this?
A. In the peritoneal cavity, they are mostly perritonial blood.
Q. And what could have caused this blood?

Page | 69
A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic) outside as a result of the injuries
which destroyed the integrity of the vessel allowing blood to sip (sic) out, sir.
Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can you tell the court the cause of death?
A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic shock.
Q. Can you tell the us what could have caused this hemorrhagic shock?
A. Well hemorrhagic shock is the result of blood loss.
Q. What could have the effect of that loss of blood?
A. Unattended hemorrhage, sir.[36] (Underscoring supplied.)
The foregoing was corroborated by Dr. Nieto Salvador:
"Q. And were you able to determine the cause of death by virtue of the examination of the specimen submitted
by Dr. Arizala?
A. Without knowledge of the autopsy findings it would be difficult for me to determine the cause of death, sir.
Q. Have you examined the post mortem of Dr. Arizala?
A. Yes, sir, and by virtue of the autopsy report in connection with your pathology report.
Q. What could have caused the death of the victim?
A. This pathologic examination are (sic) compatible with the person who died, sir.
Q. Will you explain to us the meaning of hemorrhagic compatible?
A. It means that a person died of blood loss. Meaning a person died of non-replacement of blood and so the
victim before she died there was shock of diminish of blood of the circulation. She died most probably before
the actual complete blood loss, sir.
Court: Is it possible doctor that the loss of the blood was due on (sic) operation?
A. Based on my pathology findings, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel may be cut while on
operation and this cause (sic) bleeding, or may be set in the course of the operation, or may be (sic) he died after
the operation. Of course there are other cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood replacement?
A. Yes, sir."[37] (Underscoring supplied.)
The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of death. However, as
likewise testified to by the expert witnesses in open court, hemorrhage or hemorrhagic shock during surgery
may be caused by several different factors. Thus, Dr. Salvador's elaboration on the matter:
"Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that you mentioned you said that it could be at the moment of
operation when one losses (sic) control of the presence, is that correct? During the operation there is lost (sic) of
control of the cut vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may have slipped later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible also to some clotting defect, is that correct?
A. May be (sic)."[38] (Underscoring supplied).
Defense witness, Dr. Bu C. Castro also gave the following expert opinion:
"Q. Doctor even a patient after an operations (sic) would suffer hemorrage what would be the possible causes of
such hemorrage (sic)?
A. Among those would be what we call Intravascular Coagulation and this is the reason for the bleeding, sir,
which cannot be prevented by anyone, it will happen to anyone, anytime and to any persons (sic), sir.
COURT:
What do you think of the cause of the bleeding, the cutting or the operations done in the body?
Page | 70
A. Not related to this one, the bleeding here is not related to any cutting or operation that I (sic) have done.
Q. Aside from the DIC what could another causes (sic) that could be the cause for the hemorrhage or bleeding
in a patient by an operations (sic)?
A. In general sir, if there was an operations (sic) and it is possible that the ligature in the suture was (sic)
become (sic) loose, it is (sic) becomes loose if proven.
xxxxxxxxx
Q. If the person who performed an autopsy does not find any untight (sic) clot (sic) blood vessel or any suture
that become (sic) loose the cause of the bleeding could not be attributed to the fault of the subject?
A. Definitely, sir."[39] (Underscoring supplied.)
According to both doctors, the possible causes of hemorrhage during an operation are: (1) the failure of the
surgeon to tie or suture a cut blood vessel; (2) allowing a cut blood vessel to get out of control; (3) the
subsequent loosening of the tie or suture applied to a cut blood vessel; and (4) and a clotting defect known as
DIC. It is significant to state at this juncture that the autopsy conducted by Dr. Arizala on the body of Lydia did
not reveal any untied or unsutured cut blood vessel nor was there any indication that the tie or suture of a cut
blood vessel had become loose thereby causing the hemorrhage.[40] Hence the following pertinent portion of Dr.
Arizala's testimony:
"Q: Doctor, in examining these structures did you know whether these were sutured ligature or plain ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if the cut structures were tied by first suturing it and then tying a
knot or the tie was merely placed around the cut structure and tied?
A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall because you did not even bothered (sic) to examine, is that correct?
A: Well, I bothered enough to know that they were sutured, sir.
Q: So, therefore, Doctor, you would not know whether any of the cut structures were not sutured or tied neither
were you able to determine whether any loose suture was found in the peritoneal cavity?
A: I could not recall any loose sutured (sic), sir."[41]
On the other hand, the findings of all three doctors do not preclude the probability that DIC caused the
hemorrhage and consequently, Lydia's death. DIC which is a clotting defect creates a serious bleeding tendency
and when massive DIC occurs as a complication of surgery leaving raw surface, major hemorrhage occurs. [42]
And as testified to by defense witness, Dr. Bu C. Castro, hemorrhage due to DIC "cannot be prevented, it will
happen to anyone, anytime."[43] He testified further:
"Q. Now, under the circumstance one of the possibility as you mentioned in (sic) DIC?
A. Yes, sir.
Q. And you mentioned that it cannot be prevented?
A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that will tell you whether this patient suffered among such things
as DIC?
A. Well, I did reserve because of the condition of the patient.
Q. Now, Doctor you said that you went through the record of the deceased Lydia Umali looking for the chart,
the operated (sic) records, the post mortem findings on the histophanic (sic) examination based on your
examination of record, doctor, can you more or less says (sic) what part are (sic) concerned could have been the
caused (sic) of death of this Lydia Umali?
A. As far as the medical record is concern (sic) the caused (sic) of death is dessimulated (sic) Intra Vascular
Coagulation or the DIC which resulted to hemorrhage or bleedings, sir.
Q. Doctor based on your findings then there is knowing (sic) the doctor would say whether the doctor her (sic)
has been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on finding they just read the chart as well as the other record.
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ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the surgeon, sir." [44]
This court has no recourse but to rely on the expert testimonies rendered by both prosecution and defense
witnesses that substantiate rather than contradict petitioner's allegation that the cause of Lydia's death was DIC
which, as attested to by an expert witness, cannot be attributed to the petitioner's fault or negligence. The
probability that Lydia's death was caused by DIC was unrebutted during trial and has engendered in the mind of
this Court a reasonable doubt as to the petitioner's guilt. Thus, her acquittal of the crime of reckless imprudence
resulting in homicide. While we condole with the family of Lydia Umali, our hands are bound by the dictates of
justice and fair dealing which hold inviolable the right of an accused to be presumed innocent until proven
guilty beyond reasonable doubt. Nevertheless, this Court finds the petitioner civilly liable for the death of Lydia
Umali, for while a conviction of a crime requires proof beyond reasonable doubt, only a preponderance of
evidence is required to establish civil liability. [45]

The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of evidence
this Court was not able to render a sentence of conviction but it is not blind to the reckless and imprudent
manner in which the petitioner carried out her duties. A precious life has been lost and the circumstances
leading thereto exacerbated the grief of those left behind. The heirs of the deceased continue to feel the loss of
their mother up to the present time[46] and this Court is aware that no amount of compassion and commiseration
nor words of bereavement can suffice to assuage the sorrow felt for the loss of a loved one. Certainly, the award
of moral and exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case.
WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is hereby ACQUITTED of the
crime of reckless imprudence resulting in homicide but is ordered to pay the heirs of the deceased Lydia Umali
the amount of FIFTY THOUSAND PESOS (P50,000.00) as civil liability, ONE HUNDRED THOUSAND
PESOS (P100,000.00) as moral damages, and FIFTY THOUSAND PESOS (P50,000.00) as exemplary
damages.
Let the copy of this decision be furnished to the Professional Regulation Commission (PRC) for appropriate
action.
SO ORDERED.

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DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by Dr. Fe
Cayao-Lasam (petitioner) seeking to annul the Decision[1] dated July 4, 2003 of the Court of Appeals (CA) in
CA-G.R. SP No. 62206.
The antecedent facts:
On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha) was brought to the Lorma
Medical Center (LMC) in San Fernando, La Union due to vaginal bleeding. Upon advice of petitioner relayed
via telephone, Editha was admitted to the LMC on the same day. A pelvic sonogram[2] was then conducted on
Editha revealing the fetus weak cardiac pulsation.[3] The following day, Edithas repeat pelvic sonogram[4]
showed that aside from the fetus weak cardiac pulsation, no fetal movement was also appreciated. Due to
persistent and profuse vaginal bleeding, petitioner advised Editha to undergo a Dilatation and Curettage
Procedure (D&C) or raspa.
On July 30, 1994, petitioner performed the D&C procedure. Editha was discharged from the hospital the
following day.
On September 16, 1994, Editha was once again brought at the LMC, as she was suffering from vomiting and
severe abdominal pains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V.
Komiya. Dr. Mayo allegedly informed Editha that there was a dead fetus in the latters womb. After, Editha
underwent laparotomy,[5] she was found to have a massive intra-abdominal hemorrhage and a ruptured uterus.
Thus, Editha had to undergo a procedure for hysterectomy[6] and as a result, she has no more chance to bear a
child.
On November 7, 1994, Editha and her husband Claro Ramolete (respondents) filed a Complaint[7] for Gross
Negligence and Malpractice against petitioner before the Professional Regulations Commission (PRC).
Respondents alleged that Edithas hysterectomy was caused by petitioners unmitigated negligence and
professional incompetence in conducting the D&C procedure and the petitioners failure to remove the fetus
inside Edithas womb.[8] Among the alleged acts of negligence were: first, petitioners failure to check up, visit
or administer medication on Editha during her first day of confinement at the LMC;[9] second, petitioner
recommended that a D&C procedure be performed on Editha without conducting any internal examination prior
to the procedure;[10] third, petitioner immediately suggested a D&C procedure instead of closely monitoring
the state of pregnancy of Editha.[11]
In her Answer,[12] petitioner denied the allegations of negligence and incompetence with the following
explanations: upon Edithas confirmation that she would seek admission at the LMC, petitioner immediately
called the hospital to anticipate the arrival of Editha and ordered through the telephone the medicines Editha
needed to take, which the nurses carried out; petitioner visited Editha on the morning of July 28, 1994 during
her rounds; on July 29, 1994, she performed an internal examination on Editha and she discovered that the
latters cervix was already open, thus, petitioner discussed the possible D&C procedure, should the bleeding
become more profuse; on July 30 1994, she conducted another internal examination on Editha, which revealed
that the latters cervix was still open; Editha persistently complained of her vaginal bleeding and her passing out
of some meaty mass in the process of urination and bowel movement; thus, petitioner advised Editha to undergo
D&C procedure which the respondents consented to; petitioner was very vocal in the operating room about not
being able to see an abortus;[13] taking the words of Editha to mean that she was passing out some meaty mass
and clotted blood, she assumed that the abortus must have been expelled in the process of bleeding; it was
Editha who insisted that she wanted to be discharged; petitioner agreed, but she advised Editha to return for
check-up on August 5, 1994, which the latter failed to do.

Page | 73
Petitioner contended that it was Edithas gross negligence and/or omission in insisting to be discharged on July
31, 1994 against doctors advice and her unjustified failure to return for check-up as directed by petitioner that
contributed to her life-threatening condition on September 16, 1994; that Edithas hysterectomy was brought
about by her very abnormal pregnancy known as placenta increta, which was an extremely rare and very
unusual case of abdominal placental implantation. Petitioner argued that whether or not a D&C procedure was
done by her or any other doctor, there would be no difference at all because at any stage of gestation before
term, the uterus would rupture just the same.
On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a Decision,[14] exonerating
petitioner from the charges filed against her. The Board held:
Based on the findings of the doctors who conducted the laparotomy on Editha, hers is a case of Ectopic
Pregnancy Interstitial. This type of ectopic pregnancy is one that is being protected by the uterine muscles and
manifestations may take later than four (4) months and only attributes to two percent (2%) of ectopic pregnancy
cases.
When complainant Editha was admitted at Lorma Medical Center on July 28, 1994 due to vaginal bleeding, an
ultra-sound was performed upon her and the result of the Sonogram Test reveals a morbid fetus but did not
specify where the fetus was located. Obstetricians will assume that the pregnancy is within the uterus unless so
specified by the Sonologist who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she
was not able to determine that complainant Editha is having an ectopic pregnancy interstitial. The D&C
conducted on Editha is necessary considering that her cervix is already open and so as to stop the profuse
bleeding. Simple curettage cannot remove a fetus if the patient is having an ectopic pregnancy, since ectopic
pregnancy is pregnancy conceived outside the uterus and curettage is done only within the uterus. Therefore, a
more extensive operation needed in this case of pregnancy in order to remove the fetus.[15]
Feeling aggrieved, respondents went to the PRC on appeal. On November 22, 2000, the PRC rendered a
Decision[16] reversing the findings of the Board and revoking petitioners authority or license to practice her
profession as a physician.[17] Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of
the Rules of Court. Petitioner also dubbed her petition as one for certiorari[18] under Rule 65 of the Rules of
Court.

In the Decision dated July 4, 2003, the CA held that the Petition for Review under Rule 43 of the Rules of Court
was an improper remedy, as the enumeration of the quasi-judicial agencies in Rule 43 is exclusive.[19] PRC is
not among the quasi-judicial bodies whose judgment or final orders are subject of a petition for review to the
CA, thus, the petition for review of the PRC Decision, filed at the CA, was improper. The CA further held that
should the petition be treated as a petition for certiorari under Rule 65, the same would still be dismissed for
being improper and premature. Citing Section 26[20] of Republic Act (R.A.) No. 2382 or the Medical Act of
1959, the CA held that the plain, speedy and adequate remedy under the ordinary course of law which petitioner
should have availed herself of was to appeal to the Office of the President.[21]
Hence, herein petition, assailing the decision of the CA on the following grounds:
1. THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING
THAT THE PROFESSIONAL REGULATION[S] COMMISSION (PRC) WAS EXCLUDED AMONG THE
QUASI-JUDICIAL AGENCIES CONTEMPLATED UNDER RULE 43 OF THE RULES OF CIVIL
PROCEDURE;
2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE
PURVIEW OF RULE 43 OF THE RULES OF CIVIL PROCEDURE, THE PETITIONER WAS NOT
PRECLUDED FROM FILING A PETITION FOR CERTIORARI WHERE THE DECISION WAS ALSO
Page | 74
ISSUED IN EXCESS OF OR WITHOUT JURISDICTION, OR WHERE THE DECISION WAS A PATENT
NULLITY;
3. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO
APPEAL FROM THE DECISION OF THE BOARD OF MEDICINE TO THE PROFESSIONAL
REGULATION[S] COMMISSION;
4. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN
DENYING FOR IMPROPER FORUM THE PETITION FOR REVIEW/PETITION FOR CERTIORARI
WITHOUT GOING OVER THE MERITS OF THE GROUNDS RELIED UPON BY THE PETITIONER;
5. PRCS GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE TO
BE HEARD ON APPEAL IS A CLEAR VIOLATION OF HER CONSTITUTIONAL RIGHT TO DUE
PROCESS AND HAS THE EFFECT OF RENDERING THE JUDGMENT NULL AND VOID;
6. COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED
GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN ACCEPTING AND
CONSIDERING THE MEMORANDUM ON APPEAL WITHOUT PROOF OF SERVICE TO HEREIN
PETITIONER, AND IN VIOLATION OF ART. IV, SEC. 35 OF THE RULES AND REGULATIONS
GOVERNING THE REGULATION AND PRACTICE OF PROFESSIONALS;

7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING

PETITIONERS LICENSE TO PRACTICE MEDICINE WITHOUT AN EXPERT TESTIMONY TO
SUPPORT ITS CONCLUSION AS TO THE CAUSE OF RESPONDENT EDITHAT [SIC] RAMOLETES
INJURY.
8. PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN TOTALLY
DISREGARDING THE FINDING OF THE BOARD OF MEDICINE, WHICH HAD THE NECESSARY
COMPETENCE AND EXPERTISE TO ESTABLISH THE CAUSE OF RESPONDENT EDITHAS INJURY,
AS WELL AS THE TESTIMONY OF THE EXPERT WITNESS AUGUSTO MANALO, M.D. ;[AND]
9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING CONCLUSIONS OF
FACTS THAT WERE NOT ONLY UNSUPPORTED BY EVIDENCE BUT WERE ACTUALLY
CONTRARY TO EVIDENCE ON RECORD.[22]
The Court will first deal with the procedural issues.
Petitioner claims that the law does not allow complainants to appeal to the PRC from the decision of the Board.
She invokes Article IV, Section 35 of the Rules and Regulations Governing the Regulation and Practice of
Professionals, which provides:
Sec. 35. The respondent may appeal the decision of the Board within thirty days from receipt thereof to the
Commission whose decision shall be final. Complainant, when allowed by law, may interpose an appeal from
the Decision of the Board within the same period. (Emphasis supplied)
Petitioner asserts that a careful reading of the above law indicates that while the respondent, as a matter of right,
may appeal the Decision of the Board to the Commission, the complainant may interpose an appeal from the
decision of the Board only when so allowed by law.[23] Petitioner cited Section 26 of Republic Act No. 2382 or
The Medical Act of 1959, to wit:
Section 26. Appeal from judgment. The decision of the Board of Medical Examiners (now Medical Board) shall
automatically become final thirty days after the date of its promulgation unless the respondent, during the same
period, has appealed to the Commissioner of Civil Service (now Professional Regulations Commission) and

Page | 75
later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may
ask for a review of the case, or may file in court a petition for certiorari.
Petitioner posits that the reason why the Medical Act of 1959 allows only the respondent in an administrative
case to file an appeal with the Commission while the complainant is not allowed to do so is double jeopardy.
Petitioner is of the belief that the revocation of license to practice a profession is penal in nature.[24]
The Court does not agree.
For one, the principle of double jeopardy finds no application in administrative cases. Double jeopardy attaches
only: (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has
been entered; and (5) when the defendant was acquitted or convicted, or the case was dismissed or otherwise
terminated without the express consent of the accused.[25] These elements were not present in the proceedings
before the Board of Medicine, as the proceedings involved in the instant case were administrative and not
criminal in nature. The Court has already held that double jeopardy does not lie in administrative cases.[26]
Moreover, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals
cited by petitioner was subsequently amended to read:
Sec. 35. The complainant/respondent may appeal the order, the resolution or the decision of the Board within
thirty (30) days from receipt thereof to the Commission whose decision shall be final and executory.
Interlocutory order shall not be appealable to the Commission. (Amended by Res. 174, Series of 1990).[27]
(Emphasis supplied)
Whatever doubt was created by the previous provision was settled with said amendment. It is axiomatic that the
right to appeal is not a natural right or a part of due process, but a mere statutory privilege that may be exercised
only in the manner prescribed by law.[28] In this case, the clear intent of the amendment is to render the right to
appeal from a decision of the Board available to both complainants and respondents.
Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution No. 06-342(A), or the New
Rules of Procedure in Administrative Investigations in the Professional Regulations Commission and the
Professional Regulatory Boards, which provides for the method of appeal, to wit:
Sec. 1. Appeal; Period Non-Extendible.- The decision, order or resolution of the Board shall be final and
executory after the lapse of fifteen (15) days from receipt of the decision, order or resolution without an appeal
being perfected or taken by either the respondent or the complainant. A party aggrieved by the decision, order
or resolution may file a notice of appeal from the decision, order or resolution of the Board to the Commission
within fifteen (15) days from receipt thereof, and serving upon the adverse party a notice of appeal together
with the appellants brief or memorandum on appeal, and paying the appeal and legal research fees. x x x[29]
The above-stated provision does not qualify whether only the complainant or respondent may file an appeal;
rather, the new rules provide that a party aggrieved may file a notice of appeal. Thus, either the complainant or
the respondent who has been aggrieved by the decision, order or resolution of the Board may appeal to the
Commission. It is an elementary rule that when the law speaks in clear and categorical language, there is no
need, in the absence of legislative intent to the contrary, for any interpretation.[30] Words and phrases used in
the statute should be given their plain, ordinary, and common usage or meaning.[31]
Petitioner also submits that appeals from the decisions of the PRC should be with the CA, as Rule 43[32] of the
Rules of Court was precisely formulated and adopted to provide for a uniform rule of appellate procedure for
quasi-judicial agencies.[33] Petitioner further contends that a quasi-judicial body is not excluded from the
purview of Rule 43 just because it is not mentioned therein.[34]
On this point, the Court agrees with the petitioner.
Sec. 1, Rule 43 of the Rules of Court provides:
Page | 76
Section 1. Scope. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals,
and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board
of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration
Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and
Technology Transfer, National Electrification Administration, Energy Regulatory Board, National
Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government
Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance
Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators authorized by law. (Emphasis supplied)
Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly enumerated under
Section 1, Rule 43 of the Rules of Court. However, its absence from the enumeration does not, by this fact
alone, imply its exclusion from the coverage of said Rule.[35] The Rule expressly provides that it should be
applied to appeals from awards, judgments final orders or resolutions of any quasi-judicial agency in the
exercise of its quasi-judicial functions. The phrase among these agencies confirms that the enumeration made in
the Rule is not exclusive to the agencies therein listed.[36]
Specifically, the Court, in Yang v. Court of Appeals,[37] ruled that Batas Pambansa (B.P.) Blg. 129[38]
conferred upon the CA exclusive appellate jurisdiction over appeals from decisions of the PRC. The Court held:
The law has since been changed, however, at least in the matter of the particular court to which appeals from the
Commission should be taken. On August 14, 1981, Batas Pambansa Bilang 129 became effective and in its
Section 29, conferred on the Court of Appeals exclusive appellate jurisdiction over all final judgments,
decisions, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities,
boards or commissions except those falling under the appellate jurisdiction of the Supreme Court. x x x. In
virtue of BP 129, appeals from the Professional Regulations Commission are now exclusively cognizable by the
Court of Appeals.[39] (Emphasis supplied)
Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil Procedure,[40] lodged with
the CA such jurisdiction over the appeals of decisions made by the PRC.
Anent the substantive merits of the case, petitioner questions the PRC decision for being without an expert
testimony to support its conclusion and to establish the cause of Edithas injury. Petitioner avers that in cases of
medical malpractice, expert testimony is necessary to support the conclusion as to the cause of the injury.[41]
Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to
apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession
generally, under similar conditions, and in like surrounding circumstances.[42] In order to successfully pursue
such a claim, a patient must prove that the physician or surgeon either failed to do something which a
reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the
patient.[43]
There are four elements involved in medical negligence cases: duty, breach, injury and proximate causation.[44]
A physician-patient relationship was created when Editha employed the services of the petitioner. As Edithas
physician, petitioner was duty-bound to use at least the same level of care that any reasonably competent doctor
would use to treat a condition under the same circumstances.[45] The breach of these professional duties of skill
and care, or their improper performance by a physician surgeon, whereby the patient is injured in body or in
health, constitutes actionable malpractice.[46] As to this aspect of medical malpractice, the determination of the
reasonable level of care and the breach thereof, expert testimony is essential.[47] Further, inasmuch as the
Page | 77
causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge,
it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.[48]
In the present case, respondents did not present any expert testimony to support their claim that petitioner failed
to do something which a reasonably prudent physician or surgeon would have done.
Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who was clearly an expert on
the subject.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter
about which he or she is to testify, either by the study of recognized authorities on the subject or by practical
experience.[49]
Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored various publications on the
subject, and is a professor at the University of the Philippines.[50] According to him, his diagnosis of Edithas
case was Ectopic Pregnancy Interstitial (also referred to as Cornual), Ruptured.[51] In stating that the D&C
procedure was not the proximate cause of the rupture of Edithas uterus resulting in her hysterectomy, Dr.
Manalo testified as follows:
Atty. Hidalgo:
Q: Doctor, we want to be clarified on this matter. The complainant had testified here that the D&C was the
proximate cause of the rupture of the uterus. The condition which she found herself in on the second admission.
Will you please tell us whether that is true or not?
A: Yah, I do not think so for two reasons. One, as I have said earlier, the instrument cannot reach the site of the
pregnancy, for it to further push the pregnancy outside the uterus. And, No. 2, I was thinking a while ago about
another reason- well, why I dont think so, because it is the triggering factor for the rupture, it could havethe
rupture could have occurred much earlier, right after the D&C or a few days after the D&C.
Q: In this particular case, doctor, the rupture occurred to have happened minutes prior to the hysterectomy or
right upon admission on September 15, 1994 which is about 1 months after the patient was discharged, after the
D&C was conducted. Would you tell us whether there is any relation at all of the D&C and the rupture in this
particular instance?
A: I dont think so for the two reasons that I have just mentioned- that it would not be possible for the instrument
to reach the site of pregnancy. And, No. 2, if it is because of the D&C that rupture could have occurred
earlier.[52] (Emphases supplied)
Clearly, from the testimony of the expert witness and the reasons given by him, it is evident that the D&C
procedure was not the proximate cause of the rupture of Edithas uterus.
During his cross-examination, Dr. Manalo testified on how he would have addressed Edithas condition should
he be placed in a similar circumstance as the petitioner. He stated:
Atty. Ragonton:
Q: Doctor, as a practicing OB-Gyne, when do you consider that you have done a good, correct and ideal
dilatation and curettage procedure?
A: Well, if the patient recovers. If the patient gets well. Because even after the procedure, even after the
procedure you may feel that you have scraped everything, the patient stops bleeding, she feels well, I think you
should still have some reservations, and wait a little more time.
Q: If you were the OB-Gyne who performed the procedure on patient Editha Ramolete, would it be your
standard practice to check the fetal parts or fetal tissues that were allegedly removed?
Page | 78
A: From what I have removed, yes. But in this particular case, I think it was assumed that it was part of the
meaty mass which was expelled at the time she was urinating and flushed in the toilet. So theres no way.
Q: There was [sic] some portions of the fetal parts that were removed?
A: No, it was described as scanty scraping if I remember it right scanty.
Q: And you would not mind checking those scant or those little parts that were removed?
A: Well, the fact that it was described means, I assume that it was checked, no. It was described as scanty and
the color also, I think was described. Because it would be very unusual, even improbable that it would not be
examined, because when you scrape, the specimens are right there before your eyes. Its in front of you. You can
touch it. In fact, some of them will stick to the instrument and therefore to peel it off from the instrument, you
have to touch them. So, automatically they are examined closely.
Q: As a matter of fact, doctor, you also give telephone orders to your patients through telephone?
A: Yes, yes, we do that, especially here in Manila because you know, sometimes a doctor can also be tied-up
somewhere and if you have to wait until he arrive at a certain place before you give the order, then it would be a
lot of time wasted. Because if you know your patient, if you have handled your patient, some of the symptoms
you can interpret that comes with practice. And, I see no reason for not allowing telephone orders unless it is the
first time that you will be encountering the patient. That you have no idea what the problem is.
Q: But, doctor, do you discharge patients without seeing them?
A: Sometimes yes, depending on how familiar I am with the patient. We are on the question of telephone
orders. I am not saying that that is the idle [sic] thing to do, but I think the reality of present day practice
somehow justifies telephone orders. I have patients whom I have justified and then all of a sudden, late in the
afternoon or late in the evening, would suddenly call they have decided that they will go home inasmuch as they
anticipated that I will discharge them the following day. So, I just call and ask our resident on duty or the nurse
to allow them to go because I have seen that patient and I think I have full grasp of her problems. So, thats when
I make this telephone orders. And, of course before giving that order I ask about how she feels.[53] (Emphases
supplied)
From the foregoing testimony, it is clear that the D&C procedure was conducted in accordance with the
standard practice, with the same level of care that any reasonably competent doctor would use to treat a
condition under the same circumstances, and that there was nothing irregular in the way the petitioner dealt with
Editha.
Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under Article 2176[54] of
the Civil Code. The defenses in an action for damages, provided for under Article 2179 of the Civil Code are:
Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury
being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the
damages to be awarded.
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.[55] An injury or
damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case
that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and
that the injury or damage was either a direct result or a reasonably probable consequence of the act or
omission.[56]
In the present case, the Court notes the findings of the Board of Medicine:
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When complainant was discharged on July 31, 1994, herein respondent advised her to return on August 4, 1994
or four (4) days after the D&C. This advise was clear in complainants Discharge Sheet. However, complainant
failed to do so. This being the case, the chain of continuity as required in order that the doctrine of proximate
cause can be validly invoked was interrupted. Had she returned, the respondent could have examined her
thoroughly.[57] x x x (Emphases supplied)
Testimony of Dr. Manalo, he stated further that assuming that there was in fact a misdiagnosis, the same would
have been rectified if Editha followed the petitioners order to return for a check-up on August 4, 1994. Dr.
Manalo stated:
Granting that the obstetrician-gynecologist has been misled (justifiably) up to thus point that there would have
been ample opportunity to rectify the misdiagnosis, had the patient returned, as instructed for her follow-up
evaluation. It was one and a half months later that the patient sought consultation with another doctor. The
continued growth of an ectopic pregnancy, until its eventual rupture, is a dynamic process. Much change in
physical findings could be expected in 1 months, including the emergence of suggestive ones.[58]
It is undisputed that Editha did not return for a follow-up evaluation, in defiance of the petitioners advise.
Editha omitted the diligence required by the circumstances which could have avoided the injury. The omission
in not returning for a follow-up evaluation played a substantial part in bringing about Edithas own injury. Had
Editha returned, petitioner could have conducted the proper medical tests and procedure necessary to determine
Edithas health condition and applied the corresponding treatment which could have prevented the rupture of
Edithas uterus. The D&C procedure having been conducted in accordance with the standard medical practice, it
is clear that Edithas omission was the proximate cause of her own injury and not merely a contributory
negligence on her part.
Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person
injured, which, concurring with the defendants negligence, is the proximate cause of the injury.[59] Difficulty
seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the
accident.[60] Where the immediate cause of an accident resulting in an injury is the plaintiffs own act, which
contributed to the principal occurrence as one of its determining factors, he cannot recover damages for the
injury.[61] Again, based on the evidence presented in the present case under review, in which no negligence can
be attributed to the petitioner, the immediate cause of the accident resulting in Edithas injury was her own
omission when she did not return for a follow-up check up, in defiance of petitioners orders. The immediate
cause of Edithas injury was her own act; thus, she cannot recover damages from the injury.
Lastly, petitioner asserts that her right to due process was violated because she was never informed by either
respondents or by the PRC that an appeal was pending before the PRC.[62] Petitioner claims that a verification
with the records section of the PRC revealed that on April 15, 1999, respondents filed a Memorandum on
Appeal before the PRC, which did not attach the actual registry receipt but was merely indicated therein.[63]
Respondents, on the other hand avers that if the original registry receipt was not attached to the Memorandum
on Appeal, PRC would not have entertained the appeal or accepted such pleading for lack of notice or proof of
service on the other party.[64] Also, the registry receipt could not be appended to the copy furnished to
petitioners former counsel, because the registry receipt was already appended to the original copy of the
Memorandum of Appeal filed with PRC.[65]
It is a well-settled rule that when service of notice is an issue, the rule is that the person alleging that the notice
was served must prove the fact of service. The burden of proving notice rests upon the party asserting its
existence.[66] In the present case, respondents did not present any proof that petitioner was served a copy of the
Memorandum on Appeal. Thus, respondents were not able to satisfy the burden of proving that they had in fact
informed the petitioner of the appeal proceedings before the PRC.

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In EDI-Staffbuilders International, Inc. v. National Labor Relations Commission,[67] in which the National
Labor Relations Commission failed to order the private respondent to furnish the petitioner a copy of the
Appeal Memorandum, the Court held that said failure deprived the petitioner of procedural due process
guaranteed by the Constitution, which could have served as basis for the nullification of the proceedings in the
appeal. The same holds true in the case at bar. The Court finds that the failure of the respondents to furnish the
petitioner a copy of the Memorandum of Appeal submitted to the PRC constitutes a violation of due process.
Thus, the proceedings before the PRC were null and void.
All told, doctors are protected by a special rule of law. They are not guarantors of care. They are not insurers
against mishaps or unusual consequences[68] specially so if the patient herself did not exercise the proper
diligence required to avoid the injury.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July 4, 2003 in
CA-GR SP No. 62206 is hereby REVERSED and SET ASIDE. The Decision of the Board of Medicine dated
March 4, 1999 exonerating petitioner is AFFIRMED. No pronouncement as to costs.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 178763 April 21, 2009

PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL LUCAS AND GILLIAN
LUCAS, Petitioners,
vs.
DR. PROSPERO MA. C. TUAÑO, Respondent.

DECISION

CHICO-NAZARIO, J.:

In this petition for review on certiorari1 under Rule 45 of the Revised Rules of Court, petitioners Peter Paul
Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the 27 September
2006 Decision2 and 3 July 2007 Resolution,3 both of the Court of Appeals in CA-G.R. CV No. 68666, entitled
"Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C.
Tuaño."

In the questioned decision and resolution, the Court of Appeals affirmed the 14 July 2000 Decision of the
Regional Trial Court (RTC), Branch 150, Makati City, dismissing the complaint filed by petitioners in a civil
case entitled, "Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero
Ma. C. Tuaño," docketed as Civil Case No. 92-2482.

From the record of the case, the established factual antecedents of the present petition are:
Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted "sore eyes" in his right eye.

Page | 81
On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made use of his health care
insurance issued by Philamcare Health Systems, Inc. (Philamcare), for a possible consult. The Philamcare
Coordinator, Dr. Edwin Oca, M.D., referred Peter to respondent, Dr. Prospero Ma. C. Tuaño, M.D. (Dr. Tuaño),
an ophthalmologist at St. Luke‘s Medical Center, for an eye consult.

Upon consultation with Dr. Tuaño, Peter narrated that it had been nine (9) days since the problem with his right
eye began; and that he was already taking Maxitrol to address the problem in his eye. According to Dr. Tuaño,
he performed "ocular routine examination" on Peter‘s eyes, wherein: (1) a gross examination of Peter‘s eyes and
their surrounding area was made; (2) Peter‘s visual acuity were taken; (3) Peter‘s eyes were palpated to check
the intraocular pressure of each; (4) the motility of Peter‘s eyes was observed; and (5) the ophthalmoscopy4 on
Peter‘s eyes was used. On that particular consultation, Dr. Tuaño diagnosed that Peter was suffering from
conjunctivitis5 or "sore eyes." Dr. Tuaño then prescribed Spersacet-C6 eye drops for Peter and told the latter to
return for follow-up after one week.

As instructed, Peter went back to Dr. Tuaño on 9 September 1988. Upon examination, Dr. Tuaño told Peter that
the "sore eyes" in the latter‘s right eye had already cleared up and he could discontinue the Spersacet-C.
However, the same eye developed Epidemic Kerato Conjunctivitis (EKC), 7 a viral infection. To address the new
problem with Peter‘s right eye, Dr. Tuaño prescribed to the former a steroid-based eye drop called Maxitrol,8 a
dosage of six (6) drops per day.9 To recall, Peter had already been using Maxitrol prior to his consult with Dr.
Tuaño.

On 21 September 1988, Peter saw Dr. Tuaño for a follow-up consultation. After examining both of Peter‘s eyes,
Dr. Tuaño instructed the former to taper down10 the dosage of Maxitrol, because the EKC in his right eye had
already resolved. Dr. Tuaño specifically cautioned Peter that, being a steroid, Maxitrol had to be withdrawn
gradually; otherwise, the EKC might recur.11

Complaining of feeling as if there was something in his eyes, Peter returned to Dr. Tuaño for another check-up
on 6 October 1988. Dr. Tuaño examined Peter‘s eyes and found that the right eye had once more developed
EKC. So, Dr. Tuaño instructed Peter to resume the use of Maxitrol at six (6) drops per day.

On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock. Consequently, Peter was
told by Dr. Tuano to take, instead, Blephamide12 another steroid-based medication, but with a lower
concentration, as substitute for the unavailable Maxitrol, to be used three (3) times a day for five (5) days; two
(2) times a day for five (5) days; and then just once a day. 13

Several days later, on 18 October 1988, Peter went to see Dr. Tuaño at his clinic, alleging severe eye pain,
feeling as if his eyes were about to "pop-out," a headache and blurred vision. Dr. Tuaño examined Peter‘s eyes
and discovered that the EKC was again present in his right eye. As a result, Dr. Tuaño told Peter to resume the
maximum dosage of Blephamide.

Dr. Tuaño saw Peter once more at the former‘s clinic on 4 November 1988. Dr. Tuaño‘s examination showed
that only the periphery of Peter‘s right eye was positive for EKC; hence, Dr. Tuaño prescribed a lower dosage
of Blephamide.

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It was also about this time that Fatima Gladys Lucas (Fatima), Peter‘s spouse, read the accompanying literature
of Maxitrol and found therein the following warning against the prolonged use of such steroids:

WARNING:

Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual acuity and fields of
vision, and posterior, subcapsular cataract formation. Prolonged use may suppress the host response and thus
increase the hazard of secondary ocular infractions, in those diseases causing thinning of the cornea or sclera,
perforations have been known to occur with the use of topical steroids. In acute purulent conditions of the eye,
steroids may mask infection or enhance existing infection. If these products are used for 10 days or longer,
intraocular pressure should be routinely monitored even though it may be difficult in children and
uncooperative patients.
Employment of steroid medication in the treatment of herpes simplex requires great caution.

xxxx

ADVERSE REACTIONS:

Adverse reactions have occurred with steroid/anti-infective combination drugs which can be attributed to the
steroid component, the anti-infective component, or the combination. Exact incidence figures are not available
since no denominator of treated patients is available.

Reactions occurring most often from the presence of the anti-infective ingredients are allergic sensitizations.
The reactions due to the steroid component in decreasing order to frequency are elevation of intra-ocular
pressure (IOP) with possible development of glaucoma, infrequent optic nerve damage; posterior subcapsular
cataract formation; and delayed wound healing.

Secondary infection: The development of secondary has occurred after use of combination containing steroids
and antimicrobials. Fungal infections of the correa are particularly prone to develop coincidentally with long-
term applications of steroid. The possibility of fungal invasion must be considered in any persistent corneal
ulceration where steroid treatment has been used.
Secondary bacterial ocular infection following suppression of host responses also occurs.

On 26 November 1988, Peter returned to Dr. Tuaño‘s clinic, complaining of "feeling worse." 14 It appeared that
the EKC had spread to the whole of Peter‘s right eye yet again. Thus, Dr. Tuaño instructed Peter to resume the
use of Maxitrol. Petitioners averred that Peter already made mention to Dr. Tuaño during said visit of the above-
quoted warning against the prolonged use of steroids, but Dr. Tuaño supposedly brushed aside Peter‘s concern
as mere paranoia, even assuring him that the former was taking care of him (Peter).

Petitioners further alleged that after Peter‘s 26 November 1988 visit to Dr. Tuaño, Peter continued to suffer pain
in his right eye, which seemed to "progress," with the ache intensifying and becoming more frequent.

Page | 83
Upon waking in the morning of 13 December 1988, Peter had no vision in his right eye. Fatima observed that
Peter‘s right eye appeared to be bloody and swollen. 15 Thus, spouses Peter and Fatima rushed to the clinic of
Dr. Tuaño. Peter reported to Dr. Tuaño that he had been suffering from constant headache in the afternoon and
blurring of vision.

Upon examination, Dr. Tuaño noted the hardness of Peter‘s right eye. With the use of a tonometer 16 to verify
the exact intraocular pressure17 (IOP) of Peter‘s eyes, Dr. Tuaño discovered that the tension in Peter‘s right eye
was 39.0 Hg, while that of his left was 17.0 Hg.18 Since the tension in Peter‘s right eye was way over the
normal IOP, which merely ranged from 10.0 Hg to 21.0 Hg,19 Dr. Tuaño ordered20 him to immediately
discontinue the use of Maxitrol and prescribed to the latter Diamox21 and Normoglaucon, instead.22 Dr. Tuaño
also required Peter to go for daily check-up in order for the former to closely monitor the pressure of the latter‘s
eyes.

On 15 December 1988, the tonometer reading of Peter‘s right eye yielded a high normal level, i.e., 21.0 Hg.
Hence, Dr. Tuaño told Peter to continue using Diamox and Normoglaucon. But upon Peter‘s complaint of
"stomach pains and tingling sensation in his fingers,"23 Dr. Tuaño discontinued Peter‘s use of Diamox. 24

Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr. Batungbacal), on 21 December
1988, who allegedly conducted a complete ophthalmological examination of Peter‘s eyes. Dr. Batungbacal‘s
diagnosis was Glaucoma25 O.D.26 He recommended Laser Trabeculoplasty27 for Peter‘s right eye.

When Peter returned to Dr. Tuaño on 23 December 1988, 28 the tonometer measured the IOP of Peter‘s right eye
to be 41.0 Hg,29 again, way above normal. Dr. Tuaño addressed the problem by advising Peter to resume taking
Diamox along with Normoglaucon.

During the Christmas holidays, Peter supposedly stayed in bed most of the time and was not able to celebrate
the season with his family because of the debilitating effects of Diamox. 30

On 28 December 1988, during one of Peter‘s regular follow-ups with Dr. Tuaño, the doctor conducted another
ocular routine examination of Peter‘s eyes. Dr. Tuaño noted the recurrence of EKC in Peter‘s right eye.
Considering, however, that the IOP of Peter‘s right eye was still quite high at 41.0 Hg, Dr. Tuaño was at a loss
as to how to balance the treatment of Peter‘s EKC vis-à-vis the presence of glaucoma in the same eye. Dr.
Tuaño, thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another ophthalmologist specializing in
the treatment of glaucoma.31 Dr. Tuaño‘s letter of referral to Dr. Agulto stated that:

Referring to you Mr. Peter Lucas for evaluation & possible management. I initially saw him Sept. 2, 1988
because of conjunctivitis. The latter resolved and he developed EKC for which I gave Maxitrol. The EKC was
recurrent after stopping steroid drops. Around 1 month of steroid treatment, he noted blurring of vision & pain
on the R. however, I continued the steroids for the sake of the EKC. A month ago, I noted iris atrophy, so I took
the IOP and it was definitely elevated. I stopped the steroids immediately and has (sic) been treating him
medically.

It seems that the IOP can be controlled only with oral Diamox, and at the moment, the EKC has recurred and
I‘m in a fix whether to resume the steroid or not considering that the IOP is still uncontrolled. 32

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On 29 December 1988, Peter went to see Dr. Agulto at the latter‘s clinic. Several tests were conducted thereat to
evaluate the extent of Peter‘s condition. Dr. Agulto wrote Dr. Tuaño a letter containing the following findings
and recommendations:

Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and 20/20L. Tension curve 19
R and 15 L at 1210 H while on Normoglaucon BID OD & Diamox ½ tab every 6h po.

Slit lamp evaluation33 disclosed subepithelial corneal defect outer OD. There was circumferential peripheral iris
atrophy, OD. The lenses were clear.

Funduscopy34 showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L.

Zeiss gonioscopy35 revealed basically open angles both eyes with occasional PAS, 36 OD.

Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I suggest that we do a baseline
visual fields and push medication to lowest possible levels. If I may suggest further, I think we should prescribe
Timolol37 BID38 OD in lieu of Normoglaucon. If the IOP is still inadequate, we may try D‘epifrin 39 BID OD
(despite low PAS). I‘m in favor of retaining Diamox or similar CAI. 40

If fields show further loss in say – 3 mos. then we should consider trabeculoplasty.
I trust that this approach will prove reasonable for you and Peter. 41

Peter went to see Dr. Tuaño on 31 December 1988, bearing Dr. Agulto‘s aforementioned letter. Though Peter‘s
right and left eyes then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuaño still gave him a
prescription for Timolol B.I.D. so Peter could immediately start using said medication. Regrettably, Timolol
B.I.D. was out of stock, so Dr. Tuaño instructed Peter to just continue using Diamox and Normoglaucon in the
meantime.

Just two days later, on 2 January 1989, the IOP of Peter‘s right eye remained elevated at 21.0 Hg,42 as he had
been without Diamox for the past three (3) days.

On 4 January 1989, Dr. Tuaño conducted a visual field study43 of Peter‘s eyes, which revealed that the latter had
tubular vision44 in his right eye, while that of his left eye remained normal. Dr. Tuaño directed Peter to
religiously use the Diamox and Normoglaucon, as the tension of the latter‘s right eye went up even further to
41.0 Hg in just a matter of two (2) days, in the meantime that Timolol B.I.D. and D‘epifrin were still not
available in the market. Again, Dr. Tuaño advised Peter to come for regular check-up so his IOP could be
monitored.

Obediently, Peter went to see Dr. Tuaño on the 7th, 13th, 16th and 20th of January 1989 for check-up and IOP
monitoring.

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In the interregnum, however, Peter was prodded by his friends to seek a second medical opinion. On 13 January
1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in turn, referred Peter to
Dr. Mario V. Aquino, M.D. (Dr. Aquino), another ophthalmologist who specializes in the treatment of
glaucoma and who could undertake the long term care of Peter‘s eyes.

According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peter‘s eyes, the said doctor
informed Peter that his eyes were relatively normal, though the right one sometimes manifested maximum
borderline tension. Dr. Aquino also confirmed Dr. Tuaño‘s diagnosis of tubular vision in Peter‘s right eye.
Petitioners claimed that Dr. Aquino essentially told Peter that the latter‘s condition would require lifetime
medication and follow-ups.

In May 1990 and June 1991, Peter underwent two (2) procedures of laser trabeculoplasty to attempt to control
the high IOP of his right eye.

Claiming to have steroid-induced glaucoma45 and blaming Dr. Tuaño for the same, Peter, joined by: (1) Fatima,
his spouse46; (2) Abbeygail, his natural child47; and (3) Gillian, his legitimate child48 with Fatima, instituted on
1 September 1992, a civil complaint for damages against Dr. Tuaño, before the RTC, Branch 150, Quezon City.
The case was docketed as Civil Case No. 92-2482.

In their Complaint, petitioners specifically averred that as the "direct consequence of [Peter‘s] prolonged use of
Maxitrol, [he] suffered from steroid induced glaucoma which caused the elevation of his intra-ocular pressure.
The elevation of the intra-ocular pressure of [Peter‘s right eye] caused the impairment of his vision which
impairment is not curable and may even lead to total blindness."49

Petitioners additionally alleged that the visual impairment of Peter‘s right eye caused him and his family so
much grief. Because of his present condition, Peter now needed close medical supervision forever; he had
already undergone two (2) laser surgeries, with the possibility that more surgeries were still needed in the
future; his career in sports casting had suffered and was continuing to suffer;50 his anticipated income had been
greatly reduced as a result of his "limited" capacity; he continually suffered from "headaches, nausea, dizziness,
heart palpitations, rashes, chronic rhinitis, sinusitis,"51 etc.; Peter‘s relationships with his spouse and children
continued to be strained, as his condition made him highly irritable and sensitive; his mobility and social life
had suffered; his spouse, Fatima, became the breadwinner in the family; 52 and his two children had been
deprived of the opportunity for a better life and educational prospects. Collectively, petitioners lived in constant
fear of Peter becoming completely blind. 53

In the end, petitioners sought pecuniary award for their supposed pain and suffering, which were ultimately
brought about by Dr. Tuaño‘s grossly negligent conduct in prescribing to Peter the medicine Maxitrol for a
period of three (3) months, without monitoring Peter‘s IOP, as required in cases of prolonged use of said
medicine, and notwithstanding Peter‘s constant complaint of intense eye pain while using the same. Petitioners
particularly prayed that Dr. Tuaño be adjudged liable for the following amounts:

1. The amount of ₱2,000,000.00 to plaintiff Peter Lucas as and by way of compensation for his impaired vision.
2. The amount of ₱300,000.00 to spouses Lucas as and by way of actual damages plus such additional amounts
that may be proven during trial.
3. The amount of ₱1,000,000.00 as and by way of moral damages.
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4. The amount of ₱500,000.00 as and by way of exemplary damages.
5. The amount of ₱200,000.00 as and by way of attorney‘s fees plus costs of suit. 54

In rebutting petitioners‘ complaint, Dr. Tuaño asserted that the "treatment made by [him] more than three years
ago has no causal connection to [Peter‘s] present glaucoma or condition." 55 Dr. Tuaño explained that "[d]rug-
induced glaucoma is temporary and curable, steroids have the side effect of increasing intraocular pressure.
Steroids are prescribed to treat Epidemic Kerato Conjunctivitis or EKC which is an infiltration of the cornea as
a result of conjunctivitis or sore eyes."56 Dr. Tuaño also clarified that (1) "[c]ontrary to [petitioners‘] fallacious
claim, [he] did NOT continually prescribe the drug Maxitrol which contained steroids for any prolonged
period"57 and "[t]he truth was the Maxitrol was discontinued x x x as soon as EKC disappeared and was
resumed only when EKC reappeared"58; (2) the entire time he was treating Peter, he "continually monitored the
intraocular pressure of [Peter‘s eyes] by palpating the eyes and by putting pressure on the eyeballs," and no
hardening of the same could be detected, which meant that there was no increase in the tension or IOP, a
possible side reaction to the use of steroid medications; and (3) it was only on 13 December 1988 that Peter
complained of a headache and blurred vision in his right eye, and upon measuring the IOP of said eye, it was
determined for the first time that the IOP of the right eye had an elevated value.

But granting for the sake of argument that the "steroid treatment of [Peter‘s] EKC caused the steroid induced
glaucoma,"59 Dr. Tuaño argued that:

[S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the intake of steroids is
discontinued, the intraocular pressure automatically is reduced. Thus, [Peter‘s] glaucoma can only be due to
other causes not attributable to steroids, certainly not attributable to [his] treatment of more than three years ago
x x x.

From a medical point of view, as revealed by more current examination of [Peter], the latter‘s glaucoma can
only be long standing glaucoma, open angle glaucoma, because of the large C:D ratio. The steroids provoked
the latest glaucoma to be revealed earlier as [Peter] remained asymptomatic prior to steroid application. Hence,
the steroid treatment was in fact beneficial to [Peter] as it revealed the incipient open angle glaucoma of [Peter]
to allow earlier treatment of the same. 60

In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 "for insufficiency of evidence."61
The decretal part of said Decision reads:

Wherefore, premises considered, the instant complaint is dismissed for insufficiency of evidence. The counter
claim (sic) is likewise dismissed in the absence of bad faith or malice on the part of plaintiff in filing the suit. 62

The RTC opined that petitioners failed to prove by preponderance of evidence that Dr. Tuaño was negligent in
his treatment of Peter‘s condition. In particular, the record of the case was bereft of any evidence to establish
that the steroid medication and its dosage, as prescribed by Dr. Tuaño, caused Peter‘s glaucoma. The trial court
reasoned that the "recognized standards of the medical community has not been established in this case, much
less has causation been established to render [Tuaño] liable."63 According to the RTC:

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[Petitioners] failed to establish the duty required of a medical practitioner against which Peter Paul‘s treatment
by defendant can be compared with. They did not present any medical expert or even a medical doctor to
convince and expertly explain to the court the established norm or duty required of a physician treating a
patient, or whether the non taking (sic) by Dr. Tuaño of Peter Paul‘s pressure a deviation from the norm or his
non-discovery of the glaucoma in the course of treatment constitutes negligence. It is important and
indispensable to establish such a standard because once it is established, a medical practitioner who departed
thereof breaches his duty and commits negligence rendering him liable. Without such testimony or
enlightenment from an expert, the court is at a loss as to what is then the established norm of duty of a physician
against which defendant‘s conduct can be compared with to determine negligence.64

The RTC added that in the absence of "any medical evidence to the contrary, this court cannot accept
[petitioners‘] claim that the use of steroid is the proximate cause of the damage sustained by [Peter‘s] eye." 65

Correspondingly, the RTC accepted Dr. Tuaño‘s medical opinion that "Peter Paul must have been suffering
from normal tension glaucoma, meaning, optic nerve damage was happening but no elevation of the eye
pressure is manifested, that the steroid treatment actually unmasked the condition that resulted in the earlier
treatment of the glaucoma. There is nothing in the record to contradict such testimony. In fact, plaintiff‘s
Exhibit ‗S‘ even tends to support them."

Undaunted, petitioners appealed the foregoing RTC decision to the Court of Appeals. Their appeal was
docketed as CA-G.R. CV No. 68666.

On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No. 68666 denying
petitioners‘ recourse and affirming the appealed RTC Decision. The fallo of the judgment of the appellate court
states:

WHEREFORE, the Decision appealed from is AFFIRMED.66

The Court of Appeals faulted petitioners because they –

[D]id not present any medical expert to testify that Dr. Tuano‘s prescription of Maxitrol and Blephamide for the
treatment of EKC on Peter‘s right eye was not proper and that his palpation of Peter‘s right eye was not enough
to detect adverse reaction to steroid. Peter testified that Dr. Manuel Agulto told him that he should not have
used steroid for the treatment of EKC or that he should have used it only for two (2) weeks, as EKC is only a
viral infection which will cure by itself. However, Dr. Agulto was not presented by [petitioners] as a witness to
confirm what he allegedly told Peter and, therefore, the latter‘s testimony is hearsay. Under Rule 130, Section
36 of the Rules of Court, a witness can testify only to those facts which he knows of his own personal
knowledge, x x x. Familiar and fundamental is the rule that hearsay testimony is inadmissible as evidence. 67

Like the RTC, the Court of Appeals gave great weight to Dr. Tuaño‘s medical judgment, specifically the latter‘s
explanation that:

[W]hen a doctor sees a patient, he cannot determine whether or not the latter would react adversely to the use of
steroids, that it was only on December 13, 1989, when Peter complained for the first time of headache and

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blurred vision that he observed that the pressure of the eye of Peter was elevated, and it was only then that he
suspected that Peter belongs to the 5% of the population who reacts adversely to steroids. 68

Petitioners‘ Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 3 July 2007.

Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court premised on the
following assignment of errors:

I.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING THE
DECISION OF THE TRIAL COURT DISMISSING THE PETITIONERS‘ COMPLAINT FOR DAMAGES
AGAINST THE RESPONDENT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE;
II.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING THE
PETITIONERS‘ COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND
THAT NO MEDICAL EXPERT WAS PRESENTED BY THE PETITIONERS TO PROVE THEIR CLAIM
FOR MEDICAL NEGLIGENCE AGAINST THE RESPONDENT; AND
III.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT FINDING THE
RESPONDENT LIABLE TO THE PETITIONERS‘ FOR ACTUAL, MORAL AND EXEMPLARY
DAMAGES, ASIDE FROM ATTORNEY‘S FEES, COSTS OF SUIT, AS A RESULT OF HIS GROSS
NEGLIGENCE.69

A reading of the afore-quoted reversible errors supposedly committed by the Court of Appeals in its Decision
and Resolution would reveal that petitioners are fundamentally assailing the finding of the Court of Appeals that
the evidence on record is insufficient to establish petitioners‘ entitlement to any kind of damage. Therefore, it
could be said that the sole issue for our resolution in the Petition at bar is whether the Court of Appeals
committed reversible error in affirming the judgment of the RTC that petitioners failed to prove, by
preponderance of evidence, their claim for damages against Dr. Tuaño.

Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the factual findings of the
Court of Appeals, as well as of the RTC. In effect, petitioners would have us sift through the evidence on record
and pass upon whether there is sufficient basis to establish Dr. Tuaño‘s negligence in his treatment of Peter‘s
eye condition. This question clearly involves a factual inquiry, the determination of which is not within the
ambit of this Court‘s power of review under Rule 45 of the 1997 Rules Civil Procedure, as amended. 70

Elementary is the principle that this Court is not a trier of facts; only errors of law are generally reviewed in
petitions for review on certiorari criticizing decisions of the Court of Appeals. Questions of fact are not
entertained.71

Nonetheless, the general rule that only questions of law may be raised on appeal in a petition for review under
Rule 45 of the Rules of Court admits of certain exceptions, including the circumstance when the finding of fact
of the Court of Appeals is premised on the supposed absence of evidence, but is contradicted by the evidence on
record. Although petitioners may not explicitly invoke said exception, it may be gleaned from their allegations
and arguments in the instant Petition.
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Petitioners contend, that "[c]ontrary to the findings of the Honorable Court of Appeals, [they] were more than
able to establish that: Dr. Tuaño ignored the standard medical procedure for ophthalmologists, administered
medication with recklessness, and exhibited an absence of competence and skills expected from him." 72
Petitioners reject the necessity of presenting expert and/or medical testimony to establish (1) the standard of
care respecting the treatment of the disorder affecting Peter‘s eye; and (2) whether or not negligence attended
Dr. Tuaño‘s treatment of Peter, because, in their words –

That Dr. Tuaño was grossly negligent in the treatment of Peter‘s simple eye ailment is a simple case of cause
and effect. With mere documentary evidence and based on the facts presented by the petitioners, respondent can
readily be held liable for damages even without any expert testimony. In any case, however, and contrary to the
finding of the trial court and the Court of Appeals, there was a medical expert presented by the petitioner
showing the recklessness committed by [Dr. Tuaño] – Dr. Tuaño himself. [Emphasis supplied.]

They insist that Dr. Tuaño himself gave sufficient evidence to establish his gross negligence that ultimately
caused the impairment of the vision of Peter‘s right eye,73 i.e., that "[d]espite [Dr. Tuaño‘s] knowledge that 5%
of the population reacts adversely to Maxitrol, [he] had no qualms whatsoever in prescribing said steroid to
Peter without first determining whether or not the (sic) Peter belongs to the 5%." 74

We are not convinced. The judgments of both the Court of Appeals and the RTC are in accord with the
evidence on record, and we are accordingly bound by the findings of fact made therein.
Petitioners‘ position, in sum, is that Peter‘s glaucoma is the direct result of Dr. Tuaño‘s negligence in his
improper administration of the drug Maxitrol; "thus, [the latter] should be liable for all the damages suffered
and to be suffered by [petitioners]."75 Clearly, the present controversy is a classic illustration of a medical
negligence case against a physician based on the latter‘s professional negligence. In this type of suit, the patient
or his heirs, in order to prevail, is required to prove by preponderance of evidence that the physician failed to
exercise that degree of skill, care, and learning possessed by other persons in the same profession; and that as a
proximate result of such failure, the patient or his heirs suffered damages.

For lack of a specific law geared towards the type of negligence committed by members of the medical
profession, such claim for damages is almost always anchored on the alleged violation of Article 2176 of the
Civil Code, which states that:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this Chapter.

In medical negligence cases, also called medical malpractice suits, there exist a physician-patient relationship
between the doctor and the victim. But just like any other proceeding for damages, four essential (4) elements
i.e., (1) duty; (2) breach; (3) injury; and (4) proximate causation, 76 must be established by the plaintiff/s. All the
four (4) elements must co-exist in order to find the physician negligent and, thus, liable for damages.

When a patient engages the services of a physician, a physician-patient relationship is generated. And in
accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill

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possessed by physicians and surgeons practicing in the same field; and that he will employ such training, care,
and skill in the treatment of the patient. 77 Thus, in treating his patient, a physician is under a duty to [the former]
to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the
same general line of practice ordinarily possess and exercise in like cases.78 Stated otherwise, the physician has
the duty to use at least the same level of care that any other reasonably competent physician would use to treat
the condition under similar circumstances.

This standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because
the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts in the
field.79

There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the attending
physician when the patient is injured in body or in health [and this] constitutes the actionable malpractice. 80
Proof of such breach must likewise rest upon the testimony of an expert witness that the treatment accorded to
the patient failed to meet the standard level of care, skill and diligence which physicians in the same general
neighborhood and in the same general line of practice ordinarily possess and exercise in like cases.

Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must be a causal
connection between said breach and the resulting injury sustained by the patient. Put in another way, in order
that there may be a recovery for an injury, it must be shown that the "injury for which recovery is sought must
be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be
a direct and natural sequence of events, unbroken by intervening efficient causes";81 that is, the negligence must
be the proximate cause of the injury. And the proximate cause of an injury is that cause, which, in the natural
and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which
the result would not have occurred.82

Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of the
injury] by a preponderance of the evidence in a medical malpractice action, [the patient] must similarly use
expert testimony, because the question of whether the alleged professional negligence caused [the patient‘s]
injury is generally one for specialized expert knowledge beyond the ken of the average layperson; using the
specialized knowledge and training of his field, the expert‘s role is to present to the [court] a realistic
assessment of the likelihood that [the physician‘s] alleged negligence caused [the patient‘s] injury. 83

From the foregoing, it is apparent that medical negligence cases are best proved by opinions of expert witnesses
belonging in the same general neighborhood and in the same general line of practice as defendant physician or
surgeon. The deference of courts to the expert opinion of qualified physicians [or surgeons] stems from the
former‘s realization that the latter possess unusual technical skills which laymen in most instances are incapable
of intelligently evaluating;84 hence, the indispensability of expert testimonies.

In the case at bar, there is no question that a physician-patient relationship developed between Dr. Tuaño and
Peter when Peter went to see the doctor on 2 September 1988, seeking a consult for the treatment of his sore
eyes. Admittedly, Dr. Tuaño, an ophthalmologist, prescribed Maxitrol when Peter developed and had recurrent
EKC. Maxitrol or neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a multiple-dose anti-
infective steroid combination in sterile form for topical application. 85 It is the drug which petitioners claim to
have caused Peter‘s glaucoma.

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However, as correctly pointed out by the Court of Appeals, "[t]he onus probandi was on the patient to establish
before the trial court that the physicians ignored standard medical procedure, prescribed and administered
medication with recklessness and exhibited an absence of the competence and skills expected of general
practitioners similarly situated."86 Unfortunately, in this case, there was absolute failure on the part of
petitioners to present any expert testimony to establish: (1) the standard of care to be implemented by competent
physicians in treating the same condition as Peter‘s under similar circumstances; (2) that, in his treatment of
Peter, Dr. Tuaño failed in his duty to exercise said standard of care that any other competent physician would
use in treating the same condition as Peter‘s under similar circumstances; and (3) that the injury or damage to
Peter‘s right eye, i.e., his glaucoma, was the result of his use of Maxitrol, as prescribed by Dr. Tuaño.
Petitioners‘ failure to prove the first element alone is already fatal to their cause.

Petitioners maintain that Dr. Tuaño failed to follow in Peter‘s case the required procedure for the prolonged use
of Maxitrol. But what is actually the required procedure in situations such as in the case at bar? To be precise,
what is the standard operating procedure when ophthalmologists prescribe steroid medications which,
admittedly, carry some modicum of risk?

Absent a definitive standard of care or diligence required of Dr. Tuaño under the circumstances, we have no
means to determine whether he was able to comply with the same in his diagnosis and treatment of Peter. This
Court has no yardstick upon which to evaluate or weigh the attendant facts of this case to be able to state with
confidence that the acts complained of, indeed, constituted negligence and, thus, should be the subject of
pecuniary reparation.

Petitioners assert that prior to prescribing Maxitrol, Dr. Tuaño should have determined first whether Peter was a
"steroid responder."87 Yet again, petitioners did not present any convincing proof that such determination is
actually part of the standard operating procedure which ophthalmologists should unerringly follow prior to
prescribing steroid medications.

In contrast, Dr. Tuaño was able to clearly explain that what is only required of ophthalmologists, in cases such
as Peter‘s, is the conduct of standard tests/procedures known as "ocular routine examination," 88 composed of
five (5) tests/procedures – specifically, gross examination of the eyes and the surrounding area; taking of the
visual acuity of the patient; checking the intraocular pressure of the patient; checking the motility of the eyes;
and using ophthalmoscopy on the patient‘s eye – and he did all those tests/procedures every time Peter went to
see him for follow-up consultation and/or check-up.

We cannot but agree with Dr. Tuaño‘s assertion that when a doctor sees a patient, he cannot determine
immediately whether the latter would react adversely to the use of steroids; all the doctor can do is map out a
course of treatment recognized as correct by the standards of the medical profession. It must be remembered
that a physician is not an insurer of the good result of treatment. The mere fact that the patient does not get well
or that a bad result occurs does not in itself indicate failure to exercise due care. 89 The result is not
determinative of the performance [of the physician] and he is not required to be infallible. 90

Moreover, that Dr. Tuaño saw it fit to prescribe Maxitrol to Peter was justified by the fact that the latter was
already using the same medication when he first came to see Dr. Tuaño on 2 September 1988 and had exhibited
no previous untoward reaction to that particular drug. 91

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Also, Dr. Tuaño categorically denied petitioners‘ claim that he never monitored the tension of Peter‘s eyes
while the latter was on Maxitrol. Dr. Tuaño testified that he palpated Peter‘s eyes every time the latter came for
a check-up as part of the doctor‘s ocular routine examination, a fact which petitioners failed to rebut. Dr.
Tuaño‘s regular conduct of examinations and tests to ascertain the state of Peter‘s eyes negate the very basis of
petitioners‘ complaint for damages. As to whether Dr. Tuaño‘s actuations conformed to the standard of care and
diligence required in like circumstances, it is presumed to have so conformed in the absence of evidence to the
contrary.

Even if we are to assume that Dr. Tuaño committed negligent acts in his treatment of Peter‘s condition, the
causal connection between Dr. Tuaño‘s supposed negligence and Peter‘s injury still needed to be established.
The critical and clinching factor in a medical negligence case is proof of the causal connection between the
negligence which the evidence established and the plaintiff‘s injuries. 92 The plaintiff must plead and prove not
only that he has been injured and defendant has been at fault, but also that the defendant‘s fault caused the
injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be
proven within a reasonable medical probability based upon competent expert testimony.93

The causation between the physician‘s negligence and the patient‘s injury may only be established by the
presentation of proof that Peter‘s glaucoma would not have occurred but for Dr. Tuaño‘s supposed negligent
conduct. Once more, petitioners failed in this regard.

Dr. Tuaño does not deny that the use of Maxitrol involves the risk of increasing a patient‘s IOP. In fact, this was
the reason why he made it a point to palpate Peter‘s eyes every time the latter went to see him -- so he could
monitor the tension of Peter‘s eyes. But to say that said medication conclusively caused Peter‘s glaucoma is
purely speculative. Peter was diagnosed with open-angle glaucoma. This kind of glaucoma is characterized by
an almost complete absence of symptoms and a chronic, insidious course. 94 In open-angle glaucoma, halos
around lights and blurring of vision do not occur unless there has been a sudden increase in the intraocular
vision.95 Visual acuity remains good until late in the course of the disease.96 Hence, Dr. Tuaño claims that
Peter‘s glaucoma "can only be long standing x x x because of the large C:D 97 ratio," and that "[t]he steroids
provoked the latest glaucoma to be revealed earlier" was a blessing in disguise "as [Peter] remained
asymptomatic prior to steroid application."

Who between petitioners and Dr. Tuaño is in a better position to determine and evaluate the necessity of using
Maxitrol to cure Peter‘s EKC vis-à-vis the attendant risks of using the same?
That Dr. Tuaño has the necessary training and skill to practice his chosen field is beyond cavil. Petitioners do
not dispute Dr. Tuaño‘s qualifications – that he has been a physician for close to a decade and a half at the time
Peter first came to see him; that he has had various medical training; that he has authored numerous papers in
the field of ophthalmology, here and abroad; that he is a Diplomate of the Philippine Board of Ophthalmology;
that he occupies various teaching posts (at the time of the filing of the present complaint, he was the Chair of
the Department of Ophthalmology and an Associate Professor at the University of the Philippines-Philippine
General Hospital and St. Luke‘s Medical Center, respectively); and that he held an assortment of positions in
numerous medical organizations like the Philippine Medical Association, Philippine Academy of
Ophthalmology, Philippine Board of Ophthalmology, Philippine Society of Ophthalmic Plastic and
Reconstructive Surgery, Philippine Journal of Ophthalmology, Association of Philippine Ophthalmology
Professors, et al.

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It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an
inevitable presumption that in proper cases, he takes the necessary precaution and employs the best of his
knowledge and skill in attending to his clients, unless the contrary is sufficiently established. 98 In making the
judgment call of treating Peter‘s EKC with Maxitrol, Dr. Tuaño took the necessary precaution by palpating
Peter‘s eyes to monitor their IOP every time the latter went for a check-up, and he employed the best of his
knowledge and skill earned from years of training and practice.

In contrast, without supporting expert medical opinions, petitioners‘ bare assertions of negligence on Dr.
Tuaño‘s part, which resulted in Peter‘s glaucoma, deserve scant credit.

Our disposition of the present controversy might have been vastly different had petitioners presented a medical
expert to establish their theory respecting Dr. Tuaño‘s so-called negligence. In fact, the record of the case
reveals that petitioners‘ counsel recognized the necessity of presenting such evidence. Petitioners even gave an
undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would be presented. Alas, no follow-through on
said undertaking was made.

The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue. However, in the
course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of
evidence shifts to defendant to controvert plaintiff‘s prima facie case; otherwise, a verdict must be returned in
favor of plaintiff.99 The party having the burden of proof must establish his case by a preponderance of
evidence.100 The concept of "preponderance of evidence" refers to evidence which is of greater weight or more
convincing than that which is offered in opposition to it;101 in the last analysis, it means probability of truth. It is
evidence which is more convincing to the court as worthy of belief than that which is offered in opposition
thereto.102 Rule 133, Section 1 of the Revised Rules of Court provides the guidelines for determining
preponderance of evidence, thus:

In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of evidence on the issues involved lies the court may
consider all the facts and circumstances of the case, the witnesses‘ manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony, their interest or want of interest, and also their
personal credibility so far as the same legitimately appear upon the trial. The court may also consider the
number of witnesses, though the preponderance is not necessarily with the greater number.

Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower court, to establish their case
by a preponderance of evidence showing a reasonable connection between Dr. Tuaño‘s alleged breach of duty
and the damage sustained by Peter‘s right eye. This, they did not do. In reality, petitioners‘ complaint for
damages is merely anchored on a statement in the literature of Maxitrol identifying the risks of its use, and the
purported comment of Dr. Agulto – another doctor not presented as witness before the RTC – concerning the
prolonged use of Maxitrol for the treatment of EKC.

It seems basic that what constitutes proper medical treatment is a medical question that should have been
presented to experts. If no standard is established through expert medical witnesses, then courts have no
standard by which to gauge the basic issue of breach thereof by the physician or surgeon. The RTC and Court of
Appeals, and even this Court, could not be expected to determine on its own what medical technique should

Page | 94
have been utilized for a certain disease or injury. Absent expert medical opinion, the courts would be
dangerously engaging in speculations.

All told, we are hard pressed to find Dr. Tuaño liable for any medical negligence or malpractice where there is
no evidence, in the nature of expert testimony, to establish that in treating Peter, Dr. Tuaño failed to exercise
reasonable care, diligence and skill generally required in medical practice. Dr. Tuaño‘s testimony, that his
treatment of Peter conformed in all respects to standard medical practice in this locality, stands unrefuted.
Consequently, the RTC and the Court of Appeals correctly held that they had no basis at all to rule that
petitioners were deserving of the various damages prayed for in their Complaint.

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed Decision
dated 27 September 2006 and Resolution dated 3 July 2007, both of the Court of Appeals in CA-G.R. CV No.
68666, are hereby AFFIRMED. No cost.

SO ORDERED.

Page | 95
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 173180 August 24, 2011

ALBERT TISON and CLAUDIO L. JABON, Petitioners,

vs.
SPS. GREGORIO POMASIN and CONSORCIA PONCE POMASIN, DIANNE POMASIN
PAGUNSAN, CYNTHIA POMASIN, SONIA PEROL, ANTONIO SESISTA, GINA SESISTA, and
REYNALDO SESISTA, Respondents.

DECISION

PEREZ, J.:

Two vehicles, a tractor-trailer and a jitney,[1] figured in a vehicular mishap along Maharlika Highway
in Barangay Agos, Polangui, Albay last 12 August 1994. Laarni Pomasin (Laarni) was driving the jitney
towards the direction of Legaspi City while the tractor-trailer, driven by Claudio Jabon (Jabon), was traversing
the opposite lane going towards Naga City. [2]

The opposing parties gave two different versions of the incident.

Gregorio Pomasin (Gregorio), Laarnis father, was on board the jitney and seated on the passengers
side. He testified that while the jitney was passing through a curve going downward, he saw a tractor-trailer
coming from the opposite direction and encroaching on the jitneys lane. The jitney was hit by the tractor-trailer
and it was dragged further causing death and injuries to its passengers.[3]

On the other hand, Jabon recounted that while he was driving the tractor-trailer, he noticed a jitney on
the opposite lane falling off the shoulder of the road. Thereafter, it began running in a zigzag manner and
heading towards the direction of the truck. To avoid collision, Jabon immediately swerved the tractor-trailer to
the right where it hit a tree and sacks of palay. Unfortunately, the jitney still hit the left fender of the tractor-
trailer before it was thrown a few meters away. The tractor-trailer was likewise damaged.[4]

Multiple death and injuries to those in the jitney resulted.

Gregorio was injured and brought to the Albay Provincial Hospital in Legaspi City. His daughter,
Andrea Pomasin Pagunsan, sister Narcisa Pomasin Roncales and Abraham Dionisio Perol died on the spot. His
other daughter Laarni, the jitney driver, and granddaughter Annie Jane Pomasin Pagunsan expired at the
hospital. His wife, Consorcia Pomasin, another granddaughter Dianne Pomasin Pagunsan, Ricky Ponce, Vicente
Pomasin, Gina Sesista, Reynaldo Sesista, Antonio Sesista and Sonia Perol sustained injuries.[5] On the other
hand, Jabon and one of the passengers in the tractor-trailer were injured.[6]

Albert Tison (Tison), the owner of the truck, extended financial assistance to respondents by giving
them P1,000.00 each immediately after the accident and P200,000.00 to Cynthia Pomasin (Cynthia), one of
Gregorios daughters. Cynthia, in turn, executed an Affidavit of Desistance.

Page | 96
 On 14 November 1994, respondents filed a complaint for damages against petitioners before the
Regional Trial Court (RTC) of Antipolo.They alleged that the proximate cause of the accident was the
negligence, imprudence and carelessness of petitioners. Respondents prayed for indemnification for the heirs of
those who perished in the accident at P50,000.00 each; P500,000.00 for hospitalization, medical and burial
expenses; P350,000.00 for continuous hospitalization and medical expenses of Spouses Pomasin; P1,000,000.00
as moral damages; P250,000.00 as exemplary damages; P30,000.00 for loss of income of Cynthia; P100,000.00
as attorneys fees plus P1,000.00 per court appearance; P50,000.00 for litigation expenses; and cost of suit.[7]

In their Answer, petitioners countered that it was Laarnis negligence which proximately caused the
accident. They further claimed that Cynthia was authorized by Spouses Pomasin to enter into an amicable
settlement by executing an Affidavit of Desistance. Notwithstanding the affidavit, petitioners complained that
respondents filed the instant complaint to harass them and profit from the recklessness of Laarni. Petitioners
counterclaimed for damages.

Petitioners subsequently filed a motion to dismiss the complaint in view of the Affidavit of Desistance
executed by Cynthia. The motion was denied for lack of merit. [8]

On 7 February 2000, the Regional Trial Court rendered judgment in favor of petitioners dismissing the
complaint for damages, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the defendants and against

plaintiffs hereby DISMISSING the instant complaint considering that plaintiffs have authorized
Cynthia Pomasin to settle the case amicably for P200,000.00; and that the proximate cause of the
accident did not arise from the fault or negligence of defendants driver/employee but from
plaintiffs driver.[9]

The trial court considered the testimony of Jabon regarding the incident more convincing and reliable
than that of Gregorios, a mere passenger, whose observation and attention to the road is not as focused as that of
the driver. The trial court concluded that Laarni caused the collision of the jitney and the tractor-trailer. The trial
court likewise upheld the Affidavit of Desistance as having been executed with the tacit consent of respondents.

The Court of Appeals disagreed with the trial court and ruled that the reckless driving of Jabon caused
the vehicular collision. In support of such finding, the Court of Appeals relied heavily on Gregorios testimony
that Jabon was driving the tractor-trailer downward too fast and it encroached the lane of the jitney. Based on
the gravity of the impact and the damage caused to the jitney resulting in the death of some passengers, the
Court of Appeals inferred that Jabon must be speeding. The appellate court noted that the restriction in Jabons
drivers license was violated, thus, giving rise to the presumption that he was negligent at the time of the
accident. Tison was likewise held liable for damages for his failure to prove due diligence in supervising Jabon
after he was hired as driver of the truck. Finally, the appellate court disregarded the Affidavit of Desistance
executed by Cynthia because the latter had no written power of attorney from respondents and that she was so
confused at the time when she signed the affidavit that she did not read its content.

The dispositive portion of the assailed Decision states:

WHEREFORE, the present appeal is granted, and the trial courts Decision dated
February 7, 2003 is set aside. Defendants-appellees are ordered to pay plaintiffs-appellants or
their heirs the following:

a) Actual damages of P136,000.00 as above computed, to be offset with the P200,000.00

received by plaintiff-appellant Cynthia Pomasin;
Page | 97
 b) Civil indemnity of P50,000.00 for the death of each victim, to be offset with the
balance of P64,000.00 from the aforementioned P200,000.00 of civil indemnity received by
plaintiff-appellant Cynthia Pomasin. Hence, the net amount is computed at P37,200.00 each, as
follows:

Narcisa Pomasin P37,200.00

Laarni Pomasin P37,200.00
Andrea P. Pagunsan P37,200.00
Dionisio Perol P37,200.00
Annie Jane P. Pagunsan P37,200.00

c) Moral damages of P50,000.00 to each of the victims; and

d) Attorneys fees of 10% of the total award. [10]

Petitioners filed a Motion for Reconsideration, which was, however, denied by the Court of Appeals in a
Resolution[11] dated 19 July 2006.

The petition for review raises mixed questions of fact and law which lead back to the very issue litigated
by the trial court: Who is the negligent party or the party at fault?

The issue of negligence is factual in nature. [12] And the rule, and the exceptions, is that factual findings of the
Court of Appeals are generally conclusive but may be reviewed when: (1) the factual findings of the Court of
Appeals and the trial court are contradictory; (2) the findings are grounded entirely on speculation, surmises or
conjectures; (3) the inference made by the Court of Appeals from its findings of fact is manifestly mistaken,
absurd or impossible; (4) there is grave abuse of discretion in the appreciation of facts; (5) the appellate court, in
making its findings, goes beyond the issues of the case and such findings are contrary to the admissions of both
appellant and appellee; (6) the judgment of the Court of Appeals is premised on a misapprehension of facts; (7)
the Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify a different
conclusion; and (8) the findings of fact of the Court of Appeals are contrary to those of the trial court or are
mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not
disputed by respondent, or where the findings of fact of the Court of Appeals are premised on the absence of
evidence but are contradicted by the evidence on record. [13]

The exceptions to the rule underscore the substance and weight of the findings of the trial court. They render
inconclusive contrary findings by the appellate court. The reason is now a fundamental principle:

[A]ppellate courts do not disturb the findings of the trial courts with regard to the assessment of the
credibility of witnesses. The reason for this is that trial courts have the unique opportunity to observe the
witneses first hand and note their demeanor, conduct and attitude under grilling examination.

The exceptions to this rule are when the trial courts findings of facts and conclusions are not supported
by the evidence on record, or when certain facts of substance and value, likely to change the outcome of
the case, have been overlooked by the trial court, or when the assailed decision is based on a
misapprehension of facts.[14]

This interplay of rules and exceptions is more pronounced in this case of quasi-delict in which,
according to Article 2176 of the Civil Code, whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. To sustain a claim based on quasi-delict, the
Page | 98
following requisites must concur: (a) damage suffered by the plaintiff; (b) fault or negligence of defendant; and
(c) connection of cause and effect between the fault or negligence of defendant and the damage incurred by the
plaintiff.[15] These requisites must be proved by a preponderance of evidence. [16] The claimants, respondents in
this case, must, therefore, establish their claim or cause of action by preponderance of evidence, evidence which
is of greater weight, or more convincing than that which is offered in opposition to it. [17]

The trial court found that the jitney driver was negligent. We give weight to this finding greater than the
opposite conclusion reached by the appellate court that the driver of the tractor-trailer caused the vehicular
collision.

One reason why the trial court found credible the version of Jabon was because his concentration as
driver is more focused than that of a mere passenger. The trial court expounded, thus:

In the appreciation of the testimony of eye-witnesses, one overriding consideration is

their opportunity for observation in getting to know or actually seeing or observing the matter
they testify to. This most particularly holds true in vehicular collision or accident cases which
oftentimes happen merely momentarily or in the split of a second. In the case of a running or
travelling vehicle, especially in highway travel which doubtless involves faster speed than in
ordinary roads, the driver is concentrated on his driving continuously from moment to moment
even in long trips. While in the case of a mere passenger, he does not have to direct his attention
to the safe conduct of the travelling vehicle, as in fact he may converse with other passengers and
pay no attention to the driving or safe conduct of the travelling vehicle, as he may even doze off
to sleep if he wants to, rendering his opportunity for observation on the precise cause of the
accident or collision or immediately preceding thereto not as much as that of the driver whose
attention is continuously focused on his driving. So that as between the respective versions of the
plaintiffs thru their passenger and that of the defendants thru their driver as to the cause or
antecedent causes that led to the vehicular collision in this case, the version of the driver of
defendant should ordinarily be more reliable than the version of a mere passenger of Plaintiffs
vehicle, simply because the attention of the passenger is not as much concentrated on the driving
as that of the driver, consequently the capacity for observation of the latter of the latter on the
matter testified to which is the precise point of inquiry --- the proximate cause of the accident ---
is more reasonably reliable.Moreover, the passengers vision is not as good as that of the driver
from the vantage point of the drivers seat especially in nighttime, thus rendering a passengers
opportunity for observation on the antecedent causes of the collision lesser than that of the
driver. This being so, this Court is more inclined to believe the story of defendants driver
Claudio Jabon that the jitney driven by Laarni Pomasin fell off the shoulder of the curved road
causing it to run thereafter in a zigzag manner and in the process the two vehicles approaching
each other from opposite directions at highway speed came in contact with each other, the
zigzagging jeep hitting the left fender of the truck all the way to the fuel tank, the violent impact
resulting in the lighter vehicle, the jitney, being thrown away due to the disparate size of the
truck.[18]

The appellate court labelled the trial courts rationalization as a sweeping conjecture[19] and countered
that Gregorio was actually occupying the front seat of the jitney and had actually a clear view of the incident
despite the fact that he was not driving.

While it is logical that a drivers attention to the road travelled is keener than that of a mere passenger, it
should also be considered that the logic will hold only if the two are similarly circumstanced, and only as a

Page | 99
general rule, so that, it does not necessarily follow that between the opposing testimonies of a driver and a
passenger, the former is more credible. The factual setting of the event testified on must certainly be considered.

The trial court did just that in the instant case. Contrary to the observation of the Court of Appeals, the
relative positions of a driver and a passenger in a vehicle was not the only basis of analysis of the trial
court. Notably, aside from Jabons alleged vantage point to clearly observe the incident, the trial court also took
into consideration Gregorios admission that prior to the accident, the jitney was running on the curving and
downward portion of the highway. The appellate court, however, took into account the other and opposite
testimony of Gregorio that it was their jitney that was going uphill and when it was about to reach a curve, he
saw the incoming truck running very fast and encroaching the jitneys lane.

We perused the transcript of stenographic notes and found that the truck was actually ascending the
highway when it collided with the descending jitney.

During the direct examination, Jabon narrated that the tractor-trailer was ascending at a speed of 35 to
40 kilometers per hour when he saw the jitney on the opposite lane running in a zigzag manner, thus:

Q: Now, when you passed by the municipality of Polangui, Albay at about 5:00 of August 12, 1994,
could you tell the Court if there was any untoward incident that happened?

A: There was sir.

Q: Could you please tell the Court?

A: While on my way to Liboro coming from Sorsogon, I met on my way a vehicle going on a zigzag
direction and it even fell on the shoulder and proceeded going on its way on a zigzag direction.

Q: Could you describe to the Court what was the kind of vehicle you saw running in zigzag direction?

A: A Toyota-jitney loaded with passengers with top-load.

Q: You said that the top[-]load of the jeep is loaded?

A: Yes, sir.

Q: Could you please tell the Court what was your speed at the time when you saw that jeepney with
top[-]load running on a zigzag manner?

A: I was running 35 to 40 kilometers per hour because I was ascending plain. (Emphasis supplied).[20]

In that same direct examination, Jabon confirmed that he was ascending, viz:

Q: Could you please describe the condition in the area at the time of the incident, was it dark or day
time?

A: It was still bright.

COURT: But it was not approaching sunset?

A: Yes, sir.
Page | 100
Q: Was there any rain at that time?

A: None sir.

Q: So the road was dry?

A: Yes sir.

Q: You said you were ascending towards the direction of Liboro, Camarines Sur, is that correct at
the time the incident happened?

A: Yes sir.[21] (Emphasis supplied).

Upon the other hand, Gregorio, during his direct examination described the road condition where the
collision took place as curving and downward, thus:

Q: Could you please describe the place where the incident happened in so far as the road condition is
concerned?

A: The road was curving and downward.

Q: And the road was of course clear from traffic, is that correct?

A: Yes sir.

Q: And practically, your jitney was the only car running at that time?

A: Yes sir.[22] (Emphasis supplied).

Significantly, this is a confirmation of the testimony of Jabon.

However, on rebuttal, Gregorio turned around and stated that the jitney was going uphill when he saw
the tractor-trailer running down very fact and encroaching on their lane, to wit:

Q: Mr. Claudio Jabon, the driver of the trailer truck that collided with your owner jeepney that you were
riding testified in open Court on July 24, 1997 which I quote, while on my way to Liboro coming
to Sorsogon I met a vehicle going on a zig-zag direction and it even fell on the shoulder and
proceeded going on its way on zig-zag direction, what can you say about this statement of this
witness?

A: We were no[t] zigzagging but because we were going uphill and about to reach a curved (sic) we
saw the on-coming vehicle going down very fast and encroaching on our lane so our driver
swerved our vehicle to the right but still we were hit by the on-coming vehicle.[23] (Emphasis
supplied).

The declaration of Jabon with respect to the road condition was straightforward and consistent. The
recollection of Gregorio veered from curving and downward to uphill. [24] On this point, Jabon and his testimony
is more credible.

Page | 101
 The fact that the jitney easily fell into the road shoulder, an undebated fact, supports the trial courts
conclusion that the jitney was indeed going downhill which, it may be repeated, was the original testimony of
Gregorio that the road was curving and downward. [25] It is this conclusion, prodded by the inconsistency of
Gregorios testimony, that gives credence to the further testimony of Jabon that the herein respondents jitney,
loaded with passengers with top-load was running in a zigzag manner.[26]

Going downward, the jitney had the tendency to accelerate. The fall into the shoulder of the road can
result in the loss of control of the jitney, which explains why it was running in a zigzag manner before it hit the
tractor-trailer.

There was no showing that the tractor-trailer was speeding. There is a preponderance of evidence that
the tractor-trailer was in fact ascending. Considering its size and the weight of the tractor-trailer, its speed could
not be more than that of a fully loaded jitney which was running downhill in a zigzagging manner.

Neither can it be inferred that Jabon was negligent. In hindsight, it can be argued that Jabon should have
swerved to the right upon seeing the jitney zigzagging before it collided with the tractor-trailer. Accidents,
though, happen in an instant, and, understandably in this case, leaving the driver without sufficient time and
space to maneuver a vehicle the size of a tractor-trailer uphill and away from collision with the jitney oncoming
downhill.

Clearly, the negligence of Gregorios daughter, Laarni was the proximate cause of the accident.

We did not lose sight of the fact that at the time of the incident, Jabon was prohibited from driving the
truck due to the restriction imposed on his drivers license, i.e., restriction code 2 and 3. As a matter of fact,
Jabon even asked the Land Transportation Office to reinstate his articulated license containing restriction code 8
which would allow him to drive a tractor-trailer. The Court of Appeals concluded therefrom that Jabon was
violating a traffic regulation at the time of the collision.

Driving without a proper license is a violation of traffic regulation. Under Article 2185 of the Civil
Code, the legal presumption of negligence arises if at the time of the mishap, a person was violating any traffic
regulation. However, in Sanitary Steam Laundry, Inc. v. Court of Appeals, [27]we held that a causal connection
must exist between the injury received and the violation of the traffic regulation. It must be proven that the
violation of the traffic regulation was the proximate or legal cause of the injury or that it substantially
contributed thereto. Negligence, consisting in whole or in part, of violation of law, like any other negligence, is
without legal consequence unless it is a contributing cause of the injury. [28]Likewise controlling is our ruling
in Aonuevo v. Court of Appeals[29] where we reiterated that negligence per se, arising from the mere violation of
a traffic statute, need not be sufficient in itself in establishing liability for damages. In said case, Aonuevo, who
was driving a car, did not attempt to establish a causal connection between the safety violations imputed to the
injured cyclist, and the accident itself. Instead, he relied on a putative presumption that these violations in
themselves sufficiently established negligence appreciable against the cyclist. Since the onus on Aonuevo is to
conclusively prove the link between the violations and the accident, we can deem him as having failed to
discharge his necessary burden of proving the cyclists own liability. [30] We took the occasion to state that:

The rule on negligence per se must admit qualifications that may arise from the logical
consequences of the facts leading to the mishap. The doctrine (and Article 2185, for that matter)
is undeniably useful as a judicial guide in adjudging liability, for it seeks to impute culpability
arising from the failure of the actor to perform up to a standard established by a legal fiat. But
the doctrine should not be rendered inflexible so as to deny relief when in fact there is no causal
relation between the statutory violation and the injury sustained. Presumptions in law, while
Page | 102
 convenient, are not intractable so as to forbid rebuttal rooted in fact. After all, tort law is
remunerative in spirit, aiming to provide compensation for the harm suffered by those whose
interests have been invaded owing to the conduct of other. [31]

In the instant case, no causal connection was established between the tractor-trailer drivers restrictions
on his license to the vehicular collision. Furthermore, Jabon was able to sufficiently explain that the Land
Transportation Office merely erred in not including restriction code 8 in his license.

Petitioners presented the Affidavit of Desistance executed by Cynthia to exonerate them from any
liability. An affidavit of desistance is usually frowned upon by courts. Little or no persuasive value is often
attached to a desistance.[32] The subject affidavit does not deserve a second look more so that it appears that
Cynthia was not armed with a special power of attorney to enter into a settlement with petitioners. At any rate, it
is an exercise of futility to delve into the effects of the affidavit of desistance executed by one of the
respondents since it has already been established that petitioners are not negligent.

WHEREFORE, the petition is GRANTED. The challenged Decision and Resolution of the Court of
Appeals are REVERSED and SET ASIDE. Civil Case No. 94-3418 lodged before the Regional Trial Court of
Antipolo City, Branch 74, is DISMISSED for lack of merit.

SO ORDERED.

Page | 103
Page | 104
 [G.R. No. 119092. December 10, 1998]
SANITARY STEAM LAUNDRY, INC., petitioner, vs. THE COURT OF APPEALS, NICANOR
BERNABE III, JOSEFINA BERNABE, in their individual capacities and as HEIRS OF JASON
BERNABE, JOHN JOSEPH BERNABE, VICTOR IGNACIO, JULIETA ENRIQUEZ and RAMON
ENRIQUEZ, RENE TABLANTE, LEOMAR MACASPAC, JR., CHARITO ESTOLANO, NENITA
SALUNOY, in their individual capacities and as HEIRS OF DALMACIO SALUNOY, respondents.
DECISION
MENDOZA, J.:
This case involves a collision between a Mercedes Benz panel truck of petitioner Sanitary Steam Laundry
and a Cimarron which caused the death of three persons and the injuries of several others. The accident took
place at the Aguinaldo Highway in Imus, Cavite on August 31, 1980. All the victims were riding in the
Cimarron. One of those who died was the driver. The Regional Trial Court of Makati found petitioners driver to
be responsible for the vehicular accident and accordingly held petitioner liable to private respondents for
P472,262.30 in damages and attorneys fees. Its decision was affirmed in toto by the Court of Appeals. It is here
for a review of the appellate courts decision.
The passengers of the Cimarron were mostly employees of the Project Management Consultants, Inc.
(PMCI). They had just visited the construction site of a company project at Lian, Batangas. The other
passengers were family members and friends whom they invited to an excursion to the beach after the visit to
the construction site. The group stayed at Lian beach until 5:30 p.m., when they decided to go back to Manila.
The Cimarron, with Plate No. 840-4J, was owned by Salvador Salenga, father of one of the employees of
PMCI. Driving the vehicle was Rolando Hernandez. It appears that at about 8:00 p.m., as it was traveling along
Aguinaldo Highway in Imus, Cavite on its way back to Manila, the Cimarron was hit on its front portion by
petitioners panel truck, bearing Plate No. 581 XM, which was traveling in the opposite direction. The panel
truck was on its way to petitioners plant in Dasmarias, Cavite after delivering some linen to the Makati Medical
Center. The driver, Herman Hernandez, claimed that a jeepney in front of him suddenly stopped. He said he
stepped on the brakes to avoid hitting the jeepney and that this caused his vehicle to swerve to the left and
encroach on a portion of the opposite lane. As a result, his panel truck collided with the Cimarron on the north-
bound lane.
The driver of the Cimarron, Rolando Hernandez, and two of his passengers, namely, Jason Bernabe and
Dalmacio Salunoy, died. Several of the other passengers of the Cimarron were injured and taken to various
hospitals.
On December 4, 1980, private respondents filed this civil case for damages before the then Court of First
Instance of Rizal, Pasig Branch, against petitioner.
On November 23, 1990, the Regional Trial Court of Makati, to which the case was transferred following
the reorganization of the judiciary, rendered judgment for private respondents. The dispositive portion of its
decision reads:
It is for the reasons stated above that the court is persuaded to award the damages incurred by the plaintiffs as
proved in the trial as follows:

Actual or compensatory expenses:

a. Charito Estolano P35,813.87 (Exh. J)
b. Nicanor Bernabe III & Josefina C. Bernabe 20,024.94
c. Julieta, Ailyn & Josefina Enriquez and Josefina Valeiro 45,830.45 (Exh. QQ)
d. Leonor Macaspac 2,740.00
e. Victor Rey Ignacio 14,820.64 (Exh. EEE)
f. Rene Tablante 10,032.40 (Exh. QQQ)
g. Nenita Salonoy, widow and Manilyn, children 20,000.00

Moral damages should also be awarded as follows:

Page | 105
For the injuries sustained by:
a. Charito Estolano P10,000.00 (Exh. F)
b. Julieta P. Enriquez 15,000.00 (Exh. MM)
c. Ailyn C. Enriquez 8,000.00 (Exh. NN)
d. Josefina R. Enriquez 10,000.00 (Exh. OO)
e. Josefina P. Valerio 2,000.00 (Exh. PP)
f. Nenita Salonoy 20,000.00 (Exh. DD)
g. Nicanor Bernabe III 8,000.00 (Exh. Q)
h. Josephine Bernabe 2,000.00 (Exh. R)
i. John Joseph Bernabe 10,000.00
j. Manilyn G. Salonoy 10,000.00 (Exh. EE)
k. Jack Salonoy 10,000.00 (Exh. JJ)
l. Leonor C. Macaspac 2,000.00 (Exh. AAA)
m. Victor Ignacio 8,000.00 (Exh. DDD)
n. Rene Tablanta 8,000.00 (Exh. FFF)

Finally the heirs of Jason Bernabe should be awarded the sum of P50,000.00 for the latters death. The heirs of
Dalmacio Salunoy should be given the sum of P100,000.00 for moral damages and unearned income.
The foregoing considered, judgment is rendered in favor of plaintiffs ordering defendant to pay the amounts
aforecited and to pay the further sum of P50,000.00 for attorney‘s fees and the costs.
SO ORDERED.
As already stated, the Court of Appeals, to which the decision of the trial court was appealed, affirmed the
decision on January 26, 1995. Hence, this appeal.
First. Petitioner contends that the driver of the Cimarron was guilty of contributory negligence and, therefore,
its liability should be mitigated, if not totally extinguished. It claims that the driver of the Cimarron was guilty
of violation of traffic rules and regulations at the time of the mishap. Hence, in accordance with Art. 2185 of the
Civil Code, he was presumed to be negligent.
According to petitioner, the negligence consisted of the following:
1. The Cimarron was overloaded because there were from 20 to 25 passengers inside when the passenger
capacity of the vehicle was only 17.
2. The front seat of the Cimarron was occupied by four adults, including the driver.
3. The Cimarron had only one headlight on (its right headlight) as its left headlight was not functioning.
Petitioner cites Art. III, 2 of R.A. No. 4136, known as the Land Transportation and Traffic Code, which
provides that No person operating any vehicle shall allow more passengers or more freight or cargo in his
vehicle than its registered carry capacity and Art. IV, 3(e) which states that Every motor vehicle of more than
one meter of projected width, while in use on any public highway shall bear two headlights... which not later
than one-half hour after sunset and until at least one-half hour before sunrise and whenever weather conditions
so require, shall both be lighted.
Petitioner asserts that the fact that its panel truck encroached on a portion of the lane of the Cimarron does
not show that its driver was negligent. Petitioner cites the case of Bayasen v. Court of Appeals, which allegedly
held that the sudden swerving of a vehicle caused by its driver stepping on the brakes is not negligence per se.
Petitioner further claims that even if petitioners swerving to the lane of respondents were considered proof of
negligence, this fact would not negate the presumption of negligence on the part of the other driver arising from
his violations of traffic rules and regulations.
Petitioner likewise invokes the ruling in Mckee v. Intermediate Appellate Court, in which a driver who
invaded the opposite lane and caused a collision between his car and a truck coming from the opposite lane, was
exonerated based on the doctrine of last clear chance, which states that a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent, is solely responsible for
the consequences of the accident.

Page | 106
 Petitioner contends that the ruling in that case should be applied to the present case. According to
petitioner, although the driver of the panel truck was initially negligent, the driver of the Cimarron had the last
opportunity to avoid the accident. However, because of his negligence (i.e., the aforementioned violations of
traffic rules and regulations such as the use of only one headlight at night and the overcrowding at the front seat
of the vehicle), he was not able to avoid a collision with the panel truck.
We find the foregoing contention to be without merit. First of all, it has not been shown how the alleged
negligence of the Cimarron driver contributed to the collision between the vehicles. Indeed, petitioner has the
burden of showing a causal connection between the injury received and the violation of the Land Transportation
and Traffic Code. He must show that the violation of the statute was the proximate or legal cause of the injury
or that it substantially contributed thereto. Negligence, consisting in whole or in part, of violation of law, like
any other negligence, is without legal consequence unless it is a contributing cause of the injury. Petitioner says
that driving an overloaded vehicle with only one functioning headlight during nighttime certainly increases the
risk of accident, that because the Cimarron had only one headlight, there was decreased visibility, and that the
fact that the vehicle was overloaded and its front seat overcrowded decreased maneuverability. However, mere
allegations such as these are not sufficient to discharge its burden of proving clearly that such alleged
negligence was the contributing cause of the injury. Furthermore, based on the evidence in this case, there was
no way either driver could have avoided the collision. The panel truck driver testified:
Q. You stated you were following a jeepney along the highway in Imus, Cavite, what happened afterwards, if
any?
A. The passenger jeepney I was following made a sudden stop so I stepped on the brakes.
Q. Upon stepping on your brakes, what happened if any?
A. The Mercedes Benz (panel) suddenly swerved to the left, sir.
Q. How big was the swerving to the left?
A. The distance which my vehicle swerved beyond the middle line or center line to the left was about this
distance, sir (witness demonstrating by using both hands the distance).
ATTY. ALILING: Can we stipulate that it is 1 foot, Your Honor.
ATTY. GONZALES: A little more, 1 1/2 feet.
ATTY. ALILING: 1 1/4 feet.
ATTY. GONZALES: Between 1 1/4 and 1 1/2 feet.
The panel truck driver‘s testimony is consistent with the testimonies of private respondents that the panel truck
went out of control and simply smashed into the Cimarron in which they were riding. Thus, Nicanor Bernabe III
testified:
Q: And did you see how the accident happened?
A: I just saw a glare of light. That is all and then the impact.
Q: Where did you see that glare of light?
A: Coming in front ahead of us.
Q: When you say ahead of you, was it . . . ?
A: Towards us.
....
Q: And from what did those glare of light come from?
A: Based on information I received, the light came from the headlights of a certain panel owned by Sanitary
Steam Laundry, Inc.
....
Q: You said that the lights were going towards you. Now, at what pace did these lights come toward you?
A: Fast pace.
Charito Estolano, another passenger who was seated in front of the Cimarron, similarly testified that they just
saw the panel truck hurtling toward them. She said:
Q: Now, you said earlier that you were involved in an accident. What was that accident?
A: An approaching vehicle hit us.
Q: Now, why do you know that there was the approaching vehicle?
Page | 107
A: There was a light which glared us and I knew that it came from a vehicle. We were blinded.
Q: Where was this vehicle headed for?
A: Headed for Cavite.
Q: Coming from?
A: Coming from Manila, I think.
Q: So that, actually, in relation to your vehicle, it was coming from the opposite direction?
A: Yes, sir.
Q: Now, you said that the light headed towards your vehicle. On which side of the highway was your Tamaraw
vehicle travelling at that time?
A: We were on the right lane.
Q: Did you actually see this light from the vehicle coming from the opposite direction heading towards your
vehicle?
A: Yes, sir.
Q: And what happened after that?
A: After that, there was an impact.
Q: All right. Will you tell the Court which bumped which?
A: We were bumped by the vehicle which was coming from the opposite direction.
The foregoing testimonies show that the driver of the panel truck lost control of his vehicle and bumped
the Cimarron. Hence, even if both headlights of the Cimarron were lighted, it would have been bumped just the
same because the driver of the panel truck could not stop despite the fact that he applied the brakes. Petitioners
contention that because of decreased visibility, caused by the fact that the Cimarron allegedly had only one
headlight on, its driver failed to see the Cimarron is without any basis in fact. Only its driver claimed that the
Cimarron had only one headlight on. The police investigator did not state in his report or in his testimony that
the Cimarron had only one headlight on.
Nor is there any basis in fact for petitioners contention that because of overcrowding in the front seat of
the Cimarron there was decreased maneuverability which prevented the Cimarron driver from avoiding the
panel truck. There is absolutely no basis for this claim. There is nothing in the testimonies of the passengers of
the Cimarron, particularly Charito Estolano, who was seated in front, which suggest that the driver had no
elbow room for maneuvering the vehicle. To the contrary, from the testimony of some of the witnesses. it
appears that the driver of the Cimarron tried to avoid the collision but because of the emergency created by the
speeding panel truck coming from the opposite direction he was not able to fully move his Cimarron away from
the path of the oncoming vehicle. We are convinced that no maneuvering which the Cimarron driver could have
done would have avoided a collision with the panel truck, given the suddenness of the events. Clearly, the
overcrowding in the front seat was immaterial.
All these point to the fact that the proximate cause of the accident was the negligence of petitioners driver.
As the trial court noted, the swerving of petitioners panel truck to the opposite lane could mean not only that
petitioners driver was running the vehicle at a very high speed but that he was tailgating the passenger jeepney
ahead of it as well.
Petitioners driver claimed that the distance between the panel truck and the passenger jeepney in front was
about 12 meters. If this was so, he would have had no difficulty bringing his panel truck to a stop. It is very
probable that the driver did not really apply his brakes (which is why there were no skid marks) but that finding
the jeepney in front of him to be in close proximity, he tried to avoid hitting it by swerving his vehicle to the
left. In the process, however, he invaded a portion of the opposite lane and consequently hit the Cimarron.
Indeed, the panel truck driver testified that his vehicle was running at the speed of 60 miles per hour. He tried to
correct himself when asked by petitioners counsel whether the panel truck speedometer indicated miles or
kilometers by saying that the speedometer measured kilometers and not miles, but on cross examination his
testimony got muddled.
Be that as it may, whether the driver meant 60 miles per hour (which could be 96.77 kilometers per hour)
or 60 kilometers per hour, the fact remains that the panel truck was overspeeding because the maximum

Page | 108
allowable speed for trucks and buses on open country roads, such as the Aguinaldo Highway in Imus, Cavite, is
only 50 kilometers per hour.
The case of Bayasen, which petitioner invokes, cannot apply to this case. There was no swerving of the
vehicle in that case but skidding, and it was caused by the fact that the road was wet and slippery. In this case,
the road was dry and safe. There was no reason for the vehicle to swerve because of road condition. The only
explanation for this occurrence was human error.
Petitioners reliance on the McKee case is also misplaced. In that case, the driver of the vehicle at fault, a
truck, had an opportunity to avoid the collision but he ignored the signals from the other vehicle, a car, to slow
down and allow it to safely pass the bridge. In this case, there was no such opportunity given the Cimarron on
the night of the mishap. Everything happened so quickly that before the passengers of the Cimarron knew it, the
vehicle had been bumped by the truck.
Second. On its liability as employer of the negligent driver, petitioner contends that the non-submission of the
NBI clearance and police clearance of its driver does not mean that it failed to exercise the diligence of a good
father of the family in the selection and supervision of its employees. It argues that there is no law requiring
employees to submit NBI and police clearance prior to their employment. Hence, petitioners failure to require
submission of these documents does not mean that it did not exercise due diligence in the selection and
supervision of its employees. On the other hand, it asserts that its employment of Herman Hernandez as a driver
means that he had passed the screening tests of the company, including submission of the aforementioned
documents. Petitioner maintains that the presumption is that the said driver submitted NBI and police clearance.
Petitioner likewise contends that the Court of Appeals position that it failed to exercise due diligence in
the selection and supervision of its employees by not requiring its prospective employees to undergo
psychological and physical tests before employment has no basis in law because there is no law requiring such
tests prior to hiring employees.
The petitioners contention has no merit. The Court of Appeals did not say that petitioners failure to
submit NBI and police clearances of its driver was proof that petitioner failed to exercise due diligence in the
selection of its employees. What the Court of Appeals said was that petitioners policy of requiring prospective
employees to submit NBI and police clearance and to have at least two (2) years experience as driver prior to
employment was not enough to prove the exercise of due diligence and that even this policy petitioner failed to
prove by its failure to present the drivers NBI and police records during the trial.
With respect to the requirement of passing psychological and physical tests prior to his employment,
although no law requires it, such circumstance would certainly be a reliable indicator of the exercise of due
diligence. As the trial court said:
. . . No tests of skill, physical as well as mental and emotional, were conducted on their would-be employees.
No on-the-job training and seminars reminding employees, especially drivers, of road courtesies and road rules
and regulations were done. There were no instructions given to defendants drivers as to how to react in cases of
emergency nor what to do after an emergency occurs. There was even failure on the part of defendant to present
its concerned employees 204 file. All these could only mean failure on the part of defendant to exercise the
diligence required of it of a good father of a family in the selection and supervision of its employees.
Indeed, driving exacts a more than usual toll on the senses. Accordingly, it behooves employers to exert extra
care in the selection and supervision of their employees. They must go beyond the minimum requirements fixed
by law. In this case, David Bautista, the office manager of petitioner in its Dasmarias plant, said that petitioner
has a policy of requiring job applicants to submit clearances from the police and the NBI. In the case of
applicants for the position of driver they are required to have at least two (2) years driving experience and to be
holders of a professional drivers license for at least two years. But the supposed company policies on
employment were not in writing. Nor did Bautista show in what manner he supervised the drivers to ensure that
they drove their vehicles in a safe way.
Third. With respect to the question of damages, we find no reversible error committed in the award of actual
damages to private respondents. To justify an award of actual damages, there must be competent proof of the
actual amount of loss. Credence can be given only to claims which are duly supported by receipts. Here, the

Page | 109
actual damages claimed by private respondents were duly supported by receipts and appear to have been really
incurred.
As to the moral damages awarded, we find them to be reasonable and necessary in view of the
circumstances of this case. Moral damages are awarded to allow the victims to obtain means, diversion, or
amusement to alleviate the moral suffering they had undergone due to the defendants culpable action. In this
case, private respondents doubtless suffered some ordeal because some of them lost their loved ones, while
others lost their future. Within the meaning of Art. 2217 of the Civil Code, they suffered sleepless nights,
mental anguish, serious anxiety, and wounded feelings. An award of moral damages in their favor is thus
justified.
The award of P50,000.00 to the heirs of Jason Bernabe as death indemnity is likewise in accordance with
law. However, the award of P100,000 to the heirs of Dalmacio Salunoy, denominated in the decision of the trial
court as moral damages and unearned income cannot be upheld. The heirs were already included among those
awarded moral damages. Marilyn Salunoy was ordered to be paid P10,000, Jack Salunoy, P10,000, and their
mother Nenita Salunoy, P20,000, as moral damages. The amount of P100,000 was presumably awarded
primarily for loss of earning capacity but even then the amount must be modified. In accordance with our cases
on this question, the formula for determining the life expectancy of Dalmacio Salunoy must be determined by
applying the formula 2/3 multiplied by (80 minus the age of the deceased). Since Salunoy was 46 years of age
at the time of his death, as stated in his death certificate, then his life expectancy was 22.6 years, or up to 68
years old.
Next, his net earnings must be computed. At the time of his death, Dalmacio Salunoy was earning more
than P900.00 a month as bookkeeper at the PMCI so that his annual gross earnings was about P11,000.00. From
this amount, about 50% should be deducted as reasonable and necessary living expenses because it seems his
wife occasionally finds work and thus helps in the household expenses.
Based on the foregoing, his net earning capacity was P124,300.00 computed as follows:

Net earning life Gross and reasonable capacity (x) = expectancy multiplied by [annual income less reasonable &
necessary living expenses]

x = [2 (80-46)] x [P11,000 - P5,500]

3
= 22.6 x 5,500
= P124,300.00
In addition, the heirs of Dalmacio Salunoy should be paid P50,000.00 as death indemnity.
Finally, the award of attorneys fees should be disallowed as the trial court did not give any justification
for granting it in its decision. It is now settled that awards of attorneys fees must be based on findings of fact
and law, stated in the decision of the trial court.[21]
WHEREFORE, the decision of the Court of Appeals is MODIFIED in the sense that the award of P100,000.00
denominated for moral damages and unearned income is deleted, and in lieu thereof the amount of P124,300.00
for loss of earning capacity and the further amount of P50,000.00 for death indemnity are awarded to the heirs
of Dalmacio Salunoy and the award of P50,000.00 for attorneys fees is disallowed. In all other respects the
appealed decision is AFFIRMED.
SO ORDERED.

Page | 110
G.R. No. 126297 January 31, 2007
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467 January 31, 2007
NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR., EMMA
AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590 January 31, 2007
MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankind‘s most important and delicate endeavors, must assume the grave
responsibility of pursuing it with appropriate care. The care and service dispensed through this high trust,
however technical, complex and esoteric its character may be, must meet standards of responsibility
commensurate with the undertaking to preserve and protect the health, and indeed, the very lives of those placed
in the hospital‘s keeping. 1

Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals‘ Decision dated
2

September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming with modification the
Decision dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96, Quezon City in Civil Case No.
3

Q-43322 and nullifying its Order dated September 21, 1993.

The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City Hospital)
because of difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr.
Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff of the Medical City Hospital, performed an anterior
4

resection surgery on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary,
necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividad‘s
husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No. 126467, to perform hysterectomy
on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and closed
the incision.
However, the operation appeared to be flawed. In the corresponding Record of Operation dated April 11, 1984,
the attending nurses entered these remarks:
"sponge count lacking 2
Page | 111
"announced to surgeon searched (sic) done but to no avail continue for closure."
On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including the
doctors‘ fees, amounted to P60,000.00.
After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Dr.
Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of the surgery. Dr.
Ampil then recommended that she consult an oncologist to examine the cancerous nodes which were not
removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further treatment.
After four months of consultations and laboratory examinations, Natividad was told she was free of cancer.
Hence, she was advised to return to the Philippines.
On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks thereafter,
her daughter found a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil
proceeded to her house where he managed to extract by hand a piece of gauze measuring 1.5 inches in width.
He then assured her that the pains would soon vanish.
Dr. Ampil‘s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek treatment
at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected the presence of another
foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in width which badly infected her
vaginal vault. A recto-vaginal fistula had formed in her reproductive organs which forced stool to excrete
through the vagina. Another surgical operation was needed to remedy the damage. Thus, in October 1984,
Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a complaint
for damages against the Professional Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and
Dr. Fuentes, docketed as Civil Case No. Q-43322. They alleged that the latter are liable for negligence for
leaving two pieces of gauze inside Natividad‘s body and malpractice for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an administrative
complaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes, docketed as Administrative
Case No. 1690. The PRC Board of Medicine heard the case only with respect to Dr. Fuentes because it failed to
acquire jurisdiction over Dr. Ampil who was then in the United States.
On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly substituted by her
above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and Dr.
Fuentes liable for negligence and malpractice, the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants PROFESSIONAL
SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly and
severally, except in respect of the award for exemplary damages and the interest thereon which are the liabilities
of defendants Dr. Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of P21.60-US$1.00, as
reimbursement of actual expenses incurred in the United States of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;
c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic Hospital, medical fees, and
cost of the saline solution;
Page | 112
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorney‘s fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the complaint until full
payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed as CA-G.R.
CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its Decision,
which was granted in an Order dated May 11, 1993. Thereafter, the sheriff levied upon certain properties of Dr.
Ampil and sold them for P451,275.00 and delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr. Fuentes to
indefinitely suspend any further execution of the RTC Decision. However, not long thereafter, the Aganas again
filed a motion for an alias writ of execution against the properties of PSI and Dr. Fuentes. On September 21,
1993, the RTC granted the motion and issued the corresponding writ, prompting Dr. Fuentes to file with the
Court of Appeals a petition for certiorari and prohibition, with prayer for preliminary injunction, docketed as
CA-G.R. SP No. 32198. During its pendency, the Court of Appeals issued a Resolution dated October 29, 1993
5

granting Dr. Fuentes‘ prayer for injunctive relief.

On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision in Administrative Case No.
6

1690 dismissing the case against Dr. Fuentes. The Board held that the prosecution failed to show that Dr.
Fuentes was the one who left the two pieces of gauze inside Natividad‘s body; and that he concealed such fact
from Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV No. 42062
and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan Fuentes is hereby
DISMISSED, and with the pronouncement that defendant-appellant Dr. Miguel Ampil is liable to reimburse
defendant-appellant Professional Services, Inc., whatever amount the latter will pay or had paid to the plaintiffs-
appellees, the decision appealed from is hereby AFFIRMED and the instant appeal DISMISSED.
Concomitant with the above, the petition for certiorari and prohibition filed by herein defendant-appellant Dr.
Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order of the respondent judge
dated September 21, 1993, as well as the alias writ of execution issued pursuant thereto are hereby NULLIFIED
and SET ASIDE. The bond posted by the petitioner in connection with the writ of preliminary injunction issued
by this Court on November 29, 1993 is hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution dated December 19, 1996.
7

Hence, the instant consolidated petitions.

Page | 113
In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is estopped
from raising the defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is
not entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is not its employee, but a mere
consultant or independent contractor. As such, he alone should answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes is not
guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They contend that the
pieces of gauze are prima facie proofs that the operating surgeons have been negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for
negligence and malpractice sans evidence that he left the two pieces of gauze in Natividad‘s vagina. He pointed
to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2)
the attending nurses‘ failure to properly count the gauzes used during surgery; and (3) the medical intervention
of the American doctors who examined Natividad in the United States of America.
For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr. Ampil
liable for negligence and malpractice; second, whether the Court of Appeals erred in absolving Dr. Fuentes of
any liability; and third, whether PSI may be held solidarily liable for the negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Court‘s attention to other possible causes of Natividad‘s
detriment. He argues that the Court should not discount either of the following possibilities: first, Dr. Fuentes
left the gauzes in Natividad‘s body after performing hysterectomy; second, the attending nurses erred in
counting the gauzes; and third, the American doctors were the ones who placed the gauzes in Natividad‘s body.
Dr. Ampil‘s arguments are purely conjectural and without basis. Records show that he did not present any
evidence to prove that the American doctors were the ones who put or left the gauzes in Natividad‘s body.
Neither did he submit evidence to rebut the correctness of the record of operation, particularly the number of
gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his (Dr.
Fuentes‘) work and found it in order.
The glaring truth is that all the major circumstances, taken together, as specified by the Court of Appeals,
directly point to Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of the patient during the
surgical operation.
Second, immediately after the operation, the nurses who assisted in the surgery noted in their report that the
‗sponge count (was) lacking 2‘; that such anomaly was ‗announced to surgeon‘ and that a ‗search was done but
to no avail‘ prompting Dr. Ampil to ‗continue for closure‘ x x x.
Third, after the operation, two (2) gauzes were extracted from the same spot of the body of Mrs. Agana where
the surgery was performed.
An operation requiring the placing of sponges in the incision is not complete until the sponges are properly
removed, and it is settled that the leaving of sponges or other foreign substances in the wound after the incision
has been closed is at least prima facie negligence by the operating surgeon. To put it simply, such act is
8

considered so inconsistent with due care as to raise an inference of negligence. There are even legions of
authorities to the effect that such act is negligence per se.
9

Page | 114
Of course, the Court is not blind to the reality that there are times when danger to a patient‘s life precludes a
surgeon from further searching missing sponges or foreign objects left in the body. But this does not leave him
free from any obligation. Even if it has been shown that a surgeon was required by the urgent necessities of the
case to leave a sponge in his patient‘s abdomen, because of the dangers attendant upon delay, still, it is his legal
duty to so inform his patient within a reasonable time thereafter by advising her of what he had been compelled
to do. This is in order that she might seek relief from the effects of the foreign object left in her body as her
condition might permit. The ruling in Smith v. Zeagler is explicit, thus:
10

The removal of all sponges used is part of a surgical operation, and when a physician or surgeon fails to remove
a sponge he has placed in his patient‘s body that should be removed as part of the operation, he thereby leaves
his operation uncompleted and creates a new condition which imposes upon him the legal duty of calling the
new condition to his patient‘s attention, and endeavoring with the means he has at hand to minimize and avoid
untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled her
that the pain she was experiencing was the ordinary consequence of her operation. Had he been more candid,
Natividad could have taken the immediate and appropriate medical remedy to remove the gauzes from her
body. To our mind, what was initially an act of negligence by Dr. Ampil has ripened into a deliberate wrongful
act of deceiving his patient.
This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully pursue
this kind of case, a patient must only prove that a health care provider either failed to do something which a
reasonably prudent health care provider would have done, or that he did something that a reasonably prudent
provider would not have done; and that failure or action caused injury to the patient. Simply put, the elements
11

are duty, breach, injury and proximate causation. Dr, Ampil, as the lead surgeon, had the duty to remove all
foreign objects, such as gauzes, from Natividad‘s body before closure of the incision. When he failed to do so, it
was his duty to inform Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to
Natividad, necessitating her further examination by American doctors and another surgery. That Dr. Ampil‘s
negligence is the proximate cause of Natividad‘s injury could be traced from his act of closing the incision
12

despite the information given by the attending nurses that two pieces of gauze were still missing. That they were
later on extracted from Natividad‘s vagina established the causal link between Dr. Ampil‘s negligence and the
injury. And what further aggravated such injury was his deliberate concealment of the missing gauzes from the
knowledge of Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground that it is
contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces of gauze were left
inside Natividad‘s body is a prima facie evidence of Dr. Fuentes‘ negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for itself." It is 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 plaintiff‘s prima facie case, and present a question of fact for defendant to meet with an
explanation. Stated differently, where the thing which caused the injury, without the fault of the injured, is
13

under the exclusive control of the defendant and the injury is such that it should not have occurred if he, having
such control used proper care, it affords reasonable evidence, in the absence of explanation that the injury arose
from the defendant‘s want of care, and the burden of proof is shifted to him to establish that he has observed
due care and diligence. 14

Page | 115
From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa loquitur
are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the control and
management of the defendant; (3) the occurrence was such that in the ordinary course of things, would not have
happened if those who had control or management used proper care; and (4) the absence of explanation by the
defendant. Of the foregoing requisites, the most instrumental is the "control and management of the thing which
caused the injury."15

We find the element of "control and management of the thing which caused the injury" to be wanting. Hence,
the doctrine of res ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He requested the
assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found that the malignancy in her
sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter reported and
showed his work to Dr. Ampil. The latter examined it and finding everything to be in order, allowed Dr.
Fuentes to leave the operating room. Dr. Ampil then resumed operating on Natividad. He was about to finish
the procedure when the attending nurses informed him that two pieces of gauze were missing. A "diligent
search" was conducted, but the misplaced gauzes were not found. Dr. Ampil then directed that the incision be
closed. During this entire period, Dr. Fuentes was no longer in the operating room and had, in fact, left the
hospital.
Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the surgery
room and all personnel connected with the operation. Their duty is to obey his orders. As stated before, Dr.
16

Ampil was the lead surgeon. In other words, he was the "Captain of the Ship." That he discharged such role is
evident from his following conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2) examining the work
of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes‘ permission to leave; and (4) ordering the closure
of the incision. To our mind, it was this act of ordering the closure of the incision notwithstanding that two
pieces of gauze remained unaccounted for, that caused injury to Natividad‘s body. Clearly, the control and
management of the thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or constitute
an independent or separate ground of liability, being a mere evidentiary rule. In other words, mere invocation
17

and application of the doctrine does not dispense with the requirement of proof of negligence. Here, the
negligence was proven to have been committed by Dr. Ampil and not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical development of hospitals and the resulting theories
concerning their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical services to
the lowest classes of society, without regard for a patient‘s ability to pay. Those who could afford medical
18

treatment were usually treated at home by their doctors. However, the days of house calls and philanthropic
19

health care are over. The modern health care industry continues to distance itself from its charitable past and has
experienced a significant conversion from a not-for-profit health care to for-profit hospital businesses.
Consequently, significant changes in health law have accompanied the business-related changes in the hospital
industry. One important legal change is an increase in hospital liability for medical malpractice. Many courts
now allow claims for hospital vicarious liability under the theories of respondeat superior, apparent authority,
ostensible authority, or agency by estoppel. 20

In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code, which
reads:

Page | 116
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this Chapter.
A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of
respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for one‘s own acts or omissions,
but also for those of persons for whom one is responsible.
x x x x x x
The owners and managers of an establishment or enterprise are likewise responsible for damages caused by
their employees in the service of the branches in which the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by their employees and household helpers acting within the
scope of their assigned tasks even though the former are not engaged in any business or industry.
x x x x x x
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damage.
A prominent civilist commented that professionals engaged by an employer, such as physicians, dentists, and
pharmacists, are not "employees" under this article because the manner in which they perform their work is not
within the control of the latter (employer). In other words, professionals are considered personally liable for the
fault or negligence they commit in the discharge of their duties, and their employer cannot be held liable for
such fault or negligence. In the context of the present case, "a hospital cannot be held liable for the fault or
negligence of a physician or surgeon in the treatment or operation of patients." 21

The foregoing view is grounded on the traditional notion that the professional status and the very nature of the
physician‘s calling preclude him from being classed as an agent or employee of a hospital, whenever he acts in
a professional capacity. It has been said that medical practice strictly involves highly developed and
22

specialized knowledge, such that physicians are generally free to exercise their own skill and judgment in
23

rendering medical services sans interference. Hence, when a doctor practices medicine in a hospital setting, the
24

hospital and its employees are deemed to subserve him in his ministrations to the patient and his actions are of
his own responsibility.25

The case of Schloendorff v. Society of New York Hospital was then considered an authority for this view. The
26

"Schloendorff doctrine" regards a physician, even if employed by a hospital, as an independent contractor

because of the skill he exercises and the lack of control exerted over his work. Under this doctrine, hospitals are
exempt from the application of the respondeat superior principle for fault or negligence committed by
physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened with the significant developments in medical
care. Courts came to realize that modern hospitals are increasingly taking active role in supplying and
regulating medical care to patients. No longer were a hospital‘s functions limited to furnishing room, food,
facilities for treatment and operation, and attendants for its patients. Thus, in Bing v. Thunig, the New York
27

Court of Appeals deviated from the Schloendorff doctrine, noting that modern hospitals actually do far more
than provide facilities for treatment. Rather, they regularly employ, on a salaried basis, a large staff of
physicians, interns, nurses, administrative and manual workers. They charge patients for medical care and
treatment, even collecting for such services through legal action, if necessary. The court then concluded that
there is no reason to exempt hospitals from the universal rule of respondeat superior.

Page | 117
In our shores, the nature of the relationship between the hospital and the physicians is rendered inconsequential
in view of our categorical pronouncement in Ramos v. Court of Appeals that for purposes of apportioning
28

responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals
and their attending and visiting physicians. This Court held:
"We now discuss the responsibility of the hospital in this particular incident. 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. However, the difficulty is more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct
of their work within the hospital premises. Doctors who apply for ‗consultant‘ slots, visiting or attending, are
required to submit proof of completion of residency, their educational qualifications, generally, evidence of
accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These
requirements are carefully scrutinized by members of the hospital administration or by a review committee set
up by the hospital who either accept or reject the application. x x x.
After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand
rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain
a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the
physician‘s performance as a specialist is generally evaluated by a peer review committee on the basis of
mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss
in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its
peer review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting ‗consultant‘
staff. While ‗consultants‘ are not, technically employees, x x x, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the
exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is
determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility
in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians. "
But the Ramos pronouncement is not our only basis in sustaining PSI‘s liability. Its liability is also anchored
upon the agency principle of apparent authority or agency by estoppel and the doctrine of corporate negligence
which have gained acceptance in the determination of a hospital‘s liability for negligent acts of health
professionals. The present case serves as a perfect platform to test the applicability of these doctrines, thus,
enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as the "holding
out" theory, or doctrine of ostensible agency or agency by estoppel, has its origin from the law of agency. It
29

imposes liability, not as the result of the reality of a contractual relationship, but rather because of the actions of
a principal or an employer in somehow misleading the public into believing that the relationship or the authority
exists. The concept is essentially one of estoppel and has been explained in this manner:
30

"The principal is bound by the acts of his agent with the apparent authority which he knowingly permits the
agent to assume, or which he holds the agent out to the public as possessing. The question in every case is
whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary
prudence, conversant with business usages and the nature of the particular business, is justified in presuming
that such agent has authority to perform the particular act in question. 31

Page | 118
The applicability of apparent authority in the field of hospital liability was upheld long time ago in Irving v.
Doctor Hospital of Lake Worth, Inc. There, it was explicitly stated that "there does not appear to be any
32

rational basis for excluding the concept of apparent authority from the field of hospital liability." Thus, in cases
where it can be shown that a hospital, by its actions, has held out a particular physician as its agent and/or
employee and that a patient has accepted treatment from that physician in the reasonable belief that it is being
rendered in behalf of the hospital, then the hospital will be liable for the physician‘s negligence.
Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the Civil Code
reads:
ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack of action,
or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority.
In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and specializations of the
physicians associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur with the
Court of Appeals‘ conclusion that it "is now estopped from passing all the blame to the physicians whose names
it proudly paraded in the public directory leading the public to believe that it vouched for their skill and
competence." Indeed, PSI‘s act is tantamount to holding out to the public that Medical City Hospital, through its
accredited physicians, offers quality health care services. By accrediting Dr. Ampil and Dr. Fuentes and
publicly advertising their qualifications, the hospital created the impression that they were its agents, authorized
to perform medical or surgical services for its patients. As expected, these patients, Natividad being one of
them, accepted the services on the reasonable belief that such were being rendered by the hospital or its
employees, agents, or servants. The trial court correctly pointed out:
x x x regardless of the education and status in life of the patient, he ought not be burdened with the defense of
absence of employer-employee relationship between the hospital and the independent physician whose name
and competence are certainly certified to the general public by the hospital‘s act of listing him and his specialty
in its lobby directory, as in the case herein. The high costs of today‘s medical and health care should at least
exact on the hospital greater, if not broader, legal responsibility for the conduct of treatment and surgery within
its facility by its accredited physician or surgeon, regardless of whether he is independent or employed." 33

The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable of acting
only through other individuals, such as physicians. If these accredited physicians do their job well, the hospital
succeeds in its mission of offering quality medical services and thus profits financially. Logically, where
negligence mars the quality of its services, the hospital should not be allowed to escape liability for the acts of
its ostensible agents.
We now proceed to the doctrine of corporate negligence or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI as owner,
operator and manager of Medical City Hospital, "did not perform the necessary supervision nor exercise
diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing staff, resident doctors, and medical
interns who assisted Drs. Ampil and Fuentes in the performance of their duties as surgeons." Premised on the
34

doctrine of corporate negligence, the trial court held that PSI is directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem of allocating
hospital‘s liability for the negligent acts of health practitioners, absent facts to support the application of
respondeat superior or apparent authority. Its formulation proceeds from the judiciary‘s acknowledgment that in
these modern times, the duty of providing quality medical service is no longer the sole prerogative and
responsibility of the physician. The modern hospitals have changed structure. Hospitals now tend to organize a
highly professional medical staff whose competence and performance need to be monitored by the hospitals
commensurate with their inherent responsibility to provide quality medical care. 35

Page | 119
The doctrine has its genesis in Darling v. Charleston Community Hospital. There, the Supreme Court of
36

Illinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a sufficient number
of trained nurses attending the patient; failing to require a consultation with or examination by members of the
hospital staff; and failing to review the treatment rendered to the patient." On the basis of Darling, other
jurisdictions held that a hospital‘s corporate negligence extends to permitting a physician known to be
incompetent to practice at the hospital. With the passage of time, more duties were expected from hospitals,
37

among them: (1) the use of reasonable care in the maintenance of safe and adequate facilities and equipment;
(2) the selection and retention of competent physicians; (3) the overseeing or supervision of all persons who
practice medicine within its walls; and (4) the formulation, adoption and enforcement of adequate rules and
policies that ensure quality care for its patients. Thus, in Tucson Medical Center, Inc. v. Misevich, it was held
38 39

that a hospital, following the doctrine of corporate responsibility, has the duty to see that it meets the standards
of responsibilities for the care of patients. Such duty includes the proper supervision of the members of its
medical staff. And in Bost v. Riley, the court concluded that a patient who enters a hospital does so with the
40

reasonable expectation that it will attempt to cure him. The hospital accordingly has the duty to make a
reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing
in its premises.
In the present case, it was duly established that PSI operates the Medical City Hospital for the purpose and
under the concept of providing comprehensive medical services to the public. Accordingly, it has the duty to
exercise reasonable care to protect from harm all patients admitted into its facility for medical treatment.
Unfortunately, PSI failed to perform such duty. The findings of the trial court are convincing, thus:
x x x PSI‘s liability is traceable to its failure to conduct an investigation of the matter reported in the nota bene
of the count nurse. Such failure established PSI‘s part in the dark conspiracy of silence and concealment about
the gauzes. Ethical considerations, if not also legal, dictated the holding of an immediate inquiry into the events,
if not for the benefit of the patient to whom the duty is primarily owed, then in the interest of arriving at the
truth. The Court cannot accept that the medical and the healing professions, through their members like
defendant surgeons, and their institutions like PSI‘s hospital facility, can callously turn their backs on and
disregard even a mere probability of mistake or negligence by refusing or failing to investigate a report of such
seriousness as the one in Natividad‘s case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the Medical
City Hospital‘s staff, composed of resident doctors, nurses, and interns. As such, it is reasonable to conclude
that PSI, as the operator of the hospital, has actual or constructive knowledge of the procedures carried out,
particularly the report of the attending nurses that the two pieces of gauze were missing. In Fridena v. Evans, it 41

was held that a corporation is bound by the knowledge acquired by or notice given to its agents or officers
within the scope of their authority and in reference to a matter to which their authority extends. This means that
the knowledge of any of the staff of Medical City Hospital constitutes knowledge of PSI. Now, the failure of
PSI, despite the attending nurses‘ report, to investigate and inform Natividad regarding the missing gauzes
amounts to callous negligence. Not only did PSI breach its duties to oversee or supervise all persons who
practice medicine within its walls, it also failed to take an active step in fixing the negligence committed. This
renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article 2180 of the Civil Code,
but also directly liable for its own negligence under Article 2176. In Fridena, the Supreme Court of Arizona
held:
x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded. The emerging
trend is to hold the hospital responsible where the hospital has failed to monitor and review medical services
being provided within its walls. See Kahn Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977).
Among the cases indicative of the ‗emerging trend‘ is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335
(1972). In Purcell, the hospital argued that it could not be held liable for the malpractice of a medical
practitioner because he was an independent contractor within the hospital. The Court of Appeals pointed out
Page | 120
that the hospital had created a professional staff whose competence and performance was to be monitored and
reviewed by the governing body of the hospital, and the court held that a hospital would be negligent where it
had knowledge or reason to believe that a doctor using the facilities was employing a method of treatment or
care which fell below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain inherent
responsibilities regarding the quality of medical care furnished to patients within its walls and it must meet the
standards of responsibility commensurate with this undertaking. Beeck v. Tucson General Hospital, 18 Ariz.
App. 165, 500 P. 2d 1153 (1972). This court has confirmed the rulings of the Court of Appeals that a hospital
has the duty of supervising the competence of the doctors on its staff. x x x.
x x x x x x
In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital with its
knowledge, aid, and assistance, and that the negligence of the defendants was the proximate cause of the
patient‘s injuries. We find that such general allegations of negligence, along with the evidence produced at the
trial of this case, are sufficient to support the hospital‘s liability based on the theory of negligent supervision."
Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for damages, let it be emphasized
that PSI, apart from a general denial of its responsibility, failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the accreditation and supervision of the latter. In neglecting to offer
such proof, PSI failed to discharge its burden under the last paragraph of Article 2180 cited earlier, and,
therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover, as we have discussed, PSI is also
directly liable to the Aganas.
One final word. Once a physician undertakes the treatment and care of a patient, the law imposes on him certain
obligations. In order to escape liability, he must possess that reasonable degree of learning, skill and experience
required by his profession. At the same time, he must apply reasonable care and diligence in the exercise of his
skill and the application of his knowledge, and exert his best judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of Appeals in
CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
SO ORDERED.

Page | 121
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 183198 November 25, 2009
LUZ PALANCA TAN, Petitioner,
vs.
JAM TRANSIT, INC., Respondent.
DECISION
NACHURA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking the reversal of the
1

Decision dated June 2, 2008 of the Court of Appeals (CA) in CA-G.R. CV No. 89046 and the reinstatement of
2

the Decision dated December 20, 2006 of the Regional Trial Court (RTC), Branch 27, Santa Cruz, Laguna in
3

Civil Case No. SC-3838.

The antecedents are as follows—
In her Complaint, petitioner Luz Palanca Tan (Tan) alleged that she was the owner of a passenger-type jitney
with plate number DKF-168. On March 14, 1997, at around 5:00 a.m., the said jitney figured in an accident at
an intersection along Maharlika Highway, Barangay Bangyas, Calauan, Laguna, as it collided with a JAM
Transit passenger bus bound for Manila, bearing plate number DVG-557 and body number 8030. The bus was
driven by Eddie Dimayuga (Dimayuga).
At the time of the collision, Tan‘s jitney was loaded with quail eggs and duck eggs (balot and salted eggs). It
was driven by Alexander M. Ramirez (Ramirez). Tan alleged that Dimayuga was reckless, negligent,
imprudent, and not observing traffic rules and regulations, causing the bus to collide with the jitney which was
then, with care and proper light direction signals, about to negotiate a left turn towards the feeder or barangay
road of Barangay Bangyas, Calauan, Laguna going to the Poblacion. The jitney turned turtle along the shoulder
of the road and the cargo of eggs was destroyed. Ramirez and his helper were injured and hospitalized,
incurring expenses for medical treatment at the Pagamutang Pangmasa in Bay, Laguna. Tan prayed for damages
in the amount of ₱400,000.00 for the damaged jitney, ₱142,210.00 for the destroyed shipment, ₱20,000.00 for
moral damages, attorney‘s fees of ₱20,000.00 plus ₱1,000.00 per court appearance of counsel, and other reliefs
warranted under the premises.
In its Answer with Counterclaim, respondent JAM Transit, Inc. (JAM) admitted ownership of the subject
passenger bus and that Dimayuga was under its employ. However, it denied the allegations in the Complaint,
and claimed that the accident occurred due to the gross negligence of Ramirez. As counterclaim, JAM sought
payment of ₱100,000.00 for the damages sustained by the bus, ₱100,000.00 for loss of income, and ₱50,000.00
as attorney‘s fees plus ₱3,000.00 per court appearance of counsel.
After pretrial, trial on the merits ensued.
Tan proffered testimonial evidence, summarized by the RTC, and quoted by the CA, as follows:
LUZ PALANCA TAN, 47 years old, married, a resident of Sta. Cruz, Laguna and a businesswoman, testified to
the facts stated in the complaint that: She is engaged in the business of nets and ropes, and egg dealership based
[in] Santa Cruz, Laguna. She supplies her products to her customers [in] San Pablo and Lucena. On March 14,
1997, while at home, she was informed by her husband that one of their jeepneys, which was loaded with eggs,
was bumped by a JAM Transit bus when the latter overtook the jeepney. The vehicle was driven by one
Alexander Ramirez, who has one "Monching" as a companion. As a result of the accident, she incurred
damages in the amount of ₱650,000.00 based on the following computation: ₱400,000.00 as actual damage
sustained by the jeepney, from an estimate (Exhibit "D") furnished by Plantilla Motors; ₱142,000.00 for the lost
Page | 122
value of the egg shipment, based on a certification issued by the Calauan Police Station; and ₱15,000.00, for the
hospitalization and treatment of the driver and his companion. The jeepney is duly registered as evidenced by its
registration receipt (Exhibit "G"). On cross examination, she testified that Ramirez, the jeepney driver when the
accident occurred, was under her employ since 1993 and is still working for her.
On redirect, the plaintiff testified that prior to March 13, 1997, the day the accident happened, Ramirez has not
met any vehicular accident and that it was only in the aforestated date when he figured in one. On re-cross, she
testified that she has no knowledge of Ramirez‘ prior experience as a driver. She did not ask Ramirez for his
NBI or police clearance prior to her hiring the said driver. On additional redirect, the plaintiff testified that she
is satisfied with the performance of Ramirez as a driver as he is kind.
ALEXANDER RAMIREZ, 35 years old, married, resident of Sta. Cruz, Laguna, and a driver testified that: He
knows the plaintiff Luz Palanca Tan because she is his manager. He worked for her as a driver sometime in
1993. He sometimes drove a jeepney or a truck.
On March 13, 1997, at around 4:00 o‘clock in the morning, he reported for work at his employer‘s warehouse
located [in] Pagsawitan, Sta. Cruz. He got the passenger jeep loaded with salted eggs, "balot" and quail eggs for
delivery to Lucena City upon instruction of Tan. In going to Lucena City, he chose to drive on the Maharlika
Road at San Isidro, Brgy. Bangyas, Calauan, Laguna because it is better than the road along Brgy. Dayap of the
same municipality. However, while at the Maharlika Road, he met an accident at around 5:00 a.m. The jitney
turned turtle.
PO3 DANIEL C. ESCARES, 37 years old, married, resident of Calauan, Laguna, and a member of PNP-
Calauan, Laguna, testified that: He was on police duty as of March 14, 1997. On that day, he issued a
certification (Exhibit "B") pertaining to a vehicular accident which occurred earlier. He came to know of the
accident as relayed to their office by a concerned citizen. He proceeded to the place of the accident, which was
at Maharlika Highway, in an intersection at Brgy. Bangyas, Calauan, Laguna for an investigation. Upon
reaching the place, as a rule followed by police officers, he inquired from some of the residents about the
incident. As relayed to him, the jeepney with Plate No. 168 was going towards the direction of San Isidro,
followed by another jeepney, a truck and then by a JAM Transit bus. The bus overtook the jeepney it was
following then side swept the jeepney (which figured in the accident) dragging it along ("nakaladkad") towards
the sampaguita gardens. [NOTE: The testimony of the witness regarding the information gathered was ordered
by the Court to be deleted.] Then, he went personally to the place where the incident happened.
He stated it was cloudy that day. He described the highway where the incident happened as having a double
straight yellow line which prohibits overtaking on both sides of the road. The said place is near the intersection
of Maharlika Highway and the barangay road leading to Brgy. San Isidro.
On cross examination, he stated he cannot remember if he was with other police officers during the
investigation of the incident but he can recall having interviewed a certain Mercy Ponteiros and one Rodel, who
are both residents of the place.
On redirect, he stated that the witness Mercy Ponteiros is still residing at Brgy. Bangyas[.]
On additional direct examination, he stated that the accident site is still fresh in his mind and he drew a sketch
(Exhibit "F" to "F-7") of the said place. He identified in the sketch the direction of the highway which leads to
Manila and to Sta. Cruz, Laguna. The road, per his approximation, was about 10 meters wide, with the shoulder
about 5 meters except that it was diminished to about 2 meters on account of some encroachment. The highway
has a painted crosswalk. It also has a yellow line without any cut which means no vehicle could overtake from
both sides of the road. He showed in the sketch the spot where the jitney and the bus were at the time of the
incident. Shown the photographs (Exhibits "E" to "E-6"), he stated that they are truly reflective of the scene of
the incident, the damages in both the jeepney and the bus, as of March 13, 1997.
On cross, he stated that what he saw was the situation after the incident. He came to learn of the accident at
around 5:10 in the morning from a report received by their office, as relayed by a concerned citizen. He

Page | 123
remembers that SPO4 Rogelio Medina, now retired, as one of his companions at the accident site. The site is
about a kilometer away from their police station. He can recall the scene of the incident because of the
photographs. The persons he investigated were the jitney driver, his "pahinante" (helper) and some people in the
vicinity. He could not remember the names of those persons but they were listed in the police blotter.
RODRIGO CONDINO, 38 years old, married, resident of Victoria, Laguna and a mechanic, testified that: He is
a mechanic of Plantilla Motors at Bubucal, Sta. Cruz, Laguna. He knows the plaintiff Luz Tan as he and his
chief (mechanic) repaired the jeepney owned by the latter after it figured in an accident on March 13, 1997. He
came to know of the accident when the said vehicle was brought to their motor shop. They made an estimate
(Exhibit "D") of the damage sustained by the said vehicle, which amounted to ₱450,000.00. 4

Tan also formally offered as exhibits the following documents:

Exhibit "A" - Articles of Incorporation of JAM Transit, Inc.;
Exhibit "B" - Certification issued by the Calauan Municipal Police Station regarding the vehicular
accident;
Exhibit "C" - PNP-Calauan Police Report regarding the jitney shipment;
Exhibit "D" - Estimate of damages sustained by the jitney, from A. Plantilla Motors Repair Shop;
Exhibit "E" - Six (6) photographs depicting the site of the vehicular accident;
Exhibit "F" - Four (4) pages of receipts representing hospital and medical expenses paid by the plaintiff
for injuries sustained by her driver and helper in the accident;
Exhibit "G" - Certificate of Registration of plaintiff‘s jitney;
Exhibit "H" - Driver‘s license of Eddie Dimayuga, defendant‘s bus driver;
Exhibit "I" - Sketch of the site where the vehicular accident occurred. 5

On the other hand, JAM offered the following testimonial evidence –

EDGARDO DIMAYUGA, 49 years old, married, resident of Sta. Cruz, Laguna and bus driver of JAM Transit
Inc., testified that: He has been a passenger bus driver since 1983. He was previously employed with the
Batangas Laguna Tayabas Bus Company (BLTB). He was employed with JAM Transit since 1992. He has a
professional driver‘s license, D-12-78-008462562.
On March 14, 1997, he reported for work. He met an accident while driving a bus. The other vehicle involved, a
jitney, belongs to Luz Palanca Tan and driven by Alexander Ramirez. The accident happened along the
intersection of Maharlika Highway, Brgy. Bangyas at around 5:00 o‘clock in the morning. He was driving the
bus with a speed of 40 km/h when suddenly, a vehicle overtook the bus from the right side going to Calauan. He
was not able to evade the vehicle as there was no way for him to do so. The front portion of the bus and the
mirror were destroyed.
On cross examination, he stated that his route as of March 14, 1997 was Sta. Cruz-Lawton. He cannot recall the
bus conductor who was on Bangyas, Calauan. He stated he was not able to evade the jitney as there was no way
for him to avoid the situation, causing the jitney to be dragged to the side. Nothing else happened after the bus
hit the jeepney. He and other persons took the driver from the jeepney and brought him to a hospital.
On redirect, he stated that bus conductors change duties every two or three days. 6

JAM did not offer any documentary counter-evidence.

Applying the doctrine of res ipsa loquitur, the RTC found the JAM passenger bus driver at fault as he was then
violating a traffic regulation when the collision took place. Thus, the RTC ruled in favor of Tan and disposed as
follows—
WHEREFORE, judgment is hereby rendered against the defendants who are hereby adjudged to pay the
plaintiff jointly and solidarily, the following:
Page | 124
 1. actual damages of ₱142,210.00 for the lost and damaged cargoes; ₱400,000.00 for the destroyed
jitney; ₱1,327.00 medical expenses of the jitney driver and his companion, for a total amount of
[₱543,537.00];
2. ₱10,000.00 as moral damages;
3. ₱10,000.00 as attorney‘s fees[;]
4. Costs of suit[.]
SO ORDERED. 7

Aggrieved, JAM appealed to the CA. The CA granted the appeal and dismissed the complaint on the ground
that there was nothing on record that supported the RTC‘s finding that the JAM passenger bus was overtaking
Tan‘s jitney. The CA noted that Ramirez only testified that, on March 14, 1997, he met an accident at around
5:00 a.m., while transporting eggs along Maharlika Road in San Isidro, Barangay Bangyas, Calauan, Laguna,
causing the jitney he was driving to turn turtle. The CA also observed that the Certification (Exhibit "B") made
no mention that the JAM passenger bus was overspeeding or that it was overtaking the jitney; and, thus, there
was no evidence as to who between Ramirez and Dimayuga was negligent in connection with the vehicular
accident. The CA held that the doctrine of res ipsa loquitur can only be invoked when direct evidence is
nonexistent or not accessible. It further said that Tan had access to direct evidence as to the precise cause of the
mishap, such that the circumstances of the vehicular accident or the specific act constituting the supposed
negligence of Dimayuga could have been testified to by Ramirez or by the latter‘s companion. The CA
concluded that res ipsa loquitur could not apply in this case because the doctrine does not dispense with the
requirement of establishing proof of negligence.
Hence, this petition, with petitioner positing that the doctrine of res ipsa loquitur is applicable given the
circumstances of the case.
Res ipsa loquitur is a Latin phrase that literally means "the thing or the transaction speaks for itself." It 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 plaintiff‘s prima facie case, and present
a question of fact for defendant to meet with an explanation. Where the thing that caused the injury complained
of is shown to be under the management of the defendant or his servants; and the accident, in the ordinary
course of things, would not happen if those who had management or control used proper care, it affords
reasonable evidence -- in the absence of a sufficient, reasonable and logical explanation by defendant -- that the
accident arose from or was caused by the defendant‘s want of care. This rule is grounded on the superior logic
of ordinary human experience, and it is on the basis of such experience or common knowledge that negligence
may be deduced from the mere occurrence of the accident itself. Hence, the rule is applied in conjunction with
the doctrine of common knowledge. 8

However, res ipsa loquitur is not a rule of substantive law and does not constitute an independent or separate
ground for liability. Instead, it is considered as merely evidentiary, a mode of proof, or a mere procedural
convenience, since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing a specific
proof of negligence. In other words, mere invocation and application of the doctrine do not dispense with the
requirement of proof of negligence. It is simply a step in the process of such proof, permitting plaintiff to
present, along with the proof of the accident, enough of the attending circumstances to invoke the doctrine,
creating an inference or presumption of negligence, and thereby placing on defendant the burden of going
forward with the proof. Still, before resort to the doctrine may be allowed, the following requisites must be
9

satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of someone‘s 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. 10

Page | 125
Was petitioner able to establish the above requisites? We answer in the affirmative. We do not subscribe to the
finding of the CA that petitioner had direct access to the evidence surrounding the accident, but since she failed
to present it, the doctrine would not operate to apply. While Ramirez took the witness stand, he was only able to
testify that he drove along Maharlika Highway in San Isidro, Barangay Bangyas, Calauan, Laguna, Tan‘s
passenger jitney loaded with salted eggs, balot and quail eggs for delivery at around 5:00 a.m. when he met an
accident, causing the vehicle to turn turtle. Obviously, Ramirez had no vivid recollection of how the passenger
jitney was actually hit by the JAM passenger bus. Further, for some unknown reasons, the other possible
eyewitnesses to the mishap were not available to testify. With the dearth of testimonial or direct evidence,
should petitioner now be left without remedy? The answer is NO.
We cannot agree with the CA when it said that how the incident happened could not be established, neither
from the photographs offered in evidence in favor of petitioner, nor from the Certification that quoted an
11

excerpt from the records on the Police Blotter of the Calauan Municipal Police Station. The CA, likewise,
discounted the probative value of the Police Blotter because, although prepared in the regular performance of
official duty, it was not conclusive proof of the truth of its entries, since police blotters are usually incomplete
and inaccurate; and sometimes based on partial suggestion, inaccurate reporting and hearsay. 12

It is worth noting, however, that photographs are in the nature of physical evidence -- a mute but eloquent
13

manifestation of truth ranking high in the hierarchy of trustworthy evidence. When duly verified and shown by
14

extrinsic evidence to be faithful representations of the subject as of the time in question, they are, in the
discretion of the trial court, admissible in evidence as aids in arriving at an understanding of the evidence, the
situation or condition of objects or premises, or the circumstances of an accident. 15

The photographs proffered by petitioner indeed depicted the relative positions of her jitney and of the JAM
16

passenger bus immediately after the accident took place. An examination of the photographs would readily
show that the highway where the accident occurred was marked by two yellow continuous parallel lines at the
center, separating the right lane from the left. Based on evidence, the JAM passenger bus was moving along the
highway towards Manila, and the jitney was going along the same route, until it was about to turn left to the
barangay road towards the Poblacion. After the incident, the photographs would show that both vehicles were
found on the opposite lane of the highway. The front right portion of the bus was shown to have collided with or
hit the left portion of the jitney with such an impact, causing the latter to turn turtle with extensive damage,
injuring its driver and his companion, and completely destroying its cargo. 17

Although the person who took the pictures was not able to testify because he predeceased the trial, Senior
Police Officer II Daniel Escares (Escares) was recalled to the witness stand to authenticate the said pictures. He
testified that the pictures were faithful representations of the circumstances immediately after the
accident. Escares also made an appropriately labeled sketch of the situation after the collision, and testified as
18 19

to the physical circumstances thereof, including the width of the road and the road shoulder, especially the
double yellow lines at the center of the highway. 20

As regards police blotters, it should be remembered that although they are of little probative value, they are
nevertheless admitted and considered in the absence of competent evidence to refute the facts stated therein.
Entries in police records made by a police officer in the performance of a duty especially enjoined by law are
prima facie evidence of the facts therein stated, and their probative value may be either substantiated or nullified
by other competent evidence. In this case, the Certification, whose entries were adopted from the police
21 22

blotter of the Calauan Municipal Police Station, the sketch prepared by Escares, and the photographs, taken
23

together would prove that the jitney and the bus were going along the same way; that the jitney was about to
negotiate the intersection going to the left towards the feeder road in the direction of the Poblacion; and that the
bus hit the left-turning jitney causing the smaller vehicle to turn turtle.
Indeed, no two motor vehicles traversing the same lane of a highway with double yellow center lines will
collide as a matter of course, both ending up on the opposite lane, unless someone is negligent. Dimayuga was
driving the JAM passenger bus which, from the evidence adduced, appears to have precipitated the collision
with petitioner‘s jitney. Driving the bus gave Dimayuga exclusive management and control over it. Despite the
Page | 126
claim of JAM to the contrary, no contributory negligence could be attributed to Ramirez relative to the incident
on the basis of the available evidence. Inevitably, the requisites being present, the doctrine of res ipsa loquitur
applies.
We, thus, quote with concurrence the findings of the RTC—
As both parties are asserting claim for the damages each has respectively sustained from the subject collision,
the negligence of either driver of the bus or of the jitney must be shown, and the burden to prove the negligence,
by preponderance of evidence, lies upon both who are alleging the other‘s negligence. Preponderance of
evidence is "evidence as a whole which is superior to that of the defendant {or the other}" [Pacific Banking
Employees Organization vs. CA, 286 SCRA 495].
To prove negligence of the bus driver, plaintiff relies heavily upon the testimony of PO3 DANIEL C.
ESCARES, who identified the police report of the incident [Exhibit "B"] as well as the sketch of the site
[Exhibit "I"] and the pictures taken as reflective of the scene of the incident [Exhibits "E" with sub-markings],
invoking [in plaintiff‘s memorandum] the application of the doctrine of "res ipsa loquitor."
From the said exhibits, the plaintiff postulates that her jitney then being driven by Alexander Ramirez, as well
as the bus driven by defendant Dimayuga were heading the same direction towards Manila, but when the jitney
was about to negotiate the left side road intersection towards the feeder/Barangay road of Brgy. Bangyas,
Calauan, Laguna, it was bumped by the oncoming/overtaking bus driven by Dimayuga, that caused the jitney to
turn turtle at the road shoulder causing damages on the jitney, the cargoes and injuries to the jitney driver and
his companion. It was allegedly improper for the bus to overtake as the road bears a double yellow line at the
middle which prohibits overtaking.
On the other hand, the bus driver who is the lone witness/evidence for the defendant testified he was driving at
the Maharlika Highway at 40 km/hr when the jitney "overtook" from the right and that there was no way for
him to evade the latter so it was dragged to the side [TSN, May 18, 2006, p. 13]. In its memorandum,
defendants postulate that it was the jitney driver who was negligent as it overtook the bus from the right which
is not proper. Plaintiff allegedly could not claim damages for its failure to prove the bus driver‘s negligence, and
it was the jitney‘s own negligence that is the proximate cause of his injury.
No direct evidence was presented with respect to the exact road position of the bus and the jitney at the time of
the collision such that the same can only be inferred from the pictures of the colliding vehicles taken
immediately after the incident [Exhibits "E"].
At this juncture, it was established from exhibits "E-5" and "E-6" that the jitney‘s left side portion was directly
hit by the front-right portion of the bus. This is consistent with the plaintiff‘s theory that the jitney was then
negotiating the left portion of the road when it was hit by the oncoming bus causing the jitney to have a 90-
degree turn around. The bus and the jitney were almost perpendicular to each other when the collision took
place, with the bus directly hitting the jitney head on.
The statement of the bus driver that the jitney "overtook" from the right only presumes that at the point of
collision, the bus was at the left lane of the road overtaking the vehicle/s at the right. This scenario, in fact, was
affirmed by the police report of the incident [Exhibit "B"]. It is not quite logical that the jitney, in allegedly
overtaking the bus from the right came from the right shoulder of the road, a rough road merely 5 meters in
width [Exhibit "F"] and even diminished by two (2) meters because of the encroachment at the sides [TSN, 11-
6-02]. No evidence was shown that the jitney came from the right shoulder. The jitney then loaded with eggs for
delivery, was about to negotiate the left lane towards the feeder/barangay road intersection, and it would be
illogical in such a situation that the jitney driver would take the right shoulder. The foregoing suggest the fact
that the bus overtook the passing vehicles at the right lane and in the course thereof, the jitney in front that was
about to negotiate the left lane, was hit.
24

Verily, although there was no direct evidence that the JAM passenger bus was overtaking the vehicles running
along the right lane of the highway from the left lane, the available evidence readily points to such fact. There

Page | 127
were two continuous yellow lines at the center of the highway, which meant that no vehicle in the said area
should overtake another on either side of the road. The "double yellow center lines" regulation, which this Court
takes judicial notice of as an internationally recognized pavement regulation, was precisely intended to avoid
accidents along highways, such as what happened in this case. This prohibition finds support in Republic Act
(R.A.) No. 4136 (Land Transportation and Traffic Code), Section 41(e). Furthermore, it is observed that the
25

area of collision was an intersection. Section 41(c) of R.A. No. 4136, likewise, prohibits overtaking or passing
26

any other vehicle proceeding in the same direction at any intersection of highways, among others. Thus, by
overtaking on the left lane, Dimayuga was not only violating the "double yellow center lines" regulation, but
also the prohibition on overtaking at highway intersections. Consequently, negligence can be attributed only to
him, which negligence was the proximate cause of the injury sustained by petitioner. This prima facie finding of
negligence was not sufficiently rebutted or contradicted by Dimayuga. Therefore, a finding that he is liable for
damages to petitioner is warranted.1avvphi1
The liability of Dimayuga is solidary with JAM, pursuant to Article 2176, in relation to Article 2180 of the
Civil Code of the Philippines, which provides—
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence is obliged to
pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this Chapter.
Art. 2180. The obligation imposed by Article 2176 is demandable not only for one‘s own acts or omissions, but
also for those of persons for whom one is responsible.
xxxx
Employers shall be liable for the damages caused by their employees and household helpers acting within the
scope of their assigned tasks, even though the former are not engaged in any business or industry.
xxxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damage.
Whenever an employee‘s negligence causes damage or injury to another, there instantly arises a presumption
juris tantum that the employer failed to exercise diligentissimi patris families in the section (culpa in eligiendo)
or supervision (culpa in vigilando) of its employees. To avoid liability for a quasi-delict committed by its
27

employee, an employer must overcome the presumption, by presenting convincing proof that he exercised the
care and diligence of a good father of a family in the selection and supervision of his employee. 28

In this case, aside from the testimony of Dimayuga, JAM did not present any other evidence, whether
documentary or testimonial, in its favor. Inevitably, the presumption of its negligence as Dimayuga‘s employer
stands and it is, thus, solidarily liable for the damages sustained by petitioner.
As regards the award for actual damages, we, however, concur with respondent that the award of ₱400,000.00
for the damage to the jitney is not warranted, considering that the evidence submitted to support this claim was
merely an estimate made by A. Plantilla Motors. The same reason holds true with respect to the amount of
damages for the destroyed cargo of eggs, considering that the document submitted by petitioner to support the
claim of ₱142,210.00 was merely a Certification, as the information found thereon was supplied by petitioner
29

herself per the number of pieces of the different eggs and the corresponding price per piece.
To warrant an award of actual or compensatory damages for repair to damage sustained, the best evidence
should be the receipts or other documentary proofs of the actual amount expended. However, considering that
30

it was duly proven that the jitney was damaged and had to be repaired, as it was repaired, and that the cargo of
eggs was indeed destroyed, but the actual amounts expended or lost were not proven, we deem it appropriate to
award ₱250,000.00 by way of temperate damages. Under Article 2224 of the Civil Code, temperate damages
may be recovered when pecuniary loss has been suffered but its amount cannot be proved with certainty. We, 31

Page | 128
however, sustain the trial court‘s award of ₱1,327.00 as regards the medical expenses incurred by petitioner, the
same being duly supported by receipts. 32

The award of ₱10,000.00 as moral damages, ₱10,000.00 as attorney‘s fees, and the costs of suit are sustained,
the same being in order and authorized by law. Although the basis for the award of attorney‘s fees was not
indicated in the trial court‘s Decision, we deem it justified as petitioner was compelled to litigate before the
courts and incur expenses in order to vindicate her rights under the premises.33

WHEREFORE, the petition is GRANTED. The Decision dated June 2, 2008 of the Court of Appeals in CA-
G.R. CV No. 89046 is REVERSED and SET ASIDE. The Decision dated December 20, 2006 of the Regional
Trial Court, Branch 27, Sta. Cruz, Laguna in Civil Case No. SC-3838 is REINSTATED with the
MODIFICATION that the award of actual damages is reduced to ₱1,327.00, and, in lieu of actual damages with
respect to the damage or loss sustained with respect to the passenger jitney and the cargo of eggs, the amount of
₱250,000.00 is awarded by way of temperate damages. SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 155604 November 22, 2007
COLLEGE ASSURANCE PLAN and COMPREHENSIVE ANNUITY PLAN and PENSION
CORPORATION,petitioners,
vs.
BELFRANLT DEVELOPMENT INC., respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the
February 28, 2002 Decision of the Court of Appeals (CA) in CA-G.R. CV No. 63283, which modified the April
1

14, 1999 Decision of the Regional Trial Court (Branch 221), Quezon City (RTC) in Civil Case No. Q-95-
2

23118.
The antecedent facts are as summarized by the RTC.
Belfranlt Development, Inc. (respondent) is the owner of Belfranlt Building in Angeles City, Pampanga. It
leased to petitioners College Assurance Plan Phil., Inc. (CAP) and Comprehensive Annuity Plans and Pension
Corporation (CAPP) several units on the second and third floors of the building. 3

On October 8, 1994, fire destroyed portions of the building, including the third floor units being occupied by
petitioners. An October 20, 1994 field investigation report by an unnamed arson investigator assigned to the
case disclosed:
0.5 Origin of Fire: Store room occupied by CAP, located at the 3rd floor of the bldg.
0.6 Cause of Fire: Accidental (overheated coffee percolator). 4

These findings are reiterated in the October 21, 1994 certification which the BFP City Fire Marshal, Insp.
Teodoro D. del Rosario issued to petitioners as supporting document for the latter's insurance claim. 5

Citing the foregoing findings, respondent sent petitioners on November 3, 1994 a notice to vacate the leased
premises to make way for repairs, and to pay reparation estimated at P1.5 million.
On November 11, 1994, petitioners vacated the leased premises, including the units on the second floor, but6

they did not act on the demand for reparation.

Page | 129
Respondent wrote petitioners another letter, reiterating its claim for reparation, this time estimated by
professionals to be no less than P2 million. It also clarified that, as the leased units on the second floor were not
7

affected by the fire, petitioners had no reason to vacate the same; hence, their lease on said units is deemed still
subsisting, along with their obligation to pay for the rent.
8

In reply, petitioners explained that they could no longer re-occupy the units on the second floor of the building
for they had already moved to a new location and entered into a binding contract with a new lessor. Petitioners
also disclaimed liability for reparation, pointing out that the fire was a fortuitous event for which they could not
be held responsible.9

After its third demand went unheeded, respondent filed with the RTC a complaint against petitioners for
10

damages. The RTC rendered a Decision dated April 14, 1999, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff [respondent]
and against the herein defendants [petitioners]. Defendants are ordered to pay the plaintiff joint[sic] and
severally the following amounts:
1) P2.2 Million Pesos cost of rehabilitation (repairs, replacements and renovations) of the
Belfranlt building by way of Actual and Compensatory damages;
2) P14,000.00 per month of unpaid rentals on the third floor of the Belfranlt building for the
period from October 1994 until the end of the two year lease contract on May 10, 1996 by way
of Actual and Compensatory damages;
3) P18,000.00 per month of unpaid rentals on the second floor of the Belfanlt building for the
period from October 1994 until the end of the two year lease contract on May 10, 1996 by way
of Actual or Compensatory damages;
4) P8,400.00 per month as reimbursement of unpaid rentals on the other leased areas occupied by
other tenants for the period from October 1994 until the time the vacated leased areas were
occupied by new tenants;
5) P200,000.00 as moral damages;
6) P200,000.00 as exemplary damages;
7) P50,000.00 plus 20% of Actual damages awarded as reasonable Attorney's fees; and
8) Costs of suit.
SO ORDERED. 11

Petitioners appealed to the CA which, in its February 28, 2002 Decision, modified the RTC Decision, thus:
WHEREFORE, the appealed decision is MODIFIED in that the award of (i) actual and compensatory
damages in the amounts of P2.2 Million as cost of rehabilitation of Belfranlt Building and P8,400.00 per
month as reimbursement of unpaid rentals on the areas leased by other tenants, (ii) moral damages, (iii)
exemplary damages and (iv) attorney's fees is DELETED, while defendants-appellants are ordered to
pay to plaintiff-appellee, jointly and severally, the amount of P500,000.00 as temperate damages. The
appealed judgment is AFFIRMED in all other respects.
SO ORDERED. 12

Respondent did not appeal from the CA decision. 13

Petitioners filed the present petition, questioning the CA decision on the following grounds:
I
The honorable Court of Appeals erred in not holding that the fire that partially burned respondent's
building was a fortuitous event.

Page | 130
 II
The honorable Court of Appeals erred in holding that petitioner failed to observe the due diligence of a
good father of a family.
III
The honorable Court of Appeals erred in holding petitioners liable for certain actual damages despite
plaintiffs' failure to prove the damage as alleged.
IV
The honorable Court of Appeals erred in holding petitioners liable for temperate damages. 14

The petition lacks merit.

Article 1667 of the Civil Code, which provides:
The lessee is responsible for the deterioration or loss of the thing leased, unless he proves that it took
place without his fault. This burden of proof on the lessee does not apply when the destruction is due to
earthquake, flood, storm or other natural calamity.
creates the presumption that the lessee is liable for the deterioration or loss of a thing leased. To overcome such
legal presumption, the lessee must prove that the deterioration or loss was due to a fortuitous event which took
place without his fault or negligence.15

Article 1174 of the Civil Code defines a fortuitous event as that which could not be foreseen, or which, though
foreseen, was inevitable. Whether an act of god or an act of man, to constitute a fortuitous event, it must be
16 17

shown that: a) the cause of the unforeseen and unexpected occurrence or of the failure of the obligor to comply
with its obligations was independent of human will; b) it was impossible to foresee the event or, if it could have
been foreseen, to avoid it; c) the occurrence rendered it impossible for the obligor to fulfill its obligations in a
normal manner; and d) said obligor was free from any participation in the aggravation of the injury or loss. If18

the negligence or fault of the obligor coincided with the occurrence of the fortuitous event, and caused the loss
or damage or the aggravation thereof, the fortuitous event cannot shield the obligor from liability for his
negligence.19

In the present case, it was fire that caused the damage to the units being occupied by petitioners. The legal
presumption therefore is that petitioners were responsible for the damage. Petitioners insist, however, that they
are exempt from liability for the fire was a fortuitous event that took place without their fault or negligence.20

The RTC saw differently, holding that the proximate cause of the fire was the fault and negligence of petitioners
in using a coffee percolator in the office stockroom on the third floor of the building and in allowing the
electrical device to overheat:
Plaintiff has presented credible and preponderant evidence that the fire was not due to a fortuitous event
but rather was due to an overheated coffee percolator found in the leased premises occupied by the
defendants. The certification issued by the Bureau of Fire Protection Region 3 dated October 21, 1994
clearly indicated that the cause of the fire was an overheated coffee percolator. This documentary
evidence is credible because it was issued by a government office which conducted an investigation of
the cause and circumstances surrounding the fire of October 8, 1994. Under Section 4, Rule 131 of the
Revised Rules of Court, there is a legal presumption that official duty has been regularly performed. The
defendants have failed to present countervailing evidence to rebut or dispute this presumption. The
defendants did not present any credible evidence to impute any wrongdoing or false motives on the part
of Fire Department Officials and Arson investigators in the preparation and finalization of this
certification. This Court is convinced that the Certification is genuine, authentic, valid and issued in the
proper exercise and regular performance of the issuing authority's official duties. The written
certification cannot be considered self-serving to the plaintiff because as clearly indicated on its face the
same was issued not to the plaintiff but to the defendant's representative Mr. Jesus V. Roig for purposes
Page | 131
 of filing their insurance claim. This certification was issued by a government office upon the request of
the defendant's authorized representative. The plaintiff also presented preponderant evidence that the fire
was caused by an overheated coffee percolator when plaintiff submitted in evidence not only
photographs of the remnants of a coffee percolator found in the burned premises but the object evidence
itself. Defendants did not dispute the authenticity or veracity of these evidence. Defendants merely
presented negative evidence in the form of denials that defendants maintained a coffee percolator in the
premises testified to by employees of defendants who cannot be considered totally
disinterested. (Citations omitted)
21

The CA concurred with the RTC and noted additional evidence of the negligence of petitioners:
The records disclose that the metal base of a heating device which the lower court found to be the base
of a coffee percolator, was retrieved from the stockroom where the fire originated. The metal base
contains the inscription "CAUTION DO NOT OPERATE WHEN EMPTY", which is a warning against
the use of such electrical device when empty and an indication that it is a water-heating appliance. Its
being an instrument for preparing coffee is demonstrated by its retrieval from the stockroom,
particularly beside broken drinking glasses, Nescafe bottle, metal dish rack and utensils.
Appellants assert that it had an airpot – not a coffee percolator - near the Administration Office on the
third floor. For unexplained reasons, however, they did not present the airpot to disprove the existence
of the coffee percolator. The fire did not raze the entire third floor and the objects therein. Even the stack
of highly combustible paper on the third floor was not totally gutted by the fire. Consequently, it is not
farfetched that the burnt airpot, if any, could have been recovered by appellants from the area where it
was supposedly being kept.
xxxx
The defense that the fire was a fortuitous event is untenable. It is undisputed that the fire originated from
appellants' stockroom located on the third floor leased premises. Said stockroom was under the control
of appellants which, on that fateful day (a Saturday), conducted a seminar in the training room which
was adjoining the stockroom. Absent an explanation from appellants on the cause of the fire, the
doctrine of res ipsa loquitur applies.22

Petitioners impugn both findings. They claim that the BFP field investigation report (Exh. "P-2") and the BFP
certification (Exh. "P-3") are hearsay evidence because these were presented during the testimony of Fireman
Gerardo Sitchon (Fireman Sitchon) of the Bureau of Fire Protection (BFP), Angeles City, who admitted to
having no participation in the investigation of the fire incident or personal knowledge about said
incident, making him incompetent to testify thereon. Petitioners argue that, with Exh. "P-2" and Exh. "P-3" and
23

the testimony of Fireman Sitchon that are flawed, there is virtually no evidence left that the cause of the fire was
an overheated coffee percolator. Petitioners insist that they own no such percolator. 24

We find no cogent reason to disturb the finding of the RTC and CA.
The finding that the negligence of petitioners was the proximate cause of the fire that destroyed portions of the
leased units is a purely factual matter which we cannot pass upon, lest we overstep the restriction that review
25

by certiorari under Rule 45 be limited to errors of law only. 26

Moreover, the established rule is that the factual findings of the CA affirming those of the RTC are conclusive
and binding on us. We are not wont to review them, save under exceptional circumstances as: (1) when the
27

inference made is manifestly mistaken, absurd or impossible; (2) when there is grave abuse of discretion; (3)
when the findings are grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the
CA is based on misapprehension of facts; (5) when the CA, in making its findings, went beyond the issues of
the case and the same is contrary to the admissions of both appellant and appellee; (6) when the findings of fact
are conclusions without citation of specific evidence on which they are based; (7) when the CA manifestly
overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a

Page | 132
different conclusion; and (8) when the findings of fact of the CA are premised on the absence of evidence and
are contradicted by the evidence on record. 28

The exceptions do not obtain in the present case. In fact, the findings of the RTC and CA are fully supported by
the evidence.
Contrary to petitioners' claim, Fireman Sitchon is competent to identify and testify on Exh. "P-2" and Exh. "P-
3" because, although he did not sign said documents, he personally prepared the same. What Fireman Sitchon
29

did not prepare were the documents which his investigation witnesses presented. However, Fireman Sitchon
30

emphasized that he interviewed said investigation witnesses namely, Ronald Estanislao, the security guard on
duty at the time of fire; and Dr. Zenaida Arcilla, manager of CAPP, before he prepared Exh. "P-2" and Exh. "P-
3." Hence, while Fireman Sitchon may have had no personal knowledge of the fire incident, Exh. "P-2" and
31

Exh. "P-3," which he prepared based on the statements of his investigation witnesses, especially that of Ronald
Estanislao whose official duty it was to report on the incident, are exceptions to the hearsay rule because these
are entries in official records. Consequently, his testimony on said documents are competent evidence of the
32

contents thereof. 33

Furthermore, the petitioners are estopped from contesting the veracity of Exh. "P-3" because, as the CA
correctly pointed out, "the aforesaid certification was used by appellants [petitioners] in claiming insurance for
their office equipment which were destroyed by the fire." 34

Even without the testimony of Fireman Sitchon and the documents he prepared, the finding of the RTC and CA
on the negligence of petitioners cannot be overturned by petitioners' bare denial. The CA correctly applied the
doctrine of res ipsa loquitur under which expert testimony may be dispensed with to sustain an allegation of
35

negligence if the following requisites obtain: a) the accident is of a kind which does not ordinarily occur unless
someone is negligent; b) the cause of the injury was under the exclusive control of the person in charge and c)
the injury suffered must not have been due to any voluntary action or contribution on the part of the person
injured. The fire that damaged Belfranlt Building was not a spontaneous natural occurrence but the outcome of
36

a human act or omission. It originated in the store room which petitioners had possession and control of.
Respondent had no hand in the incident. Hence, the convergence of these facts and circumstances speaks for
itself: petitioners alone having knowledge of the cause of the fire or the best opportunity to ascertain it, and
respondent having no means to find out for itself, it is sufficient for the latter to merely allege that the cause of
the fire was the negligence of the former and to rely on the occurrence of the fire as proof of such
negligence. It was all up to petitioners to dispel such inference of negligence, but their bare denial only left the
37

matter unanswered.
The CA therefore correctly affirmed the RTC in holding petitioners liable to respondent for actual damages
consisting of unpaid rentals for the units they leased.
The CA deleted the award of actual damages of P2.2 million which the RTC had granted respondent to cover
costs of building repairs. In lieu of actual damages, temperate damages in the amount of P500,000.00 were
awarded by the CA. We find this in order. 38

Temperate or moderate damages may be availed when some pecuniary loss has been suffered but its amount
cannot, from the nature of the case, be proved with certainty. The amount thereof is usually left to the
39

discretion of the courts but the same should be reasonable, bearing in mind that temperate damages should be
more than nominal but less than compensatory. Without a doubt, respondent suffered some form of pecuniary
40

loss for the impairment of the structural integrity of its building as a result of the fire. However, as correctly
pointed out by the CA, because of respondent's inability to present proof of the exact amount of such pecuniary
loss, it may only be entitled to temperate damages in the amount of P500,000.00, which we find reasonable and
41

just.
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.

Page | 133
Page | 134
G.R. No. 137873 April 20, 2001

D. M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.

KAPUNAN, J.:

At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc., fell 14
floors from the Renaissance Tower, Pasig City to his death.

PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report dated
November 25, 1990, stating that:

x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he was
pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m.
of the same date.

Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together with
Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s] at the elevator core of the
14th floor of the Tower D, Renaissance Tower Building on board a [p]latform made of channel beam
(steel) measuring 4.8 meters by 2 meters wide with pinulid plywood flooring and cable wires attached to
its four corners and hooked at the 5 ton chain block, when suddenly, the bolt or pin which was merely
inserted to connect the chain block with the [p]latform, got loose xxx causing the whole [p]latform
assembly and the victim to fall down to the basement of the elevator core, Tower D of the building
under construction thereby crushing the victim of death, save his two (2) companions who luckily
jumped out for safety.

It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on board and
performing work, fell. And the falling of the [p]latform was due to the removal or getting loose of the
pin which was merely inserted to the connecting points of the chain block and [p]latform but without a
safety lock.1

On May 9, 1991, Jose Juego‘s widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint for
damages against the deceased‘s employer, D.M. Consunji, Inc. The employer raised, among other defenses, the
widow‘s prior availment of the benefits from the State Insurance Fund.

After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of the RTC
decision reads:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:

1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

3. P464,000.00 for the loss of Jose A. Juego‘s earning capacity.

4. P100,000.00 as moral damages.

Page | 135
 5. P20,000.00 as attorney‘s fees, plus the costs of suit.

SO ORDERED.2

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.

D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

 THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS
ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.

 THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA
LOQUITOR[sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF
PETITIONER.

 THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED

NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND

 THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT

PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE. 3

Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible. The CA
ruled otherwise. It held that said report, being an entry in official records, is an exception to the hearsay rule.

The Rules of Court provide that a witness can testify only to those facts which he knows of his personal
knowledge, that is, which are derived from his perception.4 A witness, therefore, may not testify as what he
merely learned from others either because he was told or read or heard the same. Such testimony is considered
hearsay and may not be received as proof of the truth of what he has learned. 5 This is known as the hearsay rule.

Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies
to written, as well as oral statements.6

The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and
untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light
and exposed by the test of cross-examiantion.7 The hearsay rule, therefore, excludes evidence that cannot be
tested by cross-examination.8

The Rules of Court allow several exceptions to the rule, 9 among which are entries in official records. Section
44, Rule 130 provides:

Entries in official records made in the performance of his duty made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law
are prima facieevidence of the facts therein stated.

In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran, enumerated
the requisites for admissibility under the above rule:

(a) that the entry was made by a public officer or by another person specially enjoined by law to do so;

Page | 136
 (b) that it was made by the public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and

(c) that the public officer or other person had sufficient knowledge of the facts by him stated, which
must have been acquired by him personally or through official information.

The CA held that the police report meets all these requisites. Petitioner contends that the last requisite is not
present.

The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial court.
In Rodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the officer who signed the fire
report also testified before the trial court. This Court held that the report was inadmissible for the purpose of
proving the truth of the statements contained in the report but admissible insofar as it constitutes part of the
testimony of the officer who executed the report.

x x x. Since Major Enriquez himself took the witness stand and was available for cross-examination, the
portions of the report which were of his personal knowledge or which consisted of his perceptions and
conclusions were not hearsay. The rest of the report, such as the summary of the statements of the
parties based on their sworn statements (which were annexed to the Report) as well as the latter, having
been included in the first purpose of the offer [as part of the testimony of Major Enriquez], may then be
considered as independently relevant statements which were gathered in the course of the investigation
and may thus be admitted as such, but not necessarily to prove the truth thereof. It has been said that:

"Where regardless of the truth or falsity of a statement, the fact that it has been made is relevant,
the hearsay rule does not apply, but the statement may be shown. Evidence as to the making of
such statement is not secondary but primary, for the statement itself may constitute a fact in
issue, or be circumstantially relevant as to the existence of such a fact."

When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself
available for cross-examination by the adverse party, the Report, insofar as it proved that certain
utterances were made (but not their truth), was effectively removed from the ambit of the
aforementioned Section 44 of Rule 130. Properly understood, this section does away with the testimony
in open court of the officer who made the official record, considers the matter as an exception to the
hearsay rule and makes the entries in said official record admissible in evidence as prima facie evidence
of the facts therein stated. The underlying reasons for this exceptionary rule are necessity and
trustworthiness, as explained in Antillon v. Barcelon.

The litigation is unlimited in which testimony by officials is daily needed; the occasions in which
the officials would be summoned from his ordinary duties to declare as a witness are numberless.
The public officers are few in whose daily work something is not done in which testimony is not
needed from official sources. Were there no exception for official statements, hosts of officials
would be found devoting the greater part of their time to attending as witnesses in court or
delivering deposition before an officer. The work of administration of government and the
interest of the public having business with officials would alike suffer in consequence. For these
reasons, and for many others, a certain verity is accorded such documents, which is not extended
to private documents. (3 Wigmore on Evidence, Sec. 1631).

The law reposes a particular confidence in public officers that it presumes they will discharge
their several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge

Page | 137
 of their duty may be given in evidence and shall be taken to be true under such a degree of
caution as to the nature and circumstances of each case may appear to require.

It would have been an entirely different matter if Major Enriquez was not presented to testify on his
report. In that case the applicability of Section 44 of Rule 143 would have been ripe for determination,
and this Court would have agreed with the Court of Appeals that said report was inadmissible since the
aforementioned third requisite was not satisfied. The statements given by the sources of information of
Major Enriquez failed to qualify as "official information," there being no showing that, at the very least,
they were under a duty to give the statements for record.

Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the statements
contained therein but is admissible insofar as it constitutes part of the testimony of PO3 Villanueva.

In any case, the Court holds that portions of PO3 Villanueva‘s testimony which were of his personal knowledge
suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva had seen Juego‘s
remains at the morgue,12 making the latter‘s death beyond dispute. PO3 Villanueva also conducted an ocular
inspection of the premises of the building the day after the incident 13 and saw the platform for himself.14 He
observed that the platform was crushed15 and that it was totally damaged.16 PO3 Villanueva also required Garcia
and Fabro to bring the chain block to the police headquarters. Upon inspection, he noticed that the chain was
detached from the lifting machine, without any pin or bolt. 17

What petitioner takes particular exception to is PO3 Villanueva‘s testimony that the cause of the fall of the
platform was the loosening of the bolt from the chain block. It is claimed that such portion of the testimony is
mere opinion. Subject to certain exceptions, 18 the opinion of a witness is generally not admissible. 19

Petitioner‘s contention, however, loses relevance in the face of the application of res ipsa loquitur by the CA.
The effect of the doctrine is to warrant a presumption or inference that the mere fall of the elevator was a result
of the person having charge of the instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa
loquitur 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.20

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or
injury will not generally give rise to an inference or presumption that it was due to negligence on
defendant‘s part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction
speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or
circumstances accompanying an injury may be such as to raise a presumption, or at least permit an
inference of negligence on the part of the defendant, or some other person who is charged with
negligence.

x x x where it is shown that the thing or instrumentality which caused the injury complained of was
under the control or management of the defendant, and that the occurrence resulting in the injury was
such as in the ordinary course of things would not happen if those who had its control or management
used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the
absence of explanation by the defendant, that the injury arose from or was caused by the defendant‘s
want of care.21

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent or not
available.22
Page | 138
 The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to
allege negligence in general terms and to rely upon the proof of the happening of the accident in order to
establish negligence. The inference which the doctrine permits is grounded upon the fact that the chief
evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but
inaccessible to the injured person.

It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without
knowledge of the cause, reaches over to defendant who knows or should know the cause, for any
explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains.
The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in that it proceeds on the
theory that under the peculiar circumstances in which the doctrine is applicable, it is within the power of
the defendant to show that there was no negligence on his part, and direct proof of defendant‘s
negligence is beyond plaintiff‘s power. Accordingly, some court add to the three prerequisites for the
application of the res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine
to apply, it must appear that the injured party had no knowledge or means of knowledge as to the cause
of the accident, or that the party to be charged with negligence has superior knowledge or opportunity
for explanation of the accident.23

The CA held that all the requisites of res ipsa loquitur are present in the case at bar:

There is no dispute that appellee‘s husband fell down from the 14 th floor of a building to the basement
while he was working with appellant‘s construction project, resulting to his death. The construction site
is within the exclusive control and management of appellant. It has a safety engineer, a project
superintendent, a carpenter leadman and others who are in complete control of the situation therein. The
circumstances of any accident that would occur therein are peculiarly within the knowledge of the
appellant or its employees. On the other hand, the appellee is not in a position to know what caused the
accident. Res ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily
available, provided the following requisites are present: (1) the accident was of a kind which does not
ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury
was under the exclusive control of the person charged with negligence; and (3) the injury suffered must
not have been due to any voluntary action or contribution on the part of the person injured. x x x.

No worker is going to fall from the 14th floor of a building to the basement while performing work in a
construction site unless someone is negligent[;] thus, the first requisite for the application of the rule
of res ipsa loquitur is present. As explained earlier, the construction site with all its paraphernalia and
human resources that likely caused the injury is under the exclusive control and management of
appellant[;] thus[,] the second requisite is also present. No contributory negligence was attributed to the
appellee‘s deceased husband[;] thus[,] the last requisite is also present. All the requisites for the
application of the rule of res ipsa loquitur are present, thus a reasonable presumption or inference of
appellant‘s negligence arises. x x x.24

Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues that
the presumption or inference that it was negligent did not arise since it "proved that it exercised due care to
avoid the accident which befell respondent‘s husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the defendant‘s
negligence is presumed or inferred25 when the plaintiff establishes the requisites for the application of res ipsa
loquitur. Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant
Page | 139
to explain.26 The presumption or inference may be rebutted or overcome by other evidence and, under
appropriate circumstances disputable presumption, such as that of due care or innocence, may outweigh the
inference.27 It is not for the defendant to explain or prove its defense to prevent the presumption or inference
from arising. Evidence by the defendant of say, due care, comes into play only after the circumstances for the
application of the doctrine has been established.1âwphi1.nêt

In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the police
investigator as evidence of its due care. According to Fabro‘s sworn statement, the company enacted rules and
regulations for the safety and security of its workers. Moreover, the leadman and the bodegero inspect the chain
block before allowing its use.

It is ironic that petitioner relies on Fabro‘s sworn statement as proof of its due care but, in arguing that private
respondent failed to prove negligence on the part of petitioner‘s employees, also assails the same statement for
being hearsay.

Petitioner is correct. Fabro‘s sworn statement is hearsay and inadmissible. Affidavits are inadmissible as
evidence under the hearsay rule, unless the affiant is placed on the witness stand to testify thereon. 28 The
inadmissibility of this sort of evidence is based not only on the lack of opportunity on the part of the adverse
party to cross-examine the affiant, but also on the commonly known fact that, generally, an affidavit is not
prepared by the affiant himself but by another who uses his own language in writing the affiant‘s statements
which may either be omitted or misunderstood by the one writing them. 29 Petitioner, therefore, cannot use said
statement as proof of its due care any more than private respondent can use it to prove the cause of her
husband‘s death. Regrettably, petitioner does not cite any other evidence to rebut the inference or presumption
of negligence arising from the application of res ipsa loquitur, or to establish any defense relating to the
incident.

Next, petitioner argues that private respondent had previously availed of the death benefits provided under the
Labor Code and is, therefore, precluded from claiming from the deceased‘s employer damages under the Civil
Code.

Article 173 of the Labor Code states:

Article 173. Extent of liability. – Unless otherwise provided, the liability of the State Insurance Fund
under this Title shall be exclusive and in place of all other liabilities of the employer to the employee,
his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his
dependents. The payment of compensation under this Title shall not bar the recovery of benefits as
provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven
hundred sixty-one, as amended, Republic Act Numbered Six hundred ten, as amended, Republic Act
Numbered Forty-eight hundred sixty-four as amended, and other laws whose benefits are administered
by the System or by other agencies of the government.

The precursor of Article 173 of the Labor Code, Section 5 of the Workmen‘s Compensation Act, provided that:

Section 5. Exclusive right to compensation. – The rights and remedies granted by this Act to an
employee by reason of a personal injury entitling him to compensation shall exclude all other rights and
remedies accruing to the employee, his personal representatives, dependents or nearest of kin against the
employer under the Civil Code and other laws because of said injury x x x.

Whether Section 5 of the Workmen‘s Compensation Act allowed recovery under said Act as well as under the
Civil Code used to be the subject of conflicting decisions. The Court finally settled the matter in Floresca
Page | 140
vs.Philex Mining Corporation,30 which involved a cave-in resulting in the death of the employees of the Philex
Mining Corporation. Alleging that the mining corporation, in violation of government rules and regulations,
failed to take the required precautions for the protection of the employees, the heirs of the deceased employees
filed a complaint against Philex Mining in the Court of First Instance (CFI). Upon motion of Philex Mining, the
CFI dismissed the complaint for lack of jurisdiction. The heirs sought relief from this Court.

Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En Banc,31 following
the rule in Pacaña vs. Cebu Autobus Company, held in the affirmative.

WE now come to the query as to whether or not the injured employee or his heirs in case of death have a
right of selection or choice of action between availing themselves of the worker‘s right under the
Workmen‘s Compensation Act and suing in the regular courts under the Civil Code for higher damages
(actual, moral and exemplary) from the employers by virtue of the negligence or fault of the employers
or whether they may avail themselves cumulatively of both actions, i.e., collect the limited
compensation under the Workmen‘s Compensation Act and sue in addition for damages in the regular
courts.

In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company, 32 SCRA 442, ruled
that an injured worker has a choice of either to recover from the employer the fixed amounts set by the
Workmen‘s Compensation Act or to prosecute an ordinary civil action against the tortfeasor for higher
damages but he cannot pursue both courses of action simultaneously. [Underscoring supplied.]

Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the Civil
Code despite having availed of the benefits provided under the Workmen‘s Compensation Act. The Court
reasoned:

With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14, 1968
before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr.,
Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for compensation to the
Regional Office No. 1 of the then Department of Labor and all of them have been paid in full as of
August 25, 1967, except Saturnino Martinez whose heirs decided that they be paid in installments x x x.
Such allegation was admitted by herein petitioners in their opposition to the motion to dismiss dated
may 27, 1968 x x x in the lower court, but they set up the defense that the claims were filed under the
Workmen‘s Compensation Act before they learned of the official report of the committee created to
investigate the accident which established the criminal negligence and violation of law by Philex, and
which report was forwarded by the Director of Mines to then Executive Secretary Rafael Salas in a letter
dated October 19, 1967 only x x x.

WE hold that although the other petitioners had received the benefits under the Workmen‘s
Compensation Act, such my not preclude them from bringing an action before the regular court because
they became cognizant of the fact that Philex has been remiss in its contractual obligations with the
deceased miners only after receiving compensation under the Act. Had petitioners been aware of said
violation of government rules and regulations by Philex, and of its negligence, they would not have
sought redress under the Workmen‘s Compensation Commission which awarded a lesser amount for
compensation. The choice of the first remedy was based on ignorance or a mistake of fact, which
nullifies the choice as it was not an intelligent choice. The case should therefore be remanded to the
lower court for further proceedings. However, should the petitioners be successful in their bid before the
lower court, the payments made under the Workmen‘s Compensation Act should be deducted from the
damages that may be decreed in their favor. [Underscoring supplied.]

Page | 141
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs. Abeleda.34 In
the last case, the Court again recognized that a claimant who had been paid under the Act could still sue under
the Civil Code. The Court said:

In the Robles case, it was held that claims for damages sustained by workers in the course of their
employment could be filed only under the Workmen‘s Compensation Law, to the exclusion of all further
claims under other laws. In Floresca, this doctrine was abrogated in favor of the new rule that the
claimants may invoke either the Workmen‘s Compensation Act or the provisions of the Civil Code,
subject to the consequence that the choice of one remedy will exclude the other and that the acceptance
of compensation under the remedy chosen will preclude a claim for additional benefits under the other
remedy. The exception is where a claimant who has already been paid under the Workmen‘s
Compensation Act may still sue for damages under the Civil Code on the basis of supervening facts or
developments occurring after he opted for the first remedy. (Underscoring supplied.)

Here, the CA held that private respondent‘s case came under the exception because private respondent was
unaware of petitioner‘s negligence when she filed her claim for death benefits from the State Insurance Fund.
Private respondent filed the civil complaint for damages after she received a copy of the police investigation
report and the Prosecutor‘s Memorandum dismissing the criminal complaint against petitioner‘s personnel.
While stating that there was no negligence attributable to the respondents in the complaint, the prosecutor
nevertheless noted in the Memorandum that, "if at all," the "case is civil in nature." The CA thus applied the
exception in Floresca:

x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as early as
November 25, 1990, the date of the police investigator‘s report. The appellee merely executed her sworn
statement before the police investigator concerning her personal circumstances, her relation to the
victim, and her knowledge of the accident. She did not file the complaint for "Simple Negligence
Resulting to Homicide" against appellant‘s employees. It was the investigator who recommended the
filing of said case and his supervisor referred the same to the prosecutor‘s office. This is a standard
operating procedure for police investigators which appellee may not have even known. This may explain
why no complainant is mentioned in the preliminary statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are being charged by
complainant of "Simple Negligence Resulting to Homicide." It is also possible that the appellee did not
have a chance to appear before the public prosecutor as can be inferred from the following statement in
said memorandum: "Respondents who were notified pursuant to Law waived their rights to present
controverting evidence," thus there was no reason for the public prosecutor to summon the appellee.
Hence, notice of appellant‘s negligence cannot be imputed on appellee before she applied for death
benefits under ECC or before she received the first payment therefrom. Her using the police
investigation report to support her complaint filed on May 9, 1991 may just be an afterthought after
receiving a copy of the February 6, 1991 Memorandum of the Prosecutor‘s Office dismissing the
criminal complaint for insufficiency of evidence, stating therein that: "The death of the victim is not
attributable to any negligence on the part of the respondents. If at all and as shown by the records this
case is civil in nature." (Underscoring supplied.) Considering the foregoing, We are more inclined to
believe appellee‘s allegation that she learned about appellant‘s negligence only after she applied for and
received the benefits under ECC. This is a mistake of fact that will make this case fall under the
exception held in the Floresca ruling.35

The CA further held that not only was private respondent ignorant of the facts, but of her rights as well:

Page | 142
 x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her educational
attainment; that she did not know what damages could be recovered from the death of her husband; and
that she did not know that she may also recover more from the Civil Code than from the ECC. x x x.36

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her complaint
that her application and receipt of benefits from the ECC were attended by ignorance or mistake of fact. Not
being an issue submitted during the trial, the trial court had no authority to hear or adjudicate that issue."

Petitioner also claims that private respondent could not have been ignorant of the facts because as early as
November 28, 1990, private respondent was the complainant in a criminal complaint for "Simple Negligence
Resulting to Homicide" against petitioner‘s employees. On February 6, 1991, two months before the filing of
the action in the lower court, Prosecutor Lorna Lee issued a resolution finding that, although there was
insufficient evidence against petitioner‘s employees, the case was "civil in nature." These purportedly show that
prior to her receipt of death benefits from the ECC on January 2, 1991 and every month thereafter, private
respondent also knew of the two choices of remedies available to her and yet she chose to claim and receive the
benefits from the ECC.

When a party having knowledge of the facts makes an election between inconsistent remedies, the election is
final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the absence of fraud by the
other party. The first act of election acts as a bar. 37 Equitable in nature, the doctrine of election of remedies is
designed to mitigate possible unfairness to both parties. It rests on the moral premise that it is fair to hold people
responsible for their choices. The purpose of the doctrine is not to prevent any recourse to any remedy, but to
prevent a double redress for a single wrong. 38

The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule
in Floresca that a claimant cannot simultaneously pursue recovery under the Labor Code and prosecute an
ordinary course of action under the Civil Code. The claimant, by his choice of one remedy, is deemed to have
waived the other.

Waiver is the intentional relinquishment of a known right.39

[It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not
to assert them. It must be generally shown by the party claiming a waiver that the person against whom
the waiver is asserted had at the time knowledge, actual or constructive, of the existence of the party‘s
rights or of all material facts upon which they depended. Where one lacks knowledge of a right, there is
no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver cannot
be established by a consent given under a mistake or misapprehension of fact.

A person makes a knowing and intelligent waiver when that person knows that a right exists and has
adequate knowledge upon which to make an intelligent decision.

Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an awareness of
its consequences. That a waiver is made knowingly and intelligently must be illustrated on the record or
by the evidence.40

That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception in Floresca.

It is in light of the foregoing principles that we address petitioner‘s contentions.

Page | 143
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her complaint
that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden private respondent
with raising waiver as an issue. On the contrary, it is the defendant who ought to plead waiver, as petitioner did
in pages 2-3 of its Answer;41 otherwise, the defense is waived. It is, therefore, perplexing for petitioner to now
contend that the trial court had no jurisdiction over the issue when petitioner itself pleaded waiver in the
proceedings before the trial court.

Does the evidence show that private respondent knew of the facts that led to her husband‘s death and the rights
pertaining to a choice of remedies?

It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the "fact" that
served as a basis for nullifying the waiver is the negligence of petitioner‘s employees, of which private
respondent purportedly learned only after the prosecutor issued a resolution stating that there may be civil
liability. In Floresca, it was the negligence of the mining corporation and its violation of government rules and
regulations. Negligence, or violation of government rules and regulations, for that matter, however, is not a fact,
but a conclusion of law, over which only the courts have the final say. Such a conclusion binds no one until the
courts have decreed so. It appears, therefore, that the principle that ignorance or mistake of fact nullifies a
waiver has been misapplied in Floresca and in the case at bar.

In any event, there is no proof that private respondent knew that her husband died in the elevator crash when on
November 15, 1990 she accomplished her application for benefits from the ECC. The police investigation
report is dated November 25, 1990, 10 days after the accomplishment of the form. Petitioner filed the
application in her behalf on November 27, 1990.

There is also no showing that private respondent knew of the remedies available to her when the claim before
the ECC was filed. On the contrary, private respondent testified that she was not aware of her rights.

Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one from
compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution form part of
the Philippine legal system (Article 8, Civil Code), private respondent cannot claim ignorance of this Court‘s
ruling in Floresca allowing a choice of remedies.

The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory laws.42 This
may be deduced from the language of the provision, which, notwithstanding a person‘s ignorance, does not
excuse his or her compliance with the laws. The rule in Floresca allowing private respondent a choice of
remedies is neither mandatory nor prohibitory. Accordingly, her ignorance thereof cannot be held against her.

Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the total
amount private respondent ought to receive from the ECC, although it appears from Exhibit "K" 43 that she
received P3,581.85 as initial payment representing the accrued pension from November 1990 to March 1991.
Her initial monthly pension, according to the same Exhibit "K," was P596.97 and present total monthly pension
was P716.40. Whether the total amount she will eventually receive from the ECC is less than the sum of
P644,000.00 in total damages awarded by the trial court is subject to speculation, and the case is remanded to
the trial court for such determination. Should the trial court find that its award is greater than that of the ECC,
payments already received by private respondent under the Labor Code shall be deducted from the trial court'‘
award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double
compensation.

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether the
award decreed in its decision is more than that of the ECC. Should the award decreed by the trial court be
Page | 144
greater than that awarded by the ECC, payments already made to private respondent pursuant to the Labor Code
shall be deducted therefrom. In all other respects, the Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Page | 145
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 124354 December 29, 1999
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the
minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA.
PERFECTA GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through gross
negligence or incompetence or plain human error, may spell the difference between life and death. In this sense,
the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should
be made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy. 2

Petitioners seek the reversal of the decision of the Court of Appeals, dated 29 May 1995, which overturned the
3

decision of the Regional Trial Court, dated 30 January 1992, finding private respondents liable for damages
4

arising from negligence in the performance of their professional duties towards petitioner Erlinda Ramos
resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A")
robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort
due to pains allegedly caused by the presence of a stone in her gall bladder (TSN, January 13,
1988, pp. 4-5), she was as normal as any other woman. Married to Rogelio E. Ramos, an
executive of Philippine Long Distance Telephone Company, she has three children whose names
are Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989,
pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought professional
advice. She was advised to undergo an operation for the removal of a stone in her gall bladder
(TSN, January 13, 1988, p. 5). She underwent a series of examinations which included blood and
urine tests (Exhs. "A" and "C") which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she
and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN,
February 20, 1990, p. 3), one of the defendants in this case, on June 10, 1985. They agreed that
their date at the operating table at the DLSMC (another defendant), would be on June 17, 1985 at
9:00 A.M.. Dr. Hosaka decided that she should undergo a "cholecystectomy" operation after
examining the documents (findings from the Capitol Medical Center, FEU Hospital and
DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good anesthesiologist.
Dr. Hosaka charged a fee of P16,000.00, which was to include the anesthesiologist's fee and
which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN,
February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).

Page | 146
A day before the scheduled date of operation, she was admitted at one of the rooms of the
DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the
operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the
College of Nursing at the Capitol Medical Center, was also there for moral support. She
reiterated her previous request for Herminda to be with her even during the operation. After
praying, she was given injections. Her hands were held by Herminda as they went down from her
room to the operating room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was also
with her (TSN, October 19, 1989, p. 18). At the operating room, Herminda saw about two or
three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer anesthesia.
Although not a member of the hospital staff, Herminda introduced herself as Dean of the College
of Nursing at the Capitol Medical Center who was to provide moral support to the patient, to
them. Herminda was allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not
yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz
about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then went back to the
patient who asked, "Mindy, wala pa ba ang Doctor"? The former replied, "Huwag kang mag-
alaala, darating na iyon" (Ibid.).
Thereafter, Herminda went out of the operating room and informed the patient's husband,
Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the operating room,
the patient told her, "Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." So, she went
out again and told Rogelio about what the patient said (id., p. 15). Thereafter, she returned to the
operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival of the
doctor" even as he did his best to find somebody who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife,
who was inside the operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon,
he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to
arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr.
Hosaka arrived as a nurse remarked, "Nandiyan na si Dr. Hosaka, dumating na raw." Upon
hearing those words, he went down to the lobby and waited for the operation to be completed
(id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard
somebody say that "Dr. Hosaka is already here." She then saw people inside the operating room
"moving, doing this and that, [and] preparing the patient for the operation" (TSN, January 13,
1988, p. 16). As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the
hapless patient. She thereafter heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the remarks of Dra. Gutierrez,
she focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw
this anesthesiologist trying to intubate the patient. The patient's nailbed became bluish and the
patient was placed in a trendelenburg position — a position where the head of the patient is
placed in a position lower than her feet which is an indication that there is a decrease of blood
supply to the patient's brain (Id., pp. 19-20). Immediately thereafter, she went out of the
operating room, and she told Rogelio E. Ramos "that something wrong was . . . happening"
(Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).
Page | 147
 Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being
rushed towards the door of the operating room. He also saw several doctors rushing towards the
operating room. When informed by Herminda Cruz that something wrong was happening, he
told her (Herminda) to be back with the patient inside the operating room (TSN, October 19,
1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg
position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the
patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed
the former that something went wrong during the intubation. Reacting to what was told to him,
Rogelio reminded the doctor that the condition of his wife would not have happened, had he (Dr.
Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the
patient. The doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp.
26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15,
1985, the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25
which is the subject of a promissory note and affidavit of undertaking executed by Rogelio E.
Ramos in favor of DLSMC. Since that fateful afternoon of June 17, 1985, she has been in a
comatose condition. She cannot do anything. She cannot move any part of her body. She cannot
see or hear. She is living on mechanical means. She suffered brain damage as a result of the
absence of oxygen in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22).
After being discharged from the hospital, she has been staying in their residence, still needing
constant medical attention, with her husband Rogelio incurring a monthly expense ranging from
P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be
suffering from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21,
1989,
p. 6).5

Thus, on 8 January 1986, petitioners filed a civil case for damages with the Regional Trial Court of Quezon
6

City against herein private respondents alleging negligence in the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff presented
the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained by Erlinda was due
to lack of oxygen in her brain caused by the faulty management of her airway by private respondents during the
anesthesia phase. On the other hand, private respondents primarily relied on the expert testimony of Dr.
Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage was Erlinda's allergic reaction to
the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the
aforecited provisions of law and jurisprudence to the case at bar, this Court finds and so holds
that defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very
least, negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable
care in not only intubating the patient, but also in not repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10), without due regard to the fact that the patient was inside the
Page | 148
 operating room for almost three (3) hours. For after she committed a mistake in intubating [the]
patient, the patient's nailbed became bluish and the patient, thereafter, was placed in
trendelenburg position, because of the decrease of blood supply to the patient's brain. The
evidence further shows that the hapless patient suffered brain damage because of the absence of
oxygen in her (patient's) brain for approximately four to five minutes which, in turn, caused the
patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta
Gutierrez whom he had chosen to administer anesthesia on the patient as part of his obligation to
provide the patient a good anesthesiologist', and for arriving for the scheduled operation almost
three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of
the doctors in their "practice of medicine" in the operating room. Moreover, the hospital is liable
for failing through its responsible officials, to cancel the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have acted with
due care and prudence in rendering medical services to plaintiff-patient. For if the patient was
properly intubated as claimed by them, the patient would not have become comatose. And, the
fact that another anesthesiologist was called to try to intubate the patient after her (the patient's)
nailbed turned bluish, belie their claim. Furthermore, the defendants should have rescheduled the
operation to a later date. This, they should have done, if defendants acted with due care and
prudence as the patient's case was an elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and
against the defendants. Accordingly, the latter are ordered to pay, jointly and severally, the
former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda
Ramos reckoned from November 15, 1985 or in the total sum of P632,000.00 as
of April 15, 1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further sum of
P200,000,00 by way of exemplary damages; and,
4) the costs of the suit.
SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of the decision of
the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the
complaint below against the appellants is hereby ordered DISMISSED. The counterclaim of
appellant De Los Santos Medical Center is GRANTED but only insofar as appellees are hereby
ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal interest for justice
must be tempered with mercy.
SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by
the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the appellate
Page | 149
court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the
reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for extension of
time in its Resolution dated 25 July 1995. Meanwhile, petitioners engaged the services of another counsel,
9

Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for
reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to
the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the motion
for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the
fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration
cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the
other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of the decision
as early as June 9, 1995. Computation wise, the period to file a Motion for Reconsideration
expired on June 24. The Motion for Reconsideration, in turn, was received by the Court of
Appeals already on July 4, necessarily, the 15-day period already passed. For that alone, the
latter should be denied.
Even assuming admissibility of the Motion for the Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.
SO ORDERED. 10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April
1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition
for certiorari under Rule 45. The Court granted the motion for extension of time and gave petitioners additional
thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of the resolution of
the Court of Appeals within which to submit the petition. The due date fell on 27 May 1996. The petition was
filed on 9 May 1996, well within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE
UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the
petition in relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In their
Comment, private respondents contend that the petition should not be given due course since the motion for
12

reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed by the appellate
court for having been filed beyond the reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration
is attributable to the fact that the decision of the Court of Appeals was not sent to then counsel on record of
petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty. Rogelio
Page | 150
Ramos. Based on the other communications received by petitioner Rogelio Ramos, the appellate court
apparently mistook him for the counsel on record. Thus, no copy of the decision of the counsel on record.
Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration,
referred the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at
his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is no notice
at all. In the present case, since a copy of the decision of the appellate court was not sent to the counsel on
record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of the motion for
reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals already issued a
second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and
denied the motion for reconsideration of petitioner, we believed that the receipt of the former should be
considered in determining the timeliness of the filing of the present petition. Based on this, the petition before
us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa
loquiturto the instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa
loquiturdoctrine.
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
plaintiff's prima facie case, and present a question of fact for defendant to meet with an explanation. Where
13

the thing which caused the injury complained of is shown to be under the management of the defendant or his
servants and the accident is such as in ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from or was caused by the defendant's want of care. 14

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge
and experience, the very nature of certain types of occurrences may justify an inference of negligence on the
part of the person who controls the instrumentality causing the injury in the absence of some explanation by the
defendant who is charged with negligence. It is grounded in the superior logic of ordinary human experience
15

and on the basis of such experience or common knowledge, negligence may be deduced from the mere
occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of
16

common knowledge.
However, much has been said that 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
17

the nature of a procedural rule. It is regarded as a mode of proof, or a mere procedural of convenience since it
18

furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. In19

other words, 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, permitting the plaintiff to present along with the
proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place on the defendant the burden of going forward with the
proof. Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily
20

shown:
1. The accident is of a kind which ordinarily does not occur in the absence of
someone's negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant
or defendants; and

Page | 151
 3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated. 21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the
damage. Such element of control must be shown to be within the dominion of the defendant. In order to have
22

the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is
applicable, and must establish that the essential elements of the doctrine were present in a particular incident.23

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been
24

applied when the circumstances attendant upon the harm are themselves of such a character as to justify an
inference of negligence as the cause of that harm. The application of res ipsa loquitur in medical negligence
25

cases presents a question of law since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa
loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury
itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony
27

applies only to such matters clearly within the domain of medical science, and not to matters that are within the
common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only
28

physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated
or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of
physicians and surgeons, external appearances, and manifest conditions which are observable by any one may
be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is
29

permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the proper standard of
care. Where common knowledge and experience teach that a resulting injury would not have occurred to the
30

patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of
the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a
31

nexus between the particular act or omission complained of and the injury sustained while under the custody
and management of the defendant without need to produce expert medical testimony to establish the standard of
care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions,
by which the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was
32

not under, or in the area, of treatment, removal of the wrong part of the body when another part was
33

intended, knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils, and
34 35

loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation
for appendicitis, among others.
36

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, 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. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each
case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional care were not as such as would
ordinarily have followed if due care had been
exercised. A distinction must be made between the failure to secure results, and the occurrence of something
37

more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of
those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific
Page | 152
treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not
38

correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is
39

not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was
not accomplished. The real question, therefore, is whether or not in the process of the operation any
40

extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular
scope of customary professional activity in such operations, which, if unexplained would themselves reasonably
speak to the average man as the negligent cause or causes of the untoward consequence. If there was such
41

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. 42

We find the doctrine of res ipsa loquitur 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 res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell, where the Kansas Supreme Court in
43

applying the res ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person over to
the care, custody and control of his physician who had complete and exclusive control over him,
but the operation was never performed. At the time of submission he was neurologically sound
and physically fit in mind and body, but he suffered irreparable damage and injury rendering him
decerebrate and totally incapacitated. The injury was one which does not ordinarily occur in the
process of a mastoid operation or in the absence of negligence in the administration of an
anesthetic, and in the use and employment of an endoctracheal tube. Ordinarily a person being
put under anesthesia is not rendered decerebrate as a consequence of administering such
anesthesia in the absence of negligence. Upon these facts and under these circumstances a
layman would be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have followed if
due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was under
the influence of anesthetics and unconscious, and the circumstances are such that the true
explanation of event is more accessible to the defendants than to the plaintiff for they had the
exclusive control of the instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of
action is stated under the doctrine of res ipsa loquitur.44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case,
Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be performed on her
gall bladder. On that fateful day she delivered her person over to the care, custody and control of private
respondents who exercised complete and exclusive control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor discomforts, was likewise physically fit in mind and body.
However, during the administration of anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating room already
decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury which
does not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not in the
absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube.
Normally, a person being put under anesthesia is not rendered decerebrate as a consequence of administering
such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the administration
of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents, who
are the physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of contributory negligence
because she was under the influence of anesthetics which rendered her unconscious.

Page | 153
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a practical
administration of justice dictates the application of res ipsa loquitur. Upon these facts and under these
circumstances the Court would be able to say, as a matter of common knowledge and observation, if negligence
attended the management and care of the patient. Moreover, the liability of the physicians and the hospital in
this case is not predicated upon an alleged failure to secure the desired results of an operation nor on an alleged
lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda.
Thus, upon all these initial determination a case is made out for the application of the doctrine of res ipsa
loquitur.
Nonetheless, 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.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed
therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that private
respondents were not 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 Erlinda's comatose condition. Corollary
thereto, we shall also determine if the Court of Appeals erred in relying on the testimonies of the witnesses for
the private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation of the patient and thus, cannot be said to be covering her negligence with falsehood.
45

The appellate court likewise opined that private respondents were able to show that the brain damage sustained
by Erlinda was not caused by the alleged faulty intubation but was due to the allergic reaction of the patient to
the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert witness, Dr.
Jamora. On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz offered in favor
of petitioners that the cause of the brain injury was traceable to the wrongful insertion of the tube since the
latter, being a nurse, was allegedly not knowledgeable in the process of intubation. In so holding, the appellate
court returned a verdict in favor of respondents physicians and hospital and absolved them of any liability
towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to
disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the
proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. As will
be shown hereinafter, private respondents' own testimonies which are reflected in the transcript of stenographic
notes are replete of signposts indicative of their negligence in the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As borne
by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested to by
Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's sister-in-law, who
was in the operating room right beside the patient when the tragic event occurred. Witness Cruz testified to this
effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.

Page | 154
 Q: Do you know what happened to that intubation process administered by Dra.
Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient, I was beside the stretcher holding the left
hand of the patient and all of a sudden heard some remarks coming from Dra.
Perfecta Gutierrez herself. She was saying "Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the
person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I
was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's
nailbed became bluish and I saw the patient was placed in trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the patient was placed in that trendelenburg
position?
A: As far as I know, when a patient is in that position, there is a decrease of blood
supply to the brain. 46

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation is not
taught as part of nursing procedures and techniques. Indeed, we take judicial notice of the fact
that nurses do not, and cannot, intubate. Even on the assumption that she is fully capable of
Page | 155
 determining whether or not a patient is properly intubated, witness Herminda Cruz, admittedly,
did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is
no evidence that she ever auscultated the patient or that she conducted any type of examination
to check if the endotracheal tube was in its proper place, and to determine the condition of the
heart, lungs, and other organs. Thus, witness Cruz's categorical statements that appellant Dra.
Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who
succeeded in doing so clearly suffer from lack of sufficient factual bases. 47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in
the process of intubation, witness Cruz is not competent to testify on whether or not the intubation was a
success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the
statements and acts of the physician and surgeon, external appearances, and manifest conditions which are
observable by any one. This is precisely allowed under the doctrine of res ipsa loquitur where the testimony of
48

expert witnesses is not required. It is the accepted rule that expert testimony is not necessary for the proof of
negligence in non-technical matters or those of which an ordinary person may be expected to have knowledge,
or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary. We take49

judicial notice of the fact that anesthesia procedures have become so common, that even an ordinary person can
tell if it was administered properly. As such, it would not be too difficult to tell if the tube was properly inserted.
This kind of observation, we believe, does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable
of determining whether or not the intubation was a success. She had extensive clinical experience starting as a
staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean
of the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of
Nursing. Reviewing witness Cruz' statements, we find that the same were delivered in a straightforward
50

manner, with the kind of detail, clarity, consistency and spontaneity which would have been difficult to
fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to demonstrate
through her testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first attempt
(sic), you did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito," what were you referring to?
A: "Mahirap yata itong i-intubate," that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away. 51

Page | 156
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered
hardship in the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly
deviated from the normal anatomy of a person) making it harder to locate and, since Erlinda is obese and has a
52

short neck and protruding teeth, it made intubation even more difficult.
The argument does not convince us. If this was indeed observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins
when the anesthesiologist reviews the patient's medical records and visits with the patient, traditionally, the day
before elective surgery. It includes taking the patient's medical history, review of current drug therapy,
53

physical examination and interpretation of laboratory data. The physical examination performed by the
54

anesthesiologist is directed primarily toward the central nervous system, cardiovascular system, lungs and upper
airway. A thorough analysis of the patient's airway normally involves investigating the following: cervical
55

spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth, ability to
visualize uvula and the thyromental distance. Thus, physical characteristics of the patient's upper airway that
56

could make tracheal intubation difficult should be studied. Where the need arises, as when initial assessment
57

indicates possible problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough
examination of the patient's airway would go a long way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of
Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible difficulties
she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her
patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in
dealing with human lives lie at the core of the physician's centuries-old Hippocratic Oath. Her failure to follow
this medical procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial
court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried
to muddle the difference between an elective surgery and an emergency surgery just so her failure to perform
the required pre-operative evaluation would escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the patient a
day before so you can introduce yourself to establish good doctor-patient
relationship and gain the trust and confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure of
the anesthesiologist and in my case, with elective cases and normal cardio-
pulmonary clearance like that, I usually don't do it except on emergency and on
cases that have an abnormalities (sic). 58
However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on the other hand, are operative procedures that can wait
for days, weeks or even months. Hence, in these cases, the anesthesiologist possesses the luxury of time to be at

Page | 157
the patient's beside to do a proper interview and clinical evaluation. There is ample time to explain the method
of anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent. Usually, the
pre-operative assessment is conducted at least one day before the intended surgery, when the patient is relaxed
and cooperative.
Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to make
a thorough evaluation of Erlinda's case prior to the operation and prepare her for anesthesia. However, she never
saw the patient at the bedside. She herself admitted that she had seen petitioner only in the operating room, and
only on the actual date of the cholecystectomy. She negligently failed to take advantage of this important
opportunity. As such, her attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient
which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly the
proximate cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma was due
to bronchospasm mediated by her allergic response to the drug, Thiopental Sodium, introduced into her
59

system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and
Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced private respondents' theory
that the oxygen deprivation which led to anoxic encephalopathy, was due to an unpredictable drug reaction to
60

the short-acting barbiturate. We find the theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not
an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly
enlightening the court about anesthesia practice and procedure and their complications. Dr. Jamora is likewise
not an allergologist and could not therefore properly advance expert opinion on allergic-mediated processes.
Moreover, he is not a pharmacologist and, as such, could not have been capable, as an expert would, of
explaining to the court the pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium
(Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the anesthetic
practice of Pentothal administration is further supported by his own admission that he formulated his opinions
on the drug not from the practical experience gained by a specialist or expert in the administration and use of
Sodium Pentothal on patients, but only from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use
pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate
our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you
have read from books and not by your own personal application of the medicine
pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.

Page | 158
 Q: And because they have used it on you and on account of your own personal
experience you feel that you can testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims. 61
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs
to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases are within the
expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic mediated
bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and pharmacology.
On the basis of the foregoing transcript, in which the pulmonologist himself admitted that he could not testify
about the drug with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamora's
testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence regarding expert witnesses states:
62

Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he is shown to possess, may be received in
evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter
about which he or she is to testify, either by the study of recognized authorities on the subject or by practical
experience. Clearly, Dr. Jamora does not qualify as an expert witness based on the above standard since he
63

lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart from submitting
testimony from a specialist in the wrong field, private respondents' intentionally avoided providing testimony by
competent and independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by triggering
an allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing
— some of the more common accompanying signs of an allergic reaction — appears on record. No laboratory
data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept private respondents' hypothesis without supporting medical
proof, and against the weight of available evidence, then every anesthetic accident would be an act of God.
Evidently, the Thiopental-allergy theory vigorously asserted by private respondents was a mere afterthought.
Such an explanation was advanced in order to advanced in order to absolve them of any and all responsibility
for the patient's condition.
In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty intubation
which was the proximate cause of Erlinda's comatose condition.
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. An injury or
64

damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case,
that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and
that the injury or damage was either a direct result or a reasonably probable consequence of the act or
omission. It is the dominant, moving or producing cause.
65

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate
cause which triggered the chain of events leading to Erlinda's brain damage and, ultimately, her comatosed
condition.
Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was
likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-
intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal
distention on the body of Erlinda. The development of abdominal distention, together with respiratory
Page | 159
embarrassment indicates that the endotracheal tube entered the esophagus instead of the respiratory tree. In
other words, instead of the intended endotracheal intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly cause some delay
in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place. That abdominal
distention had been observed during the first intubation suggests that the length of time utilized in inserting the
endotracheal tube (up to the time the tube was withdrawn for the second attempt) was fairly significant. Due to
the delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. As stated in the testimony
66

of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda were
already blue. However, private respondents contend that a second intubation was executed on Erlinda and this
67

one was successfully done. We do not think so. No evidence exists on record, beyond private respondents' bare
claims, which supports the contention that the second intubation was successful. Assuming that the endotracheal
tube finally found its way into the proper orifice of the trachea, the same gave no guarantee of oxygen delivery,
the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents insist, that the
second intubation was accomplished. Even granting that the tube was successfully inserted during the second
attempt, it was obviously too late. As aptly explained by the trial court, Erlinda already suffered brain damage
as a result of the inadequate oxygenation of her brain for about four to five minutes. 68

The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible
for one-third (1/3) of deaths and serious injuries associated with anesthesia. Nevertheless, ninety-eight percent
69

(98%) or the vast majority of difficult intubations may be anticipated by performing a thorough evaluation of
the patient's airway prior to the operation. As stated beforehand, respondent Dra. Gutierrez failed to observe
70

the proper pre-operative protocol which could have prevented this unfortunate incident. Had appropriate
diligence and reasonable care been used in the pre-operative evaluation, respondent physician could have been
much more prepared to meet the contingency brought about by the perceived anatomic variations in the patient's
neck and oral area, defects which would have been easily overcome by a prior knowledge of those variations
together with a change in technique. In other words, an experienced anesthesiologist, adequately alerted by a
71

thorough pre-operative evaluation, would have had little difficulty going around the short neck and protruding
teeth. Having failed to observe common medical standards in pre-operative management and intubation,
72

respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the
so-called "captain of the ship," it is the surgeon's responsibility to see to it that those under him perform their
73

task in the proper manner. Respondent Dr. Hosaka's 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. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if
respondent Dra. 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 Erlinda's cholecystectomy,
and was in fact over three hours late for the latter's operation. Because of this, he had little or no time to confer
with his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professional
duties towards his patient. Thus, he shares equal responsibility for the events which resulted in Erlinda's
condition.
We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and visiting "consultants," who are allegedly not hospital
74

employees, presents problems in apportioning responsibility for negligence in medical malpractice cases.
However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct
of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are
required to submit proof of completion of residency, their educational qualifications; generally, evidence of

Page | 160
accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These
requirements are carefully scrutinized by members of the hospital administration or by a review committee set
up by the hospital who either accept or reject the application. This is particularly true with respondent hospital.
75

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand
rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain
a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the
physician's performance as a specialist is generally evaluated by a peer review committee on the basis of
mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss
in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its
peer review committee, is normally politely terminated.
In other words, 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 patient's condition, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the
exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is
determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility
in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians. This being the case, the question now arises as to whether or not respondent
hospital is solidarily liable with respondent doctors for petitioner's condition.
76

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 former's responsibility under a relationship of patria potestas. Such responsibility ceases
77

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
78

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. It failed to adduce evidence with regard to the degree of supervision which
it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent
hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this,
respondent hospital is consequently solidarily responsible with its physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of
the witnesses for the private respondents. Indeed, as shown by the above discussions, private respondents were
unable to rebut the presumption of negligence. Upon these disquisitions we hold that private respondents are
solidarily liable for damages under Article 2176 of the Civil Code.
79

We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos
(should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated" covering the
period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care of the patient
estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be
grossly inadequate to cover the actual costs of home-based care for a comatose individual. The calculated
amount was not even arrived at by looking at the actual cost of proper hospice care for the patient. What it
reflected were the actual expenses incurred and proved by the petitioners after they were forced to bring home
the patient to avoid mounting hospital bills.

Page | 161
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in the
care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum standards of
care. In the instant case for instance, Erlinda has to be constantly turned from side to side to prevent bedsores
and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation should be normally made by a
dietitian to provide her with the correct daily caloric requirements and vitamin supplements. Furthermore, she
has to be seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist
to prevent the accumulation of secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at
least reflect the correct minimum cost of proper care, not the cost of the care the family is usually compelled to
undertake at home to avoid bankruptcy. However, the provisions of the Civil Code on actual or compensatory
damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as
he has duly proved. The Civil Code provides:
Art. 2199. — Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered
as a consequence of an act of negligence has been completed and that the cost can be liquidated. However, these
provisions neglect to take into account those situations, as in this case, where the resulting injury might be
continuing and possible future complications directly arising from the injury, while certain to occur, are difficult
to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond
to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of
the case, be made with certainty. In other words, temperate damages can and should be awarded on top of
80

actual or compensatory damages in instances where the injury is chronic and continuing. And because of the
unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided
for. The reason is that these damages cover two distinct phases.
As it would not be equitable — and certainly not in the best interests of the administration of justice — for the
victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the
compensatory damages previously awarded — temperate damages are appropriate. The amount given as
temperate damages, though to a certain extent speculative, should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who
has remained in that condition for over a decade. Having premised our award for compensatory damages on the
amount provided by petitioners at the onset of litigation, it would be now much more in step with the interests
of justice if the value awarded for temperate damages would allow petitioners to provide optimal care for their
loved one in a facility which generally specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without the aid of professionals, for anything less would be
grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would therefore
be reasonable. 81

In Valenzuela vs. Court of Appeals, this Court was confronted with a situation where the injury suffered by the
82

plaintiff would have led to expenses which were difficult to estimate because while they would have been a
direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they were likely to arise
only in the future. We awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:

Page | 162
 As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left
lower extremity at the distal left thigh just above the knee. Because of this, Valenzuela will
forever be deprived of the full ambulatory functions of her left extremity, even with the use of
state of the art prosthetic technology. Well beyond the period of hospitalization (which was paid
for by Li), she will be required to undergo adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical and occupational
rehabilitation and therapy. During the lifetime, the prosthetic devise will have to be replaced and
readjusted to changes in the size of her lower limb effected by the biological changes of middle-
age, menopause and aging. Assuming she reaches menopause, for example, the prosthetic will
have to be adjusted to respond to the changes in bone resulting from a precipitate decrease in
calcium levels observed in the bones of all post-menopausal women. In other words, the damage
done to her would not only be permanent and lasting, it would also be permanently changing and
adjusting to the physiologic changes which her body would normally undergo through the years.
The replacements, changes, and adjustments will require corresponding adjustive physical and
occupational therapy. All of these adjustments, it has been documented, are painful.
xxx xxx xxx
A prosthetic devise, however technologically advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the lower limb. The sensory functions are forever
lost. The resultant anxiety, sleeplessness, psychological injury, mental and physical pain are
inestimable. 83

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more
serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state
for over fourteen years now. The burden of care has so far been heroically shouldered by her husband and
children, who, in the intervening years have been deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioner's
condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the surface
of the resulting moral damage because it would be highly speculative to estimate the amount of emotional and
moral pain, psychological damage and injury suffered by the victim or those actually affected by the victim's
condition. The husband and the children, all petitioners in this case, will have to live with the day to day
84

uncertainty of the patient's illness, knowing any hope of recovery is close to nil. They have fashioned their daily
lives around the nursing care of petitioner, altering their long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged with the moral responsibility of the care of the victim.
The family's moral injury and suffering in this case is clearly a real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued at
P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers
of life and, they rarely set out to intentionally cause injury or death to their patients. However, intent is
immaterial in negligence cases because where negligence exists and is proven, the same automatically gives the
injured a right to reparation for the damage caused.

Page | 163
Established medical procedures and practices, though in constant flux are devised for the purpose of preventing
complications. A physician's experience with his patients would sometimes tempt him to deviate from
established community practices, and he may end a distinguished career using unorthodox methods without
incident. However, when failure to follow established procedure results in the evil precisely sought to be
averted by observance of the procedure and a nexus is made between the deviation and the injury or damage,
the physician would necessarily be called to account for it. In the case at bar, the failure to observe pre-
operative assessment protocol which would have influenced the intubation in a salutary way was fatal to private
respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to
award in favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as
actual damages computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00
up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral
damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary damages and attorney's
fees; and, 5) the costs of the suit.
SO ORDERED.

Page | 164
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-57079 September 29, 1989
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,
vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents.

REGALADO, J.:
This case had its inception in an action for damages instituted in the former Court of First Instance of Negros
Occidental by private respondent spouses against petitioner Philippine Long Distance Telephone Company
1

(PLDT, for brevity) for the injuries they sustained in the evening of July 30, 1968 when their jeep ran over a
mound of earth and fell into an open trench, an excavation allegedly undertaken by PLDT for the installation of
its underground conduit system. The complaint alleged that respondent Antonio Esteban failed to notice the
open trench which was left uncovered because of the creeping darkness and the lack of any warning light or
signs. As a result of the accident, respondent Gloria Esteban allegedly sustained injuries on her arms, legs and
face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In addition, the
windshield of the jeep was shattered.2

PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were
the result of their own negligence and that the entity which should be held responsible, if at all, is L.R. Barte
and Company (Barte, for short), an independent contractor which undertook the construction of the manhole
and the conduit system. Accordingly, PLDT filed a third-party complaint against Barte alleging that, under the
3

terms of their agreement, PLDT should in no manner be answerable for any accident or injuries arising from the
negligence or carelessness of Barte or any of its employees. In answer thereto, Barte claimed that it was not
4

aware nor was it notified of the accident involving respondent spouses and that it had complied with the terms
of its contract with PLDT by installing the necessary and appropriate standard signs in the vicinity of the work
site, with barricades at both ends of the excavation and with red lights at night along the excavated area to warn
the traveling public of the presence of excavations.
5

On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal part of
which reads:
IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance Telephone Company
is hereby ordered (A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as moral damages and
P5,000.00 exemplary damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and
P500.00 as exemplary damages, with legal rate of interest from the date of the filing of the complaint until fully
paid. The defendant is hereby ordered to pay the plaintiff the sum of P3,000.00 as attorney's fees.
(B) The third-party defendant is hereby ordered to reimburse whatever amount the defendant-third party
plaintiff has paid to the plaintiff. With costs against the defendant.
6

From this decision both PLDT and private respondents appealed, the latter appealing only as to the amount of
damages. Third-party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in said
appealed case, with Justice Corazon Juliano Agrava as ponente, reversing the decision of the lower court and
dismissing the complaint of respondent spouses. It held that respondent Esteban spouses were negligent and
consequently absolved petitioner PLDT from the claim for damages. A copy of this decision was received by
7

private respondents on October 10, 1979. On October 25, 1979, said respondents filed a motion for
8

reconsideration dated October 24, 1979. On January 24, 1980, the Special Ninth Division of the Court of
9

Appeals denied said motion for reconsideration. This resolution was received by respondent spouses on
10

February 22, 1980. 11

Page | 165
On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave of court to
file a second motion for reconsideration, dated February 27, 1980. On March 11, 1980, respondent court, in a
12

resolution likewise penned by Justice Agrava, allowed respondents to file a second motion for reconsideration,
within ten (10) days from notice thereof. Said resolution was received by private respondents on April 1, 1980
13

but prior thereto, private respondents had already filed their second motion for reconsideration on March 7,
1980. 14

On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second motion for
reconsideration. The Court of Appeals, in view of the divergent opinions on the resolution of the second
15

motion for reconsideration, designated two additional justices to form a division of five. On September 3,
16

1980, said division of five promulgated its resolution, penned by Justice Mariano A. Zosa, setting aside the
decision dated September 25, 1979, as well as the resolution dated, January 24,1980, and affirming in toto the
decision of the lower court. 17

On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of the resolution
of September 3, 1980, contending that the second motion for reconsideration of private respondent spouses was
filed out of time and that the decision of September 25, 1979 penned by Justice Agrava was already final. It
further submitted therein that the relationship of Barte and petitioner PLDT should be viewed in the light of the
contract between them and, under the independent contractor rule, PLDT is not liable for the acts of an
independent contractor. On May 11, 1981, respondent Court of Appeals promulgated its resolution denying
18

said motion to set aside and/or for reconsideration and affirming in toto the decision of the lower court dated
October 1, 1974. 19

Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not denying private respondents' second motion for
reconsideration on the ground that the decision of the Special Second Division, dated September 25, 1979, and
the resolution of the Special Ninth Division, dated January 24, 1980, are already final, and on the additional
ground that said second motion for reconsideration is pro forma.
2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying the
independent contractor rule in holding PLDT liable to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the respondent court, as shown by the records and admitted
by both parties, may be graphically presented as follows:
(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice Agrava asponente;
(b) October 10, 1979, a copy of said decision was received by private respondents;
(c) October 25, 1979, a motion for reconsideration was filed by private respondents;
(d) January 24, 1980, a resolution was issued denying said motion for reconsideration;
(e) February 22, 1980, a copy of said denial resolution was received by private respondents;
(f) February 29, 1980, a motion for leave to file a second motion for reconsideration was filed by private
respondents
(g) March 7, 1980, a second motion for reconsideration was filed by private respondents;
(h) March 11, 1980, a resolution was issued allowing respondents to file a second motion for
reconsideration within ten (10) days from receipt; and
(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing the original decision
dated September 25, 1979 and setting aside the resolution dated January 24, 1980.
From the foregoing chronology, we are convinced that both the motion for leave to file a second motion for
reconsideration and, consequently, said second motion for reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided that a second
motion for reconsideration may be presented within fifteen (15) days from notice of the order or judgment
deducting the time in which the first motion has been pending. Private respondents having filed their first
20

motion for reconsideration on the last day of the reglementary period of fifteen (15) days within which to do so,
they had only one (1) day from receipt of the order denying said motion to file, with leave of court, a second
motion for reconsideration. In the present case, after their receipt on February 22, 1980 of the resolution
21

denying their first motion for reconsideration, private respondents had two remedial options. On February 23,
Page | 166
1980, the remaining one (1) day of the aforesaid reglementary period, they could have filed a motion for leave
of court to file a second motion for reconsideration, conceivably with a prayer for the extension of the period
within which to do so. On the other hand, they could have appealed through a petition for review on certiorari to
this Court within fifteen (15) days from February 23, 1980. Instead, they filed a motion for leave to file a
22

second motion 'for reconsideration on February 29, 1980, and said second motion for reconsideration on March
7, 1980, both of which motions were by then time-barred.
Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period, the running of
which was suspended during the pendency of the first motion for reconsideration, the Court of Appeals could no
longer validly take further proceedings on the merits of the case, much less to alter, modify or reconsider its
aforesaid decision and/or resolution. The filing of the motion for leave to file a second motion for
reconsideration by herein respondents on February 29, 1980 and the subsequent filing of the motion itself on
March 7, 1980, after the expiration of the reglementary period to file the same, produced no legal effects. Only
a motion for re-hearing or reconsideration filed in time shall stay the final order or judgment sought to be re-
examined. 23

The consequential result is that the resolution of respondent court of March 11, 1980 granting private
respondents' aforesaid motion for leave and, giving them an extension of ten (10) days to file a second motion
for reconsideration, is null and void. The period for filing a second motion for reconsideration had already
expired when private respondents sought leave to file the same, and respondent court no longer had the power
to entertain or grant the said motion. The aforesaid extension of ten (10) days for private respondents to file
their second motion for reconsideration was of no legal consequence since it was given when there was no more
period to extend. It is an elementary rule that an application for extension of time must be filed prior to the
expiration of the period sought to be extended. Necessarily, the discretion of respondent court to grant said
24

extension for filing a second motion for reconsideration is conditioned upon the timeliness of the motion
seeking the same.
No appeal having been taken seasonably, the respondent court's decision, dated September 25, 1979, became
final and executory on March 9, 1980. The subsequent resolutions of respondent court, dated March 11, 1980
and September 3, 1980, allowing private respondents to file a second motion for reconsideration and reversing
the original decision are null and void and cannot disturb the finality of the judgment nor restore jurisdiction to
respondent court. This is but in line with the accepted rule that once a decision has become final and executory
it is removed from the power and jurisdiction of the court which rendered it to further alter or amend, much less
revoke it. The decision rendered anew is null and void. The court's inherent power to correct its own errors
25 26

should be exercised before the finality of the decision or order sought to be corrected, otherwise litigation will
be endless and no question could be considered finally settled. Although the granting or denial of a motion for
reconsideration involves the exercise of discretion, the same should not be exercised whimsically, capriciously
27

or arbitrarily, but prudently in conformity with law, justice, reason and equity. 28

Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no error in the
findings of the respondent court in its original decision that the accident which befell private respondents was
due to the lack of diligence of respondent Antonio Esteban and was not imputable to negligent omission on the
part of petitioner PLDT. Such findings were reached after an exhaustive assessment and evaluation of the
evidence on record, as evidenced by the respondent court's resolution of January 24, 1980 which we quote with
approval:
First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had remained on that inside lane, it
would not have hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the jeep swerving from the
left that is, swerving from the inside lane. What caused the swerving is not disclosed; but, as the cause of the
accident, defendant cannot be made liable for the damages suffered by plaintiffs. The accident was not due to
the absence of warning signs, but to the unexplained abrupt swerving of the jeep from the inside lane. That may
explain plaintiff-husband's insistence that he did not see the ACCIDENT MOUND for which reason he ran into
it.

Page | 167
Second. That plaintiff's jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND
could have been corroborated by a picture showing Lacson Street to the south of the ACCIDENT MOUND.
It has been stated that the ditches along Lacson Street had already been covered except the 3 or 4 meters where
the ACCIDENT MOUND was located. Exhibit B-1 shows that the ditches on Lacson Street north of the
ACCIDENT MOUND had already been covered, but not in such a way as to allow the outer lane to be freely
and conveniently passable to vehicles. The situation could have been worse to the south of the ACCIDENT
MOUND for which reason no picture of the ACCIDENT MOUND facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband claimed. At that speed, he
could have braked the vehicle the moment it struck the ACCIDENT MOUND. The jeep would not have
climbed the ACCIDENT MOUND several feet as indicated by the tiremarks in Exhibit B. The jeep must have
been running quite fast. If the jeep had been braked at 25 kilometers an hour, plaintiff's would not have been
thrown against the windshield and they would not have suffered their injuries.
Fourth. If the accident did not happen because the jeep was running quite fast on the inside lane and for some
reason or other it had to swerve suddenly to the right and had to climb over the ACCIDENT MOUND, then
plaintiff-husband had not exercised the diligence of a good father of a family to avoid the accident. With the
drizzle, he should not have run on dim lights, but should have put on his regular lights which should have made
him see the ACCIDENT MOUND in time. If he was running on the outside lane at 25 kilometers an hour, even
on dim lights, his failure to see the ACCIDENT MOUND in time to brake the car was negligence on his part.
The ACCIDENT MOUND was relatively big and visible, being 2 to 3 feet high and 1-1/2 feet wide. If he did
not see the ACCIDENT MOUND in time, he would not have seen any warning sign either. He knew of the
existence and location of the ACCIDENT MOUND, having seen it many previous times. With ordinary
precaution, he should have driven his jeep on the night of the accident so as to avoid hitting the ACCIDENT
MOUND. 29

The above findings clearly show that the negligence of respondent Antonio Esteban was not only contributory
to his injuries and those of his wife but goes to the very cause of the occurrence of the accident, as one of its
determining factors, and thereby precludes their right to recover damages. The perils of the road were known
30

to, hence appreciated and assumed by, private respondents. By exercising reasonable care and prudence,
respondent Antonio Esteban could have avoided the injurious consequences of his act, even assuming arguendo
that there was some alleged negligence on the part of petitioner.
The presence of warning signs could not have completely prevented the accident; the only purpose of said signs
was to inform and warn the public of the presence of excavations on the site. The private respondents already
knew of the presence of said excavations. It was not the lack of knowledge of these excavations which caused
the jeep of respondents to fall into the excavation but the unexplained sudden swerving of the jeep from the
inside lane towards the accident mound. As opined in some quarters, the omission to perform a duty, such as the
placing of warning signs on the site of the excavation, constitutes the proximate cause only when the doing of
the said omitted act would have prevented the injury. It is basic that private respondents cannot charge PLDT
31

for their injuries where their own failure to exercise due and reasonable care was the cause thereof. It is both a
societal norm and necessity that one should exercise a reasonable degree of caution for his own protection.
Furthermore, respondent Antonio Esteban had the last clear chance or opportunity to avoid the accident,
notwithstanding the negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he passed on that
street almost everyday and had knowledge of the presence and location of the excavations there. It was his
negligence that exposed him and his wife to danger, hence he is solely responsible for the consequences of his
imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that there was
insufficient evidence to prove any negligence on the part of PLDT. We have for consideration only the self-
serving testimony of respondent Antonio Esteban and the unverified photograph of merely a portion of the
scene of the accident. The absence of a police report of the incident and the non-submission of a medical report
from the hospital where private respondents were allegedly treated have not even been satisfactorily explained.
As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980 —

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(a) There was no third party eyewitness of the accident. As to how the accident occurred, the Court can only
rely on the testimonial evidence of plaintiffs themselves, and such evidence should be very carefully evaluated,
with defendant, as the party being charged, being given the benefit of any doubt. Definitely without ascribing
the same motivation to plaintiffs, another person could have deliberately engineered a similar accident in the
hope and expectation that the Court can grant him substantial moral and exemplary damages from the big
corporation that defendant is. The statement is made only to stress the disadvantageous position of defendant
which would have extreme difficulty in contesting such person's claim. If there were no witness or record
available from the police department of Bacolod, defendant would not be able to determine for itself which of
the conflicting testimonies of plaintiffs is correct as to the report or non-report of the accident to the police
department.32

 A person claiming damages for the negligence of another has the burden of proving the existence of
such fault or negligence causative thereof. The facts constitutive of negligence must be affirmatively
established by competent evidence. Whosoever relies on negligence for his cause of action has the
33

burden in the first instance of proving the existence of the same if contested, otherwise his action must
fail.
WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and September 3,1980,
are hereby SET ASIDE. Its original decision, promulgated on September 25,1979, is hereby REINSTATED and
AFFIRMED. SO ORDERED.

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G.R. No. 1719 January 23, 1907

M. H., RAKES, plaintiff-appellee,

vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.

A. D. Gibbs for appellant.

F. G. Waite, & Thimas Kepner for appellee.

TRACEY, J.:

This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the employment of the
defendant, was at work transporting iron rails from a barge in the harbor to the company's yard near the malecon
in Manila. Plaintiff claims that but one hand car was used in this work. The defendant has proved that there
were two immediately following one another, upon which were piled lengthwise seven rails, each weighing 560
pounds, so that the ends of the rails lay upon two crosspieces or sills secured to the cars, but without side pieces
or guards to prevent them from slipping off. According to the testimony of the plaintiff, the men were either in
the rear of the car or at its sides. According to that defendant, some of them were also in front, hauling by a
rope. At a certain spot at or near the water's edge the track sagged, the tie broke, the car either canted or upset,
the rails slid off and caught the plaintiff, breaking his leg, which was afterwards amputated at about the knee.

This first point for the plaintiff to establish was that the accident happened through the negligence of the
defendant. The detailed description by the defendant's witnesses of the construction and quality of the track
proves that if was up to the general stranded of tramways of that character, the foundation consisting on land of
blocks or crosspieces of wood, by 8 inches thick and from 8 to 10 feet long laid, on the surface of the ground,
upon which at a right angle rested stringers of the same thickness, but from 24 to 30 feet in length. On the
across the stringers the parallel with the blocks were the ties to which the tracks were fastened. After the road
reached the water's edge, the blocks or crosspieces were replaced with pilling, capped by timbers extending
from one side to the other. The tracks were each about 2 feet wide and the two inside rails of the parallel tracks
about 18 inches apart. It was admitted that there were no side pieces or guards on the car; that where no ends of
the rails of the track met each other and also where the stringers joined, there were no fish plates. the defendant
has not effectually overcome the plaintiff's proof that the joints between the rails were immediately above the
joints between the underlying stringers.

The cause of the sagging of the tracks and the breaking of the tie, which was the immediate occasion of the
accident, is not clear in the evidence, but is found by the trial court and is admitted in the briefs and in the
argument to have been the dislodging of the crosspiece or piling under the stringer by the water of the bay
raised by a recent typhoon. The superintendent of the company attributed it to the giving way of the block laid
in the sand. No effort was made to repair the injury at the time of the occurrence. According to plaintiffs
witnesses, a depression of the track, varying from one half inch to one inch and a half, was therafter apparent to
the eye, and a fellow workman of the plaintiff swears that the day before the accident he called the attention of
McKenna, the foreman, to it and asked by simply straightening out the crosspiece, resetting the block under the
stringer and renewing the tie, but otherwise leaving the very same timbers as before. It has not proven that the
company inspected the track after the typhoon or had any proper system of inspection.

In order to charge the defendant with negligence, it was necessary to show a breach of duty on its part in failing
either to properly secure the load on iron to vehicles transporting it, or to skillfully build the tramway or to
maintain it in proper condition, or to vigilantly inspect and repair the roadway as soon as the depression in it
became visible. It is upon the failure of the defendant to repair the weakened track, after notice of its condition,
that the judge below based his judgment.
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This case presents many important matters for our decision, and first among them is the standard of duty which
we shall establish in our jurisprudence on the part of employees toward employees.

The lack or the harshness of legal rules on this subject has led many countries to enact designed to put these
relations on a fair basis in the form of compensation or liability laws or the institution of insurance. In the
absence of special legislation we find no difficulty in so applying the general principles of our law as to work
out a just result.

Article 1092 of the Civil Code provides:

Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions of the Penal
Code.

And article 568 of the latter code provides:

He who shall execute through reckless negligence an act that if done with malice would constitute a
grave crime, shall be punished.

And article 590 provides that the following shall be punished:

4. Those who by simple imprudence or negligence, without committing any infraction of regulations,
shall cause an injury which, had malice intervened, would have constituted a crime or misdemeanor.

And finally by articles 19 and 20, the liability of owners and employers for the faults of their servants and
representatives is declared to be civil and subsidiary in its character.

It is contented by the defendant, as its first defense to the action, that the necessary conclusion from these
collated laws is that the remedy for injuries through negligence lies only in a criminal action in which the
official criminally responsible must be made primarily liable and his employer held only subsidiarily to him.
According to this theory the plaintiff should have procured the arrest of the representative of the company
accountable for not repairing the tract, and on his prosecution a suitable fine should have been imposed, payable
primarily by him and secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil Code
makes obligations arising from faults or negligence not punished by the law, subject to the provisions of
Chapter 11 of Title XVI. Section 1902 of that chapter reads:

A person who by an act or omission causes damage to another when there is fault or negligence shall be
obliged to repair the damage so done.

SEC. 1903. The obligation imposed by the preceding article is demandable, not only for personal acts
and omissions, but also for those of the persons for whom they should be responsible.

The father, and on his death or incapacity, the mother, is liable for the damages caused by the minors
who live with them.

xxx xxx xxx

Page | 171
 Owners or directors of an establishment or enterprise are equally liable for the damages caused by their
employees in the service of the branches in which the latter may be employed or in the performance of
their duties.

xxx xxx xxx

The liability referred to in this article shall cease when the persons mentioned therein prove that they
employed all the diligence of a good father of a family to avoid the damages.

As an answer to the argument urged in this particular action it may be sufficient to point out that nowhere in our
general statutes is the employer penalized for failure to provide or maintain safe appliances for his workmen.
His obligation therefore is one "not punished by the law " and falls under civil rather than criminal
jurisprudence. But the answer may be a broader one. We should be reluctant, under any conditions, to adopt a
forced construction of these scientific codes, such as is proposed by the defendant, that would rob some of these
articles of effect, would shut out litigants their will from the civil courts, would make the assertion of their
rights dependent upon the selection for prosecution of the proper criminal offender, and render recovery
doubtful by reason of the strict rules of proof prevailing in criminal actions. Even if these articles had always
stood alone, such a construction would be unnecessary, but clear light is thrown upon their meaning by the
provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though n ever
in actual force in these Islands, was formerly given a suppletory or explanatory effect. Under article 111 of this
law, both classes of action, civil and criminal, might be prosecuted jointly or separately, but while the penal
action was pending the civil was suspended. According to article 112, the penal action once started, the civil
remedy should be sought therewith, unless it had been waived by the party injured or been expressly reserved
by him for civil proceedings for the future. If the civil action alone was prosecuted, arising out of a crime that
could be enforced by only on private complaint, the penal action thereunder should be extinguished. These
provisions are in harmony with those of articles 23 and 133 of our Penal Code on the same subject.

An examination of this topic might be carried much further, but the citations of these articles suffices to show
that the civil liability was not intended to be merged in the criminal nor even to be suspended thereby, except as
expressly provided by law. Where an individual is civilly liable for a negligent act or omission, it is not required
that the inured party should seek out a third person criminally liable whose prosecution must be a condition
precedent to the enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in respect of
criminal actions against his employees only while they are process of prosecution, or in so far as they
determinate the existence of the criminal act from which liability arises, and his obligation under the civil law
and its enforcement in the civil courts is not barred thereby unless by election of the injured person. Inasmuch
as no criminal in question, the provisions of the Penal Code can not affect this action. This construction renders
it unnecessary to finally determine here whether this subsidiary civil liability in penal actions survived the laws
that fully regulated it or has been abrogated by the American civil and criminal procedure now in force in the
Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the briefs before us to
have arisen from the interpretation of the words of article 1093, "fault or negligence not punished by law," as
applied to the comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It has been shown
that the liability of an employer arising out of his relation to his employee who is the offender is not to be
regarded as derived from negligence punished by the law, within the meaning of articles 1092 and 1093. More
than this, however, it can not be said to fall within the class of acts unpunished by the law, the consequences of
which are regulated by articles 1902 and 1903 of the Civil Code. The acts to which these articles are applicable
are understood to be those and growing out of preexisting duties of the parties to one another. But were relations
Page | 172
already formed give rise to duties, whether springing from contract or quasi contract, then breaches of those
duties are subject to articles 1101, 1103, and 1104, of the same code. A typical application of the distinction
may be found in the consequences of a railway accident due to defective machinery supplied by the employer.
His liability to his employee would arise out of the contract of employment, that to the passengers out of the
contract for passage. while that to that injured bystander would originate in the negligent act itself. This
distinction is thus clearly set forth by Manresa in his commentary on article 1093.

We are with reference to such obligations, that culpa, or negligence, may be understood in two
difference senses; either as culpa, substantive and independent, which on account of its origin arises in
an obligation between two persons not formerly bound by any other obligation; or as an incident in the
performance of an obligation; or as already existed, which can not be presumed to exist without the
other, and which increases the liability arising from the already exiting obligation.

Of these two species of culpa the first one mentioned, existing by itself, may be also considered as a real
source of an independent obligation, and, as chapter 2, title 16 of this book of the code is devoted to it, it
is logical to presume that the reference contained in article 1093 is limited thereto and that it does not
extend to those provisions relating to the other species of culpa (negligence), the nature of which we will
discuss later. (Vol. 8, p. 29.)

And in his commentary on articles 1102 and 1104 he says that these two species of negligence may be
somewhat inexactly described as contractual and extra-contractual, the letter being the culpa aquiliana of the
Roman law and not entailing so strict an obligation as the former. This terminology is unreservedly accepted by
Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, No. 12), and the principle stated is
supported be decisions of the supreme court of Spain, among them those of November 20, 1896 (80
Jurisprudencia Civil, No. 151), and June 27, 1894 (75 Jurisprudencia Civil, No. 182). The contract is one for
hire and not one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)

Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30, 1900, throws
uncertain light on the relation between master and workman. Moved by the quick industrial development of
their people, the courts of France early applied to the subject the principles common to the law of both
countries, which are lucidly discussed by the leading French commentators.

The original French theory, resting the responsibility of owners of industrial enterprises upon articles 1382,
1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and 1903 of the Spanish Code,
soon yielded to the principle that the true basis is the contractual obligation of the employer and employee. (See
18 Dalloz, 196, Title Travail, 331.)

Later the hardships resulting from special exemptions inserted in contracts for employment led to the discovery
of a third basis for liability in an article of he French Code making the possessor of any object answerable for
damage done by it while in his charge. Our law having no counterpart of this article, applicable to every kind of
object, we need consider neither the theory growing out of it nor that of "professional risk" more recently
imposed by express legislation, but rather adopting the interpretation of our Civil Code above given, find a rule
for this case in the contractual obligation. This contractual obligation, implied from the relation and perhaps so
inherent in its nature to be invariable by the parties, binds the employer to provide safe appliances for the use of
the employee, thus closely corresponding to English and American Law. On these principles it was the duty of
the defendant to build and to maintain its track in reasonably sound condition, so as to protect its workingmen
from unnecessary danger. It is plain that in one respect or the other it failed in its duty, otherwise the accident
could not have occurred; consequently the negligence of the defendant is established.

Page | 173
Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his employment
and, as such, one assumed by him. It is evident that this can not be the case if the occurrence was due to the
failure to repair the track or to duly inspect, it for the employee is not presumed to have stipulated that the
employer might neglect his legal duty. Nor may it be excused upon the ground that the negligence leading to the
accident was that of a fellow-servant of the injured man. It is not apparent to us that the intervention of a third
person can relieve the defendant from the performance of its duty nor impose upon the plaintiff the
consequences of an act or omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-
servant, rule," we are not disposed to introduce into our jurisprudence. Adopted in England by Lord Abinger in
the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been effectually abrogated by "the
Employers' Liability Acts" and the "Compensation Law." The American States which applied it appear to be
gradually getting rid of it; for instance, the New York State legislature of 1906 did away with it in respect to
railroad companies, and had in hand a scheme for its total abolition. It has never found place in the civil law of
continental Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also
more recent instances in Fuzier-Herman, Title Responsibilite Civile, 710.)

The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28, 1841, in the
case of Reygasse, and has since adhered to it.

The most controverted question in the case is that of the negligence of the plaintiff, contributing to the accident,
to what extent it existed in fact and what legal effect is to be given it. In two particulars is he charged with
carelessness:

First. That having noticed the depression in the track he continued his work; and

Second. That he walked on the ends of the ties at the side of the car instead of along the boards, either before or
behind it.

As to the first point, the depression in the track night indicate either a serious or a rival difficulty. There is
nothing in the evidence to show that the plaintiff did or could see the displaced timber underneath the sleeper.
The claim that he must have done so is a conclusion drawn from what is assumed to have been a probable
condition of things not before us, rather than a fair inference from the testimony. While the method of
construction may have been known to the men who had helped build the road, it was otherwise with the plaintiff
who had worked at this job less than two days. A man may easily walk along a railway without perceiving a
displacement of the underlying timbers. The foreman testified that he knew the state of the track on the day of
the accident and that it was then in good condition, and one Danridge, a witness for the defendant, working on
the same job, swore that he never noticed the depression in the track and never saw any bad place in it. The
sagging of the track this plaintiff did perceive, but that was reported in his hearing to the foreman who neither
promised nor refused to repair it. His lack of caution in continuing at his work after noticing the slight
depression of the rail was not of so gross a nature as to constitute negligence, barring his recovery under the
severe American rule. On this point we accept the conclusion of the trial judge who found as facts that "the
plaintiff did not know the cause of the one rail being lower than then other" and "it does not appear in this case
that the plaintiff knew before the accident occurred that the stringers and rails joined in the same place."

Were we not disposed to agree with these findings they would, nevertheless, be binding upon us, because not
"plainly and manifestly against the weight of evidence," as those words of section 497, paragraph 3 of the Code
of Civil Procedure were interpreted by the Supreme Court of the United States in the De la Rama case (201 U.
S., 303).

In respect of the second charge of negligence against the plaintiff, the judgment below is not so specific. While
the judge remarks that the evidence does not justify the finding that the car was pulled by means of a rope
Page | 174
attached to the front end or to the rails upon it, and further that the circumstances in evidence make it clear that
the persons necessary to operate the car could not walk upon the plank between the rails and that, therefore, it
was necessary for the employees moving it to get hold upon it as best they could, there is no specific finding
upon the instruction given by the defendant to its employees to walk only upon the planks, nor upon the
necessity of the plaintiff putting himself upon the ties at the side in order to get hold upon the car. Therefore the
findings of the judge below leave the conduct of the plaintiff in walking along the side of the loaded car, upon
the open ties, over the depressed track, free to our inquiry.

While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this way, but
were expressly directed by the foreman to do so, both the officers of the company and three of the workmen
testify that there was a general prohibition frequently made known to all the gang against walking by the side of
the car, and the foreman swears that he repeated the prohibition before the starting of this particular load. On
this contradiction of proof we think that the preponderance is in favor of the defendant's contention to the extent
of the general order being made known to the workmen. If so, the disobedience of the plaintiff in placing
himself in danger contributed in some degree to the injury as a proximate, although not as its primary cause.
This conclusion presents sharply the question, What effect is to be given such an act of contributory negligence?
Does it defeat a recovery, according to the American rule, or is it to be taken only in reduction of damages?

While a few of the American States have adopted to a greater or less extent the doctrine of comparative
negligence, allowing a recovery by a plaintiff whose own act contributed to his injury, provided his negligence
was slight as compared with that of the defendant, and some others have accepted the theory of proportional
damages, reducing the award to a plaintiff in proportion to his responsibility for the accident, yet the
overwhelming weight of adjudication establishes the principle in American jurisprudence that any negligence,
however slight, on the part of the person injured which is one of the causes proximately contributing to his
injury, bars his recovery. (English and American Encyclopedia of law, Titles "Comparative Negligence" and
Contributory Negligence.")

In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the United States
thus authoritatively states the present rule of law:

Although the defendant's' negligence may have been the primary cause of the injury complained of, yet
an action for such injury can not be maintained if the proximate and immediate cause of the injury can
be traced to the want of ordinary care and caution in the person injured; subject to this qualification,
which has grown up in recent years (having been first enunciated in Davies vs. Mann, 10 M. & W., 546)
that the contributory negligence of the party injured will not defeat the action if it be shown that the
defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the
injured party's negligence.

There are may cases in the supreme court of Spain in which the defendant was exonerated, but when analyzed
they prove to have been decided either upon the point that he was not negligent or that the negligence of the
plaintiff was the immediate cause of the casualty or that the accident was due to casus fortuitus. Of the first
class in the decision of January 26, 1887 (38 Jurisprudencia Criminal, No. 70), in which a railway employee,
standing on a car, was thrown therefrom and killed by the shock following the backing up of the engine. It was
held that the management of the train and engine being in conformity with proper rules of the company, showed
no fault on its part.

Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of March, 1902,
stated in Alcubilla's Index of that year; and of the third class the decision of the 4th of June, 1888
(64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by the logs of the defendant
impelled against it by the Tajo River, was held due to a freshet as a fortuitous cause.
Page | 175
The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one, that the
defendant was not negligent, because expressly relieved by royal order from the common obligation imposed by
the police law of maintaining a guard at the road crossing; the other, because the act of the deceased in driving
over level ground with unobstructed view in front of a train running at speed, with the engine whistle blowing
was the determining cause of the accident. It is plain that the train was doing nothing but what it had a right to
do and that the only fault lay with the injured man. His negligence was not contributory, it was sole, and was of
such an efficient nature that without it no catastrophe could have happened.

On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining damages
was not free from contributory negligence; for instance, the decision of the 14th of December, 1894
(76 Jurisprudencia Civil, No. 134), in which the owner of a building was held liable for not furnishing
protection to workmen engaged in hanging out flags, when the latter must have perceived beforehand the
danger attending the work.

None of those cases define the effect to be given the negligence of a plaintiff which contributed to his injury as
one of its causes, though not the principal one, and we are left to seek the theory of the civil law in the practice
of other countries.

In France in the case of Marquant, August 20, 1879, the cour de cassation held that the carelessness of the
victim did not civilly relieve the person without whose fault the accident could not have happened, but that the
contributory negligence of the injured man had the effect only of reducing the damages. The same principle was
applied in the case of Recullet, November 10, 1888. and that of Laugier of the 11th of November, 1896.
(Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title
Trail, 363, 364, and vol. 15, 1895, Title Responsibilite, 193, 198).

In the Canadian Province of Quebee, which has retained for the most part the French Civil Law, now embodied
in a code following the Code Napoleon, a practice in accord with that of France is laid down in many cases
collected in the annotations to article 1053 of the code edited by Beauchamps, 1904. One of these is
Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6, page 90, in which the court of Kings
bench, otherwise known as the court of appeals, the highest authority in the Dominion of Canada on points of
French law, held that contributory negligence did not exonerate the defendants whose fault had been the
immediate cause of the accident, but entitled him to a reduction of damages. Other similar cases in the
provincial courts have been overruled by appellate tribunals made up of common law judges drawn from other
provinces, who have preferred to impose uniformally throughout the Dominion the English theory of
contributory negligence. Such decisions throw no light upon the doctrines of the civil law. Elsewhere we find
this practice embodied in legislation; for instance, section 2 of article 2398 of the Code of Portugal reads as
follows:

If in the case of damage there was fault or negligence on the part of the person injured or in the part of
some one else, the indemnification shall be reduced in the first case, and in the second case it shall be
appropriated in proportion to such fault or negligence as provided in paragraphs 1 and 2 of section 2372.

And in article 1304 of the Austrian Code provides that the victim who is partly changeable with the accident
shall stand his damages in proportion to his fault, but when that proportion is incapable of ascertainment, he
shall share the liability equally with the person principally responsible. The principle of proportional damages
appears to be also adopted in article 51 of the Swiss Code. Even in the United States in admirality jurisdictions,
whose principles are derived from the civil law, common fault in cases of collision have been disposed of not on
the ground of contradictor negligence, but on that of equal loss, the fault of the one part being offset against that
of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)

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The damage of both being added together and the sum equally divided, a decree is entered in favor of the vessel
sustaining the greater loss against the other for the excess of her damages over one-half of the aggregate sum.
(The Manitoba, 122 U. S., 97)

Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code of Commerce,
article 827, makes each vessel for its own damage when both are the fault; this provision restricted to a single
class of the maritime accidents, falls for short of a recognition of the principle of contributory negligence as
understood in American Law, with which, indeed, it has little in common. This is a plain from other articles of
the same code; for instance, article 829, referring to articles 826, 827, and 828, which provides: "In the cases
above mentioned the civil action of the owner against the person liable for the damage is reserved, as well as the
criminal liability which may appear."

The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the parties,
appears to have grown out the original method of trial by jury, which rendered difficult a nice balancing of
responsibilities and which demanded an inflexible standard as a safeguard against too ready symphaty for the
injured. It was assumed that an exact measure of several concurring faults was unattainable.

The reason why, in cases of mutual concurring negligence, neither party can maintain an action against
the other, is, not the wrong of the one is set off against the wrong of the other; it that the law can not
measure how much of the damage suffered is attributable to the plaintiff's own fault. If he were allowed
to recover, it might be that he would obtain from the other party compensation for hiss own misconduct.
(Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)

The parties being mutually in fault, there can be no appointment of damages. The law has no scales to
determine in such cases whose wrongdoing weighed most in the compound that occasioned the
mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)

Experience with jury trials in negligence cases has brought American courts to review to relax the vigor of the
rule by freely exercising the power of setting aside verdicts deemed excessive, through the device of granting
new trials, unless reduced damages are stipulated for, amounting to a partial revision of damages by the courts.
It appears to us that the control by the court of the subject matter may be secured on a moral logical basis and its
judgment adjusted with greater nicety to the merits of the litigants through the practice of offsetting their
respective responsibilities. In the civil law system the desirable end is not deemed beyond the capacity of its
tribunals.

Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the stress and
counter stress of novel schemers of legislation, we find the theory of damages laid down in the judgment the
most consistent with the history and the principals of our law in these Islands and with its logical development.

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate
causes of the accident. The test is simple. Distinction must be between the accident and the injury, between the
event itself, without which there could have been no accident, and those acts of the victim not entering into it,
independent of it, but contributing under review was the displacement of the crosspiece or the failure to replace
it. this produced the event giving occasion for damages — that is, the shinking of the track and the sliding of the
iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it
was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly
thorough his act of omission of duty, the last would have been one of the determining causes of the event or
accident, for which he would have been responsible. Where he contributes to the principal occurrence, as one of
its determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to

Page | 177
his own injury, he may recover the amount that the defendant responsible for the event should pay for such
injury, less a sum deemed a suitable equivalent for his own imprudence.

Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred by the
plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct therefrom 2,500 pesos,
the amount fairly attributable to his negligence, and direct judgment to be entered in favor of the plaintiff for the
resulting sum of 2,500 pesos, with cost of both instances, and ten days hereafter let the case be remanded to the
court below for proper action. So ordered.

G.R. No. L-45637 May 31, 1985

ROBERTO JUNTILLA, petitioner, vs. CLEMENTE FONTANAR, FERNANDO BANZON and
BERFOL CAMORO, respondents.
Valentin A. Zozobrado for petitioner.
Ruperto N. Alfarara for respondents.
GUTIERREZ, JR., J.:
This is a petition for review, on questions of law, of the decision of the Court of First Instance of Cebu which
reversed the decision of the City Court of Cebu and exonerated the respondents from any liability arising from a
vehicular accident.
The background facts which led to the filing of a complaint for breach of contract and damages against the
respondents are summarized by the Court of First Instance of Cebu as follows:
The facts established after trial show that the plaintiff was a passenger of the public utility jeepney bearing plate
No. PUJ-71-7 on the course of the trip from Danao City to Cebu City. The jeepney was driven by defendant
Berfol Camoro. It was registered under the franchise of defendant Clemente Fontanar but was actually owned
by defendant Fernando Banzon. When the jeepney reached Mandaue City, the right rear tire exploded causing
the vehicle to turn turtle. In the process, the plaintiff who was sitting at the front seat was thrown out of the
vehicle. Upon landing on the ground, the plaintiff momentarily lost consciousness. When he came to his senses,
he found that he had a lacerated wound on his right palm. Aside from this, he suffered injuries on his left arm,
right thigh and on his back. (Exh. "D"). Because of his shock and injuries, he went back to Danao City but on
the way, he discovered that his "Omega" wrist watch was lost. Upon his arrival in Danao City, he immediately
entered the Danao City Hospital to attend to his injuries, and also requested his father-in-law to proceed
immediately to the place of the accident and look for the watch. In spite of the efforts of his father-in-law, the
wrist watch, which he bought for P 852.70 (Exh. "B") could no longer be found.
xxx xxx xxx
Page | 178
Petitioner Roberto Juntilla filed Civil Case No. R-17378 for breach of contract with damages before the City
Court of Cebu City, Branch I against Clemente Fontanar, Fernando Banzon and Berfol Camoro.
The respondents filed their answer, alleging inter alia that the accident that caused losses to the petitioner was
beyond the control of the respondents taking into account that the tire that exploded was newly bought and was
only slightly used at the time it blew up.
After trial, Judge Romulo R. Senining of the Civil Court of Cebu rendered judgment in favor of the petitioner
and against the respondents. The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants and the latter
are hereby ordered, jointly and severally, to pay the plaintiff the sum of P750.00 as reimbursement for the lost
Omega wrist watch, the sum of P246.64 as unrealized salary of the plaintiff from his employer, the further sum
of P100.00 for the doctor's fees and medicine, an additional sum of P300.00 for attorney's fees and the costs.
The respondents appealed to the Court of First Instance of Cebu, Branch XIV.
Judge Leonardo B. Canares reversed the judgment of the City Court of Cebu upon a finding that the accident in
question was due to a fortuitous event. The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered exonerating the defendants from any liability to the plaintiff
without pronouncement as to costs.
A motion for reconsideration was denied by the Court of First Instance.
The petitioner raises the following alleged errors committed by the Court of First Instance of Cebu on appeal—
a. The Honorable Court below committed grave abuse of discretion in failing to take cognizance of the fact that
defendants and/or their employee failed to exercise "utmost and/or extraordinary diligence" required of common
carriers contemplated under Art. 1755 of the Civil Code of the Philippines.
b. The Honorable Court below committed grave abuse of discretion by deciding the case contrary to the
doctrine laid down by the Honorable Supreme Court in the case of Necesito et al. v. Paras, et al.
We find the petition impressed with merit.
The City Court and the Court of First Instance of Cebu found that the right rear tire of the passenger jeepney in
which the petitioner was riding blew up causing the vehicle to fall on its side. The petitioner questions the
conclusion of the respondent court drawn from this finding of fact.
The Court of First Instance of Cebu erred when it absolved the carrier from any liability upon a finding that the
tire blow out is a fortuitous event. The Court of First Instance of Cebu ruled that:
After reviewing the records of the case, this Court finds that the accident in question was due to a fortuitous
event. A tire blow-out, such as what happened in the case at bar, is an inevitable accident that exempts the
carrier from liability, there being absence of a showing that there was misconduct or negligence on the part of
the operator in the operation and maintenance of the vehicle involved. The fact that the right rear tire exploded,
despite being brand new, constitutes a clear case of caso fortuito which can be a proper basis for exonerating the
defendants from liability. ...
The Court of First Instance relied on the ruling of the Court of Appeals in Rodriguez v. Red Line Transportation
Co., CA G.R. No. 8136, December 29, 1954, where the Court of Appeals ruled that:

Page | 179
A tire blow-out does not constitute negligence unless the tire was already old and should not have been used at
all. Indeed, this would be a clear case of fortuitous event.
The foregoing conclusions of the Court of First Instance of Cebu are based on a misapprehension of overall
facts from which a conclusion should be drawn. The reliance of the Court of First Instance on
the Rodriguez case is not in order. In La Mallorca and Pampanga Bus Co. v. De Jesus, et al. (17 SCRA 23), we
held that:
Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability for negligence, citing
the rulings of the Court of Appeals in Rodriguez v. Red Line Transportation Co., CA G.R. No. 8136, December
29, 1954, and People v. Palapad, CA-G.R. No. 18480, June 27, 1958. These rulings, however, not only are not
binding on this Court but were based on considerations quite different from those that obtain in the case at bar.
The appellate court there made no findings of any specific acts of negligence on the part of the defendants and
confined itself to the question of whether or not a tire blow-out, by itself alone and without a showing as to the
causative factors, would generate liability. ...
In the case at bar, there are specific acts of negligence on the part of the respondents. The records show that the
passenger jeepney turned turtle and jumped into a ditch immediately after its right rear tire exploded. The
evidence shows that the passenger jeepney was running at a very fast speed before the accident. We agree with
the observation of the petitioner that a public utility jeep running at a regular and safe speed will not jump into
a ditch when its right rear tire blows up. There is also evidence to show that the passenger jeepney was
overloaded at the time of the accident. The petitioner stated that there were three (3) passengers in the front seat
and fourteen (14) passengers in the rear.
While it may be true that the tire that blew-up was still good because the grooves of the tire were still visible,
this fact alone does not make the explosion of the tire a fortuitous event. No evidence was presented to show
that the accident was due to adverse road conditions or that precautions were taken by the jeepney driver to
compensate for any conditions liable to cause accidents. The sudden blowing-up, therefore, could have been
caused by too much air pressure injected into the tire coupled by the fact that the jeepney was overloaded and
speeding at the time of the accident.
In Lasam v. Smith (45 Phil. 657), we laid down the following essential characteristics of caso fortuito:
xxx xxx xxx
... In a legal sense and, consequently, also in relation to contracts, a caso fortuito presents the following
essential characteristics: (1) The cause of the unforeseen and unexpected occurrence, or of the failure of the
debtor to comply with his obligation, must be independent of the human will. (2) It must be impossible to
foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid. (3)
The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal
manner. And (4) the obligor (debtor) must be free from any participation in the aggravation of the injury
resulting to the creditor. (5 Encyclopedia Juridica Espanola, 309.)
In the case at bar, the cause of the unforeseen and unexpected occurrence was not independent of the human
will. The accident was caused either through the negligence of the driver or because of mechanical defects in
the tire. Common carriers should teach their drivers not to overload their vehicles, not to exceed safe and legal
speed limits, and to know the correct measures to take when a tire blows up thus insuring the safety of
passengers at all times. Relative to the contingency of mechanical defects, we held in Necesito, et al. v. Paras,
et al. (104 Phil. 75), that:

Page | 180
... The preponderance of authority is in favor of the doctrine that a passenger is entitled to recover damages
from a carrier for an injury resulting from a defect in an appliance purchased from a manufacturer, whenever it
appears that the defect would have been discovered by the carrier if it had exercised the degree of care which
under the circumstances was incumbent upon it, with regard to inspection and application of the necessary tests.
For the purposes of this doctrine, the manufacturer is considered as being in law the agent or servant of the
carrier, as far as regards the work of constructing the appliance. According to this theory, the good repute of the
manufacturer will not relieve the carrier from liability' (10 Am. Jur. 205, s, 1324; see also Pennsylvania R. Co.
v. Roy, 102 U.S. 451; 20 L. Ed. 141; Southern R. Co. v. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29
ALR 788.: Ann. Cas. 1916E 929).
The rationale of the carrier's liability is the fact that the passenger has neither choice nor control over the carrier
in the selection and use of the equipment and appliances in use by the carrier. Having no privity whatever with
the manufacturer or vendor of the defective equipment, the passenger has no remedy against him, while the
carrier usually has. It is but logical, therefore, that the carrier, while not an insurer of the safety of his
passengers, should nevertheless be held to answer for the flaws of his equipment if such flaws were at all
discoverable. ...
It is sufficient to reiterate that the source of a common carrier's legal liability is the contract of carriage, and by
entering into the said contract, it binds itself to carry the passengers safely as far as human care and foresight
can provide, using the utmost diligence of a very cautious person, with a due regard for all the circumstances.
The records show that this obligation was not met by the respondents.
The respondents likewise argue that the petitioner cannot recover any amount for failure to prove such damages
during the trial. The respondents submit that if the petitioner was really injured, why was he treated in Danao
City and not in Mandaue City where the accident took place. The respondents argue that the doctor who issued
the medical certificate was not presented during the trial, and hence not cross-examined. The respondents also
claim that the petitioner was not wearing any wrist watch during the accident.
It should be noted that the City Court of Cebu found that the petitioner had a lacerated wound on his right palm
aside from injuries on his left arm, right thigh and on his back, and that on his way back to Danao City, he
discovered that his "Omega" wrist watch was lost. These are findings of facts of the City Court of Cebu which
we find no reason to disturb. More so when we consider the fact that the Court of First Instance of Cebu
impliedly concurred in these matters when it confined itself to the question of whether or not the tire blow out
was a fortuitous event.
WHEREFORE, the decision of the Court of First Instance of Cebu, Branch IV appealed from is hereby
REVERSED and SET ASIDE, and the decision of the City Court of Cebu, Branch I is REINSTATED, with the
modification that the damages shall earn interest at 12% per annum and the attorney's fees are increased to SIX
HUNDRED PESOS (P600.00). Damages shall earn interests from January 27, 1975.
SO ORDERED.

Page | 181
 [G.R. No. 126389. July 10, 1998]

SOUTHEASTERN COLLEGE, INC., petitioner, vs. COURT OF APPEALS, JUANITA DE JESUS VDA.
DE DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO, CONSOLACION DIMAANO
and MILAGROS DIMAANO, respondents.

DECISION
PURISIMA, J.:

Petition for review under Rule 45 of the Rules of Court seeking to set aside the Decision [1] promulgated on
July 31, 1996, and Resolution[2] dated September 12, 1996 of the Court of Appeals[3] in CA-G.R. No. 41422,
entitled Juanita de Jesus vda. de Dimaano, et al. vs. Southeastern College, Inc., which reduced the moral
damages awarded below from P1,000,000.00 to P200,000.00.[4] The Resolution under attack denied petitioners
motion for reconsideration.
Private respondents are owners of a house at 326 College Road, Pasay City, while petitioner owns a four-
storey school building along the same College Road. On October 11, 1989, at about 6:30 in the morning, a
powerful typhoon Saling hit Metro Manila. Buffeted by very strong winds, the roof of petitioners building was
partly ripped off and blown away, landing on and destroying portions of the roofing of private respondents‘
house. After the typhoon had passed, an ocular inspection of the destroyed buildings was conducted by a team

Page | 182
of engineers headed by the city building official, Engr. Jesus L. Reyna. Pertinent aspects of the latters
Report[5] dated October 18, 1989 stated, as follows:

5. One of the factors that may have led to this calamitous event is the formation of the buildings in the area and
the general direction of the wind. Situated in the peripheral lot is an almost U-shaped formation of 4-storey
building. Thus, with the strong winds having a westerly direction, the general formation of the buildings
becomes a big funnel-like structure, the one situated along College Road, receiving the heaviest impact of the
strong winds. Hence, there are portions of the roofing, those located on both ends of the building, which
remained intact after the storm.

6. Another factor and perhaps the most likely reason for the dislodging of the roofings structural trusses is the
improper anchorage of the said trusses to the roof beams. The 1/2 diameter steel bars embedded on the
concrete roof beams which serve as truss anchorage are not bolted nor nailed to the trusses. Still, there are
other steel bars which were not even bent to the trusses, thus, those trusses are not anchored at all to the
roofbeams.

It then recommended that to avoid any further loss and damage to lives, limbs and property of persons living in
the vicinity, the fourth floor of subject school building be declared as a structural hazard.
In their Complaint [6] before the Regional Trial Court of Pasay City, Branch 117, for damages based
on culpa aquiliana, private respondents alleged that the damage to their house rendered the same uninhabitable,
forcing them to stay temporarily in others houses. And so they sought to recover from petitioner P117,116.00,
as actual damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary damages and P100,000.00, for
and as attorneys fees; plus costs.
In its Answer, petitioner averred that subject school building had withstood several devastating typhoons
and other calamities in the past, without its roofing or any portion thereof giving way; that it has not been
remiss in its responsibility to see to it that said school building, which houses school children, faculty members,
and employees, is in tip-top condition; and furthermore, typhoon Salingwas an act of God and therefore beyond
human control such that petitioner cannot be answerable for the damages wrought thereby, absent any
negligence on its part.
The trial court, giving credence to the ocular inspection report to the effect that subject school building had
a defective roofing structure, found that, while typhoon Saling was accompanied by strong winds, the damage
to private respondents house could have been avoided if the construction of the roof of [petitioners] building
was not faulty. The dispositive portion of the lower courts decision [7] reads thus:

WHEREFORE, in view of the foregoing, the Court renders judgment (sic) in favor of the plaintiff (sic) and
against the defendants, (sic) ordering the latter to pay jointly and severally the former as follows:

a) P117,116.00, as actual damages, plus litigation expenses;

b) P1,000,000.00 as moral damages;

c) P100,000.00 as attorneys fees;

d) Costs of the instant suit.

The claim for exemplary damages is denied for the reason that the defendants (sic) did not act in a wanton
fraudulent, reckless, oppressive or malevolent manner.

Page | 183
 In its appeal to the Court of Appeals, petitioner assigned as errors, [8] that:
I
THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON SALING, AS AN ACT OF GOD,
IS NOT THE SOLE AND ABSOLUTE REASON FOR THE RIPPING-OFF OF THE SMALL
PORTION OF THE ROOF OF SOUTHEASTERNS FOUR (4) STOREY SCHOOL BUILDING.
II
THE TRIAL COURT ERRED IN HOLDING THAT THE CONSTRUCTION OF THE ROOF OF
DEFENDANTS SCHOOL BUILDING WAS FAULTY NOTWITHSTANDING THE ADMISSION
THAT THERE WERE TYPHOONS BEFORE BUT NOT AS GRAVE AS TYPHOON SALING
WHICH IS THE DIRECT AND PROXIMATE CAUSE OF THE INCIDENT.
III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES AS WELL
AS ATTORNEYS FEES AND LITIGATION EXPENSES AND COSTS OF SUIT TO DIMAANOS
WHEN THEY HAVE NOT INCURRED ACTUAL DAMAGES AT ALL AS DIMAANOS HAVE
ALREADY SOLD THEIR PROPERTY, AN INTERVENING EVENT THAT RENDERS THIS
CASE MOOT AND ACADEMIC.
IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF
EXECUTION INSPITE OF THE PERFECTION OF SOUTHEASTERNS APPEAL WHEN THERE
IS NO COMPELLING REASON FOR THE ISSUANCE THERETO.
As mentioned earlier, respondent Court of Appeals affirmed with modification the trial courts disposition
by reducing the award of moral damages from P1,000,000.00 to P200,000.00. Hence, petitioners resort to this
Court, raising for resolution the issues of:

1. Whether or not the award of actual damage [sic] to respondent Dimaanos on the basis of speculation or
conjecture, without proof or receipts of actual damage, [sic] legally feasible or justified.

2. Whether or not the award of moral damages to respondent Dimaanos, without the latter having suffered,
actual damage has legal basis.

3. Whether or not respondent Dimaanos who are no longer the owner of the property, subject matter of the case,
during its pendency, has the right to pursue their complaint against petitioner when the case was already
rendered moot and academic by the sale of the property to third party.

4. Whether or not the award of attorneys fees when the case was already moot and academic [sic] legally
justified.

5. Whether or not petitioner is liable for damage caused to others by typhoon Saling being an act of God.

6. Whether or not the issuance of a writ of execution pending appeal, ex-parte or without hearing, has support in
law.

Page | 184
 The pivot of inquiry here, determinative of the other issues, is whether the damage on the roof of the
building of private respondents resulting from the impact of the falling portions of the school buildings roof
ripped off by the strong winds of typhoon Saling, was, within legal contemplation, due to fortuitous event? If
so, petitioner cannot be held liable for the damages suffered by the private respondents. This conclusion finds
support in Article 1174 of the Civil Code, which provides:

Art 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or
when the nature of the obligation requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen, or which, though foreseen, were inevitable.

The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it as an event
which takes place by accident and could not have been foreseen.[9] Escriche elaborates it as an unexpected event
or act of God which could neither be foreseen nor resisted. [10] Civilist Arturo M. Tolentino adds that [f]ortuitous
events may be produced by two general causes: (1) by nature, such as earthquakes, storms, floods, epidemics,
fires, etc. and (2) by the act of man, such as an armed invasion, attack by bandits, governmental prohibitions,
robbery, etc.[11]
In order that a fortuitous event may exempt a person from liability, it is necessary that he be free from any
previous negligence or misconduct by reason of which the loss may have been occasioned. [12] An act of God
cannot be invoked for the protection of a person who has been guilty of gross negligence in not trying to
forestall its possible adverse consequences. When a persons negligence concurs with an act of God in producing
damage or injury to another, such person is not exempt from liability by showing that the immediate or
proximate cause of the damage or injury was a fortuitous event. When the effect is found to be partly the result
of the participation of man whether it be from active intervention, or neglect, or failure to act the whole
occurrence is hereby humanized, and removed from the rules applicable to acts of God. [13]
In the case under consideration, the lower court accorded full credence to the finding of the investigating
team that subject school buildings roofing had no sufficient anchorage to hold it in position especially when
battered by strong winds. Based on such finding, the trial court imputed negligence to petitioner and adjudged it
liable for damages to private respondents.

After a thorough study and evaluation of the evidence on record, this Court believes otherwise,
notwithstanding the general rule that factual findings by the trial court, especially when affirmed by the
appellate court, are binding and conclusive upon this Court. [14] After a careful scrutiny of the records and the
pleadings submitted by the parties, we find exception to this rule and hold that the lower courts misappreciated
the evidence proffered.
There is no question that a typhoon or storm is a fortuitous event, a natural occurrence which may be
foreseen but is unavoidable despite any amount of foresight, diligence or care. [15] In order to be exempt from
liability arising from any adverse consequence engendered thereby, there should have been no human
participation amounting to a negligent act. [16] In other words, the person seeking exoneration from liability must
not be guilty of negligence. Negligence, as commonly understood, is conduct which naturally or reasonably
creates undue risk or harm to others. It may be the failure to observe that degree of care, precaution, and
vigilance which the circumstances justly demand, [17] or the omission to do something which a prudent and
reasonable man, guided by considerations which ordinarily regulate the conduct of human affairs, would
do.[18] From these premises, we proceed to determine whether petitioner was negligent, such that if it were not,
the damage caused to private respondents house could have been avoided?

Page | 185
 At the outset, it bears emphasizing that a person claiming damages for the negligence of another has the
burden of proving the existence of fault or negligence causative of his injury or loss. The facts constitutive of
negligence must be affirmatively established by competent evidence,[19] not merely by presumptions and
conclusions without basis in fact. Private respondents, in establishing the culpability of petitioner, merely relied
on the aforementioned report submitted by a team which made an ocular inspection of petitioners school
building after the typhoon. As the term imparts, an ocular inspection is one by means of actual sight or
viewing.[20] What is visual to the eye though, is not always reflective of the real cause behind. For instance, one
who hears a gunshot and then sees a wounded person, cannot always definitely conclude that a third person shot
the victim. It could have been self-inflicted or caused accidentally by a stray bullet. The relationship of cause
and effect must be clearly shown.
In the present case, other than the said ocular inspection, no investigation was conducted to determine the
real cause of the partial unroofing of petitioners school building. Private respondents did not even show that the
plans, specifications and design of said school building were deficient and defective. Neither did they prove any
substantial deviation from the approved plans and specifications. Nor did they conclusively establish that the
construction of such building was basically flawed. [21]
On the other hand, petitioner elicited from one of the witnesses of private respondents, city building official
Jesus Reyna, that the original plans and design of petitioners school building were approved prior to its
construction. Engr. Reyna admitted that it was a legal requirement before the construction of any building to
obtain a permit from the city building official (city engineer, prior to the passage of the Building Act of
1977). In like manner, after construction of the building, a certification must be secured from the same official
attesting to the readiness for occupancy of the edifice. Having obtained both building permit and certificate of
occupancy, these are, at the very least, prima facie evidence of the regular and proper construction of subject
school building.[22]
Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon Saling, the same city
official gave the go-signal for such repairs without any deviation from the original design and subsequently,
authorized the use of the entire fourth floor of the same building. These only prove that subject building suffers
from no structural defect, contrary to the report that its U-shaped form was structurally defective. Having given
his unqualified imprimatur, the city building official is presumed to have properly performed his duties [23] in
connection therewith.
In addition, petitioner presented its vice president for finance and administration who testified that an
annual maintenance inspection and repair of subject school building were regularly undertaken. Petitioner was
even willing to present its maintenance supervisor to attest to the extent of such regular inspection but private
respondents agreed to dispense with his testimony and simply stipulated that it would be corroborative of the
vice presidents narration.
Moreover, the city building official, who has been in the city government service since 1974, admitted in
open court that no complaint regarding any defect on the same structure has ever been lodged before his office
prior to the institution of the case at bench. It is a matter of judicial notice that typhoons are common
occurrences in this country. If subject school buildings roofing was not firmly anchored to its trusses, obviously,
it could not have withstood long years and several typhoons even stronger than Saling.
In light of the foregoing, we find no clear and convincing evidence to sustain the judgment of the appellate
court. We thus hold that petitioner has not been shown negligent or at fault regarding the construction and
maintenance of its school building in question and that typhoon Saling was the proximate cause of the damage
suffered by private respondents house.
With this disposition on the pivotal issue, private respondents claim for actual and moral damages as well
as attorneys fees must fail.[24] Petitioner cannot be made to answer for a purely fortuitous event. [25] More so
because no bad faith or willful act to cause damage was alleged and proven to warrant moral damages.
Page | 186
 Private respondents failed to adduce adequate and competent proof of the pecuniary loss they actually
incurred.[26] It is not enough that the damage be capable of proof but must be actually proved with a reasonable
degree of certainty, pointing out specific facts that afford a basis for measuring whatever compensatory
damages are borne.[27] Private respondents merely submitted an estimated amount needed for the repair of the
roof of their subject building. What is more, whether the necessary repairs were caused ONLY by petitioners
alleged negligence in the maintenance of its school building, or included the ordinary wear and tear of the house
itself, is an essential question that remains indeterminable.
The Court deems unnecessary to resolve the other issues posed by petitioner.
As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by the trial court is
hereby nullified and set aside. Private respondents are ordered to reimburse any amount or return to petitioner
any property which they may have received by virtue of the enforcement of said writ.
WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED. The complaint of
private respondents in Civil Case No. 7314 before the trial court a quo is ordered DISMISSED and the writ of
execution issued on April 1, 1993 in said case is SET ASIDE. Accordingly, private respondents are ORDERED
to return to petitioner any amount or property received by them by virtue of said writ. Costs against the private
respondents.
SO ORDERED.

G.R. No. 154259 February 28, 2005

NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners,

vs.
ROBERTO REYES, a.k.a. "AMAY BISAYA," respondent.

DECISION

CHICO-NAZARIO, J.:

Page | 187
In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden (Hotel Nikko) and Ruby Lim
assail the Decision of the Court of Appeals dated 26 November 2001 reversing the Decision of the Regional
Trial Court (RTC) of Quezon City, Branch 104, as well as the Resolution of the Court of Appeals dated 09 July
2002 which denied petitioners‘ motion for reconsideration.

The cause of action before the trial court was one for damages brought under the human relations provisions of
the New Civil Code. Plaintiff thereat (respondent herein) Roberto Reyes, more popularly known by the screen
name "Amay Bisaya," alleged that at around 6:00 o‘clock in the evening of 13 October 1994, while he was
having coffee at the lobby of Hotel Nikko, he was spotted by his friend of several years, Dr. Violeta Filart, who
then approached him. Mrs. Filart invited him to join her in a party at the hotel‘s penthouse in celebration of the
natal day of the hotel‘s manager, Mr. Masakazu Tsuruoka. Mr. Reyes asked if she could vouch for him for
which she replied: "of course."Mr. Reyes then went up with the party of Dr. Filart carrying the basket of fruits
which was the latter‘s present for the celebrant. At the penthouse, they first had their picture taken with the
celebrant after which Mr. Reyes sat with the party of Dr. Filart. After a couple of hours, when the buffet dinner
was ready, Mr. Reyes lined-up at the buffet table but, to his great shock, shame and embarrassment, he was
stopped by petitioner herein, Ruby Lim, who claimed to speak for Hotel Nikko as Executive Secretary thereof.
In a loud voice and within the presence and hearing of the other guests who were making a queue at the buffet
table, Ruby Lim told him to leave the party ("huwag ka nang kumain, hindi ka imbitado, bumaba ka na lang").
Mr. Reyes tried to explain that he was invited by Dr. Filart.Dr. Filart, who was within hearing distance,
however, completely ignored him thus adding to his shame and humiliation. Not long after, while he was still
recovering from the traumatic experience, a Makati policeman approached and asked him to step out of the
hotel.Like a common criminal, he was escorted out of the party by the policeman. Claiming damages, Mr.
Reyes asked for One Million Pesos actual damages, One Million Pesos moral and/or exemplary damages and
Two Hundred Thousand Pesos attorney‘s fees.

Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party but not under the ignominious
circumstance painted by the latter. Ms. Lim narrated that she was the Hotel‘s Executive Secretary for the past
twenty (20) years.One of her functions included organizing the birthday party of the hotel‘s former General
Manager, Mr. Tsuruoka.The year 1994 was no different. For Mr. Tsuruoka‘s party, Ms. Lim generated an
exclusive guest list and extended invitations accordingly. The guest list was limited to approximately sixty (60)
of Mr. Tsuruoka‘s closest friends and some hotel employees and that Mr. Reyes was not one of those invited. At
the party, Ms. Lim first noticed Mr. Reyes at the bar counter ordering a drink. Mindful of Mr. Tsuruoka‘s
wishes to keep the party intimate, Ms. Lim approached Mr. Boy Miller, the "captain waiter," to inquire as to the
presence of Mr. Reyes who was not invited. Mr. Miller replied that he saw Mr. Reyes with the group of Dr.
Filart. As Dr. Filart was engaged in conversation with another guest and as Ms. Lim did not want to interrupt,
she inquired instead from the sister of Dr. Filart, Ms. Zenaida Fruto, who told her that Dr. Filart did not invite
Mr. Reyes. Ms. Lim then requested Ms. Fruto to tell Mr. Reyes to leave the party as he was not invited. Mr.
Reyes, however, lingered prompting Ms. Lim to inquire from Ms. Fruto who said that Mr. Reyes did not want
to leave. When Ms. Lim turned around, she saw Mr. Reyes conversing with a Captain Batung whom she later
approached. Believing that Captain Batung and Mr. Reyes knew each other, Ms. Lim requested from him the
same favor from Ms. Fruto, i.e., for Captain Batung to tell Mr. Reyes to leave the party as he was not invited.
Still, Mr. Reyes lingered. When Ms. Lim spotted Mr. Reyes by the buffet table, she decided to speak to him
herself as there were no other guests in the immediate vicinity. However, as Mr. Reyes was already helping
himself to the food, she decided to wait. When Mr. Reyes went to a corner and started to eat, Ms. Lim
approached him and said: "alam ninyo, hindo ho kayo dapat nandito. Pero total nakakuha na ho kayo ng
pagkain, ubusin na lang ninyo at pagkatapos kung pwede lang po umalis na kayo." She then turned around
trusting that Mr. Reyes would show enough decency to leave, but to her surprise, he began screaming and
making a big scene, and even threatened to dump food on her.

Page | 188
Dr. Violeta Filart, the third defendant in the complaint before the lower court, also gave her version of the story
to the effect that she never invited Mr. Reyes to the party. According to her, it was Mr. Reyes who volunteered
to carry the basket of fruits intended for the celebrant as he was likewise going to take the elevator, not to the
penthouse but to Altitude 49. When they reached the penthouse, she reminded Mr. Reyes to go down as he was
not properly dressed and was not invited. All the while, she thought that Mr. Reyes already left the place, but
she later saw him at the bar talking to Col. Batung. Then there was a commotion and she saw Mr. Reyes
shouting. She ignored Mr. Reyes. She was embarrassed and did not want the celebrant to think that she invited
him.

After trial on the merits, the court a quo dismissed the complaint, giving more credence to the testimony of Ms.
Lim that she was discreet in asking Mr. Reyes to leave the party. The trial court likewise ratiocinated that Mr.
Reyes assumed the risk of being thrown out of the party as he was uninvited:

Plaintiff had no business being at the party because he was not a guest of Mr. Tsuruoka, the birthday celebrant.
He assumed the risk of being asked to leave for attending a party to which he was not invited by the host.
Damages are pecuniary consequences which the law imposes for the breach of some duty or the violation of
some right. Thus, no recovery can be had against defendants Nikko Hotel and Ruby Lim because he himself
was at fault (Garciano v. Court of Appeals, 212 SCRA 436). He knew that it was not the party of defendant
Violeta Filart even if she allowed him to join her and took responsibility for his attendance at the party. His
action against defendants Nikko Hotel and Ruby Lim must therefore fail.

On appeal, the Court of Appeals reversed the ruling of the trial court as it found more commanding of belief the
testimony of Mr. Reyes that Ms. Lim ordered him to leave in a loud voice within hearing distance of several
guests:

In putting appellant in a very embarrassing situation, telling him that he should not finish his food and to leave
the place within the hearing distance of other guests is an act which is contrary to morals, good customs . . ., for
which appellees should compensate the appellant for the damage suffered by the latter as a consequence
therefore (Art. 21, New Civil Code). The liability arises from the acts which are in themselves legal or not
prohibited, but contrary to morals or good customs. Conversely, even in the exercise of a formal right, [one]
cannot with impunity intentionally cause damage to another in a manner contrary to morals or good customs.

The Court of Appeals likewise ruled that the actuation of Ms. Lim in approaching several people to inquire into
the presence of Mr. Reyes exposed the latter to ridicule and was uncalled for as she should have approached Dr.
Filart first and both of them should have talked to Mr. Reyes in private:

Said acts of appellee Lim are uncalled for. What should have been done by appellee Lim was to approach
appellee Mrs. Filart and together they should have told appellant Reyes in private that the latter should leave the
party as the celebrant only wanted close friends around. It is necessary that Mrs. Filart be the one to approach
appellant because it was she who invited appellant in that occasion. Were it not for Mrs. Filart‘s invitation,
appellant could not have suffered such humiliation. For that, appellee Filart is equally liable.

...

The acts of [appellee] Lim are causes of action which are predicated upon mere rudeness or lack of
consideration of one person, which calls not only protection of human dignity but respect of such dignity. Under
Article 20 of the Civil Code, every person who violates this duty becomes liable for damages, especially if said
acts were attended by malice or bad faith. Bad faith does not simply connote bad judgment or simple
negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of

Page | 189
a known duty to some motive or interest or ill-will that partakes of the nature of fraud (Cojuangco, Jr. v. CA, et
al., 309 SCRA 603).

Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and Dr. Violeta Filart the solidary
obligation to pay Mr. Reyes (1) exemplary damages in the amount of Two Hundred Thousand Pesos
(P200,000); (2) moral damages in the amount of Two Hundred Thousand Pesos (P200,000); and (3) attorney‘s
fees in the amount of Ten Thousand Pesos (P10,000). On motion for reconsideration, the Court of Appeals
affirmed its earlier decision as the argument raised in the motion had "been amply discussed and passed upon in
the decision sought to be reconsidered."

Thus, the instant petition for review. Hotel Nikko and Ruby Lim contend that the Court of Appeals seriously
erred in –

I.

… NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING THAT BY ITS
OWN FINDINGS, AMAY BISAYA WAS A GATE-CRASHER

II.

… HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE WITH DR.
FILART FOR DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA "COULD NOT HAVE
SUFFERED SUCH HUMILIATION," "WERE IT NOT FOR DR. FILART‘S INVITATION"

III.

… DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS REGARDS THE
CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE HUMILIATION OF AMAY BISAYA

IV.

… IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF HIS

POVERTY, CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO EVIDENCE WAS
PRESENTED IN THIS REGARD

V.

… IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE APPELLANT‘S BRIEF,
THEREBY DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS

Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti non fit injuria, they cannot be
made liable for damages as respondent Reyes assumed the risk of being asked to leave (and being embarrassed
and humiliated in the process) as he was a "gate-crasher."

The doctrine of volenti non fit injuria ("to which a person assents is not esteemed in law as injury") refers to
self-inflicted injury or to the consent to injury which precludes the recovery of damages by one who has
knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so. As formulated by
petitioners, however, this doctrine does not find application to the case at bar because even if respondent Reyes
assumed the risk of being asked to leave the party, petitioners, under Articles 19 and 21 of the New Civil Code,
were still under obligation to treat him fairly in order not to expose him to unnecessary ridicule and shame.
Page | 190
Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking Roberto Reyes, a.k.a. "Amay
Bisaya," to leave the party where he was not invited by the celebrant thereof thereby becoming liable under
Articles 19 and 21 of the Civil Code. Parenthetically, and if Ruby Lim were so liable, whether or not Hotel
Nikko, as her employer, is solidarily liable with her.

As the trial court and the appellate court reached divergent and irreconcilable conclusions concerning the same
facts and evidence of the case, this Court is left without choice but to use its latent power to review such
findings of facts. Indeed, the general rule is that we are not a trier of facts as our jurisdiction is limited to
reviewing and revising errors of law. One of the exceptions to this general rule, however, obtains herein as the
findings of the Court of Appeals are contrary to those of the trial court. The lower court ruled that Ms. Lim did
not abuse her right to ask Mr. Reyes to leave the party as she talked to him politely and discreetly. The appellate
court, on the other hand, held that Ms. Lim is liable for damages as she needlessly embarrassed Mr. Reyes by
telling him not to finish his food and to leave the place within hearing distance of the other guests. Both courts,
however, were in agreement that it was Dr. Filart‘s invitation that brought Mr. Reyes to the party.

The consequential question then is: Which version is credible?

From an in depth review of the evidence, we find more credible the lower court‘s findings of fact.

First, let us put things in the proper perspective.

We are dealing with a formal party in a posh, five-star hotel, for-invitation-only, thrown for the hotel‘s former
Manager, a Japanese national. Then came a person who was clearly uninvited (by the celebrant) and who could
not just disappear into the crowd as his face is known by many, being an actor. While he was already spotted by
the organizer of the party, Ms. Lim, the very person who generated the guest list, it did not yet appear that the
celebrant was aware of his presence. Ms. Lim, mindful of the celebrant‘s instruction to keep the party intimate,
would naturally want to get rid of the "gate-crasher" in the most hush-hush manner in order not to call attention
to a glitch in an otherwise seamless affair and, in the process, risk the displeasure of the celebrant, her former
boss. To unnecessarily call attention to the presence of Mr. Reyes would certainly reflect badly on Ms. Lim‘s
ability to follow the instructions of the celebrant to invite only his close friends and some of the hotel‘s
personnel. Mr. Reyes, upon whom the burden rests to prove that indeed Ms. Lim loudly and rudely ordered him
to leave, could not offer any satisfactory explanation why Ms. Lim would do that and risk ruining a formal and
intimate affair. On the contrary, Mr. Reyes, on cross-examination, had unwittingly sealed his fate by admitting
that when Ms. Lim talked to him, she was very close. Close enough for him to kiss:

Q: And, Mr. Reyes, you testified that Miss Lim approached you while you were at the buffet table? How
close was she when she approached you?

A: Very close because we nearly kissed each other.

Q: And yet, she shouted for you to go down? She was that close and she shouted?

A: Yes. She said, "wag kang kumain, hindi ka imbitado dito, bumaba ka na lang."

Q: So, you are testifying that she did this in a loud voice?

...

A: Yes. If it is not loud, it will not be heard by many.

Page | 191
In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr. Reyes and expose him to ridicule
and shame, it is highly unlikely that she would shout at him from a very close distance. Ms. Lim having been in
the hotel business for twenty years wherein being polite and discreet are virtues to be emulated, the testimony of
Mr. Reyes that she acted to the contrary does not inspire belief and is indeed incredible. Thus, the lower court
was correct in observing that –

Considering the closeness of defendant Lim to plaintiff when the request for the latter to leave the party was
made such that they nearly kissed each other, the request was meant to be heard by him only and there could
have been no intention on her part to cause embarrassment to him. It was plaintiff‘s reaction to the request that
must have made the other guests aware of what transpired between them. . .

Had plaintiff simply left the party as requested, there was no need for the police to take him out.

Moreover, another problem with Mr. Reyes‘s version of the story is that it is unsupported. It is a basic rule in
civil cases that he who alleges proves. Mr. Reyes, however, had not presented any witness to back his story up.
All his witnesses – Danny Rodinas, Pepito Guerrero and Alexander Silva - proved only that it was Dr. Filart
who invited him to the party.

Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to which he was not invited, cannot be
made liable to pay for damages under Articles 19 and 21 of the Civil Code. Necessarily, neither can her
employer, Hotel Nikko, be held liable as its liability springs from that of its employee.

Article 19, known to contain what is commonly referred to as the principle of abuse of rights, is not a panacea
for all human hurts and social grievances. Article 19 states:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice,
give everyone his due, and observe honesty and good faith.

Elsewhere, we explained that when "a right is exercised in a manner which does not conform with the norms
enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the
wrongdoer must be responsible."The object of this article, therefore, is to set certain standards which must be
observed not only in the exercise of one‘s rights but also in the performance of one‘s duties. These standards are
the following: act with justice, give everyone his due and observe honesty and good faith. Its antithesis,
necessarily, is any act evincing bad faith or intent to injure. Its elements are the following: (1) There is a legal
right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. When
Article 19 is violated, an action for damages is proper under Articles 20 or 21 of the Civil Code. Article 20
pertains to damages arising from a violation of law which does not obtain herein as Ms. Lim was perfectly
within her right to ask Mr. Reyes to leave. Article 21, on the other hand, states:

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage.

Article 21 refers to acts contra bonus mores and has the following elements: (1) There is an act which is legal;
(2) but which is contrary to morals, good custom, public order, or public policy; and (3) it is done with intent to
injure.

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage.

Page | 192
Article 21 refers to acts contra bonus mores and has the following elements: (1) There is an act which is legal;
(2) but which is contrary to morals, good custom, public order, or public policy; and (3) it is done with intent to
injure.

A common theme runs through Articles 19 and 21, and that is, the act complained of must be intentional.

As applied to herein case and as earlier discussed, Mr. Reyes has not shown that Ms. Lim was driven by
animosity against him. These two people did not know each other personally before the evening of 13 October
1994, thus, Mr. Reyes had nothing to offer for an explanation for Ms. Lim‘s alleged abusive conduct except the
statement that Ms. Lim, being "single at 44 years old," had a "very strong bias and prejudice against (Mr.
Reyes) possibly influenced by her associates in her work at the hotel with foreign businessmen." The lameness
of this argument need not be belabored. Suffice it to say that a complaint based on Articles 19 and 21 of the
Civil Code must necessarily fail if it has nothing to recommend it but innuendos and conjectures.

Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was likewise acceptable and humane
under the circumstances. In this regard, we cannot put our imprimatur on the appellate court‘s declaration that
Ms. Lim‘s act of personally approaching Mr. Reyes (without first verifying from Mrs. Filart if indeed she
invited Mr. Reyes) gave rise to a cause of action "predicated upon mere rudeness or lack of consideration of one
person, which calls not only protection of human dignity but respect of such dignity." Without proof of any ill-
motive on her part, Ms. Lim‘s act of by-passing Mrs. Filart cannot amount to abusive conduct especially
because she did inquire from Mrs. Filart‘s companion who told her that Mrs. Filart did not invite Mr. Reyes. If
at all, Ms. Lim is guilty only of bad judgment which, if done with good intentions, cannot amount to bad faith.

Not being liable for both actual and moral damages, neither can petitioners Lim and Hotel Nikko be made
answerable for exemplary damages especially for the reason stated by the Court of Appeals. The Court of
Appeals held –

Not a few of the rich people treat the poor with contempt because of the latter‘s lowly station in life.l^vvphi1.net
This has to be limited somewhere. In a democracy, such a limit must be established. Social equality is not
sought by the legal provisions under consideration, but due regard for decency and propriety (Code
Commission, pp. 33-34). And by way of example or correction for public good and to avert further commission
of such acts, exemplary damages should be imposed upon appellees.

The fundamental fallacy in the above-quoted findings is that it runs counter with the very facts of the case and
the evidence on hand.l^vvphi1.net It is not disputed that at the time of the incident in question, Mr. Reyes was
"an actor of long standing; a co-host of a radio program over DZRH; a Board Member of the Music Singer
Composer (MUSICO) chaired by popular singer Imelda Papin; a showbiz Coordinator of Citizen Crime Watch;
and 1992 official candidate of the KBL Party for Governor of Bohol; and an awardee of a number of
humanitarian organizations of the Philippines." During his direct examination on rebuttal, Mr. Reyes stressed
that he had income and nowhere did he say otherwise. On the other hand, the records are bereft of any
information as to the social and economic standing of petitioner Ruby Lim. Consequently, the conclusion
reached by the appellate court cannot withstand scrutiny as it is without basis.

All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage which Mr. Reyes might have
suffered through Ms. Lim‘s exercise of a legitimate right done within the bounds of propriety and good faith,
must be his to bear alone.

WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko Hotel Manila Garden is
GRANTED. The Decision of the Court of Appeals dated 26 November 2001 and its Resolution dated 09 July

Page | 193
2002 are hereby REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Quezon City,
Branch 104, dated 26 April 1999 is hereby AFFIRMED. No costs. SO ORDERED.

G.R. No. 174269 May 8, 2009

POLO S. PANTALEON, Petitioner,

vs.
AMERICAN EXPRESS INTERNATIONAL, INC., Respondent.
DECISION
TINGA, J.:

The petitioner, lawyer Polo Pantaleon, his wife Julialinda, daughter Anna Regina and son Adrian Roberto,
joined an escorted tour of Western Europe organized by Trafalgar Tours of Europe, Ltd., in October of 1991.
The tour group arrived in Amsterdam in the afternoon of 25 October 1991, the second to the last day of the tour.
As the group had arrived late in the city, they failed to engage in any sight-seeing. Instead, it was agreed upon
that they would start early the next day to see the entire city before ending the tour.
The following day, the last day of the tour, the group arrived at the Coster Diamond House in Amsterdam
around 10 minutes before 9:00 a.m. The group had agreed that the visit to Coster should end by 9:30 a.m. to
allow enough time to take in a guided city tour of Amsterdam. The group was ushered into Coster shortly before
9:00 a.m., and listened to a lecture on the art of diamond polishing that lasted for around ten minutes.1
Afterwards, the group was led to the store‘s showroom to allow them to select items for purchase. Mrs.
Pantaleon had already planned to purchase even before the tour began a 2.5 karat diamond brilliant cut, and she
found a diamond close enough in approximation that she decided to buy.2 Mrs. Pantaleon also selected for
purchase a pendant and a chain,3 all of which totaled U.S. $13,826.00.
To pay for these purchases, Pantaleon presented his American Express credit card together with his passport to
the Coster sales clerk. This occurred at around 9:15 a.m., or 15 minutes before the tour group was slated to
depart from the store. The sales clerk took the card‘s imprint, and asked Pantaleon to sign the charge slip. The
charge purchase was then referred electronically to respondent‘s Amsterdam office at 9:20 a.m.
Ten minutes later, the store clerk informed Pantaleon that his AmexCard had not yet been approved. His son,
who had already boarded the tour bus, soon returned to Coster and informed the other members of the Pantaleon
family that the entire tour group was waiting for them. As it was already 9:40 a.m., and he was already worried
about further inconveniencing the tour group, Pantaleon asked the store clerk to cancel the sale. The store
manager though asked plaintiff to wait a few more minutes. After 15 minutes, the store manager informed
Pantaleon that respondent had demanded bank references. Pantaleon supplied the names of his depositary
banks, then instructed his daughter to return to the bus and apologize to the tour group for the delay.
At around 10:00 a.m, or around 45 minutes after Pantaleon had presented his AmexCard, and 30 minutes after
the tour group was supposed to have left the store, Coster decided to release the items even without
respondent‘s approval of the purchase. The spouses Pantaleon returned to the bus. It is alleged that their offers
of apology were met by their tourmates with stony silence.4 The tour group‘s visible irritation was aggravated
when the tour guide announced that the city tour of Amsterdam was to be canceled due to lack of remaining
Page | 194
time, as they had to catch a 3:00 p.m. ferry at Calais, Belgium to London.5 Mrs. Pantaleon ended up weeping,
while her husband had to take a tranquilizer to calm his nerves.
It later emerged that Pantaleon‘s purchase was first transmitted for approval to respondent‘s Amsterdam office
at 9:20 a.m., Amsterdam time, then referred to respondent‘s Manila office at 9:33 a.m, then finally approved at
10:19 a.m., Amsterdam time.6 The Approval Code was transmitted to respondent‘s Amsterdam office at 10:38
a.m., several minutes after petitioner had already left Coster, and 78 minutes from the time the purchases were
electronically transmitted by the jewelry store to respondent‘s Amsterdam office.
After the star-crossed tour had ended, the Pantaleon family proceeded to the United States before returning to
Manila on 12 November 1992. While in the United States, Pantaleon continued to use his AmEx card, several
times without hassle or delay, but with two other incidents similar to the Amsterdam brouhaha. On 30 October
1991, Pantaleon purchased golf equipment amounting to US $1,475.00 using his AmEx card, but he cancelled
his credit card purchase and borrowed money instead from a friend, after more than 30 minutes had transpired
without the purchase having been approved. On 3 November 1991, Pantaleon used the card to purchase
children‘s shoes worth $87.00 at a store in Boston, and it took 20 minutes before this transaction was approved
by respondent.
On 4 March 1992, after coming back to Manila, Pantaleon sent a letter7 through counsel to the respondent,
demanding an apology for the "inconvenience, humiliation and embarrassment he and his family thereby
suffered" for respondent‘s refusal to provide credit authorization for the aforementioned purchases.8 In
response, respondent sent a letter dated 24 March 1992,9 stating among others that the delay in authorizing the
purchase from Coster was attributable to the circumstance that the charged purchase of US $13,826.00 "was out
of the usual charge purchase pattern established."10 Since respondent refused to accede to Pantaleon‘s demand
for an apology, the aggrieved cardholder instituted an action for damages with the Regional Trial Court (RTC)
of Makati City, Branch 145.11 Pantaleon prayed that he be awarded ₱2,000,000.00, as moral damages;
₱500,000.00, as exemplary damages; ₱100,000.00, as attorney‘s fees; and ₱50,000.00 as litigation expenses.12
On 5 August 1996, the Makati City RTC rendered a decision13 in favor of Pantaleon, awarding him
₱500,000.00 as moral damages, ₱300,000.00 as exemplary damages, ₱100,000.00 as attorney‘s fees, and
₱85,233.01 as expenses of litigation. Respondent filed a Notice of Appeal, while Pantaleon moved for partial
reconsideration, praying that the trial court award the increased amount of moral and exemplary damages he
had prayed for.14 The RTC denied Pantaleon‘s motion for partial reconsideration, and thereafter gave due
course to respondent‘s Notice of Appeal.15
On 18 August 2006, the Court of Appeals rendered a decision16 reversing the award of damages in favor of
Pantaleon, holding that respondent had not breached its obligations to petitioner. Hence, this petition.
The key question is whether respondent, in connection with the aforementioned transactions, had committed a
breach of its obligations to Pantaleon. In addition, Pantaleon submits that even assuming that respondent had
not been in breach of its obligations, it still remained liable for damages under Article 21 of the Civil Code.
The RTC had concluded, based on the testimonial representations of Pantaleon and respondent‘s credit
authorizer, Edgardo Jaurigue, that the normal approval time for purchases was "a matter of seconds." Based on
that standard, respondent had been in clear delay with respect to the three subject transactions. As it appears, the
Court of Appeals conceded that there had been delay on the part of respondent in approving the purchases.
However, it made two critical conclusions in favor of respondent. First, the appellate court ruled that the delay
was not attended by bad faith, malice, or gross negligence. Second, it ruled that respondent "had exercised
diligent efforts to effect the approval" of the purchases, which were "not in accordance with the charge pattern"

Page | 195
petitioner had established for himself, as exemplified by the fact that at Coster, he was "making his very first
single charge purchase of US$13,826," and "the record of [petitioner]‘s past spending with [respondent] at the
time does not favorably support his ability to pay for such purchase."17
On the premise that there was an obligation on the part of respondent "to approve or disapprove with dispatch
the charge purchase," petitioner argues that the failure to timely approve or disapprove the purchase constituted
mora solvendi on the part of respondent in the performance of its obligation. For its part, respondent
characterizes the depiction by petitioner of its obligation to him as "to approve purchases instantaneously or in a
matter of seconds."
Petitioner correctly cites that under mora solvendi, the three requisites for a finding of default are that the
obligation is demandable and liquidated; the debtor delays performance; and the creditor judicially or
extrajudicially requires the debtor‘s performance.18 Petitioner asserts that the Court of Appeals had wrongly
applied the principle of mora accipiendi, which relates to delay on the part of the obligee in accepting the
performance of the obligation by the obligor. The requisites of mora accipiendi are: an offer of performance by
the debtor who has the required capacity; the offer must be to comply with the prestation as it should be
performed; and the creditor refuses the performance without just cause.19 The error of the appellate court,
argues petitioner, is in relying on the invocation by respondent of "just cause" for the delay, since while just
cause is determinative of mora accipiendi, it is not so with the case of mora solvendi.
We can see the possible source of confusion as to which type of mora to appreciate. Generally, the relationship
between a credit card provider and its card holders is that of creditor-debtor,20 with the card company as the
creditor extending loans and credit to the card holder, who as debtor is obliged to repay the creditor. This
relationship already takes exception to the general rule that as between a bank and its depositors, the bank is
deemed as the debtor while the depositor is considered as the creditor.21 Petitioner is asking us, not baselessly,
to again shift perspectives and again see the credit card company as the debtor/obligor, insofar as it has the
obligation to the customer as creditor/obligee to act promptly on its purchases on credit.
Ultimately, petitioner‘s perspective appears more sensible than if we were to still regard respondent as the
creditor in the context of this cause of action. If there was delay on the part of respondent in its normal role as
creditor to the cardholder, such delay would not have been in the acceptance of the performance of the debtor‘s
obligation (i.e., the repayment of the debt), but it would be delay in the extension of the credit in the first place.
Such delay would not fall under mora accipiendi, which contemplates that the obligation of the debtor, such as
the actual purchases on credit, has already been constituted. Herein, the establishment of the debt itself
(purchases on credit of the jewelry) had not yet been perfected, as it remained pending the approval or consent
of the respondent credit card company.
Still, in order for us to appreciate that respondent was in mora solvendi, we will have to first recognize that
there was indeed an obligation on the part of respondent to act on petitioner‘s purchases with "timely dispatch,"
or for the purposes of this case, within a period significantly less than the one hour it apparently took before the
purchase at Coster was finally approved.
The findings of the trial court, to our mind, amply established that the tardiness on the part of respondent in
acting on petitioner‘s purchase at Coster did constitute culpable delay on its part in complying with its
obligation to act promptly on its customer‘s purchase request, whether such action be favorable or unfavorable.
We quote the trial court, thus:
As to the first issue, both parties have testified that normal approval time for purchases was a matter of seconds.

Page | 196
Plaintiff testified that his personal experience with the use of the card was that except for the three charge
purchases subject of this case, approvals of his charge purchases were always obtained in a matter of seconds.
Defendant‘s credit authorizer Edgardo Jaurique likewise testified:
Q. – You also testified that on normal occasions, the normal approval time for charges would be 3 to 4 seconds?
A. – Yes, Ma‘am.
Both parties likewise presented evidence that the processing and approval of plaintiff‘s charge purchase at the
Coster Diamond House was way beyond the normal approval time of a "matter of seconds".
Plaintiff testified that he presented his AmexCard to the sales clerk at Coster, at 9:15 a.m. and by the time he
had to leave the store at 10:05 a.m., no approval had yet been received. In fact, the Credit Authorization System
(CAS) record of defendant at Phoenix Amex shows that defendant‘s Amsterdam office received the request to
approve plaintiff‘s charge purchase at 9:20 a.m., Amsterdam time or 01:20, Phoenix time, and that the
defendant relayed its approval to Coster at 10:38 a.m., Amsterdam time, or 2:38, Phoenix time, or a total time
lapse of one hour and [18] minutes. And even then, the approval was conditional as it directed in computerese
[sic] "Positive Identification of Card holder necessary further charges require bank information due to high
exposure. By Jack Manila."
The delay in the processing is apparent to be undue as shown from the frantic successive queries of Amexco
Amsterdam which reads: "US$13,826. Cardmember buying jewels. ID seen. Advise how long will this take?"
They were sent at 01:33, 01:37, 01:40, 01:45, 01:52 and 02:08, all times Phoenix. Manila Amexco could be
unaware of the need for speed in resolving the charge purchase referred to it, yet it sat on its hand, unconcerned.
xxx
To repeat, the Credit Authorization System (CAS) record on the Amsterdam transaction shows how Amexco
Netherlands viewed the delay as unusually frustrating. In sequence expressed in Phoenix time from 01:20 when
the charge purchased was referred for authorization, defendants own record shows:
01:22 – the authorization is referred to Manila Amexco
01:32 – Netherlands gives information that the identification of the cardmember has been presented and he is
buying jewelries worth US $13,826.
01:33 – Netherlands asks "How long will this take?"
02:08 – Netherlands is still asking "How long will this take?"
The Court is convinced that defendants delay constitute[s] breach of its contractual obligation to act on his use
of the card abroad "with special handling."22 (Citations omitted)
xxx

Notwithstanding the popular notion that credit card purchases are approved "within seconds," there really is no
strict, legally determinative point of demarcation on how long must it take for a credit card company to approve
or disapprove a customer‘s purchase, much less one specifically contracted upon by the parties. Yet this is one
of those instances when "you‘d know it when you‘d see it," and one hour appears to be an awfully long,
patently unreasonable length of time to approve or disapprove a credit card purchase. It is long enough time for
the customer to walk to a bank a kilometer away, withdraw money over the counter, and return to the store.
Page | 197
Notably, petitioner frames the obligation of respondent as "to approve or disapprove" the purchase "in timely
dispatch," and not "to approve the purchase instantaneously or within seconds." Certainly, had respondent
disapproved petitioner‘s purchase "within seconds" or within a timely manner, this particular action would have
never seen the light of day. Petitioner and his family would have returned to the bus without delay – internally
humiliated perhaps over the rejection of his card – yet spared the shame of being held accountable by newly-
made friends for making them miss the chance to tour the city of Amsterdam.

We do not wish do dispute that respondent has the right, if not the obligation, to verify whether the credit it is
extending upon on a particular purchase was indeed contracted by the cardholder, and that the cardholder is
within his means to make such transaction. The culpable failure of respondent herein is not the failure to timely
approve petitioner‘s purchase, but the more elemental failure to timely act on the same, whether favorably or
unfavorably. Even assuming that respondent‘s credit authorizers did not have sufficient basis on hand to make a
judgment, we see no reason why respondent could not have promptly informed petitioner the reason for the
delay, and duly advised him that resolving the same could take some time. In that way, petitioner would have
had informed basis on whether or not to pursue the transaction at Coster, given the attending circumstances.
Instead, petitioner was left uncomfortably dangling in the chilly autumn winds in a foreign land and soon forced
to confront the wrath of foreign folk.
Moral damages avail in cases of breach of contract where the defendant acted fraudulently or in bad faith, and
the court should find that under the circumstances, such damages are due. The findings of the trial court are
ample in establishing the bad faith and unjustified neglect of respondent, attributable in particular to the "dilly-
dallying" of respondent‘s Manila credit authorizer, Edgardo Jaurique.23 Wrote the trial court:
While it is true that the Cardmembership Agreement, which defendant prepared, is silent as to the amount of
time it should take defendant to grant authorization for a charge purchase, defendant acknowledged that the
normal time for approval should only be three to four seconds. Specially so with cards used abroad which
requires "special handling", meaning with priority. Otherwise, the object of credit or charge cards would be lost;
it would be so inconvenient to use that buyers and consumers would be better off carrying bundles of currency
or traveller‘s checks, which can be delivered and accepted quickly. Such right was not accorded to plaintiff in
the instances complained off for reasons known only to defendant at that time. This, to the Court‘s mind,
amounts to a wanton and deliberate refusal to comply with its contractual obligations, or at least abuse of its
rights, under the contract.24
xxx
The delay committed by defendant was clearly attended by unjustified neglect and bad faith, since it alleges to
have consumed more than one hour to simply go over plaintiff‘s past credit history with defendant, his payment
record and his credit and bank references, when all such data are already stored and readily available from its
computer. This Court also takes note of the fact that there is nothing in plaintiff‘s billing history that would
warrant the imprudent suspension of action by defendant in processing the purchase. Defendant‘s witness
Jaurique admits:
Q. – But did you discover that he did not have any outstanding account?
A. – Nothing in arrears at that time.
Q. – You were well aware of this fact on this very date?
A. – Yes, sir.
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Mr. Jaurique further testified that there were no "delinquencies" in plaintiff‘s account.25

It should be emphasized that the reason why petitioner is entitled to damages is not simply because respondent
incurred delay, but because the delay, for which culpability lies under Article 1170, led to the particular injuries
under Article 2217 of the Civil Code for which moral damages are remunerative.26 Moral damages do not avail
to soothe the plaints of the simply impatient, so this decision should not be cause for relief for those who time
the length of their credit card transactions with a stopwatch. The somewhat unusual attending circumstances to
the purchase at Coster – that there was a deadline for the completion of that purchase by petitioner before any
delay would redound to the injury of his several traveling companions – gave rise to the moral shock, mental
anguish, serious anxiety, wounded feelings and social humiliation sustained by the petitioner, as concluded by
the RTC.27 Those circumstances are fairly unusual, and should not give rise to a general entitlement for
damages under a more mundane set of facts.

We sustain the amount of moral damages awarded to petitioner by the RTC. There is no hard-and-fast rule in
determining what would be a fair and reasonable amount of moral damages, since each case must be governed
by its own peculiar facts, however, it must be commensurate to the loss or injury suffered.28 Petitioner‘s
original prayer for ₱5,000,000.00 for moral damages is excessive under the circumstances, and the amount
awarded by the trial court of ₱500,000.00 in moral damages more seemly

Likewise, we deem exemplary damages available under the circumstances, and the amount of ₱300,000.00
appropriate. There is similarly no cause though to disturb the determined award of ₱100,000.00 as attorney‘s
fees, and ₱85,233.01 as expenses of litigation.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals is REVERSED and
SET ASIDE. The Decision of the Regional Trial Court of Makati, Branch 145 in Civil Case No. 92-1665 is
hereby REINSTATED. Costs against respondent.
SO ORDERED.

Page | 199
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10126 October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA,
OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA.
DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.

Fortunato Jose for defendant and appellant.

MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by its owner
defendant Mariano Medina under a certificate of public convenience, left the town of Amadeo, Cavite, on its
way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about eighteen passengers,
including the driver and conductor. Among the passengers were Juan Bataclan, seated beside and to the right of
the driver, Felipe Lara, sated to the right of Bataclan, another passenger apparently from the Visayan Islands
whom the witnesses just called Visaya, apparently not knowing his name, seated in the left side of the driver,
and a woman named Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that
same morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and
the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some
of the passengers managed to leave the bus the best way they could, others had to be helped or pulled out, while
the three passengers seated beside the driver, named Bataclan, Lara and the Visayan and the woman behind
them named Natalia Villanueva, could not get out of the overturned bus. Some of the passengers, after they had
clambered up to the road, heard groans and moans from inside the bus, particularly, shouts for help from
Bataclan and Lara, who said they could not get out of the bus. There is nothing in the evidence to show whether
or not the passengers already free from the wreck, including the driver and the conductor, made any attempt to
pull out or extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were
made to the houses in the neighborhood. After half an hour, came about ten men, one of them carrying a lighted
torch made of bamboo with a wick on one end, evidently fueled with petroleum. These men presumably
approach the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the
Page | 200
bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline began
to leak and escape from the gasoline tank on the side of the chassis, spreading over and permeating the body of
the bus and the ground under and around it, and that the lighted torch brought by one of the men who answered
the call for help set it on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were removed and duly
identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf
of her five minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and
exemplary damages and attorney's fees in the total amount of P87, 150. After trial, the Court of First Instance of
Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value of the merchandise
being carried by Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants
appealed the decision to the Court of Appeals, but the latter endorsed the appeal to us because of the value
involved in the claim in the complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their goods.
For purposes of reference, we are reproducing the pertinent codal provisions:

ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are
bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735,
and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of the passengers is further
set forth in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight
can provide, using the utmost diligence of very cautious persons, with a due regard for all the
circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at
fault or to have acted negligently, unless they prove that they observed extraordinary diligence as
prescribed in articles 1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence
or willful acts of the former's employees, although such employees may have acted beyond the scope of
their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a
good father of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of the willful
acts or negligence of other passengers or of strangers, if the common carrier's employees through the
exercise of the diligence of a good father of a family could have prevented or stopped the act or
omission.

We agree with the trial court that the case involves a breach of contract of transportation for hire, the Medina
Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also agree with the
trial court that there was negligence on the part of the defendant, through his agent, the driver Saylon. There is
evidence to show that at the time of the blow out, the bus was speeding, as testified to by one of the passengers,
and as shown by the fact that according to the testimony of the witnesses, including that of the defense, from the
Page | 201
point where one of the front tires burst up to the canal where the bus overturned after zig-zaging, there was a
distance of about 150 meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop
the bus, but because of the velocity at which the bus must have been running, its momentum carried it over a
distance of 150 meters before it fell into the canal and turned turtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question is to what
degree. The trial court was of the opinion that the proximate cause of the death of Bataclan was not the
overturning of the bus, but rather, the fire that burned the bus, including himself and his co-passengers who
were unable to leave it; that at the time the fire started, Bataclan, though he must have suffered physical injuries,
perhaps serious, was still alive, and so damages were awarded, not for his death, but for the physical injuries
suffered by him. We disagree. A satisfactory definition of proximate cause is found in Volume 38, pages 695-
696 of American jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have occurred.' And more comprehensively,
'the proximate legal cause is that acting first and producing the injury, either immediately or by setting
other events in motion, all constituting a natural and continuous chain of events, each having a close
causal connection with its immediate predecessor, the final event in the chain immediately effecting the
injury as a natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person might
probably result therefrom.

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him
physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by
lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death,
one might still contend that the proximate cause of his death was the fire and not the overturning of the vehicle.
But in the present case under the circumstances obtaining in the same, we do not hesitate to hold that the
proximate cause was the overturning of the bus, this for the reason that when the vehicle turned not only on its
side but completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected; that
the coming of the men with a lighted torch was in response to the call for help, made not only by the passengers,
but most probably, by the driver and the conductor themselves, and that because it was dark (about 2:30 in the
morning), the rescuers had to carry a light with them, and coming as they did from a rural area where lanterns
and flashlights were not available; and what was more natural than that said rescuers should innocently
approach the vehicle to extend the aid and effect the rescue requested from them. In other words, the coming of
the men with a torch was to be expected and was a natural sequence of the overturning of the bus, the trapping
of some of its passengers and the call for outside help. What is more, the burning of the bus can also in part be
attributed to the negligence of the carrier, through is driver and its conductor. According to the witness, the
driver and the conductor were on the road walking back and forth. They, or at least, the driver should and must
have known that in the position in which the overturned bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled,
specially over a large area, can be smelt and directed even from a distance, and yet neither the driver nor the
conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too
near the bus. Said negligence on the part of the agents of the carrier come under the codal provisions above-
reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the deceased, as well
as the other elements entering into a damage award, we are satisfied that the amount of SIX THOUSAND
(P6,000) PESOS would constitute satisfactory compensation, this to include compensatory, moral, and other
damages. We also believe that plaintiffs are entitled to attorney's fees, and assessing the legal services rendered
Page | 202
by plaintiffs' attorneys not only in the trial court, but also in the course of the appeal, and not losing sight of the
able briefs prepared by them, the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for
the loss of merchandise carried by the deceased in the bus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the
passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was
visited by the defendant Mariano Medina, and in the course of his visit, she overheard him speaking to one of
his bus inspectors, telling said inspector to have the tires of the bus changed immediately because they were
already old, and that as a matter of fact, he had been telling the driver to change the said tires, but that the driver
did not follow his instructions. If this be true, it goes to prove that the driver had not been diligent and had not
taken the necessary precautions to insure the safety of his passengers. Had he changed the tires, specially those
in front, with new ones, as he had been instructed to do, probably, despite his speeding, as we have already
stated, the blow out would not have occurred. All in all, there is reason to believe that the driver operated and
drove his vehicle negligently, resulting in the death of four of his passengers, physical injuries to others, and the
complete loss and destruction of their goods, and yet the criminal case against him, on motion of the fiscal and
with his consent, was provisionally dismissed, because according to the fiscal, the witnesses on whose
testimony he was banking to support the complaint, either failed or appear or were reluctant to testify. But the
record of the case before us shows the several witnesses, passengers, in that bus, willingly and unhesitatingly
testified in court to the effect of the said driver was negligent. In the public interest the prosecution of said
erring driver should be pursued, this, not only as a matter of justice, but for the promotion of the safety of
passengers on public utility buses. Let a copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are increased from
ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED
PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees,
respectively, the decision appealed is from hereby affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia,
and Felix, JJ., concur.

Page | 203
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-65295 March 10, 1987

PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,

vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.

FELICIANO, J:

In the early morning of 15 November 1975 — at about 1:30 a.m. — private respondent Leonardo Dionisio was
on his way home — he lived in 1214-B Zamora Street, Bangkal, Makati — from a cocktails-and-dinner meeting
with his boss, the general manager of a marketing corporation. During the cocktails phase of the evening,
Dionisio had taken "a shot or two" of liquor. Dionisio was driving his Volkswagen car and had just crossed the
intersection of General Lacuna and General Santos Streets at Bangkal, Makati, not far from his home, and was
proceeding down General Lacuna Street, when his car headlights (in his allegation) suddenly failed. He
switched his headlights on "bright" and thereupon he saw a Ford dump truck looming some 2-1/2 meters away
from his car. The dump truck, owned by and registered in the name of petitioner Phoenix Construction Inc.
("Phoenix"), was parked on the right hand side of General Lacuna Street (i.e., on the right hand side of a person
facing in the same direction toward which Dionisio's car was proceeding), facing the oncoming traffic. The
dump truck was parked askew (not parallel to the street curb) in such a manner as to stick out onto the street,
partly blocking the way of oncoming traffic. There were no lights nor any so-called "early warning" reflector
devices set anywhere near the dump truck, front or rear. The dump truck had earlier that evening been driven

Page | 204
home by petitioner Armando U. Carbonel, its regular driver, with the permission of his employer Phoenix, in
view of work scheduled to be carried out early the following morning, Dionisio claimed that he tried to avoid a
collision by swerving his car to the left but it was too late and his car smashed into the dump truck. As a result
of the collision, Dionisio suffered some physical injuries including some permanent facial scars, a "nervous
breakdown" and loss of two gold bridge dentures.

Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically claiming that
the legal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the dump
truck entrusted to him by his employer Phoenix. Phoenix and Carbonel, on the other hand, countered that the
proximate cause of Dionisio's injuries was his own recklessness in driving fast at the time of the accident, while
under the influence of liquor, without his headlights on and without a curfew pass. Phoenix also sought to
establish that it had exercised due rare in the selection and supervision of the dump truck driver.

The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered the latter:

(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and the
replacement of the lost dentures of plaintiff;

(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected income
for plaintiff brought about the accident in controversy and which is the result of the negligence of
the defendants;

(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages for the
unexpected and sudden withdrawal of plaintiff from his lifetime career as a marketing man;
mental anguish, wounded feeling, serious anxiety, social humiliation, besmirched reputation,
feeling of economic insecurity, and the untold sorrows and frustration in life experienced by
plaintiff and his family since the accident in controversy up to the present time;

(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the wanton
disregard of defendants to settle amicably this case with the plaintiff before the filing of this case
in court for a smaller amount.

(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for attorney's fees;
and

(6) The cost of suit. (Emphasis supplied)

Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No. 65476 affirmed
the decision of the trial court but modified the award of damages to the following extent:

1. The award of P15,000.00 as compensatory damages was reduced

to P6,460.71, the latter being the only amount that the appellate court found the
plaintiff to have proved as actually sustained by him;

2. The award of P150,000.00 as loss of expected income was reduced

to P100,000.00, basically because Dionisio had voluntarily resigned his job such
that, in the opinion of the appellate court, his loss of income "was not solely
attributable to the accident in question;" and

Page | 205
 3. The award of P100,000.00 as moral damages was held by the appellate court as
excessive and unconscionable and hence reduced to P50,000.00.

The award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees

and costs remained untouched.

This decision of the Intermediate Appellate Court is now before us on a petition for review.

Both the trial court and the appellate court had made fairly explicit findings of fact relating to the manner in
which the dump truck was parked along General Lacuna Street on the basis of which both courts drew the
inference that there was negligence on the part of Carbonel, the dump truck driver, and that this negligence was
the proximate cause of the accident and Dionisio's injuries. We note, however, that both courts failed to pass
upon the defense raised by Carbonel and Phoenix that the true legal and proximate cause of the accident was not
the way in which the dump truck had been parked but rather the reckless way in which Dionisio had driven his
car that night when he smashed into the dump truck. The Intermediate Appellate Court in its questioned
decision casually conceded that Dionisio was "in some way, negligent" but apparently failed to see the
relevance of Dionisio's negligence and made no further mention of it. We have examined the record both before
the trial court and the Intermediate Appellate Court and we find that both parties had placed into the record
sufficient evidence on the basis of which the trial court and the appellate court could have and should have
made findings of fact relating to the alleged reckless manner in which Dionisio drove his car that night. The
petitioners Phoenix and Carbonel contend that if there was negligence in the manner in which the dump truck
was parked, that negligence was merely a "passive and static condition" and that private respondent Dionisio's
recklessness constituted an intervening, efficient cause determinative of the accident and the injuries he
sustained. The need to administer substantial justice as between the parties in this case, without having to
remand it back to the trial court after eleven years, compels us to address directly the contention put forward by
the petitioners and to examine for ourselves the record pertaining to Dionisio's alleged negligence which must
bear upon the liability, or extent of liability, of Phoenix and Carbonel.

There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had a
curfew pass valid and effective for that eventful night; (b) whether Dionisio was driving fast or speeding just
before the collision with the dump truck; (c) whether Dionisio had purposely turned off his car's headlights
before contact with the dump truck or whether those headlights accidentally malfunctioned moments before the
collision; and (d) whether Dionisio was intoxicated at the time of the accident.

As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the person of
Dionisio immediately after the accident nor was any found in his car. Phoenix's evidence here consisted of the
testimony of Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati Medical Center for
emergency treatment immediately after the accident. At the Makati Medical Center, a nurse took off Dionisio's
clothes and examined them along with the contents of pockets together with Patrolman Cuyno. 1 Private
respondent Dionisio was not able to produce any curfew pass during the trial. Instead, he offered the
explanation that his family may have misplaced his curfew pass. He also offered a certification (dated two years
after the accident) issued by one Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of
Camp Olivas, San Fernando, Pampanga, which was said to have authority to issue curfew passes for Pampanga
and Metro Manila. This certification was to the effect that private respondent Dionisio had a valid curfew pass.
This certification did not, however, specify any pass serial number or date or period of effectivity of the
supposed curfew pass. We find that private respondent Dionisio was unable to prove possession of a valid
curfew pass during the night of the accident and that the preponderance of evidence shows that he did not have
such a pass during that night. The relevance of possession or non-possession of a curfew pass that night lies in
the light it tends to shed on the other related issues: whether Dionisio was speeding home and whether he had

Page | 206
indeed purposely put out his headlights before the accident, in order to avoid detection and possibly arrest by
the police in the nearby police station for travelling after the onset of curfew without a valid curfew pass.

On the second issue — whether or not Dionisio was speeding home that night — both the trial court and the
appellate court were completely silent.

The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene of the
accident almost immediately after it occurred, the police station where he was based being barely 200 meters
away. Patrolman Cuyno testified that people who had gathered at the scene of the accident told him that
Dionisio's car was "moving fast" and did not have its headlights on. 2 Dionisio, on the other hand, claimed that
he was travelling at a moderate speed at 30 kilometers per hour and had just crossed the intersection of General
Santos and General Lacuna Streets and had started to accelerate when his headlights failed just before the
collision took place. 3

Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fag within any of
the recognized exceptions to the hearsay rule since the facts he testified to were not acquired by him through
official information and had not been given by the informants pursuant to any duty to do so. Private
respondent's objection fails to take account of the fact that the testimony of Patrolman Cuyno is admissible not
under the official records exception to the hearsay rule 4 but rather as part of the res gestae. 5 Testimonial
evidence under this exception to the hearsay rule consists of excited utterances made on the occasion of an
occurrence or event sufficiently startling in nature so as to render inoperative the normal reflective thought
processes of the observer and hence made as a spontaneous reaction to the occurrence or event, and not the
result of reflective thought. 6

We think that an automobile speeding down a street and suddenly smashing into a stationary object in the dead
of night is a sufficiently startling event as to evoke spontaneous, rather than reflective, reactions from observers
who happened to be around at that time. The testimony of Patrolman Cuyno was therefore admissible as part of
the res gestae and should have been considered by the trial court. Clearly, substantial weight should have been
ascribed to such testimony, even though it did not, as it could not, have purported to describe quantitatively the
precise velocity at winch Dionisio was travelling just before impact with the Phoenix dump truck.

A third related issue is whether Dionisio purposely turned off his headlights, or whether his headlights
accidentally malfunctioned, just moments before the accident. The Intermediate Appellate Court expressly
found that the headlights of Dionisio's car went off as he crossed the intersection but was non-committal as to
why they did so. It is the petitioners' contention that Dionisio purposely shut off his headlights even before he
reached the intersection so as not to be detected by the police in the police precinct which he (being a resident in
the area) knew was not far away from the intersection. We believe that the petitioners' theory is a more credible
explanation than that offered by private respondent Dionisio — i.e., that he had his headlights on but that, at the
crucial moment, these had in some mysterious if convenient way malfunctioned and gone off, although he
succeeded in switching his lights on again at "bright" split seconds before contact with the dump truck.

A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The evidence
here consisted of the testimony of Patrolman Cuyno to the effect that private respondent Dionisio smelled of
liquor at the time he was taken from his smashed car and brought to the Makati Medical Center in an
unconscious condition. 7 This testimony has to be taken in conjunction with the admission of Dionisio that he
had taken "a shot or two" of liquor before dinner with his boss that night. We do not believe that this evidence is
sufficient to show that Dionisio was so heavily under the influence of liquor as to constitute his driving a motor
vehicle per se an act of reckless imprudence. 8 There simply is not enough evidence to show how much liquor
he had in fact taken and the effects of that upon his physical faculties or upon his judgment or mental alertness.
We are also aware that "one shot or two" of hard liquor may affect different people differently.
Page | 207
The conclusion we draw from the factual circumstances outlined above is that private respondent Dionisio was
negligent the night of the accident. He was hurrying home that night and driving faster than he should have
been. Worse, he extinguished his headlights at or near the intersection of General Lacuna and General Santos
Streets and thus did not see the dump truck that was parked askew and sticking out onto the road lane.

Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the legal and
proximate cause of the accident and of Dionisio's injuries was the wrongful — or negligent manner in which the
dump truck was parked in other words, the negligence of petitioner Carbonel. That there was a reasonable
relationship between petitioner Carbonel's negligence on the one hand and the accident and respondent's injuries
on the other hand, is quite clear. Put in a slightly different manner, the collision of Dionisio's car with the dump
truck was a natural and foreseeable consequence of the truck driver's negligence.

The petitioners, however, urge that the truck driver's negligence was merely a "passive and static condition" and
that private respondent Dionisio's negligence was an "efficient intervening cause and that consequently
Dionisio's negligence must be regarded as the legal and proximate cause of the accident rather than the earlier
negligence of Carbonel. We note that the petitioners' arguments are drawn from a reading of some of the older
cases in various jurisdictions in the United States but we are unable to persuade ourselves that these arguments
have any validity for our jurisdiction. We note, firstly, that even in the United States, the distinctions between
"cause" and "condition" which the 'petitioners would have us adopt have already been "almost entirely
discredited." Professors and Keeton make this quite clear:

Cause and condition. Many courts have sought to distinguish between the active "cause" of the
harm and the existing "conditions" upon which that cause operated. If the defendant has created
only a passive static condition which made the damage possible, the defendant is said not to be
liable. But so far as the fact of causation is concerned, in the sense of necessary antecedents
which have played an important part in producing the result it is quite impossible to distinguish
between active forces and passive situations, particularly since, as is invariably the case, the
latter are the result of other active forces which have gone before. The defendant who spills
gasoline about the premises creates a "condition," but the act may be culpable because of the
danger of fire. When a spark ignites the gasoline, the condition has done quite as much to bring
about the fire as the spark; and since that is the very risk which the defendant has created, the
defendant will not escape responsibility. Even the lapse of a considerable time during which the
"condition" remains static will not necessarily affect liability; one who digs a trench in the
highway may still be liable to another who fans into it a month afterward. "Cause" and
"condition" still find occasional mention in the decisions; but the distinction is now almost
entirely discredited. So far as it has any validity at all, it must refer to the type of case where the
forces set in operation by the defendant have come to rest in a position of apparent safety, and
some new force intervenes. But even in such cases, it is not the distinction between "cause" and
"condition" which is important but the nature of the risk and the character of the intervening
cause. 9

We believe, secondly, that the truck driver's negligence far from being a "passive and static condition" was
rather an indispensable and efficient cause. The collision between the dump truck and the private respondent's
car would in an probability not have occurred had the dump truck not been parked askew without any warning
lights or reflector devices. The improper parking of the dump truck created an unreasonable risk of injury for
anyone driving down General Lacuna Street and for having so created this risk, the truck driver must be held
responsible. In our view, Dionisio's negligence, although later in point of time than the truck driver's negligence
and therefore closer to the accident, was not an efficient intervening or independent cause. What the Petitioners
describe as an "intervening cause" was no more than a foreseeable consequent manner which the truck driver
had parked the dump truck. In other words, the petitioner truck driver owed a duty to private respondent
Page | 208
Dionisio and others similarly situated not to impose upon them the very risk the truck driver had created.
Dionisio's negligence was not of an independent and overpowering nature as to cut, as it were, the chain of
causation in fact between the improper parking of the dump truck and the accident, nor to sever the juris
vinculum of liability. It is helpful to quote once more from Professor and Keeton:

Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human
experience is reasonably to be anticipated or one which the defendant has reason to anticipate
under the particular circumstances, the defendant may be negligence among other reasons,
because of failure to guard against it; or the defendant may be negligent only for that
reason. Thus one who sets a fire may be required to foresee that an ordinary, usual and
customary wind arising later wig spread it beyond the defendant's own property, and therefore to
take precautions to prevent that event. The person who leaves the combustible or explosive
material exposed in a public place may foresee the risk of fire from some independent source.
... In all of these cases there is an intervening cause combining with the defendant's conduct to
produce the result and in each case the defendant's negligence consists in failure to protect the
plaintiff against that very risk.

Obviously the defendant cannot be relieved from liability by the fact that the risk or a substantial
and important part of the risk, to which the defendant has subjected the plaintiff has indeed come
to pass. Foreseeable intervening forces are within the scope original risk, and hence of the
defendant's negligence. The courts are quite generally agreed that intervening causes which fall
fairly in this category will not supersede the defendant's responsibility.

Thus it has been held that a defendant will be required to anticipate the usual weather of the
vicinity, including all ordinary forces of nature such as usual wind or rain, or snow or frost or fog
or even lightning; that one who leaves an obstruction on the road or a railroad track should
foresee that a vehicle or a train will run into it; ...

The risk created by the defendant may include the intervention of the foreseeable negligence of
others. ... [The standard of reasonable conduct may require the defendant to protect the plaintiff
against 'that occasional negligence which is one of the ordinary incidents of human life, and
therefore to be anticipated.' Thus, a defendant who blocks the sidewalk and forces the plaintiff to
walk in a street where the plaintiff will be exposed to the risks of heavy traffic becomes liable
when the plaintiff is run down by a car, even though the car is negligently driven; and one who
parks an automobile on the highway without lights at night is not relieved of responsibility when
another negligently drives into it. --- 10

We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and
proximate cause" of the injury remained the truck driver's "lack of due care" and that consequently respondent
Dionisio may recover damages though such damages are subject to mitigation by the courts (Article 2179, Civil
Code of the Philippines).

Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of
petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio had the "last clear
chance" of avoiding the accident and hence his injuries, and that Dionisio having failed to take that "last clear
chance" must bear his own injuries alone. The last clear chance doctrine of the common law was imported into
our jurisdiction by Picart vs. Smith 11 but it is a matter for debate whether, or to what extent, it has found its
way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to
mitigate the harshness of another common law doctrine or rule that of contributory negligence. 12 The common
law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if
Page | 209
the plaintiff's negligence was relatively minor as compared with the wrongful act or omission of the
defendant. 13 The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who
had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to
do so. 14 Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to
play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery
by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines. 15

Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix and
utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under
Article 2179, the task of a court, in technical terms, is to determine whose negligence — the plaintiff's or the
defendant's — was the legal or proximate cause of the injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners seem to imply by the use of terms like "last" or
"intervening" or "immediate." The relative location in the continuum of time of the plaintiff's and the
defendant's negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of
more fundamental importance are the nature of the negligent act or omission of each party and the character and
gravity of the risks created by such act or omission for the rest of the community. The petitioners urge that the
truck driver (and therefore his employer) should be absolved from responsibility for his own prior negligence
because the unfortunate plaintiff failed to act with that increased diligence which had become necessary to
avoid the peril precisely created by the truck driver's own wrongful act or omission. To accept this proposition
is to come too close to wiping out the fundamental principle of law that a man must respond for the forseeable
consequences of his own negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and
burdens of living in society and to allocate them among the members of society. To accept the petitioners' pro-
position must tend to weaken the very bonds of society.

Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer
Phoenix 16 in supervising its employees properly and adequately. The respondent appellate court in effect
found, correctly in our opinion, that Phoenix was not able to overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver to bring the dump truck to his home whenever there was
work to be done early the following morning, when coupled with the failure to show any effort on the part of
Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an
affirmative showing of culpa in vigilando on the part of Phoenix.

Turning to the award of damages and taking into account the comparative negligence of private respondent
Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand, 17 we believe that the
demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of
the damages awarded by the respondent appellate court, except the award of P10,000.00 as exemplary damages
and P4,500.00 as attorney's fees and costs, shall be borne by private respondent Dionisio; only the balance of
80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarity liable therefor to the former.
The award of exemplary damages and attorney's fees and costs shall be borne exclusively by the petitioners.
Phoenix is of course entitled to reimbursement from Carbonel. 18 We see no sufficient reason for disturbing the
reduced award of damages made by the respondent appellate court.

WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate amount of
compensatory damages, loss of expected income and moral damages private respondent Dionisio is entitled to
by 20% of such amount. Costs against the petitioners.

SO ORDERED.

Yap (Chairman), Narvasa, Cruz, Gancayco and Sarmiento, JJ., concur.

Page | 210
Melencio-Herrera, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.

STREET, J.:

Page | 211
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of
P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From a judgment
of the Court of First Instance of the Province of La Union absolving the defendant from liability the plaintiff has
appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the
Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was
riding on his pony over said bridge. Before he had gotten half way across, the defendant approached from the
opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant
neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He continued his
course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that the man
on horseback before him was not observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed
by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing
on the right side of the bridge instead of going to the left. He says that the reason he did this was that he thought
he did not have sufficient time to get over to the other side. The bridge is shown to have a length of about 75
meters and a width of 4.80 meters. As the automobile approached, the defendant guided it toward his left, that
being the proper side of the road for the machine. In so doing the defendant assumed that the horseman would
move to the other side. The pony had not as yet exhibited fright, and the rider had made no sign for the
automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to the right
while yet some distance away or slowing down, continued to approach directly toward the horse without
diminution of speed. When he had gotten quite near, there being then no possibility of the horse getting across
to the other side, the defendant quickly turned his car sufficiently to the right to escape hitting the horse
alongside of the railing where it as then standing; but in so doing the automobile passed in such close proximity
to the animal that it became frightened and turned its body across the bridge with its head toward the railing. In
so doing, it as 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. From the evidence adduced in the case we believe that
when the accident occurred the free space where the pony stood between the automobile and the railing of the
bridge was probably less than one and one half meters. As a result of its injuries the horse died. The plaintiff
received contusions which caused temporary unconsciousness and required medical attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the manner above
described was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are
of the opinion that he is so liable. As the defendant started across the bridge, he had the right to assume that the
horse and the rider would pass over to the proper side; but as he moved toward the center of the bridge it was
demonstrated to his eyes that this would not be done; and he must in a moment have perceived that it was too
late for the horse to cross with safety in front of the moving vehicle. In the nature of things this change of
situation occurred while the automobile was yet some distance away; and from this moment it was no longer
within the power of the plaintiff to escape being run down by going to a place of greater safety. The control of
the situation had then passed entirely to the defendant; and it was his duty either to bring his car to an
immediate stop or, seeing that there were no other persons on the bridge, to take the other side and pass
sufficiently far away from the horse to avoid the danger of collision. Instead of doing this, the defendant ran
straight on until he was almost upon the horse. He was, we think, deceived into doing this by the fact that the
horse had not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that,
if the animal in question was unacquainted with automobiles, he might get exited and jump under the conditions
which here confronted him. When the defendant exposed the horse and rider to this danger he was, in our
opinion, negligent in the eye of the law.

Page | 212
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 person would have used in the same situation? If not, then
he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. 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 question as to what would constitute the conduct of a prudent man in a given situation must of course be
always determined in the light of human experience and in view of the facts involved in the particular case.
Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable men
govern their conduct by the circumstances which are before them or known to them. They are not, and are not
supposed to be, omniscient of the future. Hence they can be expected to take care only when there is something
before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm
as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against
that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for
determining the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent
man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently
probable to warrant his foregoing conduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly
established. A prudent man, placed in the position of the defendant, would in our opinion, have recognized that
the course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the horse
and the rider as reasonable consequence of that course. Under these circumstances the law imposed on the
defendant the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was
also negligent; and in such case the problem always is to discover which agent is immediately and directly
responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these
circumstances the law is that 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.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held that while contributory negligence on the part of the person
injured did not constitute a bar to recovery, it could be received in evidence to reduce the damages which would
otherwise have been assessed wholly against the other party. The defendant company had there employed the
plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor to the company's yards
located not far away. The rails were conveyed upon cars which were hauled along a narrow track. At certain
spot near the water's edge the track gave way by reason of the combined effect of the weight of the car and the
insecurity of the road bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught
and broken. It appeared in evidence that the accident was due to the effects of the typhoon which had dislodged
one of the supports of the track. The court found that the defendant‘s company was negligent in having failed to
repair the bed of the track and also that the plaintiff was, at the moment of the accident, guilty of contributory
negligence in walking at the side of the car instead of being in front or behind. It was held that while the
defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track in proper
repair nevertheless the amount of the damages should be reduced on account of the contributory negligence in
the plaintiff. As will be seen the defendant's negligence in that case consisted in an omission only. The liability
Page | 213
of the company arose from its responsibility for the dangerous condition of its track. In a case like the one now
before us, where the defendant was actually present and operating the automobile which caused the damage, we
do not feel constrained to attempt to weigh the negligence of the respective parties in order to apportion the
damage according to the degree of their relative fault. It is enough to say that the negligence of the defendant
was in this case the immediate and determining cause of the accident and that the antecedent negligence of the
plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to
the effect that the subject matter of the action had been previously adjudicated in the court of a justice of the
peace. In this connection it appears that soon after the accident in question occurred, the plaintiff caused
criminal proceedings to be instituted before a justice of the peace charging the defendant with the infliction of
serious injuries (lesiones graves). At the preliminary investigation the defendant was discharged by the
magistrate and the proceedings were dismissed. Conceding that the acquittal of the defendant at the trial upon
the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the question of his
civil liability arising from negligence -- a point upon which it is unnecessary to express an opinion -- the action
of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing can have no
effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and judgment is her
rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated to include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on the whole to the date of
this recovery. The other damages claimed by the plaintiff are remote or otherwise of such character as not to be
recoverable. So ordered.

Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.
Johnson, J., reserves his vote.

G.R. No. 70890. September 18, 1992.

CRESENCIO LIBI and AMELIA YAP LIBI, Petitioners,

vs.

HON. INTERMEDIATE APPELLATE COURT, FELIPE GOTIONG and SHIRLEY GOTIONG,

Respondents.

Page | 214
REGALADO, J.:

One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of love. A tragic
illustration is provided by the instant case, wherein two lovers died while still in the prime of their years, a bitter
episode for those whose lives they have touched. While we cannot expect to award complete assuagement to
their families through seemingly prosaic legal verbiage, this disposition should at least terminate the acrimony
and rancor of an extended judicial contest resulting from the unfortunate occurrence.

This final denouement of the judicial recourse the stages whereof were alternately initiated by the parties,
petitioners are now before us seeking the reversal of the judgment of respondent court promulgated on January
2, 1985 in AC-G.R. CV No. 69060 with the following decretal portion:

"WHEREFORE, the decision of the lower court dismissing plaintiff‘s complaint is hereby reversed; and
instead, judgment is hereby rendered sentencing defendants, jointly and solidarily, to pay to plaintiffs the
following amounts:

1. Moral damages, P30,000.000;

2. Exemplary damages, P10,000.00;

3. Attorney‘s fees, P20,000.00, and costs.

However, denial of defendants-appellees‘ counterclaims is affirmed."

Synthesized from the findings of the lower courts, it appears that respondent spouses are the legitimate parents
of Julie Ann Gotiong who, at the time of the deplorable incident which took place and from which she died on
January 14, 1979, was an 18-year old first year commerce student of the University of San Carlos, Cebu City;
while petitioners are the parents of Wendell Libi, then a minor between 18 and 19 years of age living with his
aforesaid parents, and who also died in the same event on the same date.

For more than two (2) years before their deaths, Julie Gotiong and Ann Wendell Libi were sweethearts until
December, 1978 when Julie Ann broke up her relationship with Wendell after she supposedly found him to be
sadistic and irresponsible. During the first and second weeks of January, 1979, Wendell kept pestering Julie
Ann with demands for reconciliation but the latter persisted in her refusal, prompting the former to resort to
threats against her. In order to avoid him, Julie Ann stayed in the house of her best friend, Malou Alfonso, at the
corner of Maria Cristina and Juana Osmeña Streets, Cebu City, from January 7 to 13, 1978.

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound inflicted with the same
firearm, a Smith and Wesson revolver licensed in the name of petitioner Cresencio Libi, which was recovered
from the scene of the crime inside the residence of private respondents at the corner of General Maxilom and D.
Jakosalem streets of the same city.

Due to the absence of an eyewitness account of the circumstances surrounding the death of both minors, their
parents, who are the contending parties herein, posited their respective theories drawn from their interpretation
of circumstantial evidence, available reports, documents and evidence of physical facts.

Page | 215
Private respondents, bereaved over the death of their daughter, submitted that Wendell caused her death by
shooting her with the aforesaid firearm and, thereafter, turning the gun on himself to commit suicide. On the
other hand, Petitioners, puzzled and likewise distressed over the death of their son, rejected the imputation and
contended that an unknown third party, whom Wendell may have displeased or antagonized by reason of his
work as a narcotics informer of the Constabulary Anti-Narcotics Unit (CANU), must have caused Wendell‘s
death and then shot Julie Ann to eliminate any witness and thereby avoid identification.

As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the then Court of First
Instance of Cebu against the parents of Wendell to recover damages arising from the latter‘s vicarious liability
under Article 2180 of the Civil Code. After trial, the court below rendered judgment on October 20, 1980 as
follows:

"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing plaintiffs‘ complaint for
insufficiency of the evidence. Defendants‘ counterclaim is likewise denied for lack of sufficient merit."

On appeal to respondent court, said judgment of the lower court dismissing the complaint of therein plaintiffs-
appellants was set aside and another judgment was rendered against defendants-appellees who, as petitioners in
the present appeal by certiorari, now submit for resolution the following issues in this case:

1. Whether or not respondent court correctly reversed the trial court in accordance with established decisional
laws; and

2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent court to make
petitioners liable for vicarious liability.

In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer of Cebu, submitted
his findings and opinions on some postulates for determining whether or not the gunshot wound was inflicted
on Wendell Libi by his own suicidal act. However, undue emphasis was placed by the lower court on the
absence of gunpowder or tattooing around the wound at the point of entry of the bullet. It should be
emphasized, however, that this is not the only circumstance to be taken into account in the determination of
whether it was suicide or not.

It is true that said witness declared that he found no evidence of contact or close-contact of an explosive
discharge in the entrance wound. However, as pointed out by private respondents, the body of deceased
Wendell Libi must have been washed at the funeral parlor, considering the hasty interment thereof a little after
eight (8) hours from the occurrence wherein he died. Dr. Cerna himself could not categorically state that the
body of Wendell Libi was left untouched at the funeral parlor before he was able to conduct his autopsy. It will
also be noted that Dr. Cerna was negligent in not conducting a paraffin test on Wendell Libi, hence possible
evidence of gunpowder residue on Wendell‘s hands was forever lost when Wendell was hastily buried.

More specifically, Dr. Cerna testified that he conducted an autopsy on the body of Wendell Libi about eight (8)
hours after the incident or, to be exact, eight (8) hours and twenty (20) minutes based on the record of death;
that when he arrived at the Cosmopolitan Funeral Homes, the body of the deceased was already on the autopsy
table and in the stage of rigor mortis; and that said body was not washed, but it was dried. However, on redirect
examination, he admitted that during the 8-hour interval, he never saw the body nor did he see whether said
body was wiped or washed in the area of the wound on the head which he examined because the deceased was

Page | 216
inside the morgue. In fact, on cross-examination, he had earlier admitted that as far as the entrance of the
wound, the trajectory of the bullet and the exit of the wound are concerned, it is possible that Wendell Libi shot
himself.

He further testified that the muzzle of the gun was not pressed on the head of the victim and that he found no
burning or singeing of the hair or extensive laceration on the gunshot wound of entrance which are general
characteristics of contact or near-contact fire. On direct examination, Dr. Cerna nonetheless made these
clarifications:

Q: Is it not a fact that there are certain guns which are so made that there would be no black residue or tattooing
that could result from these guns because they are what we call clean?

A: Yes, sir. I know that there are what we call smokeless powder.

ATTY. ORTIZ:

Q: Yes. So, in cases, therefore, of guns where the powder is smokeless, those indications that you said may not
rule out the possibility that the gun was closer than 24 inches, is that correct?

A: If the... assuming that the gun used was.. the bullet used was a smokeless powder.

Q: At any rate, doctor, from . . . disregarding those other matters that you have noticed, the singeing, etc., from
the trajectory, based on the trajectory of the bullet as shown in your own sketch, is it not a fact that the gun
could have been fired by the person himself, the victim himself, Wendell Libi, because it shows a point of entry
a little above the right ear and point of exit a little above that, to be very fair and on your oath?

A: As far as the point of entrance is concerned and as far as the trajectory of the bullet is concerned and as far as
the angle or the manner of fire is concerned, it could have been fired by the victim."

As shown by the evidence, there were only two used bullets found at the scene of the crime, each of which were
the bullets that hit Julie Ann Gotiong and Wendell Libi, respectively. Also, the sketch prepared by the Medico-
Legal Division of the National Bureau of Investigation, shows that there is only one gunshot wound of entrance
located at the right temple of Wendell Libi. The necropsy report prepared by Dr. Cerna states:

"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest inferiorly by 0.2 cm., edges
inverted, oriented upward, located at the head, temporal region, right, 2.8 cms. behind and 5.5 cms. above right
external auditory meatus, directed slightly forward, upward and to the left, involving skin and soft tissues,
making a punch-in fracture on the temporal bone, right, penetrating cranial cavity, lacerating extensively along
its course the brain tissues, fracturing parietal bone, left, and finally making an EXIT wound, irregular, 2.0 x 1.8
cms., edges averted, parietal region, left, 2.0 cm behind and 12.9 cm above left external auditory meatus.‖

"Evidence of contact or close-contact fire, such as burning around the gunshot wound of entrance, gunpowder
tatooing (sic), smudging, singeing of hair, extensive laceration or bursting of the gunshot wound of entrance, or
separation of the skin from the underlying tissue, are absent."

On cross-examination, Dr. Cerna demonstrated his theory which was made of record, thus:
Page | 217
"ATTY. SENINING (TO WITNESS)

Q: Now, will you please use yourself as Wendell Libi, and following the entrance of the wound, the trajectory
of the bullet and the exit of the wound, and measuring yourself 24 inches, will you please indicate to the
Honorable Court how would it have been possible for Wendell Libi to kill himself? Will you please indicate the
24 inches?

WITNESS: Actually, sir, the 24 inches is approximately one arm‘s length.

ATTY. SENINING: I would like to make of record that the witness has demonstrated by extending his right
arm almost straight towards his head."

Private respondents assail the fact that the trial court gave credence to the testimonies of defendants‘ witnesses
Lydia Ang and James Enrique Tan, the first being a resident of an apartment across the street from the Gotiongs
and the second, a resident of the house adjacent to the Gotiong residence, who declared having seen a "shadow"
of a person at the gate of the Gotiong house after hearing shots therefrom.

On cross-examination, Lydia Ang testified that the apartment where she was staying faces the gas station; that it
is the second apartment; that from her window she can see directly the gate of the Gotiongs and, that there is a
firewall between her apartment and the gas station. After seeing a man jump from the gate of the Gotiongs to
the rooftop of the Tans, she called the police station but the telephone lines were busy. Later on, she talked with
James Enrique Tan and told him that she saw a man leap from the gate towards his rooftop.

However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the Gotiongs, but denied
having talked with anyone regarding what he saw. He explained that he lives in a duplex house with a garden in
front of it; that his house is next to Felipe Gotiong‘s house; and he further gave the following answers to these
questions:

"ATTY. ORTIZ: (TO WITNESS)

Q: What is the height of the wall of the Gotiong‘s in relation to your house?

WITNESS:

A: It is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)

Q: And where were you looking from?

WITNESS:

A: From upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

Q: From Your living room window, is that correct?

WITNESS:

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A: Yes, but not very clear because the wall is high."

Analyzing the foregoing testimonies, we agree with respondent court that the same do not inspire credence as to
the reliability and accuracy of the witnesses‘ observations, since the visual perceptions of both were obstructed
by high walls in their respective houses in relation to the house of herein private respondents. On the other
hand, witness Manolo Alfonso, testifying on rebuttal, attested without contradiction that he and his sister,
Malou Alfonso, were waiting for Julie Ann Gotiong when they heard her scream; that when Manolo climbed
the fence to see what was going on inside the Gotiong house, he heard the first shot; and, not more than five (5)
seconds later, he heard another shot. Consequently, he went down from the fence and drove to the police station
to report the incident. Manolo‘s direct and candid testimony establishes and explains the fact that it was he
whom Lydia Ang and James Enrique Tan saw as the "shadow" of a man at the gate of the Gotiong house.

We have perforce to reject petitioners‘ effete and unsubstantiated pretension that it was another man who shot
Wendell and Julie Ann. It is significant that the Libi family did not even point to or present any suspect in the
crime nor did they file any case against any alleged "John Doe." Nor can we sustain the trial court‘s dubious
theory that Wendell Libi did not die by his own hand because of the overwhelming evidence — testimonial,
documentary and pictorial — the confluence of which point to Wendell as the assailant of Julie Ann, his motive
being revenge for her rejection of his persistent pleas for reconciliation.

Petitioners‘ defense that they had exercised the due diligence of a good father of a family, hence they should not
be civilly liable for the crime committed by their minor son, is not borne out by the evidence on record either.

Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio Libi, owns a gun which
he kept in a safety deposit box inside a drawer in their bedroom. Each of these petitioners holds a key to the
safety deposit box and Amelita‘s key is always in her bag, all of which facts were known to Wendell. They have
never seen their son Wendell taking or using the gun. She admitted, however, that on that fateful night the gun
was no longer in the safety deposit box. We, accordingly, cannot but entertain serious doubts that petitioner
spouses had really been exercising the diligence of a good father of a family by safely locking the fatal gun
away. Wendell could not have gotten hold thereof unless one of the keys to the safety deposit box was
negligently left lying around or he had free access to the bag of his mother where the other key was.

The diligence of a good father of a family required by law in a parent and child relationship consists, to a large
extent, of the instruction and supervision of the child. Petitioners were gravely remiss in their duties as parents
in not diligently supervising the activities of their son, despite his minority and immaturity, so much so that it
was only at the time of Wendell‘s death that they allegedly discovered that he was a CANU agent and that
Cresencio‘s gun was missing from the safety deposit box. Both parents were sadly wanting in their duty and
responsibility in monitoring and knowing the activities of their children who, for all they know, may be engaged
in dangerous work such as being drug informers, or even drug users. Neither was a plausible explanation given
for the photograph of Wendell, with a handwritten dedication to Julie Ann at the back thereof, holding upright
what clearly appears as a revolver and on how or why he was in possession of that firearm.

In setting aside the judgment of the court a quo and holding petitioners civilly liable, as explained at the start of
this opinion, respondent court waved aside the protestations of diligence on the part of petitioners and had this
to say:

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". . . It is still the duty of parents to know the activity of their children who may be engaged in this dangerous
activity involving the menace of drugs. Had the defendants-appellees been diligent in supervising the activities
of their son, Wendell, and in keeping said gun from his reach, they could have prevented Wendell from killing
Julie Ann Gotiong. Therefore, appellants are liable under Article 2180 of the Civil Code which provides:

‗The father, and in case of his death or incapacity, the mother, are responsible for the damages caused by their
minor children who live in their company.‘

"Having been grossly negligent in preventing Wendell Libi from having access to said gun which was allegedly
kept in a safety deposit box, defendants-appellees are subsidiarily liable for the natural consequence of the
criminal act of said minor who was living in their company. This vicarious liability of herein defendants-
appellees has been reiterated by the Supreme Court in many cases, prominent of which is the case of Fuellas v.
Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held that:

‗The subsidiary liability of parents for damages caused by their minor children imposed by Article 2180 of the
New Civil Code covers obligations arising from both quasi-delicts and criminal offenses.‘

‗The subsidiary liability of parent‘s arising from the criminal acts of their minor children who acted with
discernment is determined under the provisions of Article 2180, N.C.C. and under Article 101 of the Revised
Penal Code, because to hold that the former only covers obligations which arise from quasi-delicts and not
obligations which arise from criminal offenses, would result in the absurdity that while for an act where mere
negligence intervenes the father or mother may stand subsidiarily liable for the damages caused by his or her
son, no liability would attach if the damage is caused with criminal intent.‘ (3 SCRA 361-362).

". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi somehow got hold of the key to
the drawer where said gun was kept under lock without defendant-spouses ever knowing that said gun had been
missing from that safety box since 1978 when Wendell Libi had a picture taken wherein he proudly displayed
said gun and dedicated this picture to his sweetheart, Julie Ann Gotiong; also since then, Wendell Libi was said
to have kept said gun in his car, in keeping up with his supposed role of a CANU agent . . ."

"Based on the foregoing discussions of the assigned errors, this Court holds that the lower court was not correct
in dismissing herein plaintiffs-appellants‘ complaint because as preponderantly shown by evidence, defendants-
appellees utterly failed to exercise all the diligence of a good father of the family in preventing their minor son
from committing this crime by means of the gun of defendants-appellees which was freely accessible to
Wendell Libi for they have not regularly checked whether said gun was still under lock, but learned that it was
missing from the safety deposit box only after the crime had been committed." (Emphases ours.)

We agree with the conclusion of respondent court that petitioners should be held liable for the civil liability
based on what appears from all indications was a crime committed by their minor son. We take this opportunity,
however, to digress and discuss its ratiocination therefore on jurisprudential dicta which we feel require
clarification.

In imposing sanctions for the so-called vicarious liability of petitioners, respondent court cites Fuellas v.
Cadano, Et. Al. 20 which supposedly holds that" the subsidiary liability of parents for damages caused by their
minor children imposed by Article 2180 of the New Civil Code covers obligations arising from both quasi-
delicts and criminal offenses," followed by an extended quotation ostensibly from the same case explaining why

Page | 220
under Article 2180 of the Civil Code and Article 101 of the Revised Penal Code parents should assume
subsidiary liability for damages caused by their minor children. The quoted passages are set out two paragraphs
back, with pertinent underscoring for purposes of the discussion hereunder.

Now, we do not have any objection to the doctrinal rule holding, the parents liable, but the categorization of
their liability as being subsidiary, and not primary, in nature requires a hard second look considering previous
decisions of this court on the matter which warrant comparative analyses. Our concern stems from our readings
that if the liability of the parents for crimes or quasi-delicts of their minor children is subsidiary, then the
parents can neither invoke nor be absolved of civil liability on the defense that they acted with the diligence of a
good father of a family to prevent damages. On the other hand, if such liability imputed to the parents is
considered direct and primary, that diligence would constitute a valid and substantial defense.

We believe that the civil liability of parents for quasi-delicts of their minor children, as contemplated in Article
2180 of the Civil Code, is primary and not subsidiary. In fact, if we apply Article 2194 of said code which
provides for solidary liability of joint tortfeasors, the persons responsible for the act or omission, in this case the
minor and the father and, in case of his death of incapacity, the mother, are solidarily liable. Accordingly, such
parental liability is primary and not subsidiary, hence the last paragraph of Article 2180 provides that" the
responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed
all the diligence of a good father of a family to prevent damages."

We are also persuaded that the liability of the parents for felonies committed by their minor children is likewise
primary, not subsidiary. Article 101 of the Revised Penal Code provides:

"ARTICLE 101. Rules regarding civil liability in certain cases. —

First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts committed by . . . a person
under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment,
shall devolve upon those having such person under their legal authority or control, unless it appears that there
was no fault or negligence on their part." (Emphasis supplied.)

Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing provision the civil liability
of the parents for crimes committed by their minor children is likewise direct and primary, and also subject to
the defense of lack of fault or negligence on their part, that is, the exercise of the diligence of a good father of a
family.

That in both quasi-delicts and crimes the parents primarily respond for such damages is buttressed by the
corresponding provisions in both codes that the minor transgressor shall be answerable or shall respond with his
own property only in the absence or in case of insolvency of the former. Thus, for civil liability ex quasi delicto
of minors, Article 2182 of the Civil Code states that" (i)f the minor causing damage has no parents or guardian,
the minor . . . shall be answerable with his own property in an action against him where a guardian ad litem
shall be appointed." For civil liability ex delicto of minors, an equivalent provision is found in the third
paragraph of Article 101 of the Revised Penal Code, to wit:

"Should there be no person having such . . . minor under his authority, legal guardianship or control, or if such
person be insolvent, said . . . minor shall respond with (his) own property, excepting property exempt from
execution, in accordance with civil law."

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The civil liability of parents for felonies committed by their minor children contemplated in the aforesaid rule in
Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil Code has, aside from the
aforecited case of Fuellas, been the subject of a number of cases adjudicated by this Court, viz.: Exconde v.
Capuno, Et Al., 22 Araneta v. Arreglado, 23 Salen, Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v. Bangkili, Et Al.,
25 and Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the aforesaid cases were basically on the issue of the
civil liability of parents for crimes committed by their minor children over 9 but under 15 years of age, who
acted with discernment, and also of minors 15 years of age or over, since these situations are not covered by
Article 101, Revised Penal Code. In both instances, this Court held that the issue of parental civil liability
should be resolved in accordance with the provisions of Article 2180 of the Civil Code for the reasons well
expressed in Salen and adopted in the cases hereinbefore enumerated that to hold that the civil liability under
Article 2180 would apply only to quasi-delicts and not to criminal offenses would result in the absurdity that in
an act involving mere negligence the parents would be liable but not where the damage is caused with criminal
intent. In said cases, however, there are unfortunate variances resulting in a regrettable inconsistency in the
Court‘s determination of whether the liability of the parents, in cases involving either crimes or quasi-delicts of
their minor children, is primary or subsidiary.

In Exconde, where the 15-year old minor was convicted of double homicide through reckless imprudence, in a
separate civil action arising from the crime the minor and his father were held jointly and severally liable for
failure of the latter to prove the diligence of a good father of a family. The same liability in solidum and,
therefore, primary liability was imposed in a separate civil action in Araneta on the parents and their 14-year old
son who was found guilty of frustrated homicide, but on the authority of Article 2194 of the Civil Code
providing for solidary responsibility of two or more persons who are liable for a quasi-delict.

However, in Salen, the father was declared subsidiarily liable for damages arising from the conviction of his
son, who was over 15 but less than 18 years of age, by applying Article 2180 but, this time, disregarding Article
2194 of the Civil Code. In the present case, as already explained, the petitioners herein were also held liable but
supposedly in line with Fuellas which purportedly declared the parents subsidiarily liable for the civil liability
for serious physical injuries committed by their 13-year old son. On the other hand, in Paleyan, the mother and
her 19-year old son were adjudged solidarily liable for damages arising from his conviction for homicide by the
application of Article 2180 of the Civil Code since this is likewise not covered by Article 101 of the Revised
Penal Code. Finally, in Elcano, although the son was acquitted in a homicide charge due to "lack of intent,
coupled with mistake," it was ruled that while under Article 2180 of the Civil Code there should be solidary
liability for damages, since the son, "although married, was living with his father and getting subsistence from
him at the time of the occurrence," but "is now of age, as a matter of equity" the father was only held
subsidiarily liable.

It bears stressing, however, that the Revised Penal Code provides for subsidiary liability only for persons
causing damages under the compulsion of irresistible force or under the impulse of an uncontrollable fear;
innkeepers, tavern keepers and proprietors of establishments; employers, teachers, persons and corporations
engaged in industry; and principals, accomplices and accessories for the unpaid civil liability of their co-
accused in the other classes.

Also, coming back to respondent court‘s reliance on Fuellas in its decision in the present case, it is not exactly
accurate to say that Fuellas provided for subsidiary liability of the parents therein. A careful scrutiny shows that
what respondent court quoted verbatim in its decision now on appeal in the present case, and which it attributed
Page | 222
to Fuellas, was the syllabus on the law report of said case which spoke of "subsidiary" liability. However, such
categorization does not specifically appear in the text of the decision in Fuellas. In fact, after reviewing therein
the cases of Exconde, Araneta and Salen and the discussions in said cases of Article 101 of the Revised Penal
Code in relation to Article 2180 of the Civil Code, this Court concluded its decision in this wise:

"Moreover, the case at bar was decided by the Court of Appeals on the basis of evidence submitted therein by
both parties, independent of the criminal case. And responsibility for fault or negligence under Article 2176
upon which the present action was instituted, is entirely separate and distinct from the civil liability arising from
fault or negligence under the Penal Code (Art. 2177), and having in mind the reasons behind the law as
heretofore stated, any discussion as to the minor‘s criminal responsibility is of no moment."

Under the foregoing considerations, therefore, we hereby rule that the parents are and should be held primarily
liable for the civil liability arising from criminal offenses committed by their minor children under their legal
authority or control, or who live in their company, unless it is proven that the former acted with the diligence of
a good father of a family to prevent such damages. That primary liability is premised on the provisions of
Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their children 9 years of
age or under, or over 9 but under 15 years of age who acted without discernment; and, with regard to their
children over 9 but under 15 years of age who acted with discernment, or 15 years or over but under 21 years of
age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code.

Under said Article 2180, the enforcement of such liability shall be effected against the father and, in case of his
death or incapacity, the mother. This was amplified by the Child and Youth Welfare Code which provides that
the same shall devolve upon the father and, in case of his death or incapacity, upon the mother or, in case of her
death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a relative or family
friend of the youthful offender. However, under the Family Code, this civil liability is now, without such
alternative qualification, the responsibility of the parents and those who exercise parental authority over the
minor offender. For civil liability arising from quasi-delicts committed by minors, the same rules shall apply in
accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a felony or a quasi-delict
committed by Wendell Libi, respondent court did not err in holding petitioners liable for damages arising
therefrom. Subject to the preceding modifications of the premises relied upon by it therefor and on the bases of
the legal imperatives herein explained, we conjoin in its findings that said petitioners failed to duly exercise the
requisite diligentissimi patris familias to prevent such damages.

ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent Court of Appeals is
hereby AFFIRMED, with costs against petitioners.

SO ORDERED.

Page | 223
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 85044 June 3, 1992

MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO, petitioners,

vs.
HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan, Ilocos
Sur; VICTOR BUNDOC; and CLARA BUNDOC, respondents.

FELICIANO, J.:

On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo with an air rifle
causing injuries which resulted in her death. Accordingly, a civil complaint for damages was filed with the
Regional Trial Court, Branch 20, Vigan, Ilocos Sur, docketed as Civil Case No. 3457-V, by petitioner Macario
Tamargo, Jennifer's adopting parent, and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural
parents against respondent spouses Victor and Clara Bundoc, Adelberto's natural parents with whom he was
living at the time of the tragic incident. In addition to this case for damages, a criminal information or Homicide
through Reckless Imprudence was filed [Criminal Case No. 1722-V] against Adelberto Bundoc. Adelberto,
however, was acquitted and exempted from criminal liability on the ground that he bad acted without
discernment.

Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura had filed a petition to
adopt the minor Adelberto Bundoc in Special Proceedings No. 0373-T before the then Court of First Instance of
Ilocos Sur. This petition for adoption was grunted on, 18 November 1982, that is, after Adelberto had shot and
killed Jennifer.

In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the result of the foregoing
petition for adoption, claimed that not they, but rather the adopting parents, namely the spouses Sabas and
Felisa Rapisura, were indispensable parties to the action since parental authority had shifted to the adopting
parents from the moment the successful petition for adoption was filed.

Petitioners in their Reply contended that since Adelberto Bundoc was then actually living with his natural
parents, parental authority had not ceased nor been relinquished by the mere filing and granting of a petition for
adoption.

The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that respondent natural parents of
Adelberto indeed were not indispensable parties to the action.

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Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the 15-day reglementary
period, or on 14 December 1987, petitioners filed a motion for reconsideration followed by a supplemental
motion for reconsideration on 15 January 1988. It appearing, however, that the motions failed to comply with
Sections 4 and 5 of Rule 15 of the Revised Rules of Court — that notice of the motion shall be given to all
parties concerned at least three (3) days before the hearing of said motion; and that said notice shall state the
time and place of hearing — both motions were denied by the trial court in an Order dated 18 April 1988. On 28
April 1988, petitioners filed a notice of appeal. In its Order dated 6 June 1988, the trial court dismissed the
notice at appeal, this time ruling that the notice had been filed beyond the 15-day reglementary period ending 22
December 1987.

Petitioners went to the Court of Appeals on a petition for mandamus and certiorari questioning the trial court's
Decision dated 3 December 1987 and the Orders dated 18 April 1988 and 6 June 1988, The Court of Appeals
dismissed the petition, ruling that petitioners had lost their right to appeal.

In the present Petition for Review, petitioners once again contend that respondent spouses Bundoc are the
indispensable parties to the action for damages caused by the acts of their minor child, Adelberto Bundoc.
Resolution of this Petition hinges on the following issues: (1) whether or not petitioners, notwithstanding loss of
their right to appeal, may still file the instant Petition; conversely, whether the Court may still take cognizance
of the case even through petitioners' appeal had been filed out of time; and (2) whether or not the effects of
adoption, insofar as parental authority is concerned may be given retroactive effect so as to make the adopting
parents the indispensable parties in a damage case filed against their adopted child, for acts committed by the
latter, when actual custody was yet lodged with the biological parents.

1. It will be recalled that, petitioners' motion (and supplemental motion) for reconsideration filed before the trial
court, not having complied with the requirements of Section 13, Rule 41, and Section 4, Rule 15, of the Revised
Rules of Court, were considered pro forma and hence did not interrupt and suspend the reglementary period to
appeal: the trial court held that the motions, not having contained a notice of time and place of hearing, had
become useless pieces of paper which did not interrupt the reglementary period. 1 As in fact repeatedly held by
this Court, what is mandatory is the service of the motion on the opposing counsel indicating the time and place
of hearing. 2

In view, however, of the nature of the issue raised in the instant. Petition, and in order that substantial justice
may be served, the Court, invoking its right to suspend the application of technical rules to prevent manifest
injustice, elects to treat the notice of appeal as having been seasonably filed before the trial court, and the
motion (and supplemental motion) for reconsideration filed by petitioner in the trial court as having interrupted
the reglementary period for appeal. As the Court held in Gregorio v. Court of Appeals: 3

Dismissal of appeal; purely on technical grounds is frowned upon where the policy of the courts
is to encourage hearings of appeal on their merits. The rules of procedure ought not be applied in
a very rigid technical sense, rules of procedure are used only to help secure not override,
substantial justice. if d technical and rigid enforcement of the rules is made their aim would be
defeated. 4

2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo with an air rifle gave
rise to a cause of action on quasi-delict against him. As Article 2176 of the Civil Code provides:

Whoever by act or omission causes damage to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict . . .

Page | 225
Upon the other hand, the law imposes civil liability upon the father and, in case of his death or incapacity, the
mother, for any damages that may be caused by a minor child who lives with them. Article 2180 of the Civil
Code reads:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions,
but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages
caused by the minor children who live in their company.

xxx xxx xxx

The responsibility treated of in this Article shall cease when the person herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage. (Emphasis
supplied)

This principle of parental liability is a species of what is frequently designated as vicarious liability, or the
doctrine of "imputed negligence" under Anglo-American tort law, where a person is not only liable for torts
committed by himself, but also for torts committed by others with whom he has a certain relationship and for
whom he is responsible. Thus, parental liability is made a natural or logical consequence of the duties and
responsibilities of parents — their parental authority — which includes the instructing, controlling and
disciplining of the child. 5 The basis for the doctrine of vicarious liability was explained by the Court in Cangco
v. Manila Railroad Co. 6 in the following terms:

With respect to extra-contractual obligation arising from negligence, whether of act or omission,
it is competent for the legislature to elect — and our Legislature has so elected — to limit such
liability to cases in which the person upon whom such an obligation is imposed is morally
culpable or, on the contrary, for reasons of public policy. to extend that liability, without regard
to the lack of moral culpability, so as to include responsibility for the negligence of those persons
whose acts or omissions are imputable, by a legal fiction, to others who are in a position to
exercise an absolute or limited control over them. The legislature which adopted our Civil Code
has elected to limit extra-contractual liability — with certain well-defined exceptions — to cases
in which moral culpability can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in one's own acts, or in having
failed to exercise due care in the selection and control of one's agent or servants, or in the control
of persons who, by reasons of their status, occupy a position of dependency with respect to the
person made liable for their conduct. 7 (Emphasis Supplied)

The civil liability imposed upon parents for the torts of their minor children living with them, may be
seen to be based upon the parental authority vested by the Civil Code upon such parents. The civil law
assumes that when an unemancipated child living with its parents commits a tortious acts, the parents
were negligent in the performance of their legal and natural duty closely to supervise the child who is in
their custody and control. Parental liability is, in other words, anchored upon parental authority coupled
with presumed parental dereliction in the discharge of the duties accompanying such authority. The
parental dereliction is, of course, only presumed and the presumption can be overtuned under Article
2180 of the Civil Code by proof that the parents had exercised all the diligence of a good father of a
family to prevent the damage.

In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when parental authority was
still lodged in respondent Bundoc spouses, the natural parents of the minor Adelberto. It would thus follow that
Page | 226
the natural parents who had then actual custody of the minor Adelberto, are the indispensable parties to the suit
for damages.

The natural parents of Adelberto, however, stoutly maintain that because a decree of adoption was issued by the
adoption court in favor of the Rapisura spouses, parental authority was vested in the latter as adopting
parents as of the time of the filing of the petition for adoption that is, before Adelberto had shot Jennifer which
an air rifle. The Bundoc spouses contend that they were therefore free of any parental responsibility for
Adelberto's allegedly tortious conduct.

Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare Code 8 which reads as follows:

Art. 36. Decree of Adoption. — If, after considering the report of the Department of Social
Welfare or duly licensed child placement agency and the evidence submitted before it, the court
is satisfied that the petitioner is qualified to maintain, care for, and educate the child, that the trial
custody period has been completed, and that the best interests of the child will be promoted by
the adoption, a decree of adoption shall be entered, which shall be effective the date the original
petition was filed. The decree shall state the name by which the child is thenceforth to be known.
(Emphasis supplied)

The Bundoc spouses further argue that the above Article 36 should be read in relation to Article 39 of
the same Code:

Art. 39. Effect of Adoption. — The adoption shall:

xxx xxx xxx

(2) Dissolve the authority vested in the natural parents, except where the adopter is the spouse of
the surviving natural parent;

xxx xxx xxx

(Emphasis supplied)

and urge that their Parental authority must be deemed to have been dissolved as of the time the Petition for
adoption was filed.

The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental liability for the torts of
a minor child is the relationship existing between the parents and the minor child living with them and over
whom, the law presumes, the parents exercise supervision and control. Article 58 of the Child and Youth
Welfare Code, re-enacted this rule:

Article 58 Torts — Parents and guardians are responsible for the damage caused by the child
under their parental authority in accordance with the civil Code. (Emphasis supplied)

Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the requisite that the child, doer
of the tortious act, shall have beer in the actual custody of the parents sought to be held liable for the ensuing
damage:

Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the
injuries and damages caused by the acts or omissions of their unemancipated children living in
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 their company and under their parental authority subject to the appropriate defenses provided by
law. (Emphasis supplied)

We do not believe that parental authority is properly regarded as having been retroactively transferred to and
vested in the adopting parents, the Rapisura spouses, at the time the air rifle shooting happened. We do not
consider that retroactive effect may be given to the decree of adoption so as to impose a liability upon the
adopting parents accruing at a time when adopting parents had no actual or physically custody over the adopted
child. Retroactive effect may perhaps be given to the granting of the petition for adoption where such is
essential to permit the accrual of some benefit or advantage in favor of the adopted child. In the instant case,
however, to hold that parental authority had been retroactively lodged in the Rapisura spouses so as to burden
them with liability for a tortious act that they could not have foreseen and which they could not have prevented
(since they were at the time in the United States and had no physical custody over the child Adelberto) would be
unfair and unconscionable. Such a result, moreover, would be inconsistent with the philosophical and policy
basis underlying the doctrine of vicarious liability. Put a little differently, no presumption of parental dereliction
on the part of the adopting parents, the Rapisura spouses, could have arisen since Adelberto was not in fact
subject to their control at the time the tort was committed.

Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above. Article 35 provides as
follows:

Art. 35. Trial Custody. — No petition for adoption shall be finally granted unless and until the
adopting parents are given by the courts a supervised trial custody period of at least six months
to assess their adjustment and emotional readiness for the legal union. During the period of trial
custody, parental authority shall be vested in the adopting parents. (Emphasis supplied)

Under the above Article 35, parental authority is provisionally vested in the adopting parents during the period
of trial custody, i.e., before the issuance of a decree of adoption, precisely because the adopting parents are
given actual custody of the child during such trial period. In the instant case, the trial custody period either had
not yet begun or had already been completed at the time of the air rifle shooting; in any case, actual custody of
Adelberto was then with his natural parents, not the adopting parents.

Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents, were indispensable
parties to the suit for damages brought by petitioners, and that the dismissal by the trial court of petitioners'
complaint, the indispensable parties being already before the court, constituted grave abuse of discretion
amounting to lack or excess of jurisdiction.

WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE COURSE and the
Decision of the Court of Appeals dated 6 September 1988, in C.A.-G.R. No. SP-15016 is hereby REVERSED
and SET ASIDE. Petitioners' complaint filed before the trial court is hereby REINSTATED and this case is
REMANDED to that court for further proceedings consistent with this Decision. Costs against respondent
Bundoc spouses. This Decision is immediately executory.

SO ORDERED.

Gutierrez, Jr., Bidin, Davide, Jr. and Romero, concur.

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G.R. No. L-29025 October 4, 1971
Spouses MOISES P. PALISOC and BRIGIDA P. PALISOC, plaintiffs-appellants, vs. ANTONIO C.
BRILLANTES and TEODOSIO V. VALENTON, owner and President, respectively, of a school of arts and
trades, known under the name and style of "Manila Technical Institute" (M.I.T.), VIRGILIO L. DAFFON and
SANTIAGO M. QUIBULUE, defendants-appellees.
An appeal in forma pauperis on pure questions of law from a decision of the Court of First Instance of Manila. .
Plaintiffs-appellants as parents of their sixteen-year old son, Dominador Palisoc, and a student in automotive
mechanics at the Manila Technical Institute, Quezon Boulevard, Manila, had filed on May 19, 1966, the action
below for damages arising from the death on March 10, 1966 of their son at the hands of a fellow student,
defendant Virgilio L. Daffon, at the laboratory room of the said Institute. .
Defendants, per the trial court's decision, are: "(T)he defendant Antonio C. Brillantes, at the time when the
incident which gave rise to his action occurred was a member of the Board of Directors of the institute; the
defendant Teodosio Valenton, the president thereof; the defendant Santiago M. Quibulue, instructor of the class
to which the deceased belonged; and the defendant Virgilio L. Daffon, a fellow student of the deceased. At the
beginning the Manila Technical Institute was a single proprietorship, but lately on August 2, 1962, it was duly
incorporated."
The facts that led to the tragic death of plaintiffs' son were thus narrated by the trial court: "(T)he deceased
Dominador Palisoc and the defendant Virgilio L. Daffon were classmates, and on the afternoon of March 10,
1966, between two and three o'clock, they, together with another classmate Desiderio Cruz were in the
laboratory room located on the ground floor. At that time the classes were in recess. Desiderio Cruz and Virgilio
L. Daffon were working on a machine while Dominador Palisoc was merely looking on at them. Daffon made a
remark to the effect that Palisoc was acting like a foreman. Because of this remark Palisoc slapped slightly
Daffon on the face. Daffon, in retaliation, gave Palisoc a strong flat blow on the face, which was followed by
other fist blows on the stomach. Palisoc retreated apparently to avoid the fist blows, but Daffon followed him
and both exchanged blows until Palisoc stumbled on an engine block which caused him to fall face downward.
Palisoc became pale and fainted. First aid was administered to him but he was not revived, so he was
immediately taken to a hospital. He never regained consciousness; finally he died. The foregoing is the
substance of the testimony of Desiderio Cruz, the lone witness to the incident."
The trial court expressly gave credence to this version of the incident, as testified to by the lone eyewitness,
Desiderio Cruz, a classmate of the protagonists, as that of a disinterested witness who "has no motive or reason

Page | 229
to testify one way or another in favor of any party" and rejected the self-exculpatory version of defendant
Daffon denying that he had inflicted any fist blows on the deceased. .
With the postmortem findings of Dr. Angelo Singian of the Manila Police Department who performed the
autopsy re "Cause of death: shock due to traumatic fracture of theribs (6th and 7th, left, contusion of the
pancreas and stomach with intra-gastric hemorrhage and slight subarachnoid hemorrhage on the brain," and his
testimony that these internal injuries of the deceased were caused "probably by strong fist blows," the trial court
found defendant Daffon liable for the quasi delict under Article 2176 of the Civil Code. It held that "(T)he act,
therefore, of the accused Daffon in giving the deceased strong fistblows in the stomach which ruptured his
internal organs and caused his death falls within the purview of this article of the Code."
The trial court, however, absolved from liability the three other defendants-officials of the Manila Technical
Institute, in this wise:
... Their liabilities are based on the provisions of Article 2180 of the New Civil Code which reads:
Art. 2180. ... .
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils
and students and apprentices, so long as they remain in their custody.
In the opinion of the Court, this article of the Code is not applicable to the case at bar, since this contemplates
the situation where the control or influence of the teachers and heads of school establishments over the conduct
and actions by the pupil supersedes those of the parents.
CIVIL LAW: DAMAGES ART 2180. NEW CIVIL CODE CONSTRUED: — The clause "so long as they
remain in their custody" contained in Article 2180 of the new civil code contemplated a situation where the
pupil lives and boards with the teacher, such that the control or influence on the pupil supersedes those of the
parents. In those circumstances the control or influence over the conduct and actions of the pupil as well as the
responsibilities for their sort would pass from the father and mother to the teachers. (Ciriaco L. Mercado,
Petitioner vs. the Court of Appeals, Manuel Quisumbing, Jr., et al., respondents, G.R. No. L-14862, May 30,
1960).
There is no evidence that the accused Daffon lived and boarded with his teacher or the other defendant officials
of the school. These defendants cannot therefore be made responsible for the tort of the defendant Daffon.
Judgment was therefore rendered by the trial court as follows:
1. Sentencing the defendant Virgilio L. Daffon to pay the plaintiffs as heirs of the deceased Dominador Palisoc
(a) P6,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and compensatory expenses; (c)
P5,000.00 for moral damages; (d) P10,000.00 for loss of earning power, considering that the deceased was only
between sixteen and seventeen years, and in good health when he died, and (e) P2,000.00 for attorney's fee, plus
the costs of this action. .
2. Absolving the other defendants. .
3. Dismissing the defendants' counterclaim for lack of merit.
Plaintiffs' appeal raises the principal legal question that under the factual findings of the trial court, which are
now beyond review, the trial court erred in absolving the defendants-school officials instead of holding them
jointly and severally liable as tortfeasors, with defendant Daffon, for the damages awarded them as a result of
their son's death. The Court finds the appeal, in the main, to be meritorious. .
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1. The lower court absolved defendants-school officials on the ground that the provisions of Article 2180, Civil
Code, which expressly hold "teachers or heads of establishments of arts and trades ... liable for damages caused
by their pupils and students and apprentices, so long as they remain in their custody," are not applicable to the
case at bar, since "there is no evidence that the accused Daffon [who inflicted the fatal fistblows] lived and
boarded with his teacher or the other defendants-officials of the school. These defendants cannot therefore be
made responsible for the tort of the defendant Daffon."
The lower court based its legal conclusion expressly on the Court's dictum in Mercado vs. Court of Appeals,
that "(I)t would seem that the clause "so long as they remain in their custody," contemplates a situation where
the pupil lives and boards with the teacher, such that the control, direction and influence on the pupil supersedes
those of the parents. In these circumstances the control or influence over the conduct and actions of the pupil
would pass from the father and mother to the teacher; and so would the responsibility for the torts of the pupil.
Such a situation does not appear in the case at bar; the pupils appear to go to school during school hours and go
back to their homes with their parents after school is over." This dictum had been made in rejecting therein
petitioner father's contention that his minor son's school, Lourdes Catholic School at Kanlaon, Quezon City
[which was not a party to the case] should be held responsible, rather than him as father, for the moral damages
of P2,000.00 adjudged against him for the physical injury inflicted by his son on a classmate. [A cut on the right
cheek with a piece of razor which costs only P50.00 by way of medical expenses to treat and cure, since the
wound left no scar.] The moral damages award was after all set aside by the Court on the ground that none of
the specific cases provided in Article 2219, Civil Code, for awarding moral damages had been established,
petitioner's son being only nine years old and not having been shown to have "acted with discernment" in
inflicting the injuries on his classmate. .
The dictum in Mercado was based in turn on another dictum in the earlier case of Exconde vs. Capuno, where
the only issue involved as expressly stated in the decision, was whether the therein defendant-father could be
civilly liable for damages resulting from a death caused in a motor vehicle accident driven unauthorizedly and
negligently by his minor son, (which issue was resolved adversely against the father). Nevertheless, the dictum
in such earlier case that "It is true that under the law above quoted, teachers or directors of arts and trades are
liable for any damage caused by their pupils or apprentices while they are under their custody, but this provision
only applies to an institution of arts and trades and not to any academic educational institution" was expressly
cited and quoted in Mercado. .
2. The case at bar was instituted directly against the school officials and squarely raises the issue of liability of
teachers and heads of schools under Article 2180, Civil Code, for damages caused by their pupils and students
against fellow students on the school premises. Here, the parents of the student at fault, defendant Daffon, are
not involved, since Daffon was already of age at the time of the tragic incident. There is no question, either, that
the school involved is a non-academic school, the Manila Technical Institute being admittedly a technical
vocational and industrial school.
The Court holds that under the cited codal article, defendants head and teacher of the Manila Technical Institute
(defendants Valenton and Quibulue, respectively) are liable jointly and severally for damages to plaintiffs-
appellants for the death of the latter's minor son at the hands of defendant Daffon at the school's laboratory
room. No liability attaches to defendant Brillantes as a mere member of the school's board of directors. The
school itself cannot be held similarly liable, since it has not been properly impleaded as party defendant. While
plaintiffs sought to so implead it, by impleading improperly defendant Brillantes, its former single proprietor,
the lower court found that it had been incorporated since August 2, 1962, and therefore the school itself, as thus
incorporated, should have been brought in as party defendant. Plaintiffs failed to do so, notwithstanding that
Brillantes and his co-defendants in their reply to plaintiffs' request for admission had expressly manifested and
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made of record that "defendant Antonio C. Brillantes is not the registered owner/head of the "Manila Technical
Institute" which is now a corporation and is not owned by any individual person."
3. The rationale of such liability of school heads and teachers for the tortious acts of their pupils and students, so
long as they remain in their custody, is that they stand, to a certain extent, as to their pupils and students, in loco
parentis and are called upon to "exercise reasonable supervision over the conduct of the child." This is expressly
provided for in Articles 349, 350 and 352 of the Civil Code. In the law of torts, the governing principle is that
the protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and
hence, it becomes their obligation as well as that of the school itself to provide proper supervision of the
students' activities during the whole time that they are at attendance in the school, including recess time, as well
as to take the necessary precautions to protect the students in their custody from dangers and hazards that would
reasonably be anticipated, including injuries that some student themselves may inflict willfully or through
negligence on their fellow students.
4. As tersely summarized by Mr. Justice J.B.L. Reyes in his dissenting opinion in Exconde, "the basis of the
presumption of negligence of Art. 1903 [now 2180] is some culpa in vigilando that the parents, teachers, etc. are
supposed to have incurred in the exercise of their authority" and "where the parent places the child under the
effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts
committed while under his custody, for the very reason that the parent is not supposed to interfere with the
discipline of the school nor with the authority and supervision of the teacher while the child is under
instruction." The school itself, likewise, has to respond for the fault or negligence of its school head and
teachers under the same cited article.
5. The lower court therefore erred in law in absolving defendants-school officials on the ground that they could
be held liable under Article 2180, Civil Code, only if the student who inflicted the fatal fistblows on his
classmate and victim "lived and boarded with his teacher or the other defendants officials of the school." As
stated above, the phrase used in the cited article — "so long as (the students) remain in their custody" means the
protective and supervisory custody that the school and its heads and teachers exercise over the pupils and
students for as long as they are at attendance in the school, including recess time. There is nothing in the law
that requires that for such liability to attach the pupil or student who commits the tortious act must live and
board in the school, as erroneously held by the lower court, and the dicta in Mercado (as well as in Exconde) on
which it relied, must now be deemed to have been set aside by the present decision. .
6. Defendants Valenton and Quibulue as president and teacher-in-charge of the school must therefore be held
jointly and severally liable for the quasi-delict of their co-defendant Daffon in the latter's having caused the
death of his classmate, the deceased Dominador Palisoc. The unfortunate death resulting from the fight between
the protagonists-students could have been avoided, had said defendants but complied with their duty of
providing adequate supervision over the activities of the students in the school premises to protect their students
from harm, whether at the hands of fellow students or other parties. At any rate, the law holds them liable unless
they relieve themselves of such liability, in compliance with the last paragraph of Article 2180, Civil Code, by
"(proving) that they observed all the diligence of a good father of a family to prevent damage." In the light of
the factual findings of the lower court's decision, said defendants failed to prove such exemption from liability.
7. Plaintiffs-appellees' contention that the award of P6,000.00 as indemnity for the death of their son should be
increased to P12,000.00 as set by the Court in People vs. Pantoja, and observed in all death indemnity cases
thereafter is well taken. The Court, in Pantoja, after noting the decline in the purchasing power of the Philippine
peso, had expressed its "considered opinion that the amount of award of compensatory damages for death
caused by a crime or quasi-delict should now be P12,000.00." The Court thereby adjusted the minimum amount

Page | 232
of "compensatory damages for death caused by a crime or quasi-delict" as per Article 2206, Civil Code, from
the old stated minimum of P3,000.00 to P12,000.00, which amount is to be awarded "even though there may
have been mitigating circumstances" pursuant to the express provisions of said codal article. .
8. Plaintiffs-appellees' other claims on appeal that the lower court should have awarded exemplary damages and
imposed legal interest on the total damages awarded, besides increasing the award of attorney's fees all concern
matters that are left by law to the discretion of the trial court and the Court has not been shown any error or
abuse in the exercise of such discretion on the part of the trial court. Decisive here is the touchstone provision of
Article 2231, Civil Code, that "In quasi-delicts, exemplary damages may be granted if the defendant acted with
gross negligence." No gross negligence on the part of defendants was found by the trial court to warrant the
imposition of exemplary damages, as well as of interest and increased attorney's fees, and the Court has not
been shown in this appeal any compelling reason to disturb such finding.
ACCORDINGLY, the judgment appealed from is modified so as to provide as follows: .
1. Sentencing the defendants Virgilio L. Daffon, TeodosioV. Valenton and Santiago M. Quibulue jointly and
severally to pay plaintiffs as heirs of the deceased Dominador Palisoc (a) P12,000.00 for the death of
Dominador Palisoc; (b) P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for moral, damages; (d)
P10,000.00 for loss of earning power and (e) P2,000.00 for attorney's fee, plus the costs of this action in both
instances; 2. absolving defendant Antonio C. Brillantes from the complaint; and 3. dismissing defendants'
counterclaims.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-47745 April 15, 1988

JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA

PANTALEON A. AMADORA, JOSE A. AMADORA III, LUCY A. AMADORA, ROSALINDA A.
AMADORA, PERFECTO A. AMADORA, SERREC A. AMADORA, VICENTE A. AMADORA and
MARIA TISCALINA A. AMADORA, petitioners
vs.
HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH
SERGIO P. DLMASO JR., CELESTINO DICON, ANIANO ABELLANA, PABLITO DAFFON thru his
parents and natural guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO VALENCIA,
thru his guardian, A. FRANCISCO ALONSO, respondents.

Jose S. Amadora & Associates for petitioners.

Padilla Law Office for respondents.

CRUZ, J.:

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Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where
he would ascend the stage and in the presence of his relatives and friends receive his high school diploma.
These ceremonies were scheduled on April 16, 1972. As it turned out, though, fate would intervene and deny
him that awaited experience. On April 13, 1972, while they were in the auditorium of their school, the
Colegio de San Jose-Recoletos, a classmate, Pablito Damon, fired a gun that mortally hit Alfredo, ending
all his expectations and his life as well. The victim was only seventeen years old. 1

Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as the
victim's parents, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio
de San Jose-Recoletos, its rector the high school principal, the dean of boys, and the physics teacher,
together with Daffon and two other students, through their respective parents. The complaint against the
students was later dropped. After trial, the Court of First Instance of Cebu held the remaining
defendants liable to the plaintiffs in the sum of P294,984.00, representing death compensation, loss of
earning capacity, costs of litigation, funeral expenses, moral damages, exemplary damages, and
attorney's fees .3 On appeal to the respondent court, however, the decision was reversed and all the
defendants were completely absolved .4

In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the
respondent court found that Article 2180 was not applicable as the Colegio de San Jose-Recoletos was not a
school of arts and trades but an academic institution of learning. It also held that the students were not in the
custody of the school at the time of the incident as the semester had already ended, that there was no clear
identification of the fatal gun and that in any event the defendant, had exercised the necessary diligence in
preventing the injury. 5

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972, and
while in its auditorium was shot to death by Pablito Daffon, a classmate. On the implications and consequences
of these facts, the parties sharply disagree.

The petitioners contend that their son was in the school to show his physics experiment as a prerequisite to his
graduation; hence, he was then under the custody of the private respondents. The private respondents submit
that Alfredo Amadora had gone to the school only for the purpose of submitting his physics report and
that he was no longer in their custody because the semester had already ended.

There is also the question of the identity of the gun used which the petitioners consider important because of an
earlier incident which they claim underscores the negligence of the school and at least one of the private
respondents. It is not denied by the respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys,
confiscated from Jose Gumban an unlicensed pistol but later returned it to him without making a report
to the principal or taking any further action .6 As Gumban was one of the companions of Daffon when the
latter fired the gun that killed Alfredo, the petitioners contend that this was the same pistol that had been
confiscated from Gumban and that their son would not have been killed if it had not been returned by Damaso.
The respondents say, however, that there is no proof that the gun was the same firearm that killed Alfredo.

Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is
invoked by both parties in support of their conflicting positions. The pertinent part of this article reads as
follows:

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Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils
and students or apprentices so long as they remain in their custody.

Three cases have so far been decided by the Court in connection with the above-quoted provision, to wit:
Exconde v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed
in this opinion for a better resolution of the case at bar.

In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout, attended
a Rizal Day parade on instructions of the city school supervisor. After the parade, the boy boarded a jeep, took
over its wheel and drove it so recklessly that it turned turtle, resulting in the death of two of its passengers.
Dante was found guilty of double homicide with reckless imprudence. In the separate civil action flied against
them, his father was held solidarily liable with him in damages under Article 1903 (now Article 2180) of the
Civil Code for the tort committed by the 15-year old boy.

This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter
dictum (as it was not a party to the case) on the ground that it was riot a school of arts and trades. Justice J.B.L.
Reyes, with whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the school
authorities who should be held liable Liability under this rule, he said, was imposed on (1) teachers in general;
and (2) heads of schools of arts and trades in particular. The modifying clause "of establishments of arts and
trades" should apply only to "heads" and not "teachers."

Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor
blade during recess time at the Lourdes Catholic School in Quezon City, and the parents of the victim sued the
culprits parents for damages. Through Justice Labrador, the Court declared in another obiter (as the school itself
had also not been sued that the school was not liable because it was not an establishment of arts and trades.
Moreover, the custody requirement had not been proved as this "contemplates a situation where the student
lives and boards with the teacher, such that the control, direction and influences on the pupil supersede those of
the parents." Justice J.B.L. Reyes did not take part but the other members of the court concurred in this decision
promulgated on May 30, 1960.

In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a classmate with fist
blows in the laboratory of the Manila Technical Institute. Although the wrongdoer — who was already of age
— was not boarding in the school, the head thereof and the teacher in charge were held solidarily liable with
him. The Court declared through Justice Teehankee:

The phrase used in the cited article — "so long as (the students) remain in their custody" — means the
protective and supervisory custody that the school and its heads and teachers exercise over the pupils and
students for as long as they are at attendance in the school, including recess time. There is nothing in the law
that requires that for such liability to attach, the pupil or student who commits the tortious act must live and
board in the school, as erroneously held by the lower court, and the dicta in Mercado (as well as in Exconde) on
which it relied, must now be deemed to have been set aside by the present decision.

This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed, in
answer to the dissenting opinion, that even students already of age were covered by the provision since they
were equally in the custody of the school and subject to its discipline. Dissenting with three others,11 Justice

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Makalintal was for retaining the custody interpretation in Mercado and submitted that the rule should apply only
to torts committed by students not yet of age as the school would be acting only in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but added that
"since the school involved at bar is a non-academic school, the question as to the applicability of the cited codal
provision to academic institutions will have to await another case wherein it may properly be raised."

This is the case.

Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded and is sought
to be held liable under Article 2180; and unlike in Palisoc, it is not a school of arts and trades but an academic
institution of learning. The parties herein have also directly raised the question of whether or not Article 2180
covers even establishments which are technically not schools of arts and trades, and, if so, when the offending
student is supposed to be "in its custody."

After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in
question should apply to all schools, academic as well as non-academic. Where the school is academic rather
than technical or vocational in nature, responsibility for the tort committed by the student will attach to the
teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of
establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to
the general rule. In other words, 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. Following the canon
of reddendo singula singulis "teachers" should apply to the words "pupils and students" and "heads of
establishments of arts and trades" to the word "apprentices."

The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said
in part:

I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades and not to
academic ones. What substantial difference is there between them insofar as concerns the proper supervision
and vice over their pupils? It cannot be seriously contended that an academic teacher is exempt from the duty of
watching that his pupils do not commit a tort to the detriment of third Persons, so long as they are in a position
to exercise authority and Supervision over the pupil. In my opinion, in the phrase "teachers or heads of
establishments of arts and trades" used in Art. 1903 of the old Civil Code, the words "arts and trades" does not
qualify "teachers" but only "heads of establishments." The phrase is only an updated version of the equivalent
terms "preceptores y artesanos" used in the Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in some culpa in
vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would
seem clear that where the parent places the child under the effective authority of the teacher, the latter, and not
the parent, should be the one answerable for the torts committed while under his custody, for the very
reason/that the parent is not supposed to interfere with the discipline of the school nor with the authority and
supervision of the teacher while the child is under instruction. And if there is no authority, there can be no
responsibility.

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There is really no substantial distinction between the academic and the non-academic schools insofar as torts
committed by their students are concerned. The same vigilance is expected from the teacher over the students
under his control and supervision, whatever the nature of the school where he is teaching. The suggestion in the
Exconde and Mercado Cases is that the provision would make the teacher or even the head of the school of arts
and trades liable for an injury caused by any student in its custody but if that same tort were committed in an
academic school, no liability would attach to the teacher or the school head. All other circumstances being the
same, the teacher or the head of the academic school would be absolved whereas the teacher and the head of the
non-academic school would be held liable, and simply because the latter is a school of arts and trades.

The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the
basis only of the nature of their respective schools. There does not seem to be any plausible reason for relaxing
that vigilance simply because the school is academic in nature and for increasing such vigilance where the
school is non-academic. Notably, the injury subject of liability is caused by the student and not by the school
itself nor is it a result of the operations of the school or its equipment. The injury contemplated may be caused
by any student regardless of the school where he is registered. The teacher certainly should not be able to
excuse himself by simply showing that he is teaching in an academic school where, on the other hand, the head
would be held liable if the school were non-academic.

These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the
torts committed by his students, why is it the head of the school only who is held liable where the injury is
caused in a school of arts and trades? And in the case of the academic or non- technical school, why not apply
the rule also to the head thereof instead of imposing the liability only on the teacher?

The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades
exercised a closer tutelage over his pupils than the head of the academic school. The old schools of arts and
trades were engaged in the training of artisans apprenticed to their master who personally and directly instructed
them on the technique and secrets of their craft. The head of the school of arts and trades was such a master and
so was personally involved in the task of teaching his students, who usually even boarded with him and so came
under his constant control, supervision and influence. By contrast, the head of the academic school was not as
involved with his students and exercised only administrative duties over the teachers who were the persons
directly dealing with the students. The head of the academic school had then (as now) only a vicarious
relationship with the students. Consequently, while he could not be directly faulted for the acts of the students,
the head of the school of arts and trades, because of his closer ties with them, could be so blamed.

It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and
trades, the consequent increase in their enrolment, and the corresponding diminution of the direct and personal
contract of their heads with the students. Article 2180, however, remains unchanged. In its present state, the
provision must be interpreted by the Court according to its clear and original mandate until the legislature,
taking into account the charges in the situation subject to be regulated, sees fit to enact the necessary
amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of
arts and trades over the students. Is such responsibility co-extensive with the period when the student is actually
undergoing studies during the school term, as contended by the respondents and impliedly admitted by the
petitioners themselves?

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From a reading of the provision under examination, it is clear that while the custody requirement, to
repeat Palisoc v. Brillantes, does not mean that the student must be boarding with the school authorities, it does
signify that the student should be within the control and under the influence of the school authorities at the time
of the occurrence of the injury. This does not necessarily mean that such, custody be co-terminous with the
semester, beginning with the start of classes and ending upon the close thereof, and excluding the time before or
after such period, such as the period of registration, and in the case of graduating students, the period before the
commencement exercises. In the view of the Court, the student is in the custody of the school authorities as long
as he is under the control and influence of the school and within its premises, whether the semester has not yet
begun or has already ended.

It is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes
notwithstanding that before that day he has already registered and thus placed himself under its rules. Neither
should such discipline be deemed ended upon the last day of classes notwithstanding that there may still be
certain requisites to be satisfied for completion of the course, such as submission of reports, term papers,
clearances and the like. During such periods, the student is still subject to the disciplinary authority of the
school and cannot consider himself released altogether from observance of its rules.

As long as it can be shown that the student is in the school premises in pursuance of a legitimate student
objective, in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right,
and even in the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the
student continues. Indeed, even if the student should be doing nothing more than relaxing in the campus in the
company of his classmates and friends and enjoying the ambience and atmosphere of the school, he is still
within the custody and subject to the discipline of the school authorities under the provisions of Article 2180.

During all these occasions, it is obviously the teacher-in-charge who must answer for his students' torts, in
practically the same way that the parents are responsible for the child when he is in their custody. The teacher-
in-charge is the one designated by the dean, principal, or other administrative superior to exercise supervision
over the pupils in the specific classes or sections to which they are assigned. It is not necessary that at the time
of the injury, the teacher be physically present and in a position to prevent it. Custody does not connote
immediate and actual physical control but refers more to the influence exerted on the child and the discipline
instilled in him as a result of such influence. Thus, for the injuries caused by the student, the teacher and not the
parent shag be held responsible if the tort was committed within the premises of the school at any time when its
authority could be validly exercised over him.

In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the
teacher or the head of the school of arts and trades and not on the school itself. If at all, the school, whatever its
nature, may be held to answer for the acts of its teachers or even of the head thereof under the general principle
of respondeat superior, but then it may exculpate itself from liability by proof that it had exercised the diligence
of a bonus paterfamilias.

Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held
to answer for the tort committed by the student. As long as the defendant can show that he had taken the
necessary precautions to prevent the injury complained of, he can exonerate himself from the liability imposed
by Article 2180, which also states that:

Page | 238
The responsibility treated of in this article shall cease when the Persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damages.

In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco
parentis for the law does not require that the offending student be of minority age. Unlike the parent, who wig
be liable only if his child is still a minor, the teacher is held answerable by the law for the act of the student
under him regardless of the student's age. Thus, in the Palisoc Case, liability attached to the teacher and the head
of the technical school although the wrongdoer was already of age. In this sense, Article 2180 treats the parent
more favorably than the teacher.

The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in
Palisoc that the school may be unduly exposed to liability under this article in view of the increasing activism
among the students that is likely to cause violence and resulting injuries in the school premises. That is a valid
fear, to be sure. Nevertheless, it should be repeated that, under the present ruling, it is not the school that will be
held directly liable. Moreover, the defense of due diligence is available to it in case it is sought to be held
answerable as principal for the acts or omission of its head or the teacher in its employ.

The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate
supervision over them in the custody and instruction of the pupils pursuant to its rules and regulations for the
maintenance of discipline among them. In almost all cases now, in fact, these measures are effected through the
assistance of an adequate security force to help the teacher physically enforce those rules upon the students. Ms
should bolster the claim of the school that it has taken adequate steps to prevent any injury that may be
committed by its students.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly
answerable for the damage caused by his students as long as they are in the school premises and presumably
under his influence. In this respect, the Court is disposed not to expect from the teacher the same measure of
responsibility imposed on the parent for their influence over the child is not equal in degree. Obviously, the
parent can expect more obedience from the child because the latter's dependence on him is greater than on the
teacher. It need not be stressed that such dependence includes the child's support and sustenance whereas
submission to the teacher's influence, besides being coterminous with the period of custody is usually enforced
only because of the students' desire to pass the course. The parent can instill more las discipline on the child
than the teacher and so should be held to a greater accountability than the teacher for the tort committed by the
child.

And if it is also considered that under the article in question, the teacher or the head of the school of arts and
trades is responsible for the damage caused by the student or apprentice even if he is already of age — and
therefore less tractable than the minor — then there should all the more be justification to require from the
school authorities less accountability as long as they can prove reasonable diligence in preventing the injury.
After all, if the parent himself is no longer liable for the student's acts because he has reached majority age and
so is no longer under the former's control, there is then all the more reason for leniency in assessing the teacher's
responsibility for the acts of the student.

Applying the foregoing considerations, the Court has arrived at the following conclusions:

Page | 239
1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San
Jose-Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in
the school auditorium to finish his physics experiment or merely to submit his physics report for what is
important is that he was there for a legitimate purpose. As previously observed, even the mere savoring of the
company of his friends in the premises of the school is a legitimate purpose that would have also brought
him in the custody of the school authorities.

2. The rector, the high school principal and the dean of boys cannot be held liable because none of them
was the teacher-in-charge as previously defined. Each of them was exercising only a general authority over
the student body and not the direct control and influence exerted by the teacher placed in charge of particular
classes or sections and thus immediately involved in its discipline. The evidence of the parties does not disclose
who the teacher-in-charge of the offending student was. The mere fact that Alfredo Amadora had gone to
school that day in connection with his physics report did not necessarily make the physics teacher,
respondent Celestino Dicon, the teacher-in-charge of Alfredo's killer.

3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was negligent
in enforcing discipline upon Daffon or that he had waived observance of the rules and regulations of the
school or condoned their non-observance. His absence when the tragedy happened cannot be considered
against him because he was not supposed or required to report to school on that day. And while it is true that the
offending student was still in the custody of the teacher-in-charge even if the latter was physically absent when
the tort was committed, it has not been established that it was caused by his laxness in enforcing discipline upon
the student. On the contrary, the private respondents have proved that they had exercised due diligence, through
the enforcement of the school regulations, in maintaining that discipline.

4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable
especially in view of the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of
the students and returned the same later to him without taking disciplinary action or reporting the
matter to higher authorities. While this was clearly negligence on his part, for which he deserves sanctions
from the school, it does not necessarily link him to the shooting of Amador as it has not been shown that he
confiscated and returned pistol was the gun that killed the petitioners' son.

5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable under
the article because only the teacher or the head of the school of arts and trades is made responsible for
the damage caused by the student or apprentice. Neither can it be held to answer for the tort committed by
any of the other private respondents for none of them has been found to have been charged with the custody of
the offending student or has been remiss in the discharge of his duties in connection with such custody.

In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein
announced that none of the respondents is liable for the injury inflicted by Pablito Damon on Alfredo Amadora
that resulted in the latter's death at the auditorium of the Colegio de San Jose-Recoletos on April 13, 1972.
While we deeply sympathize with the petitioners over the loss of their son under the tragic circumstances here
related, we nevertheless are unable to extend them the material relief they seek, as a balm to their grief, under
the law they have invoked.

WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.

Page | 240
Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.

Fernan, Padilla and Teehankee, C.J., JJ, took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-47745 April 15, 1988

Page | 241
JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA
PANTALEON A. AMADORA, JOSE A. AMADORA III, LUCY A. AMADORA, ROSALINDA A.
AMADORA, PERFECTO A. AMADORA, SERREC A. AMADORA, VICENTE A. AMADORA and
MARIA TISCALINA A. AMADORA, petitioners
vs.
HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH
SERGIO P. DLMASO JR., CELESTINO DICON, ANIANO ABELLANA, PABLITO DAFFON thru his
parents and natural guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO VALENCIA,
thru his guardian, A. FRANCISCO ALONSO, respondents.

Jose S. Amadora & Associates for petitioners.

Padilla Law Office for respondents.

CRUZ, J.:

Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where
he would ascend the stage and in the presence of his relatives and friends receive his high school diploma.
These ceremonies were scheduled on April 16, 1972. As it turned out, though, fate would intervene and deny
him that awaited experience. On April 13, 1972, while they were in the auditorium of their school, the Colegio
de San Jose-Recoletos, a classmate, Pablito Damon, fired a gun that mortally hit Alfredo, ending all his
expectations and his life as well. The victim was only seventeen years old. 1

Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as the
victim's parents, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio de
San Jose-Recoletos, its rector the high school principal, the dean of boys, and the physics teacher, together with
Daffon and two other students, through their respective parents. The complaint against the students was later
dropped. After trial, the Court of First Instance of Cebu held the remaining defendants liable to the plaintiffs in
the sum of P294,984.00, representing death compensation, loss of earning capacity, costs of litigation, funeral
expenses, moral damages, exemplary damages, and attorney's fees .3 On appeal to the respondent court,
however, the decision was reversed and all the defendants were completely absolved .4

In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the
respondent court found that Article 2180 was not applicable as the Colegio de San Jose-Recoletos was not a
school of arts and trades but an academic institution of learning. It also held that the students were not in the
custody of the school at the time of the incident as the semester had already ended, that there was no clear
identification of the fatal gun and that in any event the defendant, had exercised the necessary diligence in
preventing the injury. 5

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972, and
while in its auditorium was shot to death by Pablito Daffon, a classmate. On the implications and consequences
of these facts, the parties sharply disagree.

The petitioners contend that their son was in the school to show his physics experiment as a prerequisite to his
graduation; hence, he was then under the custody of the private respondents. The private respondents submit

Page | 242
that Alfredo Amadora had gone to the school only for the purpose of submitting his physics report and that he
was no longer in their custody because the semester had already ended.

There is also the question of the identity of the gun used which the petitioners consider important because of an
earlier incident which they claim underscores the negligence of the school and at least one of the private
respondents. It is not denied by the respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys,
confiscated from Jose Gumban an unlicensed pistol but later returned it to him without making a report to the
principal or taking any further action .6 As Gumban was one of the companions of Daffon when the latter fired
the gun that killed Alfredo, the petitioners contend that this was the same pistol that had been confiscated from
Gumban and that their son would not have been killed if it had not been returned by Damaso. The respondents
say, however, that there is no proof that the gun was the same firearm that killed Alfredo.

Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is
invoked by both parties in support of their conflicting positions. The pertinent part of this article reads as
follows:

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils
and students or apprentices so long as they remain in their custody.

Three cases have so far been decided by the Court in connection with the above-quoted provision, to wit:
Exconde v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed
in this opinion for a better resolution of the case at bar.

In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout, attended
a Rizal Day parade on instructions of the city school supervisor. After the parade, the boy boarded a jeep, took
over its wheel and drove it so recklessly that it turned turtle, resulting in the death of two of its passengers.
Dante was found guilty of double homicide with reckless imprudence. In the separate civil action flied against
them, his father was held solidarily liable with him in damages under Article 1903 (now Article 2180) of the
Civil Code for the tort committed by the 15-year old boy.

This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter
dictum (as it was not a party to the case) on the ground that it was riot a school of arts and trades. Justice J.B.L.
Reyes, with whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the school
authorities who should be held liable Liability under this rule, he said, was imposed on (1) teachers in general;
and (2) heads of schools of arts and trades in particular. The modifying clause "of establishments of arts and
trades" should apply only to "heads" and not "teachers."

Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor
blade during recess time at the Lourdes Catholic School in Quezon City, and the parents of the victim sued the
culprits parents for damages. Through Justice Labrador, the Court declared in another obiter (as the school itself
had also not been sued that the school was not liable because it was not an establishment of arts and trades.
Moreover, the custody requirement had not been proved as this "contemplates a situation where the student
lives and boards with the teacher, such that the control, direction and influences on the pupil supersede those of
the parents." Justice J.B.L. Reyes did not take part but the other members of the court concurred in this decision
promulgated on May 30, 1960.

Page | 243
In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a classmate with fist
blows in the laboratory of the Manila Technical Institute. Although the wrongdoer — who was already of age
— was not boarding in the school, the head thereof and the teacher in charge were held solidarily liable with
him. The Court declared through Justice Teehankee:

The phrase used in the cited article — "so long as (the students) remain in their custody" — means the
protective and supervisory custody that the school and its heads and teachers exercise over the pupils and
students for as long as they are at attendance in the school, including recess time. There is nothing in the law
that requires that for such liability to attach, the pupil or student who commits the tortious act must live and
board in the school, as erroneously held by the lower court, and the dicta in Mercado (as well as in Exconde) on
which it relied, must now be deemed to have been set aside by the present decision.

This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed, in
answer to the dissenting opinion, that even students already of age were covered by the provision since they
were equally in the custody of the school and subject to its discipline. Dissenting with three others,11 Justice
Makalintal was for retaining the custody interpretation in Mercado and submitted that the rule should apply only
to torts committed by students not yet of age as the school would be acting only in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but added that
"since the school involved at bar is a non-academic school, the question as to the applicability of the cited codal
provision to academic institutions will have to await another case wherein it may properly be raised."

This is the case.

Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded and is sought
to be held liable under Article 2180; and unlike in Palisoc, it is not a school of arts and trades but an academic
institution of learning. The parties herein have also directly raised the question of whether or not Article 2180
covers even establishments which are technically not schools of arts and trades, and, if so, when the offending
student is supposed to be "in its custody."

After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in
question should apply to all schools, academic as well as non-academic. Where the school is academic rather
than technical or vocational in nature, responsibility for the tort committed by the student will attach to the
teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of
establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to
the general rule. In other words, 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. Following the canon
of reddendo singula singulis "teachers" should apply to the words "pupils and students" and "heads of
establishments of arts and trades" to the word "apprentices."

The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said
in part:

I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades and not to
academic ones. What substantial difference is there between them insofar as concerns the proper supervision
and vice over their pupils? It cannot be seriously contended that an academic teacher is exempt from the duty of

Page | 244
watching that his pupils do not commit a tort to the detriment of third Persons, so long as they are in a position
to exercise authority and Supervision over the pupil. In my opinion, in the phrase "teachers or heads of
establishments of arts and trades" used in Art. 1903 of the old Civil Code, the words "arts and trades" does not
qualify "teachers" but only "heads of establishments." The phrase is only an updated version of the equivalent
terms "preceptores y artesanos" used in the Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in some culpa in
vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would
seem clear that where the parent places the child under the effective authority of the teacher, the latter, and not
the parent, should be the one answerable for the torts committed while under his custody, for the very
reason/that the parent is not supposed to interfere with the discipline of the school nor with the authority and
supervision of the teacher while the child is under instruction. And if there is no authority, there can be no
responsibility.

There is really no substantial distinction between the academic and the non-academic schools insofar as torts
committed by their students are concerned. The same vigilance is expected from the teacher over the students
under his control and supervision, whatever the nature of the school where he is teaching. The suggestion in the
Exconde and Mercado Cases is that the provision would make the teacher or even the head of the school of arts
and trades liable for an injury caused by any student in its custody but if that same tort were committed in an
academic school, no liability would attach to the teacher or the school head. All other circumstances being the
same, the teacher or the head of the academic school would be absolved whereas the teacher and the head of the
non-academic school would be held liable, and simply because the latter is a school of arts and trades.

The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the
basis only of the nature of their respective schools. There does not seem to be any plausible reason for relaxing
that vigilance simply because the school is academic in nature and for increasing such vigilance where the
school is non-academic. Notably, the injury subject of liability is caused by the student and not by the school
itself nor is it a result of the operations of the school or its equipment. The injury contemplated may be caused
by any student regardless of the school where he is registered. The teacher certainly should not be able to
excuse himself by simply showing that he is teaching in an academic school where, on the other hand, the head
would be held liable if the school were non-academic.

These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the
torts committed by his students, why is it the head of the school only who is held liable where the injury is
caused in a school of arts and trades? And in the case of the academic or non- technical school, why not apply
the rule also to the head thereof instead of imposing the liability only on the teacher?

The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades
exercised a closer tutelage over his pupils than the head of the academic school. The old schools of arts and
trades were engaged in the training of artisans apprenticed to their master who personally and directly instructed
them on the technique and secrets of their craft. The head of the school of arts and trades was such a master and
so was personally involved in the task of teaching his students, who usually even boarded with him and so came
under his constant control, supervision and influence. By contrast, the head of the academic school was not as
involved with his students and exercised only administrative duties over the teachers who were the persons
directly dealing with the students. The head of the academic school had then (as now) only a vicarious
Page | 245
relationship with the students. Consequently, while he could not be directly faulted for the acts of the students,
the head of the school of arts and trades, because of his closer ties with them, could be so blamed.

It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and
trades, the consequent increase in their enrolment, and the corresponding diminution of the direct and personal
contract of their heads with the students. Article 2180, however, remains unchanged. In its present state, the
provision must be interpreted by the Court according to its clear and original mandate until the legislature,
taking into account the charges in the situation subject to be regulated, sees fit to enact the necessary
amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of
arts and trades over the students. Is such responsibility co-extensive with the period when the student is actually
undergoing studies during the school term, as contended by the respondents and impliedly admitted by the
petitioners themselves?

From a reading of the provision under examination, it is clear that while the custody requirement, to
repeat Palisoc v. Brillantes, does not mean that the student must be boarding with the school authorities, it does
signify that the student should be within the control and under the influence of the school authorities at the time
of the occurrence of the injury. This does not necessarily mean that such, custody be co-terminous with the
semester, beginning with the start of classes and ending upon the close thereof, and excluding the time before or
after such period, such as the period of registration, and in the case of graduating students, the period before the
commencement exercises. In the view of the Court, the student is in the custody of the school authorities as long
as he is under the control and influence of the school and within its premises, whether the semester has not yet
begun or has already ended.

It is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes
notwithstanding that before that day he has already registered and thus placed himself under its rules. Neither
should such discipline be deemed ended upon the last day of classes notwithstanding that there may still be
certain requisites to be satisfied for completion of the course, such as submission of reports, term papers,
clearances and the like. During such periods, the student is still subject to the disciplinary authority of the
school and cannot consider himself released altogether from observance of its rules.

As long as it can be shown that the student is in the school premises in pursuance of a legitimate student
objective, in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right,
and even in the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the
student continues. Indeed, even if the student should be doing nothing more than relaxing in the campus in the
company of his classmates and friends and enjoying the ambience and atmosphere of the school, he is still
within the custody and subject to the discipline of the school authorities under the provisions of Article 2180.

During all these occasions, it is obviously the teacher-in-charge who must answer for his students' torts, in
practically the same way that the parents are responsible for the child when he is in their custody. The teacher-
in-charge is the one designated by the dean, principal, or other administrative superior to exercise supervision
over the pupils in the specific classes or sections to which they are assigned. It is not necessary that at the time
of the injury, the teacher be physically present and in a position to prevent it. Custody does not connote
immediate and actual physical control but refers more to the influence exerted on the child and the discipline
instilled in him as a result of such influence. Thus, for the injuries caused by the student, the teacher and not the
Page | 246
parent shag be held responsible if the tort was committed within the premises of the school at any time when its
authority could be validly exercised over him.

In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the
teacher or the head of the school of arts and trades and not on the school itself. If at all, the school, whatever its
nature, may be held to answer for the acts of its teachers or even of the head thereof under the general principle
of respondeat superior, but then it may exculpate itself from liability by proof that it had exercised the diligence
of a bonus paterfamilias.

Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held
to answer for the tort committed by the student. As long as the defendant can show that he had taken the
necessary precautions to prevent the injury complained of, he can exonerate himself from the liability imposed
by Article 2180, which also states that:

The responsibility treated of in this article shall cease when the Persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damages.

In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco
parentis for the law does not require that the offending student be of minority age. Unlike the parent, who wig
be liable only if his child is still a minor, the teacher is held answerable by the law for the act of the student
under him regardless of the student's age. Thus, in the Palisoc Case, liability attached to the teacher and the head
of the technical school although the wrongdoer was already of age. In this sense, Article 2180 treats the parent
more favorably than the teacher.

The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in
Palisoc that the school may be unduly exposed to liability under this article in view of the increasing activism
among the students that is likely to cause violence and resulting injuries in the school premises. That is a valid
fear, to be sure. Nevertheless, it should be repeated that, under the present ruling, it is not the school that will be
held directly liable. Moreover, the defense of due diligence is available to it in case it is sought to be held
answerable as principal for the acts or omission of its head or the teacher in its employ.

The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate
supervision over them in the custody and instruction of the pupils pursuant to its rules and regulations for the
maintenance of discipline among them. In almost all cases now, in fact, these measures are effected through the
assistance of an adequate security force to help the teacher physically enforce those rules upon the students. Ms
should bolster the claim of the school that it has taken adequate steps to prevent any injury that may be
committed by its students.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly
answerable for the damage caused by his students as long as they are in the school premises and presumably
under his influence. In this respect, the Court is disposed not to expect from the teacher the same measure of
responsibility imposed on the parent for their influence over the child is not equal in degree. Obviously, the
parent can expect more obedience from the child because the latter's dependence on him is greater than on the
teacher. It need not be stressed that such dependence includes the child's support and sustenance whereas
submission to the teacher's influence, besides being coterminous with the period of custody is usually enforced
only because of the students' desire to pass the course. The parent can instill more las discipline on the child
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than the teacher and so should be held to a greater accountability than the teacher for the tort committed by the
child.

And if it is also considered that under the article in question, the teacher or the head of the school of arts and
trades is responsible for the damage caused by the student or apprentice even if he is already of age — and
therefore less tractable than the minor — then there should all the more be justification to require from the
school authorities less accountability as long as they can prove reasonable diligence in preventing the injury.
After all, if the parent himself is no longer liable for the student's acts because he has reached majority age and
so is no longer under the former's control, there is then all the more reason for leniency in assessing the teacher's
responsibility for the acts of the student.

Applying the foregoing considerations, the Court has arrived at the following conclusions:

1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San
Jose-Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in
the school auditorium to finish his physics experiment or merely to submit his physics report for what is
important is that he was there for a legitimate purpose. As previously observed, even the mere savoring of the
company of his friends in the premises of the school is a legitimate purpose that would have also brought him in
the custody of the school authorities.

2. The rector, the high school principal and the dean of boys cannot be held liable because none of them was the
teacher-in-charge as previously defined. Each of them was exercising only a general authority over the student
body and not the direct control and influence exerted by the teacher placed in charge of particular classes or
sections and thus immediately involved in its discipline. The evidence of the parties does not disclose who the
teacher-in-charge of the offending student was. The mere fact that Alfredo Amadora had gone to school that day
in connection with his physics report did not necessarily make the physics teacher, respondent Celestino Dicon,
the teacher-in-charge of Alfredo's killer.

3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was negligent in
enforcing discipline upon Daffon or that he had waived observance of the rules and regulations of the school or
condoned their non-observance. His absence when the tragedy happened cannot be considered against him
because he was not supposed or required to report to school on that day. And while it is true that the offending
student was still in the custody of the teacher-in-charge even if the latter was physically absent when the tort
was committed, it has not been established that it was caused by his laxness in enforcing discipline upon the
student. On the contrary, the private respondents have proved that they had exercised due diligence, through the
enforcement of the school regulations, in maintaining that discipline.

4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable especially in
view of the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of the students and
returned the same later to him without taking disciplinary action or reporting the matter to higher authorities.
While this was clearly negligence on his part, for which he deserves sanctions from the school, it does not
necessarily link him to the shooting of Amador as it has not been shown that he confiscated and returned pistol
was the gun that killed the petitioners' son.

5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable under the
article because only the teacher or the head of the school of arts and trades is made responsible for the damage
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caused by the student or apprentice. Neither can it be held to answer for the tort committed by any of the other
private respondents for none of them has been found to have been charged with the custody of the offending
student or has been remiss in the discharge of his duties in connection with such custody.

In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein
announced that none of the respondents is liable for the injury inflicted by Pablito Damon on Alfredo Amadora
that resulted in the latter's death at the auditorium of the Colegio de San Jose-Recoletos on April 13, 1972.
While we deeply sympathize with the petitioners over the loss of their son under the tragic circumstances here
related, we nevertheless are unable to extend them the material relief they seek, as a balm to their grief, under
the law they have invoked.

WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.

Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.

Fernan, Padilla and Teehankee, C.J., JJ, took no part.

Page | 249
G.R. No. 70458 October 5, 1988

BENJAMIN SALVOSA and BAGUIO COLLEGES FOUNDATION, petitioners,
vs.
THE

INTERMEDIATE APPELLATE COURT, EDUARDO B. CASTRO, DIOMEDES B. CASTRO,
VIRGINIA B. CASTRO and RODOLFO B. CASTRO., respondents.

Edilberto B. Tenefrancia for petitioners. Leonardo L. Cocjin Jr. for respondents.

PADILLA, J.:
In this petition for review on certiorari, petitioners seek the reversal of the decision of
respondent Intermediate Appellate Court, dated 7 December 1984, in AC-G.R. No. CV 69876, in so far as it
affirmed the decision of the Court of First Instance of Tarlac (hereinafter referred to as the Trial Court), which
held, among others, petitioners solidarily hable with Jimmy B. Abon, under Art. 2180 of the Civil Code.

The relevant facts, as found by the Trial Court and adopted by reference by the respondent Court, are:

Baguio Colleges Foundation (BCF, hereafter) is an academic institution ... [However], it is also an institution of
arts and trade. It has so advertised itself, as its own evidence shows. Its brochure (Exh. 2) shows that BCF has a
full-fledged technical-vocational department offer Communication, Broadcast and Teletype Technician courses
as well as Electronics Serviceman and Automotive Mechanics courses... these courses divest BCF of the nature
or character of being purely or exclusively an academic institution. 3

Within the premises of the BCF is an ROTC Unit, the Baguio Colleges Foundation Reserve Officers Training
Corps (ROTC) Unit, which is under the fifth control of the Armed Forces of the Philippines. The ROTC Unit,
by way of accommodation to the Armed Forces of the Philippines (AFP), pursuant to Department Order No. 14,
Series of 1975 of the Department of Education and Culture, 5 is provided by the BCF an office and an armory
located at the basement of its main building.

The Baguio Colleges Foundation ROTC Unit had Jimmy B. Abon as its duly appointed armorer. As armorer of
the ROTC Unit, Jimmy B. Abon received his appointment from the AFP. Not being an employee of the BCF,
he also received his salary from the AFP, as well as orders from Captain Roberto C. Ungos, the Commandant of
the Baguio Colleges Foundation ROTC Unit, concurrent Commandant of other ROTC units in Baguio and an
employee (officer) of the AFP. Jimmy B. Abon was also a commerce student of the BCF.

On 3 March 1977, at around 8:00 p.m., in the parking space of BCF, Jimmy B. Abon shot Napoleon Castro a
student of the University of Baguio with an unlicensed firearm which the former took from the armory of the
ROTC Unit of the BCF. As a result, Napoleon Castro died and Jimmy B. Abon was prosecuted for, and
convicted of the crime of Homicide by Military Commission No. 30, AFP.

Subsequently, the heirs of Napoleon Castro sued for damages, impleading Jimmy B. Abon, Roberto C. Ungos

(ROTC Commandant Benjamin Salvosa (President and Chairman of the Board of BCF), Jesus Salvosa
(Executive Vice President of BCF), Libertad D. Quetolio (Dean of the College of Education and Executive
Page | 250
Trustee of BCF) and the Baguio Colleges Foundation Inc. as party defendants. After hearing, the Trial Court
rendered a decision, (1) sentencing defendants Jimmy B. Abon, Benjamin Salvosa and Baguio Colleges
Foundation, Inc., jointly and severally, to pay private respondents, as heirs of Napoleon Castro: a) P12,000.00
for the death of Napoleon Castro, (b) P316,000.00 as indemnity for the loss of earning capacity of the deceased,
(c) P5,000.00 as moral damages, (d) P6,000.00 as actual damages, and (e) P5,000.00 as attorney's fees, plus
costs; (2) absolving the other defendants; and (3) dismissing the defendants' counterclaim for lack of merit. On
appeal by petitioners, the respondent Court affirmed with modification the decision of the Trial Court. The
modification consisted in reducing the award for loss of earning capacity of the deceased from P316,000.00 to
P30,000.00 by way of temperate damages, and increasing the indemnity for the death of Napoleon Castro from
P12,000.00 to P30,000.00.

Hence, this petition.

The central issue in this case is whether or not petitioners can be held solidarity liable with Jimmy B. Abon for
damages under Article 2180 of the Civil Code, as a consequence of the tortious act of Jimmy B. Abon.

Under the penultimate paragraph of Art. 2180 of the Civil Code, teachers or heads of establishments of arts and
trades are liable for "damages caused by their pupils and students or apprentices, so long as they remain in their
custody." The rationale of such liability is that so long as the student remains in the custody of a teacher, the
latter "stands, to a certain extent, in loco parentis [as to the student] and [is] called upon to exercise reasonable
supervision over the conduct of the [student]."Likewise, "the phrase used in [Art. 2180 — 'so long as (the
students) remain in their custody means the protective and supervisory custody that the school and its heads and
teachers exercise over the pupils and students for as long as they are at attendance in the school, including
recess time."

In the case at bar, in holding that Jimmy B. Abon was still in the protective and supervisory custody of the
Baguio Colleges Foundation when he shot Napoleon Castro, the respondent Court ruled that:

it is true that Abon was not attending any class or school function at the time of the shooting incident, which
was at about 8 o'clock in the evening; but considering that Abon was employed as an armorer and property
custodian of the BCF ROTC unit, he must have been attending night classes and therefore that hour in the
evening was just about dismissal time for him or soon thereafter. The time interval is safely within the "recess
time" that the trial court spoke of and envisioned by the Palisoc case, supra. (Emphasis supplied)

In line with the case of Palisoc, a student not "at attendance in the school" cannot be in "recess" thereat. A
"recess," as the concept is embraced in the phrase "at attendance in the school," contemplates a situation of
temporary adjournment of school activities where the student still remains within call of his mentor and is not
permitted to leave the school premises, or the area within which the school activity is conducted. Recess by its
nature does not include dismissal. Likewise, the mere fact of being enrolled or being in the premises of a school
without more does not constitute "attending school" or being in the "protective and supervisory custody' of the
school, as contemplated in the law.

Upon the foregoing considerations, we hold that Jimmy B. Abon cannot be considered to have been "at
attendance in the school," or in the custody of BCF, when he shot Napoleon Castro. Logically, therefore,
petitioners cannot under Art. 2180 of the Civil Code be held solidarity liable with Jimmy B. Abon for damages
resulting from his acts.

Besides, the record shows that before the shooting incident, Roberto B. Ungos ROTC Unit Commandant, AFP,
had instructed Jimmy B. Abon "not to leave the office and [to keep the armory] well guarded." Apart from
negating a finding that Jimmy B. Abon was under the custody of the school when he committed the act for
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which the petitioners are sought to be held liable, this circumstance shows that Jimmy B. Abon was supposed to
be working in the armory with definite instructions from his superior, the ROTC Commandant, when he shot
Napoleon Castro.

Petitioners also raise the issue that, under Art. 2180 of the Civil Code, a school which offers both academic and
technical/vocational courses cannot be held liable for a tort committed by a student enrolled only in its
academic program; however, considering that Jimmy B. Abon was not in the custody of BCF when he shot
Napoleon Castro, the Court deems it unnecessary to pass upon such other issue.

WHEREFORE, the decision appealed from is hereby REVERSED in so far as it holds petitioners solidarily
liable with Jimmy B. Abon for his tortious act in the killing of Napoleon Castro. No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 182353 June 29, 2010

ST. JOSEPH'S COLLEGE, SR. JOSEPHINI AMBATALI, SFIC, and ROSALINDA

TABUGO, Petitioners,
vs.
JAYSON MIRANDA, represented by his father, RODOLFO S. MIRANDA, Respondent.

DECISION

NACHURA, J.:

This petition for review on certiorari seeks to set aside the Decision1 of the Court of Appeals (CA) in CA-G.R.
CV No. 68367, which affirmed in toto the decision2 of the Regional Trial Court (RTC), Branch 221, Quezon
City, in Civil Case No. Q-95-22889.

The facts, as found by the CA, follow:

On November 17, 1994, at around 1:30 in the afternoon inside St. Joseph College‘s [SJC‘s] premises, the class
to which [respondent Jayson Val Miranda] belonged was conducting a science experiment about fusion of
sulphur powder and iron fillings under the tutelage of [petitioner] Rosalinda Tabugo, she being the subject
teacher and employee of [petitioner] SJC. The adviser of [Jayson‘s] class is x x x Estefania Abdan.

Tabugo left her class while it was doing the experiment without having adequately secured it from any
untoward incident or occurrence. In the middle of the experiment, [Jayson], who was the assistant leader of one
of the class groups, checked the result of the experiment by looking into the test tube with magnifying glass.
The test tube was being held by one of his group mates who moved it close and towards the eye of [Jayson]. At

Page | 252
that instance, the compound in the test tube spurted out and several particles of which hit [Jayson‘s] eye and the
different parts of the bodies of some of his group mates. As a result thereof, Jayson‘s eyes were chemically
burned, particularly his left eye, for which he had to undergo surgery and had to spend for his medication. Upon
filing of this case [in] the lower court, [Jayson‘s] wound had not completely healed and still had to undergo
another surgery.

Upon learning of the incident and because of the need for finances, Jayson‘s] mother, who was working abroad,
had to rush back home for which she spent ₱36,070.00 for her fares and had to forego her salary from
November 23, 1994 to December 26, 1994, in the amount of at least ₱40,000.00.

Then, too, [Jayson] and his parents suffered sleepless nights, mental anguish and wounded feelings as a result of
his injury due to [petitioners‘] fault and failure to exercise the degree of care and diligence incumbent upon each
one of them. Thus, they should be held liable for moral damages. Also, [Jayson] sent a demand letter to
[petitioners] for the payment of his medical expenses as well as other expenses incidental thereto, which the
latter failed to heed. Hence, [Jayson] was constrained to file the complaint for damages. [Petitioners], therefore,
should likewise compensate [Jayson] for litigation expenses, including attorney‘s fees.

On the other hand, [petitioners SJC, Sr. Josephini Ambatali, SFIC, and Tabugo] alleged that [Jayson] was a
grade six pupil of SJC in the school year 1994-1995. On November 17, 1994, at about 1:30 in the afternoon, the
class to which [Jayson] belong[s] was conducting a science experiment under the guidance and supervision of
Tabugo, the class science teacher, about fusion of sulphur powder and iron fillings by combining these elements
in a test tube and heating the same. Before the science experiment was conducted, [Jayson] and his classmates
were given strict instructions to follow the written procedure for the experiment and not to look into the test
tube until the heated compound had cooled off. [Jayson], however, a person of sufficient age and discretion and
completely capable of understanding the English language and the instructions of his teacher, without waiting
for the heated compound to cool off, as required in the written procedure for the experiment and as repeatedly
explained by the teacher, violated such instructions and took a magnifying glass and looked at the compound,
which at that moment spurted out of the test tube, a small particle hitting one of [Jayson‘s] eyes.

Jayson was rushed by the school employees to the school clinic and thereafter transferred to St. Luke‘s Medical
Center for treatment. At the hospital, when Tabago visited [Jayson], the latter cried and apologized to his
teacher for violating her instructions not to look into the test tube until the compound had cooled off.

After the treatment, [Jayson] was pronounced ready for discharge and an eye test showed that his vision had not
been impaired or affected. In order to avoid additional hospital charges due to the delay in [Jayson‘s] discharge,
Rodolfo S. Miranda, [Jayson‘s] father, requested SJC to advance the amount of ₱26,176.35 representing
[Jayson‘s] hospital bill until his wife could arrive from abroad and pay back the money. SJC acceded to the
request.

On December 6, 1994, however, the parents of [Jayson], through counsel, wrote SJC a letter demanding that it
should shoulder all the medical expenses of [Jayson] that had been incurred and will be incurred further arising
from the accident caused by the science experiment. In a letter dated December 14, 1994, the counsel for SJC,
represented by Sr. Josephini Ambatali, SFIC, explained that the school cannot accede to the demand because
"the accident occurred by reason of [Jayson‘s] failure to comply with the written procedure for the experiment
Page | 253
and his teacher‘s repeated warnings and instruction that no student must face, much less look into, the opening
of the test tube until the heated compound has cooled. 3

Since SJC did not accede to the demand, Rodolfo, Jayson‘s father, on Jayson‘s behalf, sued petitioners for
damages.

After trial, the RTC rendered judgment, to wit:

WHEREFORE, premises considered, judgment is hereby rendered in favor of [Jayson] and against [petitioners].
This Court orders and holds the [petitioners] joint[ly] and solidarily liable to pay [Jayson] the following amount:

1. To pay [Jayson] the amount of ₱77,338.25 as actual damages; However, [Jayson] is ordered to
reimburse [petitioner] St. Joseph College the amount of ₱26,176.36 representing the advances given to
pay [Jayson‘s] initial hospital expenses or in the alternative to deduct said amount of ₱26,176.36 from
the ₱77,338.25 actual damages herein awarded by way of legal compensation;

2. To pay [Jayson] the sum of ₱50,000.00 as mitigated moral damages;

3. To pay [Jayson] the sum of ₱30,000.00 as reasonable attorney‘s fees;

4. To pay the costs of suit.

SO ORDERED.4

Aggrieved, petitioners appealed to the CA. However, as previously adverted to, the CA affirmed in toto the
ruling of the RTC, thus:

WHEREFORE, in view of the foregoing, the assailed decision of the RTC of Quezon City, Branch 221 dated
September 6, 2000 is hereby AFFIRMED IN TOTO. Costs against [petitioners]. 51avvphi1

Undaunted, petitioners appealed` by certiorari to this Court, adamant that the CA grievously erred, thus:

I. THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT FINDING THAT THE PROXIMATE
CAUSE OF JAYSON‘S INJURY WAS HIS OWN ACT OF LOOKING AT THE HEATED TEST TUBE
BEFORE THE COMPOUND HAD COOLED IN COMPLETE DISREGARD OF INSTRUCTIONS GIVEN
PRIOR TO THE EXPERIMENT.

II. THE COURT OF APPEALS FAILED TO APPRECIATE THAT, IN LIGHT OF THE RULING IN THE
CASE OF ST. MARY‘S COLLEGE V. WILLIAM CARPITANOS, x x x JAYSON‘S CONTRIBUTORY
NEGLIGENCE OF PEEKING INTO THE TEST TUBE WAS IN FACT THE PROXIMATE CAUSE OF HIS
INJURY FOR WHICH THE PETITIONERS SHOULD NOT BE HELD LIABLE.

III. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE AWARD OF ACTUAL
DAMAGES DESPITE THE ABSENCE OF PROOF TO SUPPORT THE SAME.

Page | 254
IV. THE LOWER COURT GRIEVOUSLY ERRED IN AWARDING MORAL DAMAGES TO [JAYSON].

V. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE AWARD OF ATTORNEY‘S

FEES TO [JAYSON].

VI. THE LOWER COURT GRIEVOUSLY ERRED IN DENYING THE PETITIONERS‘

COUNTERCLAIM.6

We find no reason to depart from the uniform rulings of the lower courts that petitioners were "negligent since
they all failed to exercise the required reasonable care, prudence, caution and foresight to prevent or avoid
injuries to the students."

Jurisprudence dictates that factual findings of the trial court, especially when affirmed by the appellate court,
are accorded the highest degree of respect and are considered conclusive between the parties. 7 A review of such
findings by this Court is not warranted except for highly meritorious circumstances when: (1) the findings of a
trial court are grounded entirely on speculation, surmises or conjectures; (2) a lower court‘s inference from its
factual findings is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion in the
appreciation of facts; (4) the findings of the appellate court go beyond the issues of the case, or fail to notice
certain relevant facts which, if properly considered, will justify a different conclusion; (5) there is a
misappreciation of facts; (6) the findings of fact are conclusions without mention of the specific evidence on
which they are based, are premised on the absence of evidence, or are contradicted by evidence on
record.8 None of the foregoing exceptions which would warrant a reversal of the assailed decision obtains in
this instance.

Yet, petitioners maintain that the proximate cause of Jayson‘s injury was his own negligence in disregarding the
instructions given by Tabugo prior to the experiment and peeking into the test tube. Petitioners invoke our
ruling in St. Mary‘s Academy v. Carpitanos9 which absolved St. Mary‘s Academy from liability for the
untimely death of its student during a school sanctioned activity, declaring that "the negligence of petitioner St.
Mary‘s Academy was only a remote cause of the accident."

We are not convinced.

Contrary to petitioners‘ assertions, the lower courts‘ conclusions are borne out by the records of this case. Both
courts correctly concluded that the immediate and proximate cause of the accident which caused injury to
Jayson was the sudden and unexpected explosion of the chemicals, independent of any intervening cause. The
assailed Decision of the CA quotes with favor the RTC decision, thus:

In this case, [petitioners] failed to show that the negligence of [Jayson] was the proximate cause of the latter‘s
injury. We find that the immediate cause of the accident was not the negligence of [Jayson] when he curiously
looked into the test tube when the chemicals suddenly exploded which caused his injury, but the sudden and
unexpected explosion of the chemicals independent of any intervening cause. [Petitioners] could have prevented
the mishap if they exercised a higher degree of care, caution and foresight. The court a quo correctly ruled that:

Page | 255
"All of the [petitioners] are equally at fault and are liable for negligence because all of them are responsible for
exercising the required reasonable care, prudence, caution and foresight to prevent or avoid injuries to the
students. The individual [petitioners] are persons charged with the teaching and vigilance over their students as
well as the supervision and ensuring of their well-being. Based on the facts presented before this Court, these
[petitioners] were remiss in their responsibilities and lacking in the degree of vigilance expected of them.
[Petitioner] subject teacher Rosalinda Tabugo was inside the classroom when the class undertook the science
experiment although [Jayson] insisted that said [petitioner] left the classroom. No evidence, however, was
presented to establish that [petitioner] Tabugo was inside the classroom for the whole duration of the
experiment. It was unnatural in the ordinary course of events that [Jayson] was brought to the school clinic for
immediate treatment not by [petitioner] subject teacher Rosalinda Tabugo but by somebody else. The Court is
inclined to believe that [petitioner] subject teacher Tabugo was not inside the classroom at the time the accident
happened. The Court is also perplexed why none of the other students (who were eyewitnesses to the incident)
testified in Court to corroborate the story of the [petitioners]. The Court, however, understands that these other
students cannot testify for [Jayson] because [Jayson] is no longer enrolled in said school and testifying for
[Jayson] would incur the ire of school authorities. Estefania Abdan is equally at fault as the subject adviser or
teacher in charge because she exercised control and supervision over [petitioner] Tabugo and the students
themselves. It was her obligation to insure that nothing would go wrong and that the science experiment would
be conducted safely and without any harm or injury to the students. [Petitioner] Sr. Josephini Ambatali is
likewise culpable under the doctrine of command responsibility because the other individual [petitioners] were
under her direct control and supervision. The negligent acts of the other individual [petitioners] were done
within the scope of their assigned tasks.

xxxx

"The defense of due diligence of a good father of a family raised by [petitioner] St. Joseph College will not
exculpate it from liability because it has been shown that it was guilty of inexcusable laxity in the supervision of
its teachers (despite an apparent rigid screening process for hiring) and in the maintenance of what should have
been a safe and secured environment for conducting dangerous experiments. [Petitioner] school is still liable for
the wrongful acts of the teachers and employees because it had full information on the nature of dangerous
science experiments but did not take affirmative steps to avert damage and injury to students. The fact that there
has never been any accident in the past during the conduct of science experiments is not a justification to be
complacent in just preserving the status quo and do away with creative foresight to install safety measures to
protect the students. Schools should not simply install safety reminders and distribute safety instructional
manuals. More importantly, schools should provide protective gears and devices to shield students from
expected risks and anticipated dangers.

"Ordinarily, the liability of teachers does not extend to the school or university itself, although an educational
institution may be held liable under the principle of RESPONDENT SUPERIOR. It has also been held that the
liability of the employer for the [tortuous] acts or negligence of its employees is primary and solidary, direct
and immediate and not conditioned upon the insolvency of or prior recourse against the negligent employee." 10

Under the foregoing circumstances, we are hard pressed to disturb the findings of the RTC, which the CA
affirmed.

Page | 256
Nonetheless, petitioners make much of the fact that Tabugo specifically instructed her students, including
Jayson, at the start of the experiment, not to look into the heated test tube before the compound had cooled off.
Petitioners would allocate all liability and place all blame for the accident on a twelve (12)-year-old student,
herein respondent Jayson.

We disagree.

As found by both lower courts, the proximate cause of Jayson‘s injury was the concurrent failure of petitioners
to prevent the foreseeable mishap that occurred during the conduct of the science experiment. Petitioners were
negligent by failing to exercise the higher degree of care, caution and foresight incumbent upon the school, its
administrators and teachers.

Article 218 of the Family Code, in relation to Article 2180 of the Civil Code, bestows special parental authority
on the following persons with the corresponding obligation, thus:

Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child care
shall have special parental authority and responsibility over the minor child while under their supervision,
instruction or custody.

Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the
school, entity or institution.

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one‘s own acts or omissions, but
also for those of persons for whom one is responsible.

xxxx

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils
and students or apprentices, so long as they remain in their custody.

Petitioners‘ negligence and failure to exercise the requisite degree of care and caution is demonstrated by the
following:

1. Petitioner school did not take affirmative steps to avert damage and injury to its students although it
had full information on the nature of dangerous science experiments conducted by the students during
class;

2. Petitioner school did not install safety measures to protect the students who conduct experiments in
class;

3. Petitioner school did not provide protective gears and devices, specifically goggles, to shield students
from expected risks and dangers; and

Page | 257
 4. Petitioner Tabugo was not inside the classroom the whole time her class conducted the experiment,
specifically, when the accident involving Jayson occurred. In any event, the size of the class—fifty (50)
students— conducting the experiment is difficult to monitor.

Moreover, petitioners cannot simply deflect their negligence and liability by insisting that petitioner Tabugo
gave specific instructions to her science class not to look directly into the heated compound. Neither does our
ruling in St. Mary‘s preclude their liability in this case.

Unfortunately for petitioners, St. Mary‘s is not in point. In that case, respondents thereat admitted the
documentary exhibits establishing that the cause of the accident was a mechanical defect and not the
recklessness of the minor, James Daniel II, in driving the jeep. We held, thus:

Significantly, respondents did not present any evidence to show that the proximate cause of the accident was the
negligence of the school authorities, or the reckless driving of James Daniel II. x x x.

Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep of
respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who
had possession and control of the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to
drive the jeep at the time of the accident.

Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical
detachment of the steering wheel guide of the jeep, must be pinned on the minor‘s parents primarily. The
negligence of petitioner St. Mary‘s Academy was only a remote cause of the accident. Between the remote
cause and the injury, there intervened the negligence of the minor‘s parents or the detachment of the steering
wheel guide of the jeep.11

In marked contrast, both the lower courts similarly concluded that the mishap which happened during the
science experiment was foreseeable by the school, its officials and teachers. This neglect in preventing a
foreseeable injury and damage equates to neglect in exercising the utmost degree of diligence required of
schools, its administrators and teachers, and, ultimately, was the proximate cause of the damage and injury to
Jayson. As we have held in St. Mary‘s, "for petitioner [St. Mary‘s Academy] to be liable, there must be a
finding that the act or omission considered as negligent was the proximate cause of the injury caused because
the negligence must have a causal connection to the accident."12

As regards the contributory negligence of Jayson, we see no need to disturb the lower courts‘ identical rulings
thereon:

As earlier discussed, the proximate cause of [Jayson‘s] injury was the explosion of the heated compound
independent of any efficient intervening cause. The negligence on the part of [petitioner] Tabugo in not making
sure that the science experiment was correctly conducted was the proximate cause or reason why the heated
compound exploded and injured not only [Jayson] but his classmates as well. However, [Jayson] is partly
responsible for his own injury, hence, he should not be entitled to recover damages in full but must likewise
bear the consequences of his own negligence. [Petitioners], therefore, should be held liable only for the
damages actually caused by their negligence. 13

Page | 258
Lastly, given our foregoing ruling, we likewise affirm the lower courts‘ award of actual and moral damages, and
grant of attorney‘s fees. The denial of petitioners‘ counterclaim is also in order.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 68367 is
AFFIRMED. Costs against petitioners.

SO ORDERED.

THIRD DIVISION
[G.R. No. 119121. August 14, 1998]
NATIONAL POWER CORPORATION, petitioner, vs. COURT OF APPEALS, Fifteenth
Division and PHESCO INCORPORATED, respondents.
DECISION
ROMERO, J.:
On July 22, 1979, a convoy of four (4) dump trucks owned by the National Power
Corporation (NPC) left Marawi city bound for Iligan city. Unfortunately, enroute to its
destination, one of the trucks with plate no. RFT-9-6-673 driven by a certain Gavino
Ilumba figured in a head-on-collision with a Toyota Tamaraw. The incident resulted in the

Page | 259
death of three (3) persons riding in the Toyota Tamaraw, as well as physical injuries to
seventeen other passengers.
On June 10, 1980, the heirs of the victims filed a complaint for damages against
National Power Corporation (NPC) and PHESCO Incorporated (PHESCO) before the
then Court of First Instance of Lanao del Norte, Marawi City. When defendant PHESCO
filed its answer to the complaint it contended that it was not the owner of the dump truck
which collided with the Toyota Tamaraw but NPC. Moreover, it asserted that it was merely
a contractor of NPC with the main duty of supplying workers and technicians for the latters
projects. On the other hand, NPC denied any liability and countered that the driver of the dump truck was the
employee of PHESCO.
After trial on the merits, the trial court rendered a decision dated July 25, 1988
absolving NPC of any liability. The dispositive portion reads:
Consequently, in view of the foregoing consideration, judgment is hereby rendered
ordering PHESCO, Inc. and Gavino Ilumba upon receipt hereof:
1. To pay jointly and severally the plaintiffs thru the Dansalan College the sum of
P954,154.55 representing the actual or compensatory damages incurred by the
plaintiffs; and
2. To pay the sum of P50,000.00 representing Attorneys fees.
SO ORDERED.
Dissatisfied, PHESCO appealed to the Court of Appeals, which on November 10,
1994 reversed the trial courts judgment. We quote the pertinent portion of the decision:
A labor only contractor is considered merely as an agent of the employer (Deferia vs.
National Labor Relations Commission, 194 SCRA 525). A finding that a contractor is a
labor only contractor is equivalent to a finding that there is an employer-employee
relationship between the owner of the project and the employees of the labor only
contractor (Industrial Timer Corporation vs. National Labor Relations Commission, 202
SCRA 465). So, even if Phesco hired driver Gavino Ilumba, as Phesco is admittedly a
labor only contractor of Napocor, the statute itself establishes an employer-employee
relationship between the employer (Napocor) and the employee (driver Ilumba) of the
labor only contractor (Phesco). (Ecal vs. National Labor Relations Commission, 195
SCRA 224).
Page | 260
Consequently, we hold Phesco not liable for the tort of driver Gavino Ilumba, as there
was no employment relationship between Phesco and driver Gavino Ilumba. Under
Article 2180 of the Civil Code, to hold the employer liable for torts committed by his
employees within the scope of their assigned task, there must exist an employeremployee
relationship. (Martin vs. Court of Appeals, 205 SCRA 591).

WHEREFORE, we REVERSE the appealed decision. In lieu thereof, the Court renders
judgment sentencing defendant National Power Corporation to pay plaintiffs the sum of
P174,889.20 plus P20,000.00 as attorneys fees and costs. SO ORDERED.

Chagrined by the sudden turnaround, NPC filed a motion for reconsideration of said
decision which was, however, denied on February 9, 1995.[1] Hence, this petition.
The principal query to be resolved is, as between NPC and PHESCO, who is the
employer of Ilumba, driver of the dumptruck which figured in the accident and which
should, therefore, would be liable for damages to the victims. Specifically, NPC assigns
the sole error that:
THE COURT OF APPEALS DECISION FINDING THAT PETITIONER NPC AS THE
EMPLOYER OF THE DRIVER GAVINO ILUMBA, AND CONSEQUENTLY,
SENTENCING IT TO PAY THE ACTUAL AND COMPENSATORY DAMAGES
SUSTAINED BY COMPLAINANTS, IS NOT IN ACCORD WITH THE LAW OR WITH
THE APPLICABLE RULINGS OF THIS HONORABLE COURT.[2]
As earlier stated, NPC denies that the driver of the dump truck was its employee. It
alleges that it did not have the power of selection and dismissal nor the power of control
over Ilumba.[3] PHESCO, meanwhile, argues that it merely acted as a recruiter of the
necessary workers for and in behalf of NPC.[4]
Before we decide who is the employer of Ilumba, it is evidently necessary to ascertain
the contractual relationship between NPC and PHESCO. Was the relationship one of
employer and job (independent) contractor or one of employer and labor only contractor?
Job (independent) contracting is present if the following conditions are met: (a) the
contractor carries on an independent business and undertakes the contract work on his

Page | 261
own account under his own responsibility according to his own manner and method, free
from the control and direction of his employer or principal in all matters connected with
the performance of the work except to the result thereof; and (b) the contractor has
substantial capital or investments in the form of tools, equipment, machineries, work
premises and other materials which are necessary in the conduct of his
business.[5] Absent these requisites, what exists is a labor only contract under which the
person acting as contractor is considered merely as an agent or intermediary of the
principal who is responsible to the workers in the same manner and to the same extent
as if they had been directly employed by him.[6] Taking into consideration the above
distinction and the provisions of the Memorandum of Understanding entered into by
PHESCO and NPC, we are convinced that PHESCO was engaged in labor only
contracting.
It must be noted that under the Memorandum, NPC had mandate to approve the
critical path network and rate of expenditure to be undertaken by PHESCO.[7] Likewise,
the manning schedule and pay scale of the workers hired by PHESCO were subject to
confirmation by NPC.[8] Then too, it cannot be ignored that if PHESCO enters into any
sub-contract or lease, again NPCs concurrence is needed.[9] Another consideration is that
even in the procurement of tools and equipment that will be used by PHESCO, NPCs
favorable recommendation is still necessary before these tools and equipment can be
purchased.[10] Notably, it is NPC that will provide the money or funding that will be used
by PHESCO to undertake the project.[11] Furthermore, it must be emphasized that the
project being undertaken by PHESCO, i.e., construction of power energy facilities, is
related to NPCs principal business of power generation. In sum, NPCs control over
PHESCO in matters concerning the performance of the latters work is evident. It is
enough that NPC has the right to wield such power to be considered as the employer.[12]
Under this factual milieu, there is no doubt that PHESCO was engaged in labor-only
contracting vis--vis NPC and as such, it is considered merely an agent of the latter. In
labor-only contracting, an employer-employee relationship between the principal
employer and the employees of the labor-only contractor is created. Accordingly, the
principal employer is responsible to the employees of the labor-only contractor as if such

Page | 262
employees had been directly employed by the principal employer.[13] Since PHESCO is
only a labor-only contractor, the workers it supplied to NPC, including the driver of the illfated
truck, should be considered as employees of NPC.[14] After all, it is axiomatic that
any person (the principal employer) who enters into an agreement with a job contractor,
either for the performance of a specified work or for the supply of manpower, assumes
responsibility over the employees of the latter.[15]
However, NPC maintains that even assuming that a labor only contract exists
between it and PHESCO, its liability will not extend to third persons who are injured due
to the tortious acts of the employee of the labor-only contractor.[16] Stated otherwise, its
liability shall only be limited to violations of the Labor Code and not quasi-delicts.
To bolster its position, NPC cites Section 9(b), Rule VII, Book III of the Omnibus Rules
Implementing the Labor Code which reads:
(b) Labor only contracting as defined herein is hereby prohibited and the person acting
as contractor shall be considered merely as an agent or intermediary of the employer
who shall be responsible to the workers in the same manner and extent as if the latter
were directly employed by him.
In other words, NPC posits the theory that its liability is limited only to compliance with
the substantive labor provisions on working conditions, rest periods, and wages and shall
not extend to liabilities suffered by third parties, viz.:
Consequently, the responsibilities of the employer contemplated in a labor only contract,
should, consistent with the terms expressed in the rule, be restricted to the workers.The
same can not be expanded to cover liabilities for damages to third persons resulting
from the employees tortious acts under Article 2180 of the Civil Code.[17]
The reliance is misplaced. It bears stressing that the action was premised on the
recovery of damages as a result of quasi-delict against both NPC and PHESCO, hence,
it is the Civil Code and not the Labor Code which is the applicable law in resolving this
case.
To be sure, the pronouncement of this Court in Filamer Christian Institute v. IAC,
[18] is
most instructive:

Page | 263
The present case does not deal with a labor dispute on conditions of employment
between an alleged employee and an alleged employer. It invokes a claim brought by
one for damages for injury caused by the patently negligent acts of a person, against
both doer-employee and his employer. Hence, the reliance on the implementing rule on
labor to disregard the primary liability of an employer under Article 2180 of the Civil
Code is misplaced. An implementing rule on labor cannot be used by an employer as a
shield to avoid liability under the substantive provisions of the Civil Code.
Corollarily from the above doctrine, the ruling in Cuison v. Norton & Harrison
Co.,
[19] finds applicability in the instant case, viz.:
It is well to repeat that under the civil law an employer is only liable for the negligence of
his employees in the discharge of their respective duties. The defense of independent
contractor would be a valid one in the Philippines just as it would be in the United
States. Here Ora was a contractor, but it does not necessarily follow that he was an
independent contractor. The reason for this distinction is that the employer retained the
power of directing and controlling the work. The chauffeur and the two persons on the
truck were the employees of Ora, the contractor, but Ora, the contractor, was an
employee of Norton & Harrison Co., charged with the duty of directing the loading and
transportation of the lumber. And it was the negligence in loading the lumber and the
use of minors on the truck which caused the death of the unfortunate boy. On the
facts and the law, Ora was not an independent contractor, but was the servant of the
defendant, and for his negligence defendant was responsible.
Given the above considerations, it is apparent that Article 2180 of the Civil Code and
not the Labor Code will determine the liability of NPC in a civil suit for damages instituted
by an injured person for any negligent act of the employees of the labor only
contractor. This is consistent with the ruling that a finding that a contractor was a laboronly
contractor is equivalent to a finding that an employer-employee relationship existed
between the owner (principal contractor) and the labor-only contractor, including the
latters workers.[20]
With respect to the liability of NPC as the direct employer, Article 2180 of the Civil

Page | 264
Code explicitly provides:
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry.
In this regard, NPCs liability is direct, primary and solidary with PHESCO and the
driver.[21] Of course, NPC, if the judgment for damages is satisfied by it, shall have
recourse against PHESCO and the driver who committed the negligence which gave rise
to the action.[22]
Finally, NPC, even if it truly believed that it was not the employer of the driver, could
still have disclaimed any liability had it raised the defense of due diligence in the selection
or supervision of PHESCO and Ilumba.[23] However, for some reason or another, NPC
did not invoke said defense. Hence, by opting not to present any evidence thatit exercised
due diligence in the supervision of the activities of PHESCO and Ilumba, NPC has
foreclosed its right to interpose the same on appeal in conformity with the rule that points
of law, theories, issues of facts and arguments not raised in the proceedings below cannot
be ventilated for the first time on appeal.[24] Consequently, its liability stands.
WHEREFORE, in view of the foregoing, the assailed decision of the Court of Appeals
dated November 10, 1994 and its accompanying resolution dated February 9, 1995 are
AFFIRMED without prejudice to the right of NPC to demand from PHESCO and Ilumba
reimbursement of the damages it would be adjudged to pay to complainants. No costs.
SO ORDERED.

FIRST DIVISION

Page | 265
MERCURY DRUG CORPORATION and G.R. No. 172122
ROLANDO J. DEL ROSARIO,
Petitioners,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- versus - CORONA,
AZCUNA, and
GARCIA, JJ.
SPOUSES RICHARD HUANG and
CARMEN HUANG, and STEPHEN HUANG, Promulgated:
Respondents.
June 22, 2007

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

DECISION

PUNO, C.J.:

On appeal are the Decision[1] and Resolution[2] of the Court of Appeals in CA-G.R. CV No. 83981,
dated February 16, 2006 and March 30, 2006, respectively which affirmed with modification the Decision [3] of
the Regional Trial Court (RTC) of Makati City, dated September 29, 2004. The trial court found petitioners
jointly and severally liable to pay respondents damages for the injuries sustained by respondent Stephen Huang,
son of respondent spouses Richard and Carmen Huang.

First, the facts:

Petitioner Mercury Drug Corporation (Mercury Drug) is the registered owner of a six-wheeler 1990
Mitsubishi Truck with plate number PRE 641 (truck). It has in its employ petitioner Rolando J. del Rosario as
driver. Respondent spouses Richard and Carmen Huang are the parents of respondent Stephen Huang and own
the red 1991 Toyota Corolla GLI Sedan with plate number PTT 775 (car).

These two vehicles figured in a road accident on December 20, 1996 at around 10:30 p.m. within the
municipality of Taguig, Metro Manila. Respondent Stephen Huang was driving the car, weighing 1,450 kg.,
while petitioner Del Rosario was driving the truck, weighing 14,058 kg. Both were traversing the C-5 Highway,
north bound, coming from the general direction of Alabang going to Pasig City.The car was on the left
innermost lane while the truck was on the next lane to its right, when the truck suddenly swerved to its left and
slammed into the front right side of the car. The collision hurled the car over the island where it hit a lamppost,
Page | 266
spun around and landed on the opposite lane. The truck also hit a lamppost, ran over the car and zigzagged
towards, and finally stopped in front of Buellah Land Church.

At the time of the accident, petitioner Del Rosario only had a Traffic Violation Receipt (TVR). His
drivers license had been confiscated because he had been previously apprehended for reckless driving.

The car, valued at P300,000.00, was a total wreck. Respondent Stephen Huang sustained massive
injuries to his spinal cord, head, face, and lung. Despite a series of operations, respondent Stephen Huang is
paralyzed for life from his chest down and requires continuous medical and rehabilitation treatment.

Respondents fault petitioner Del Rosario for committing gross negligence and reckless imprudence
while driving, and petitioner Mercury Drug for failing to exercise the diligence of a good father of a family in
the selection and supervision of its driver.

In contrast, petitioners allege that the immediate and proximate cause of the accident was respondent
Stephen Huangs recklessness. According to petitioner Del Rosario, he was driving on the left innermost lane
when the car bumped the trucks front right tire. The truck then swerved to the left, smashed into an electric post,
crossed the center island, and stopped on the other side of the highway. The car likewise crossed over the center
island and landed on the same portion of C-5.Further, petitioner Mercury Drug claims that it exercised due
diligence of a good father of a family in the selection and supervision of all its employees.

The trial court, in its Decision dated September 29, 2004, found petitioners Mercury Drug and Del
Rosario jointly and severally liable to pay respondents actual, compensatory, moral and exemplary damages,
attorneys fees, and litigation expenses. The dispositive portion reads:
WHEREFORE, judgment is rendered finding defendants Mercury Drug Corporation, Inc.
and Rolando del Rosario, jointly and severally liable to pay plaintiffs Spouses Richard Y. Huang
and Carmen G. Huang, and Stephen Huang the following amounts:
1. Two Million Nine Hundred Seventy Three Thousand Pesos (P2,973,000.00)actual
damages;
2. As compensatory damages:
a. Twenty Three Million Four Hundred Sixty One Thousand, and Sixty-Two
Pesos (P23,461,062.00) for life care cost of Stephen;
b. Ten Million Pesos (P10,000,000.00) as and for lost or impaired earning capacity
of Stephen;
3. Four Million Pesos (P4,000,000.00) as moral damages;
4. Two Million Pesos (P2,000,000.00) as exemplary damages; and
5. One Million Pesos (P1,000,000.00) as attorneys fees and litigation expense. [4]
Page | 267
 On February 16, 2006, the Court of Appeals affirmed the decision of the trial court but reduced the
award of moral damages to P1,000,000.00. The appellate court also denied the motion for reconsideration filed
by petitioners.

Hence, this appeal.

Petitioners cite the following grounds for their appeal:

1. That the subject Decision which dismissed the appeal of petitioners herein but AFFIRMED
WITH MODIFICATION the decision of the Regional Trial Court, Branch 64, Makati City, in
that the award of moral damages was reduced to P1,000,000.00 and its Resolution dated March
30, 2006, which dismissed outright the Motion for Reconsideration must be set aside because the
Honorable Court of Appeals committed reversible error:
A. IN DENYING OUTRIGHTLY THE MOTION FOR RECONSIDERATION ON
ALLEGEDLY BEING FILED OUT OF TIME FOR ONE DAY;
B. IN ACCORDING GREATER WEIGHT TO THE EVIDENCE ADDUCED BY THE
RESPONDENTS HEREIN AND COMPLETELY DISREGARDING THE DEFENSE
INTERPOSED BY THE PETITIONERS HEREIN;
C. IN DISREGARDING COMPLETELY ALL EVIDENCES PRESENTED BY THE
PETITIONERS HEREIN AND PROCEEDED TO RENDER ITS DECISION BASED ON
PRESUMPTIONS AND PERSONAL OPINIONS OF PEOPLE WHO ARE NOT
WITNESSES TO THE ACCIDENT;
D. IN AWARDING DAMAGES IN FAVOR OF RESPONDENTS HEREIN;
E. IN FINDING THAT MERCURY DRUG CORPORATION FAILED TO EXERCISE
THE DILIGENCE REQUIRED IN SUPERVISING ITS EMPLOYEES DESPITE
OVERWHELMING EVIDENCE PRESENTED BY PETITIONER COMPANY;
F. IN FINDING THAT PETITIONER ROLANDO DEL ROSARIO WAS NEGLIGENT
IN DRIVING THE TRUCK AT THE TIME OF ACCIDENT AND TOTALLY
DISREGARDING THE EVIDENCES PRESENTED DURING THE TRIAL OF THE
CASE.
G. IN PRESENTING ONLY IN THE DECISION TESTIMONIES FAVORABLE TO THE
RESPONDENTS HEREIN AND COMPLETELY DISREGARDING THE EVIDENCES
PRESENTED BY THE PETITIONERS HEREIN WHICH CONTRADICTED SUCH
TESTIMONIES NOT ONLY THROUGH ORAL TESTIMONIES BUT AS WELL AS
DOCUMENTARY EVIDENCES.[5]

We affirm the findings of the trial court and the appellate court that petitioner Del Rosario was
negligent. The evidence does not support petitioners claim that at the time of the accident, the truck was at the
left inner lane and that it was respondent Stephen Huangs car, at its right, which bumped the right front side of
the truck. Firstly, petitioner Del Rosario could not precisely tell which part of the truck was hit by the
car,[6] despite the fact that the truck was snub-nosed and a lot higher than the car. Petitioner Del Rosario could
not also explain why the car landed on the opposite lane of C-5 which was on its left side. He said that the car
Page | 268
did not pass in front of him after it hit him or under him or over him or behind him. [7] If the truck were really at
the left lane and the car were at its right, and the car hit the truck at its front right side, the car would not have
landed on the opposite side, but would have been thrown to the right side of the C-5 Highway.Noteworthy on
this issue is the testimony of Dr. Marlon Rosendo H. Daza, an expert in the field of physics. He conducted a
study based on the following assumptions provided by respondents:
1. Two vehicles collided;
2. One vehicle is ten times heavier, more massive than the other;
3. Both vehicles were moving in the same direction and at the same speed of about 85 to 90
kilometers per hour;
4. The heavier vehicle was driving at the innermost left lane, while the lighter vehicle was at
its right.

Dr. Daza testified that given the foregoing assumptions, if the lighter vehicle hits the right front portion of the
heavier vehicle, the general direction of the light vehicle after the impact would be to the right side of the heavy
vehicle, not the other way around. The truck, he opined, is more difficult to move as it is heavier. It is the car,
the lighter vehicle, which would move to the right of, and away from the truck. Thus, there is very little chance
that the car will move towards the opposite side, i.e., to the left of the truck.

Dr. Daza also gave a further study on the basis of the same assumptions except that the car is on the left
side of the truck, in accordance with the testimony of respondent Stephen Huang. Dr. Daza concluded that the
general direction of the car after impact would be to the left of the truck. In this situation, the middle island
against which the car was pinned would slow down the car, and enable the truck to catch up and hit the car
again, before running over it.[8]

To support their thesis, petitioners tried to show the damages that the truck sustained at its front right
side. The attempt does not impress. The photographs presented were taken a month after the accident, and
Rogelio Pantua, the automechanic who repaired the truck and authenticated the photographs, admitted that there
were damages also on the left side of the truck. [9]

Worse still, petitioner Del Rosario further admitted that after the impact, he lost control of the truck and
failed to apply his brakes. Considering that the car was smaller and lighter than the six-wheeler truck, the
impact allegedly caused by the car when it hit the truck could not possibly be so great to cause petitioner to lose
all control that he failed to even step on the brakes. He testified, as follows:
ATTY. DIAZ:
May I proceed, Your Honor. You were able to apply the brakes, were you sir?

WITNESS:
Page | 269
 No more, sir, because I went over the island.

ATTY. DIAZ:
Because as you said you lost control, correct sir?

WITNESS:
Yes, sir.

ATTY. DIAZ:
In other words, sir from the time your truck was hit according to you up to the time you
rested on the shoulder, you traveled fifty meters?

WITNESS:
Yes, sir, about that distance.

ATTY. DIAZ:
And this was despite the fact that you were only traveling at the speed of seventy five
kilometers per hour, jumped over the island, hit the lamppost, and traveled the three lanes of
the opposite lane of C-5 highway, is that what you want to impress upon this court?

WITNESS:
Yes, sir.[10]

We therefore find no cogent reason to disturb the findings of the RTC and the Court of Appeals. The
evidence proves petitioner Del Rosarios negligence as the direct and proximate cause of the injuries suffered by
respondent Stephen Huang.Petitioner Del Rosario failed to do what a reasonable and prudent man would have
done under the circumstances.

We now come to the liability of petitioner Mercury Drug as employer of Del Rosario. Articles 2176 and
2180 of the Civil Code provide:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
Art. 2180. The obligation imposed by article 2176 is demandable not only for ones own
acts or omissions, but also for those of persons for whom one is responsible.
xxx
The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are
employed or on the occasion of their functions.
xxx

Page | 270
 The liability of the employer under Art. 2180 of the Civil Code is direct or immediate. It is not
conditioned on a prior recourse against the negligent employee, or a prior showing of insolvency of such
employee. It is also joint and solidary with the employee. [11]

To be relieved of liability, petitioner Mercury Drug should show that it exercised the diligence of a good
father of a family, both in the selection of the employee and in the supervision of the performance of his
duties. Thus, in the selection of its prospective employees, the employer is required to examine them as to their
qualifications, experience, and service records. [12] With respect to the supervision of its employees, the
employer should formulate standard operating procedures, monitor their implementation, and impose
disciplinary measures for their breach. To establish compliance with these requirements, employers must submit
concrete proof, including documentary evidence. [13]

In the instant case, petitioner Mercury Drug presented testimonial evidence on its hiring
procedure. According to Mrs. Merlie Caamic, the Recruitment and Training Manager of petitioner Mercury
Drug, applicants are required to take theoretical and actual driving tests, and psychological examination. In the
case of petitioner Del Rosario, however, Mrs. Caamic admitted that he took the driving tests and psychological
examination when he applied for the position of Delivery Man, but not when he applied for the position
of Truck Man. Mrs. Caamic also admitted that petitioner Del Rosario used a Galant which is a light vehicle,
instead of a truck during the driving tests. Further, no tests were conducted on the motor skills development,
perceptual speed, visual attention, depth visualization, eye and hand coordination and steadiness of petitioner
Del Rosario. No NBI and police clearances were also presented. Lastly, petitioner Del Rosario attended only
three driving seminars on June 30, 2001, February 5, 2000 and July 7, 1984. In effect, the only seminar he
attended before the accident which occurred in 1996 was held twelve years ago in 1984.

It also appears that petitioner Mercury Drug does not provide for a back-up driver for long trips. At the
time of the accident, petitioner Del Rosario has been out on the road for more than thirteen hours, without any
alternate. Mrs. Caamictestified that she does not know of any company policy requiring back-up drivers for
long trips.[14]

Petitioner Mercury Drug likewise failed to show that it exercised due diligence on the supervision and
discipline over its employees. In fact, on the day of the accident, petitioner Del Rosario was driving without a
license. He was holding a TVR for reckless driving. He testified that he reported the incident to his superior, but
nothing was done about it. He was not suspended or reprimanded.[15] No disciplinary action whatsoever was
taken against petitioner Del Rosario. We therefore affirm the finding that petitioner Mercury Drug has failed to
discharge its burden of proving that it exercised due diligence in the selection and supervision of its employee,
petitioner Del Rosario.

We now consider the damages which respondents should recover from the petitioners.

The trial court awarded the following amounts:

1. Two Million Nine Hundred Seventy-Three Thousand Pesos (P2,973,000.00)actual
damages;

2. As compensatory damages:

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 a. Twenty-Three Million Four Hundred Sixty One Thousand, and Sixty-Two Pesos
(P23,461,062.00) for life care cost of Stephen;
b. Ten Million Pesos (P10,000,000.00) as and for lost or impaired earning capacity of
Stephen;
3. Four Million Pesos (P4,000,000.00) as moral damages;
4. Two Million Pesos (P2,000,000.00) as exemplary damages; and
5. One Million Pesos (P1,000,000.00) as attorneys fees and litigation expense.

The Court of Appeals affirmed the decision of the trial court but reduced the award of moral damages
to P1,000,000.00.

With regard to actual damages, Art. 2199 of the Civil Code provides that [E]xcept as provided by law or
by stipulation one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he
has duly proved x x x. In the instant case, we uphold the finding that the actual damages claimed by respondents
were supported by receipts. The amount of P2,973,000.00 represented cost of hospital expenses, medicines,
medical services and supplies, and nursing care services provided respondent Stephen from December 20, 1996,
the day of the accident, until December 1998.

Petitioners are also liable for all damages which are the natural and probable consequences of the act or
omission complained of.[16] The doctors who attended to respondent Stephen are one in their prognosis that his
chances of walking again and performing basic body functions are nil. For the rest of his life, he will need
continuous rehabilitation and therapy to prevent further complications such as pneumonia, bladder and rectum
infection, renal failure, sepsis and severe bed sores, osteoporosis and fractures, and other spinal cord injury-
related conditions. He will be completely dependent on the care and support of his family. We thus affirm the
award of P23,461,062.00 for the life care cost of respondent Stephen Huang, based on his average monthly
expense and the actuarial computation of the remaining years that he is expected to live; and the conservative
amount of P10,000,000.00, as reduced by the trial court, for the loss or impairment of his earning
capacity,[17] considering his age, probable life expectancy, the state of his health, and his mental and physical
condition before the accident. He was only seventeen years old, nearly six feet tall and weighed 175 pounds. He
was in fourth year high school, and a member of the school varsity basketball team. He was also class president
and editor-in-chief of the school annual. He had shown very good leadership qualities. He was looking forward
to his college life, having just passed the entrance examinations of the University of the Philippines, De La Salle
University, and the University of Asia and the Pacific. The University of Sto. Tomas even offered him a chance
to obtain an athletic scholarship, but the accident prevented him from attending the basketball try-outs. Without
doubt, he was an exceptional student. He excelled both in his academics and extracurricular undertakings. He is
intelligent and motivated, a go-getter, as testified by Francisco Lopez, respondent Stephen Huangs godfather

Page | 272
and a bank executive.[18] Had the accident not happened, he had a rosy future ahead of him. He wanted to
embark on a banking career, get married and raise children. Taking into account his outstanding abilities, he
would have enjoyed a successful professional career in banking. But, as Mr. Lopez stated, it is highly unlikely
for someone like respondent to ever secure a job in a bank. To his knowledge, no bank has ever hired a person
suffering with
the kind of disability as Stephen Huangs. [19]

We likewise uphold the award of moral and exemplary damages and attorneys fees.

The award of moral damages is aimed at a restoration, within the limits of the possible, of the spiritual
status quo ante.[20] Moral damages are designed to compensate and alleviate in some way the physical suffering,
mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury unjustly caused a person. Although incapable of pecuniary computation, they
must be proportionate to the suffering inflicted. [21] The amount of the award bears no relation whatsoever with
the wealth or means of the offender.

In the instant case, respondent Stephen Huang and respondent spouses Richard and Carmen Huang

testified to the intense suffering they continue to experience as a result of the accident. Stephen recounted the

nightmares and traumas he suffers almost every night when he relives the accident. He also gets depression

when he thinks of his bleak future. He feels frustration and embarrassment in needing to be helped with almost

everything and in his inability to do simple things he used to do. Similarly, respondent spouses and the rest of

the family undergo their own private suffering. They live with the day-to-day uncertainty of respondent Stephen

Huangs condition. They know that the chance of full recovery is nil. Moreover, respondent Stephen Huangs

paralysis has made him prone to many other illnesses.His family, especially respondent spouses, have to make

themselves available for Stephen twenty-four hours a day. They have patterned their daily life around taking

care of him, ministering to his daily needs, altering the lifestyle to which they had been accustomed.

Page | 273
 Respondent Carmen Huangs brother testified on the insensitivity of petitioner Mercury Drug towards the

plight of respondent. Stephen, viz.:

Maybe words cannot describe the anger that we feel towards the defendants. All the time
that we were going through the crisis, there was none (sic) a single sign of nor offer of help, any
consolation or anything whatsoever. It is funny because, you know, I have many colleagues,
business associates, people even as far as United States, Japan, that I probably met only once,
when they found out, they make a call, they sent card, they write small notes, but from the
defendant, absolute silence. They didnt care, and worst, you know, this is a company that
have (sic) all the resources to help us. They were (sic) on our part, it was doubly painful because
we have no choice but to go back to them and buy the medicines that we need for Stephen. So, I
dont know how someone will really have no sense of decency at all to at least find out what
happened to my son, what is his condition, or if there is anything that they can do to help us. [22]

On the matter of exemplary damages, Art. 2231 of the Civil Code provides that in cases of quasi-delicts,
exemplary damages may be granted if the defendant acted with gross negligence. The records show that at the
time of the accident, petitioner Del Rosario was driving without a license because he was previously ticketed for
reckless driving. The evidence also shows that he failed to step on his brakes immediately after the impact. Had
petitioner Del Rosario done so, the injuries which respondent Stephen sustained could have been greatly
reduced. Wanton acts such as that committed by petitioner Del Rosario need be suppressed; and employers like
petitioner Mercury Drug should be more circumspect in the observance of due diligence in the selection and
supervision of their employees.The award of exemplary damages in favor of the respondents is therefore
justified.

With the award of exemplary damages, we also affirm the grant of attorneys fees to respondents. [23] In
addition, attorneys fees may be granted when a party is compelled to litigate or incur expenses to protect his
interest by reason of an unjustified act of the other party. [24]

Cost against petitioners.

IN VIEW THEREOF, the petition is DENIED. The Decision and Resolution of the Court of Appeals
dated February 16, 2006 and March 30, 2006, respectively, in CA-G.R. CV No. 83981, are AFFIRMED.

SO ORDERED.

Page | 274
 SECOND DIVISION

[G.R. No. 122039. May 31, 2000]

VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and
FRANCISCO SALVA, respondents.

D E C I S I ON

MENDOZA, J.:

This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated March 31, 1991,
reversing the contrary decision of the Regional Trial Court, Branch 36, Dumaguete City, and awarding damages
instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action for breach of contract of carriage.

The facts, as found by the Court of Appeals, are as follows:

At 10 oclock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a college
freshman majoring in Physical Education at the Siliman University, took a passenger jeepney owned and
operated by petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was
given by the conductor an "extension seat," a wooden stool at the back of the door at the rear end of the
vehicle. Sclaw

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As she was
seated at the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu
truck driven by Iglecerio Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As
a result, Sunga was injured. She sustained a fracture of the "distal third of the left tibia-fibula with severe
necrosis of the underlying skin." Closed reduction of the fracture, long leg circular casting, and case wedging
were done under sedation. Her confinement in the hospital lasted from August 23 to September 7, 1989. Her
attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a cast for a
period of three months and would have to ambulate in crutches during said period.

Page | 275
On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of
carriage by the former in failing to exercise the diligence required of him as a common carrier. Calalas, on the
other hand, filed a third-party complaint against Francisco Salva, the owner of the Isuzu truck. Korte

The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of liability,
holding that it was the driver of the Isuzu truck who was responsible for the accident. It took cognizance of
another case (Civil Case No. 3490), filed by Calalas against Salva and Verena, for quasi-delict, in which Branch
37 of the same court held Salva and his driver Verena jointly liable to Calalas for the damage to his
jeepney. Rtcspped

On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that Sungas cause
of action was based on a contract of carriage, not quasi-delict, and that the common carrier failed to exercise the
diligence required under the Civil Code. The appellate court dismissed the third-party complaint against Salva
and adjudged Calalas liable for damages to Sunga. The dispositive portion of its decision reads:

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another
one is entered ordering defendant-appellee Vicente Calalas to pay plaintiff-appellant:

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;

(3) P10,000.00 as attorneys fees; and

(4) P1,000.00 as expenses of litigation; and

(5) to pay the costs.

SO ORDERED.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of Verena
was the proximate cause of the accident negates his liability and that to rule otherwise would be to make the
common carrier an insurer of the safety of its passengers. He contends that the bumping of the jeepney by the
truck owned by Salva was a caso fortuito. Petitioner further assails the award of moral damages to Sunga on the
ground that it is not supported by evidence. Sdaadsc

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the owner of the
truck liable for quasi-delict ignores the fact that she was never a party to that case and, therefore, the principle
of res judicata does not apply. Missdaa

Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case No. 3490
was whether Salva and his driver Verena were liable for quasi-delict for the damage caused to petitioners
jeepney. On the other hand, the issue in this case is whether petitioner is liable on his contract of carriage. The
first, quasi-delict, also known as culpa aquiliana or culpa extra contractual, has as its source the negligence of
the tortfeasor. The second, breach of contract or culpa contractual, is premised upon the negligence in the
performance of a contractual obligation.

Page | 276
Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the basis of the
action, whereas in breach of contract, the action can be prosecuted merely by proving the existence of the
contract and the fact that the obligor, in this case the common carrier, failed to transport his passenger safely to
his destination.[2] In case of death or injuries to passengers, Art. 1756 of the Civil Code provides that common
carriers are presumed to have been at fault or to have acted negligently unless they prove that they observed
extraordinary diligence as defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the
common carrier the burden of proof. Slxmis

There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver
Verena liable for the damage to petitioners jeepney, should be binding on Sunga. It is immaterial that the
proximate cause of the collision between the jeepney and the truck was the negligence of the truck driver. The
doctrine of proximate cause is applicable only in actions for quasi-delict, not in actions involving breach of
contract. The doctrine is a device for imputing liability to a person where there is no relation between him and
another party. In such a case, the obligation is created by law itself. But, where there is a pre-existing
contractual relation between the parties, it is the parties themselves who create the obligation, and the function
of the law is merely to regulate the relation thus created. Insofar as contracts of carriage are concerned, some
aspects regulated by the Civil Code are those respecting the diligence required of common carriers with regard
to the safety of passengers as well as the presumption of negligence in cases of death or injury to passengers. It
provides: Slxsc

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy,
are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of
the passengers transported by them, according to all the circumstances of each case.

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

Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with due regard for all
the circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they prove that they observed extraordinary
diligence as prescribed by articles 1733 and 1755.

In the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it
became the duty of petitioner to prove that he had to observe extraordinary diligence in the care of his
passengers. Scslx

Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide, using the
utmost diligence of very cautious persons, with due regard for all the circumstances" as required by Art. 1755?
We do not think so. Several factors militate against petitioners contention. Slx

First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being exposed
about two meters from the broad shoulders of the highway, and facing the middle of the highway in a diagonal
angle. This is a violation of the R.A. No. 4136, as amended, or the Land Transportation and Traffic Code, which
provides:

Page | 277
 Sec. 54. Obstruction of Traffic. - No person shall drive his motor vehicle in such a manner as to
obstruct or impede the passage of any vehicle, nor, while discharging or taking on passengers or
loading or unloading freight, obstruct the free passage of other vehicles on the highway.

Second, it is undisputed that petitioners driver took in more passengers than the allowed seating capacity of the
jeepney, a violation of 32(a) of the same law. It provides: Mesm

Exceeding registered capacity. - No person operating any motor vehicle shall allow more
passengers or more freight or cargo in his vehicle than its registered capacity.

The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other
passengers were exposed. Therefore, not only was petitioner unable to overcome the presumption of negligence
imposed on him for the injury sustained by Sunga, but also, the evidence shows he was actually negligent in
transporting passengers. Calrky

We find it hard to give serious thought to petitioners contention that Sungas taking an "extension seat"
amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many victims of the
tragedies in our seas should not be compensated merely because those passengers assumed a greater risk of
drowning by boarding an overloaded ferry. This is also true of petitioners contention that the jeepney being
bumped while it was improperly parked constitutes caso fortuito. A caso fortuito is an event which could not be
foreseen, or which, though foreseen, was inevitable. [3]This requires that the following requirements be present:
(a) the cause of the breach is independent of the debtors will; (b) the event is unforeseeable or unavoidable; (c)
the event is such as to render it impossible for the debtor to fulfill his obligation in a normal manner, and (d) the
debtor did not take part in causing the injury to the creditor. [4] Petitioner should have foreseen the danger of
parking his jeepney with its body protruding two meters into the highway. Kycalr

Finally, petitioner challenges the award of moral damages alleging that it is excessive and without basis in law.
We find this contention well taken.

In awarding moral damages, the Court of Appeals stated: Kyle

Plaintiff-appellant at the time of the accident was a first-year college student in that school year
1989-1990 at the Silliman University, majoring in Physical Education. Because of the injury, she
was not able to enroll in the second semester of that school year. She testified that she had no
more intention of continuing with her schooling, because she could not walk and decided not to
pursue her degree, major in Physical Education "because of my leg which has a defect already."

Plaintiff-appellant likewise testified that even while she was under confinement, she cried in pain
because of her injured left foot. As a result of her injury, the Orthopedic Surgeon also certified
that she has "residual bowing of the fracture side." She likewise decided not to further pursue
Physical Education as her major subject, because "my left leg x x x has a defect already."

Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that
she suffered. Under Article 2219 of the Civil Code, she is entitled to recover moral damages in
the sum of P50,000.00, which is fair, just and reasonable.

As a general rule, moral damages are not recoverable in actions for damages predicated on a breach of contract
for it is not one of the items enumerated under Art. 2219 of the Civil Code. [5] As an exception, such damages
are recoverable: (1) in cases in which the mishap results in the death of a passenger, as provided in Art. 1764, in

Page | 278
relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith,
as provided in Art. 2220.[6]

In this case, there is no legal basis for awarding moral damages since there was no factual finding by the
appellate court that petitioner acted in bad faith in the performance of the contract of carriage. Sungas
contention that petitioners admission in open court that the driver of the jeepney failed to assist her in going to a
nearby hospital cannot be construed as an admission of bad faith. The fact that it was the driver of the Isuzu
truck who took her to the hospital does not imply that petitioner was utterly indifferent to the plight of his
injured passenger. If at all, it is merely implied recognition by Verena that he was the one at fault for the
accident. Exsm

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated
September 11, 1995, are AFFIRMED, with the MODIFICATION that the award of moral damages is
DELETED.

SO ORDERED.

G.R. No. L-11154 March 21, 1916

E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-appellant.

Crossfield and O'Brien for plaintiff.

Attorney-General Avanceña for defendant..

TRENT, J.:

This is an appeal by both parties from a judgment of the Court of First Instance of the city of Manila in favor of
the plaintiff for the sum of P14,741, together with the costs of the cause.

Counsel for the plaintiff insist that the trial court erred (1) "in limiting the general damages which the plaintiff
suffered to P5,000, instead of P25,000 as claimed in the complaint," and (2) "in limiting the time when plaintiff
was entirely disabled to two months and twenty-one days and fixing the damage accordingly in the sum of
P2,666, instead of P6,000 as claimed by plaintiff in his complaint."

Page | 279
The Attorney-General on behalf of the defendant urges that the trial court erred: (a) in finding that the collision
between the plaintiff's motorcycle and the ambulance of the General Hospital was due to the negligence of the
chauffeur; (b) in holding that the Government of the Philippine Islands is liable for the damages sustained by
the plaintiff as a result of the collision, even if it be true that the collision was due to the negligence of the
chauffeur; and (c) in rendering judgment against the defendant for the sum of P14,741.

The trial court's findings of fact, which are fully supported by the record, are as follows:

It is a fact not disputed by counsel for the defendant that when the plaintiff, riding on a motorcycle, was
going toward the western part of Calle Padre Faura, passing along the west side thereof at a speed of ten
to twelve miles an hour, upon crossing Taft Avenue and when he was ten feet from the southwestern
intersection of said streets, the General Hospital ambulance, upon reaching said avenue, instead of
turning toward the south, after passing the center thereof, so that it would be on the left side of said
avenue, as is prescribed by the ordinance and the Motor Vehicle Act, turned suddenly and unexpectedly
and long before reaching the center of the street, into the right side of Taft Avenue, without having
sounded any whistle or horn, by which movement it struck the plaintiff, who was already six feet from
the southwestern point or from the post place there.

By reason of the resulting collision, the plaintiff was so severely injured that, according to Dr. Saleeby,
who examined him on the very same day that he was taken to the General Hospital, he was suffering
from a depression in the left parietal region, a would in the same place and in the back part of his head,
while blood issued from his nose and he was entirely unconscious.

The marks revealed that he had one or more fractures of the skull and that the grey matter and brain was
had suffered material injury. At ten o'clock of the night in question, which was the time set for
performing the operation, his pulse was so weak and so irregular that, in his opinion, there was little
hope that he would live. His right leg was broken in such a way that the fracture extended to the outer
skin in such manner that it might be regarded as double and the would be exposed to infection, for which
reason it was of the most serious nature.

At another examination six days before the day of the trial, Dr. Saleeby noticed that the plaintiff's leg
showed a contraction of an inch and a half and a curvature that made his leg very weak and painful at
the point of the fracture. Examination of his head revealed a notable readjustment of the functions of the
brain and nerves. The patient apparently was slightly deaf, had a light weakness in his eyes and in his
mental condition. This latter weakness was always noticed when the plaintiff had to do any difficult
mental labor, especially when he attempted to use his money for mathematical calculations.

According to the various merchants who testified as witnesses, the plaintiff's mental and physical
condition prior to the accident was excellent, and that after having received the injuries that have been
discussed, his physical condition had undergone a noticeable depreciation, for he had lost the agility,
energy, and ability that he had constantly displayed before the accident as one of the best constructors of
wooden buildings and he could not now earn even a half of the income that he had secured for his work
because he had lost 50 per cent of his efficiency. As a contractor, he could no longer, as he had before
done, climb up ladders and scaffoldings to reach the highest parts of the building.

As a consequence of the loss the plaintiff suffered in the efficiency of his work as a contractor, he had to
dissolved the partnership he had formed with the engineer. Wilson, because he was incapacitated from
making mathematical calculations on account of the condition of his leg and of his mental faculties, and
he had to give up a contract he had for the construction of the Uy Chaco building."

Page | 280
We may say at the outset that we are in full accord with the trial court to the effect that the collision between the
plaintiff's motorcycle and the ambulance of the General Hospital was due solely to the negligence of the
chauffeur.

The two items which constitute a part of the P14,741 and which are drawn in question by the plaintiff are (a)
P5,000, the award awarded for permanent injuries, and (b) the P2,666, the amount allowed for the loss of wages
during the time the plaintiff was incapacitated from pursuing his occupation. We find nothing in the record
which would justify us in increasing the amount of the first. As to the second, the record shows, and the trial
court so found, that the plaintiff's services as a contractor were worth P1,000 per month. The court, however,
limited the time to two months and twenty-one days, which the plaintiff was actually confined in the hospital. In
this we think there was error, because it was clearly established that the plaintiff was wholly incapacitated for a
period of six months. The mere fact that he remained in the hospital only two months and twenty-one days
while the remainder of the six months was spent in his home, would not prevent recovery for the whole time.
We, therefore, find that the amount of damages sustained by the plaintiff, without any fault on his part, is
P18,075.

As the negligence which caused the collision is a tort committed by an agent or employee of the Government,
the inquiry at once arises whether the Government is legally-liable for the damages resulting therefrom.

Act No. 2457, effective February 3, 1915, reads:

An Act authorizing E. Merritt to bring suit against the Government of the Philippine Islands and
authorizing the Attorney-General of said Islands to appear in said suit.

Whereas a claim has been filed against the Government of the Philippine Islands by Mr. E. Merritt, of
Manila, for damages resulting from a collision between his motorcycle and the ambulance of the
General Hospital on March twenty-fifth, nineteen hundred and thirteen;

Whereas it is not known who is responsible for the accident nor is it possible to determine the amount of
damages, if any, to which the claimant is entitled; and

Whereas the Director of Public Works and the Attorney-General recommended that an Act be passed by
the Legislature authorizing Mr. E. Merritt to bring suit in the courts against the Government, in order
that said questions may be decided: Now, therefore,

By authority of the United States, be it enacted by the Philippine Legislature, that:

SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of First Instance of the city of
Manila against the Government of the Philippine Islands in order to fix the responsibility for the
collision between his motorcycle and the ambulance of the General Hospital, and to determine the
amount of the damages, if any, to which Mr. E. Merritt is entitled on account of said collision, and the
Attorney-General of the Philippine Islands is hereby authorized and directed to appear at the trial on the
behalf of the Government of said Islands, to defendant said Government at the same.

SEC. 2. This Act shall take effect on its passage.

Enacted, February 3, 1915.

Page | 281
Did the defendant, in enacting the above quoted Act, simply waive its immunity from suit or did it also concede
its liability to the plaintiff? If only the former, then it cannot be held that the Act created any new cause of
action in favor of the plaintiff or extended the defendant's liability to any case not previously recognized.

All admit that the Insular Government (the defendant) cannot be sued by an individual without its consent. It is
also admitted that the instant case is one against the Government. As the consent of the Government to be sued
by the plaintiff was entirely voluntary on its part, it is our duty to look carefully into the terms of the consent,
and render judgment accordingly.

The plaintiff was authorized to bring this action against the Government "in order to fix the responsibility for
the collision between his motorcycle and the ambulance of the General Hospital and to determine the amount of
the damages, if any, to which Mr. E. Merritt is entitled on account of said collision, . . . ." These were the two
questions submitted to the court for determination. The Act was passed "in order that said questions may be
decided." We have "decided" that the accident was due solely to the negligence of the chauffeur, who was at the
time an employee of the defendant, and we have also fixed the amount of damages sustained by the plaintiff as
a result of the collision. Does the Act authorize us to hold that the Government is legally liable for that amount?
If not, we must look elsewhere for such authority, if it exists.

The Government of the Philippine Islands having been "modeled after the Federal and State Governments in the
United States," we may look to the decisions of the high courts of that country for aid in determining the
purpose and scope of Act No. 2457.

In the United States the rule that the state is not liable for the torts committed by its officers or agents whom it
employs, except when expressly made so by legislative enactment, is well settled. "The Government," says
Justice Story, "does not undertake to guarantee to any person the fidelity of the officers or agents whom it
employs, since that would involve it in all its operations in endless embarrassments, difficulties and losses,
which would be subversive of the public interest." (Claussen vs. City of Luverne, 103 Minn., 491, citing U. S.
vs. Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199; and Beers vs. States, 20 How., 527; 15 L. Ed., 991.)

In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover damages from the state for personal
injuries received on account of the negligence of the state officers at the state fair, a state institution created by
the legislature for the purpose of improving agricultural and kindred industries; to disseminate information
calculated to educate and benefit the industrial classes; and to advance by such means the material interests of
the state, being objects similar to those sought by the public school system. In passing upon the question of the
state's liability for the negligent acts of its officers or agents, the court said:

No claim arises against any government is favor of an individual, by reason of the misfeasance, laches,
or unauthorized exercise of powers by its officers or agents. (Citing Gibbons vs. U. S., 8 Wall., 269;
Clodfelter vs. State, 86 N. C., 51, 53; 41 Am. Rep., 440; Chapman vs. State, 104 Cal., 690; 43 Am. St.
Rep., 158; Green vs. State, 73 Cal., 29; Bourn vs. Hart, 93 Cal., 321; 27 Am. St. Rep., 203; Story on
Agency, sec. 319.)

As to the scope of legislative enactments permitting individuals to sue the state where the cause of action arises
out of either fort or contract, the rule is stated in 36 Cyc., 915, thus:

By consenting to be sued a state simply waives its immunity from suit. It does not thereby concede its
liability to plaintiff, or create any cause of action in his favor, or extend its liability to any cause not
previously recognized. It merely gives a remedy to enforce a preexisting liability and submits itself to
the jurisdiction of the court, subject to its right to interpose any lawful defense.

Page | 282
In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April 16, 1915, the Act of 1913, which
authorized the bringing of this suit, read:

SECTION 1. Authority is hereby given to George Apfelbacher, of the town of Summit, Waukesha
County, Wisconsin, to bring suit in such court or courts and in such form or forms as he may be advised
for the purpose of settling and determining all controversies which he may now have with the State of
Wisconsin, or its duly authorized officers and agents, relative to the mill property of said George
Apfelbacher, the fish hatchery of the State of Wisconsin on the Bark River, and the mill property of
Evan Humphrey at the lower end of Nagawicka Lake, and relative to the use of the waters of said Bark
River and Nagawicka Lake, all in the county of Waukesha, Wisconsin.

In determining the scope of this act, the court said:

Plaintiff claims that by the enactment of this law the legislature admitted liability on the part of the state
for the acts of its officers, and that the suit now stands just as it would stand between private parties. It is
difficult to see how the act does, or was intended to do, more than remove the state's immunity from
suit. It simply gives authority to commence suit for the purpose of settling plaintiff's controversies with
the estate. Nowhere in the act is there a whisper or suggestion that the court or courts in the disposition
of the suit shall depart from well established principles of law, or that the amount of damages is the only
question to be settled. The act opened the door of the court to the plaintiff. It did not pass upon the
question of liability, but left the suit just where it would be in the absence of the state's immunity from
suit. If the Legislature had intended to change the rule that obtained in this state so long and to declare
liability on the part of the state, it would not have left so important a matter to mere inference, but would
have done so in express terms. (Murdock Grate Co. vs. Commonwealth, 152 Mass., 28; 24 N.E., 854; 8
L. R. A., 399.)

In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893, relied upon and considered, are as
follows:

All persons who have, or shall hereafter have, claims on contract or for negligence against the state not
allowed by the state board of examiners, are hereby authorized, on the terms and conditions herein
contained, to bring suit thereon against the state in any of the courts of this state of competent
jurisdiction, and prosecute the same to final judgment. The rules of practice in civil cases shall apply to
such suits, except as herein otherwise provided.

And the court said:

This statute has been considered by this court in at least two cases, arising under different facts, and in
both it was held that said statute did not create any liability or cause of action against the state where
none existed before, but merely gave an additional remedy to enforce such liability as would have
existed if the statute had not been enacted. (Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., 158;
Melvin vs. State, 121 Cal., 16.)

A statute of Massachusetts enacted in 1887 gave to the superior court "jurisdiction of all claims against the
commonwealth, whether at law or in equity," with an exception not necessary to be here mentioned. In
construing this statute the court, in Murdock Grate Co. vs. Commonwealth (152 Mass., 28), said:

The statute we are discussing disclose no intention to create against the state a new and heretofore
unrecognized class of liabilities, but only an intention to provide a judicial tribunal where well
recognized existing liabilities can be adjudicated.
Page | 283
In Sipple vs. State (99 N. Y., 284), where the board of the canal claims had, by the terms of the statute of New
York, jurisdiction of claims for damages for injuries in the management of the canals such as the plaintiff had
sustained, Chief Justice Ruger remarks: "It must be conceded that the state can be made liable for injuries
arising from the negligence of its agents or servants, only by force of some positive statute assuming such
liability."

It being quite clear that Act No. 2457 does not operate to extend the Government's liability to any cause not
previously recognized, we will now examine the substantive law touching the defendant's liability for the
negligent acts of its officers, agents, and employees. Paragraph 5 of article 1903 of the Civil Code reads:

The state is liable in this sense when it acts through a special agent, but not when the damage should
have been caused by the official to whom properly it pertained to do the act performed, in which case
the provisions of the preceding article shall be applicable.

The supreme court of Spain in defining the scope of this paragraph said:

That the obligation to indemnify for damages which a third person causes to another by his fault or
negligence is based, as is evidenced by the same Law 3, Title 15, Partida 7, on that the person obligated,
by his own fault or negligence, takes part in the act or omission of the third party who caused the
damage. It follows therefrom that the state, by virtue of such provisions of law, is not responsible for the
damages suffered by private individuals in consequence of acts performed by its employees in the
discharge of the functions pertaining to their office, because neither fault nor even negligence can be
presumed on the part of the state in the organization of branches of public service and in the
appointment of its agents; on the contrary, we must presuppose all foresight humanly possible on its part
in order that each branch of service serves the general weal an that of private persons interested in its
operation. Between these latter and the state, therefore, no relations of a private nature governed by the
civil law can arise except in a case where the state acts as a judicial person capable of acquiring rights
and contracting obligations. (Supreme Court of Spain, January 7, 1898; 83 Jur. Civ., 24.)

That the Civil Code in chapter 2, title 16, book 4, regulates the obligations which arise out of fault or
negligence; and whereas in the first article thereof. No. 1902, where the general principle is laid down
that where a person who by an act or omission causes damage to another through fault or negligence,
shall be obliged to repair the damage so done, reference is made to acts or omissions of the persons who
directly or indirectly cause the damage, the following articles refers to this persons and imposes an
identical obligation upon those who maintain fixed relations of authority and superiority over the authors
of the damage, because the law presumes that in consequence of such relations the evil caused by their
own fault or negligence is imputable to them. This legal presumption gives way to proof, however,
because, as held in the last paragraph of article 1903, responsibility for acts of third persons ceases when
the persons mentioned in said article prove that they employed all the diligence of a good father of a
family to avoid the damage, and among these persons, called upon to answer in a direct and not a
subsidiary manner, are found, in addition to the mother or the father in a proper case, guardians and
owners or directors of an establishment or enterprise, the state, but not always, except when it acts
through the agency of a special agent, doubtless because and only in this case, the fault or negligence,
which is the original basis of this kind of objections, must be presumed to lie with the state.

That although in some cases the state might by virtue of the general principle set forth in article 1902
respond for all the damage that is occasioned to private parties by orders or resolutions which by fault or
negligence are made by branches of the central administration acting in the name and representation of
the state itself and as an external expression of its sovereignty in the exercise of its executive powers, yet
said article is not applicable in the case of damages said to have been occasioned to the petitioners by an
Page | 284
 executive official, acting in the exercise of his powers, in proceedings to enforce the collections of
certain property taxes owing by the owner of the property which they hold in sublease.

That the responsibility of the state is limited by article 1903 to the case wherein it acts through a special
agent(and a special agent, in the sense in which these words are employed, is one who receives a
definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special
official) so that in representation of the state and being bound to act as an agent thereof, he executes the
trust confided to him. This concept does not apply to any executive agent who is an employee of the
acting administration and who on his own responsibility performs the functions which are inherent in
and naturally pertain to his office and which are regulated by law and the regulations." (Supreme Court
of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.)

That according to paragraph 5 of article 1903 of the Civil Code and the principle laid down in a
decision, among others, of the 18th of May, 1904, in a damage case, the responsibility of the state is
limited to that which it contracts through a special agent, duly empowered by a definite order or
commission to perform some act or charged with some definite purpose which gives rise to the claim,
and not where the claim is based on acts or omissions imputable to a public official charged with some
administrative or technical office who can be held to the proper responsibility in the manner laid down
by the law of civil responsibility. Consequently, the trial court in not so deciding and in sentencing the
said entity to the payment of damages, caused by an official of the second class referred to, has by
erroneous interpretation infringed the provisions of articles 1902 and 1903 of the Civil Code. (Supreme
Court of Spain, July 30, 1911; 122 Jur. Civ., 146.)

It is, therefore, evidence that the State (the Government of the Philippine Islands) is only liable, according to the
above quoted decisions of the Supreme Court of Spain, for the acts of its agents, officers and employees when
they act as special agents within the meaning of paragraph 5 of article 1903, supra, and that the chauffeur of the
ambulance of the General Hospital was not such an agent.

For the foregoing reasons, the judgment appealed from must be reversed, without costs in this instance.
Whether the Government intends to make itself legally liable for the amount of damages above set forth, which
the plaintiff has sustained by reason of the negligent acts of one of its employees, by legislative enactment and
by appropriating sufficient funds therefor, we are not called upon to determine. This matter rests solely with the
Legislature and not with the courts.

Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.

G.R. No. L-55963 December 1, 1989

SPOUSES JOSE FONTANILLA AND VIRGINIA FONTANILLA, petitioners,
vs.
HONORABLE INOCENCIO D. MALIAMAN and NATIONAL IRRIGATION ADMINISTRATION,
respondents.

G.R. No. L-61045 December 1, 1989

Page | 285
NATIONAL IRRIGATION ADMINISTRATION, appellant,
vs.
SPOUSES JOSE FONTANILLA and VIRGINIA FONTANILLA, appellees.

Cecilio V. Suarez, Jr. for Spouses Fontanilla.

Felicisimo C. Villaflor for NIA.

PARAS, J.:

In G.R. No. L-55963, the petition for review on certiorari seeks the affirmance of the decision dated March 20,
1980 of the then Court of First Instance of Nueva Ecija, Branch VIII, at San Jose City and its modification with
respect to the denial of petitioner's claim for moral and exemplary damages and attorneys fees.

In G.R. No. 61045, respondent National Irrigation Administration seeks the reversal of the aforesaid decision of
the lower court. The original appeal of this case before the Court of Appeals was certified to this Court and in
the resolution of July 7, 1982, it was docketed with the aforecited number. And in the resolution of April 3, this
case was consolidated with G.R. No. 55963.

It appears that on August 21, 1976 at about 6:30 P.M., a pickup owned and operated by respondent National
Irrigation Administration, a government agency bearing Plate No. IN-651, then driven officially by Hugo
Garcia, an employee of said agency as its regular driver, bumped a bicycle ridden by Francisco Fontanilla, son
of herein petitioners, and Restituto Deligo, at Maasin, San Jose City along the Maharlika Highway. As a result
of the impact, Francisco Fontanilla and Restituto Deligo were injured and brought to the San Jose City
Emergency Hospital for treatment. Fontanilla was later transferred to the Cabanatuan Provincial Hospital where
he died.

Garcia was then a regular driver of respondent National Irrigation Administration who, at the time of the
accident, was a licensed professional driver and who qualified for employment as such regular driver of
respondent after having passed the written and oral examinations on traffic rules and maintenance of vehicles
given by National Irrigation Administration authorities.

The within petition is thus an off-shot of the action (Civil Case No. SJC-56) instituted by petitioners-spouses on
April 17, 1978 against respondent NIA before the then Court of First Instance of Nueva Ecija, Branch VIII at
San Jose City, for damages in connection with the death of their son resulting from the aforestated accident.

After trial, the trial court rendered judgment on March 20, 1980 which directed respondent National Irrigation
Administration to pay damages (death benefits) and actual expenses to petitioners. The dispositive portion of
the decision reads thus:

. . . . . Judgment is here rendered ordering the defendant National Irrigation Administration to pay to the heirs of
the deceased P12,000.00 for the death of Francisco Fontanilla; P3,389.00 which the parents of the deceased had
spent for the hospitalization and burial of the deceased Francisco Fontanilla; and to pay the costs. (Brief for the
petitioners spouses Fontanilla, p. 4; Rollo, p. 132)

Respondent National Irrigation Administration filed on April 21, 1980, its motion for reconsideration of the
aforesaid decision which respondent trial court denied in its Order of June 13, 1980. Respondent National
Irrigation Administration thus appealed said decision to the Court of Appeals (C.A.-G.R. No. 67237- R) where
it filed its brief for appellant in support of its position.

Page | 286
Instead of filing the required brief in the aforecited Court of Appeals case, petitioners filed the instant petition
with this Court.

The sole issue for the resolution of the Court is: Whether or not the award of moral damages, exemplary
damages and attorney's fees is legally proper in a complaint for damages based on quasi-delict which resulted in
the death of the son of herein petitioners.

Petitioners allege:

1. The award of moral damages is specifically allowable. under paragraph 3 of Article 2206 of the New
Civil Code which provides that the spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the death of the deceased. Should moral
damages be granted, the award should be made to each of petitioners-spouses individually and in varying
amounts depending upon proof of mental and depth of intensity of the same, which should not be less than
P50,000.00 for each of them.

2. The decision of the trial court had made an impression that respondent National Irrigation
Administration acted with gross negligence because of the accident and the subsequent failure of the National
Irrigation Administration personnel including the driver to stop in order to give assistance to the, victims. Thus,
by reason of the gross negligence of respondent, petitioners become entitled to exemplary damages under Arts.
2231 and 2229 of the New Civil Code.

3. Petitioners are entitled to an award of attorney's fees, the amount of which (20%) had been sufficiently
established in the hearing of May 23, 1979.

4. This petition has been filed only for the purpose of reviewing the findings of the lower court upon which
the disallowance of moral damages, exemplary damages and attorney's fees was based and not for the purpose
of disturbing the other findings of fact and conclusions of law.

The Solicitor General, taking up the cudgels for public respondent National Irrigation Administration, contends
thus:

1. The filing of the instant petition is rot proper in view of the appeal taken by respondent National
Irrigation Administration to the Court of Appeals against the judgment sought to be reviewed. The focal issue
raised in respondent's appeal to the Court of Appeals involves the question as to whether or not the driver of the
vehicle that bumped the victims was negligent in his operation of said vehicle. It thus becomes necessary that
before petitioners' claim for moral and exemplary damages could be resolved, there should first be a finding of
negligence on the part of respondent's employee-driver. In this regard, the Solicitor General alleges that the trial
court decision does not categorically contain such finding.

2. The filing of the "Appearance and Urgent Motion For Leave to File Plaintiff-Appellee's Brief" dated
December 28, 1981 by petitioners in the appeal (CA-G.R. No. 67237-R; and G. R. No.61045) of the respondent
National Irrigation Administration before the Court of Appeals, is an explicit admission of said petitioners that
the herein petition, is not proper. Inconsistent procedures are manifest because while petitioners question the
findings of fact in the Court of Appeals, they present only the questions of law before this Court which posture
confirms their admission of the facts.

3. The fact that the parties failed to agree on whether or not negligence caused the vehicular accident
involves a question of fact which petitioners should have brought to the Court of Appeals within the

Page | 287
reglementary period. Hence, the decision of the trial court has become final as to the petitioners and for this
reason alone, the petition should be dismissed.

4. Respondent Judge acted within his jurisdiction, sound discretion and in conformity with the law.

5. Respondents do not assail petitioners' claim to moral and exemplary damages by reason of the shock and
subsequent illness they suffered because of the death of their son. Respondent National Irrigation
Administration, however, avers that it cannot be held liable for the damages because it is an agency of the State
performing governmental functions and driver Hugo Garcia was a regular driver of the vehicle, not a special
agent who was performing a job or act foreign to his usual duties. Hence, the liability for the tortious act should.
not be borne by respondent government agency but by driver Garcia who should answer for the consequences
of his act.

6. Even as the trial court touched on the failure or laxity of respondent National Irrigation Administration
in exercising due diligence in the selection and supervision of its employee, the matter of due diligence is not an
issue in this case since driver Garcia was not its special agent but a regular driver of the vehicle.

The sole legal question on whether or not petitioners may be entitled to an award of moral and exemplary
damages and attorney's fees can very well be answered with the application of Arts. 2176 and 2180 of theNew
Civil Code.

Art. 2176 thus provides:

Whoever by act omission causes damage to another, there being fault or negligence, is obliged to pay for
damage done. Such fault or negligence, if there is no pre-existing cotractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter

Paragraphs 5 and 6 of Art. 21 80 read as follows:

Employers shall be liable for the damages caused by their employees and household helpers acting within the
scope of their assigned tasks, even the though the former are not engaged in any business or industry.

The State is responsible in like manner when it acts through a special agent.; but not when the damage has been
caused by the official to whom the task done properly pertains, in which case what is provided in Art. 2176
shall be applicable.

The liability of the State has two aspects. namely:

1. Its public or governmental aspects where it is liable for the tortious acts of special agents only.

2. Its private or business aspects (as when it engages in private enterprises) where it becomes liable as an
ordinary employer. (p. 961, Civil Code of the Philippines; Annotated, Paras; 1986 Ed. ).

In this jurisdiction, the State assumes a limited liability for the damage caused by the tortious acts or conduct of
its special agent.

Under the aforequoted paragrah 6 of Art. 2180, the State has voluntarily assumed liability for acts done through
special agents. The State's agent, if a public official, must not only be specially commissioned to do a particular
task but that such task must be foreign to said official's usual governmental functions. If the State's agent is not
a public official, and is commissioned to perform non-governmental functions, then the State assumes the role
Page | 288
of an ordinary employer and will be held liable as such for its agent's tort. Where the government commissions
a private individual for a special governmental task, it is acting through a special agent within the meaning of
the provision. (Torts and Damages, Sangco, p. 347, 1984 Ed.)

Certain functions and activities, which can be performed only by the government, are more or less generally
agreed to be "governmental" in character, and so the State is immune from tort liability. On the other hand, a
service which might as well be provided by a private corporation, and particularly when it collects revenues
from it, the function is considered a "proprietary" one, as to which there may be liability for the torts of agents
within the scope of their employment.

The National Irrigation Administration is an agency of the government exercising proprietary functions, by
express provision of Rep. Act No. 3601. Section 1 of said Act provides:

Section 1. Name and domicile.-A body corporate is hereby created which shall be known as the National
Irrigation Administration, hereinafter called the NIA for short, which shall be organized immediately after the
approval of this Act. It shall have its principal seat of business in the City of Manila and shall have
representatives in all provinces for the proper conduct of its business.

Section 2 of said law spells out some of the NIA's proprietary functions. Thus-

Sec. 2. Powers and objectives.-The NIA shall have the following powers and objectives:

(a) xxxxxxxxxxxxxxxxxx

(b) xxxxxxxxxxxxxxxxxx

(c) To collect from the users of each irrigation system constructed by it such fees as may be necessary to
finance the continuous operation of the system and reimburse within a certain period not less than twenty-five
years cost of construction thereof; and

(d) To do all such other tthings and to transact all such business as are directly or indirectly necessary,
incidental or conducive to the attainment of the above objectives.

Indubitably, the NIA is a government corporation with juridical personality and not a mere agency of the
government. Since it is a corporate body performing non-governmental functions, it now becomes liable for the
damage caused by the accident resulting from the tortious act of its driver-employee. In this particular case, the
NIA assumes the responsibility of an ordinary employer and as such, it becomes answerable for damages.

This assumption of liability, however, is predicated upon the existence of negligence on the part of respondent
NIA. The negligence referred to here is the negligence of supervision.

At this juncture, the matter of due diligence on the part of respondent NIA becomes a crucial issue in
determining its liability since it has been established that respondent is a government agency performing
proprietary functions and as such, it assumes the posture of an ordinary employer which, under Par. 5 of Art.
2180, is responsible for the damages caused by its employees provided that it has failed to observe or exercise
due diligence in the selection and supervision of the driver.

It will be noted from the assailed decision of the trial court that "as a result of the impact, Francisco Fontanilla
was thrown to a distance 50 meters away from the point of impact while Restituto Deligo was thrown a little bit

Page | 289
further away. The impact took place almost at the edge of the cemented portion of the road." (Emphasis
supplied,) [page 26, Rollo]

The lower court further declared that "a speeding vehicle coming in contact with a person causes force and
impact upon the vehicle that anyone in the vehicle cannot fail to notice. As a matter of fact, the impact was so
strong as shown by the fact that the vehicle suffered dents on the right side of the radiator guard, the hood, the
fender and a crack on the radiator as shown by the investigation report (Exhibit "E"). (Emphasis supplied) [page
29, Rollo]

It should be emphasized that the accident happened along the Maharlika National Road within the city limits of
San Jose City, an urban area. Considering the fact that the victim was thrown 50 meters away from the point of
impact, there is a strong indication that driver Garcia was driving at a high speed. This is confirmed by the fact
that the pick-up suffered substantial and heavy damage as above-described and the fact that the NIA group was
then "in a hurry to reach the campsite as early as possible", as shown by their not stopping to find out what they
bumped as would have been their normal and initial reaction.

Evidently, there was negligence in the supervision of the driver for the reason that they were travelling at a high
speed within the city limits and yet the supervisor of the group, Ely Salonga, failed to caution and make the
driver observe the proper and allowed speed limit within the city. Under the situation, such negligence is further
aggravated by their desire to reach their destination without even checking whether or not the vehicle suffered
damage from the object it bumped, thus showing imprudence and reckelessness on the part of both the driver
and the supervisor in the group.

Significantly, this Court has ruled that even if the employer can prove the diligence in the selection and
supervision (the latter aspect has not been established herein) of the employee, still if he ratifies the wrongful
acts, or take no step to avert further damage, the employer would still be liable. (Maxion vs. Manila Railroad
Co., 44 Phil. 597).

Thus, too, in the case of Vda. de Bonifacio vs. B.L.T. Bus Co. (L-26810, August 31, 1970, 34 SCRA 618), this
Court held that a driver should be especially watchful in anticipation of others who may be using the highway,
and his failure to keep a proper look out for reasons and objects in the line to be traversed constitutes
negligence.

Considering the foregoing, respondent NIA is hereby directed to pay herein petitioners-spouses the amounts of
P12,000.00 for the death of Francisco Fontanilla; P3,389.00 for hospitalization and burial expenses of the
aforenamed deceased; P30,000.00 as moral damages; P8,000.00 as exemplary damages and attorney's fees of
20% of the total award.

SO ORDERED.

Page | 290
G.R. No. 74431 November 6, 1989

PURITA MIRANDA VESTIL and AGUSTIN VESTIL, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, DAVID UY and TERESITA UY, respondents.

Pablo P. Garcia for petitioners.

Roberto R. Palmares for private respondents.

CRUZ, J.:

Little Theness Tan Uy was dead at the age of three. Her parents said she died because she was bitten by a dog of
the petitioners, but the latter denied this, claiming they had nothing to do with the dog. The Uys sued the
Vestils, who were sustained by the trial court. On appeal, the decision of the court a quo was reversed in favor
of the Uys. The Vestils are now before us. They ask us to set aside the judgment of the respondent court and to
reinstate that of the trial court.

On July 29, 1915, Theness was bitten by a dog while she was playing with a child of the petitioners in the house
of the late Vicente Miranda, the father of Purita Vestil, at F. Ramos Street in Cebu City. She was rushed to the
Cebu General Hospital, where she was treated for "multiple lacerated wounds on the forehead" 1 and
administered an anti-rabies vaccine by Dr. Antonio Tautjo. She was discharged after nine days but was
readmitted one week later due to "vomiting of saliva." 2 The following day, on August 15, 1975, the child died.
The cause of death was certified as broncho-pneumonia. 3

Seven months later, the Uys sued for damages, alleging that the Vestils were liable to them as the possessors of
"Andoy," the dog that bit and eventually killed their daughter. The Vestils rejected the charge, insisting that the
dog belonged to the deceased Vicente Miranda, that it was a tame animal, and that in any case no one had
witnessed it bite Theness. After trial, Judge Jose R. Ramolete of the Court of First Instance of Cebu sustained
the defendants and dismissed the complaint. 4

The respondent court arrived at a different conclusion when the case was appealed. 5 It found that the Vestils
were in possession of the house and the dog and so should be responsible under Article 2183 of the Civil Code
for the injuries caused by the dog. It also held that the child had died as a result of the dog bites and not for
causes independent thereof as submitted by the appellees. Accordingly, the Vestils were ordered to pay the Uys
damages in the amount of P30,000.00 for the death of Theness, P12,000.00 for medical and hospitalization
expenses, and P2,000.00 as attorney's fees.

In the proceedings now before us, Purita Vestil insists that she is not the owner of the house or of the dog left by
her father as his estate has not yet been partitioned and there are other heirs to the property. Pursuing the logic
of the Uys, she claims, even her sister living in Canada would be held responsible for the acts of the dog simply
because she is one of Miranda's heirs. However, that is hardly the point. What must be determined is the
possession of the dog that admittedly was staying in the house in question, regardless of the ownership of the
dog or of the house.
Page | 291
Article 2183 reads as follows:

The possessor of an animal or whoever may make use of the same is responsible for the damage
which it may cause, although it may escape or be lost. 'This responsibility shall cease only in
case the damages should come from force majeure from the fault of the person who has suffered
damage.

Thus, in Afialda v. Hisole, 6 a person hired as caretaker of a carabao gored him to death and his heirs thereupon
sued the owner of the animal for damages. The complaint was dismissed on the ground that it was the
caretaker's duty to prevent the carabao from causing injury to any one, including himself.

Purita Vestil's testimony that she was not in possession of Miranda's house is hardly credible. She said that the
occupants of the house left by her father were related to him ("one way or the other") and maintained
themselves out of a common fund or by some kind of arrangement (on which, however, she did not elaborate
). 7 She mentioned as many as ten of such relatives who had stayed in the house at one time or another although
they did not appear to be close kin.8 She at least implied that they did not pay any rent, presumably because of
their relation with Vicente Miranda notwithstanding that she herself did not seem to know them very well.

There is contrary evidence that the occupants of the house, were boarders (or more of boarders than relatives)
who paid the petitioners for providing them with meals and accommodations. It also appears that Purita Vestil
had hired a maid, Dolores Jumao-as, who did the cooking and cleaning in the said house for its occupants. 9 Her
mother, Pacita, who was a nursemaid of Purita herself, categorically declared that the petitioners were
maintaining boarders in the house where Theness was bitten by a dog. 10 Another witness, Marcial Lao, testified
that he was indeed a boarder and that the Vestils were maintaining the house for business purposes. 11 And
although Purita denied paying the water bills for the house, the private respondents submitted documentary
evidence of her application for water connection with the Cebu Water District, which strongly suggested that
she was administering the house in question. 12

While it is true that she is not really the owner of the house, which was still part of Vicente Miranda's estate,
there is no doubt that she and her husband were its possessors at the time of the incident in question. She was
the only heir residing in Cebu City and the most logical person to take care of the property, which was only six
kilometers from her own house. 13 Moreover, there is evidence showing that she and her family regularly went
to the house, once or twice weekly, according to at least one witness, 14 and used it virtually as a second house.
Interestingly, her own daughter was playing in the house with Theness when the little girl was bitten by the
dog. 15 The dog itself remained in the house even after the death of Vicente Miranda in 1973 and until 1975,
when the incident in question occurred. It is also noteworthy that the petitioners offered to assist the Uys with
their hospitalization expenses although Purita said she knew them only casually. 16

The petitioners also argue that even assuming that they were the possessors of the dog that bit Theness there
was no clear showing that she died as a result thereof. On the contrary, the death certificate 17 declared that she
died of broncho-pneumonia, which had nothing to do with the dog bites for which she had been previously
hospitalized. The Court need not involve itself in an extended scientific discussion of the causal connection
between the dog bites and the certified cause of death except to note that, first, Theness developed hydrophobia,
a symptom of rabies, as a result of the dog bites, and second, that asphyxia broncho-pneumonia, which
ultimately caused her death, was a complication of rabies. That Theness became afraid of water after she was
bitten by the dog is established by the following testimony of Dr. Tautjo:

COURT: I think there was mention of rabies in the report in the second admission?

Page | 292
 A: Now, the child was continuously vomiting just before I referred to Dr. Co earlier in the
morning and then the father, because the child was asking for water, the father tried to give the
child water and this child went under the bed, she did not like to drink the water and there was
fright in her eyeballs. For this reason, because I was in danger there was rabies, I called Dr. Co.

Q: In other words, the child had hydrophobia?

A: Yes, sir. 18

As for the link between rabies and broncho-pneumonia, the doctor had the following to say under oath:

A: Now, as 1 said before, broncho-pneumonia can result from physical, chemical and bacterial
means. ... It can be the result of infection, now, so if you have any other disease which can lower
your resistance you can also get pneumonia.

xxx xxx xxx

Q: Would you say that a person who has rabies may die of complication which is broncho-
pneumonia?

A: Yes.

Q: For the record, I am manifesting that this book shown the witness is know as CURRENT
DIANOSIS & TREATMENT, 1968 by Henry Brainerd, Sheldon Margen and Milton Chaton.
Now, I invite your attention, doctor, to page 751 of this book under the title "Rabies." There is on
this page, "Prognosis" as a result of rabies and it says: Once the symptoms, have appeared death
inevitably occurs after 2-3 days as a result of cardiac or respiratory failure or generalized
paralysis. After a positive diagnosis of rabies or after a bite by a suspected animal if the animal
cannot be observed or if the bite is on the head, give rabies vaccine (duck embryo). Do you
believe in this statement?

A: Yes.

Q: Would you say therefore that persons who have rabies may die of respiratory failure which
leave in the form of bronco-pneumonia?

A: Broncho-pneumonia can be a complication of rabies. 19

On the strength of the foregoing testimony, the Court finds that the link between the dog bites and the certified
cause of death has beep satisfactorily established. We also reiterate our ruling in Sison v. Sun Life Assurance
Company of Canada, 20 that the death certificate is not conclusive proof of the cause of death but only of the
fact of death. Indeed, the evidence of the child's hydrophobia is sufficient to convince us that she died because
she was bitten by the dog even if the death certificate stated a different cause of death. The petitioner's
contention that they could not be expected to exercise remote control of the dog is not acceptable. In fact,
Article 2183 of the Civil Code holds the possessor liable even if the animal should "escape or be lost" and so be
removed from his control. And it does not matter either that, as the petitioners also contend, the dog was tame
and was merely provoked by the child into biting her. The law does not speak only of vicious animals but
covers even tame ones as long as they cause injury. As for the alleged provocation, the petitioners forget that
Theness was only three years old at the time she was attacked and can hardly be faulted for whatever she might
have done to the animal.
Page | 293
It is worth observing that the above defenses of the petitioners are an implied rejection of their original posture
that there was no proof that it was the dog in their father's house that bit Theness.

According to Manresa the obligation imposed by Article 2183 of the Civil Code is not based on the negligence
or on the presumed lack of vigilance of the possessor or user of the animal causing the damage. It is based on
natural equity and on the principle of social interest that he who possesses animals for his utility, pleasure or
service must answer for the damage which such animal may cause. 21

We sustain the findings of the Court of Appeals and approve the monetary awards except only as to the medical
and hospitalization expenses, which are reduced to P2,026.69, as prayed for in the complaint. While there is no
recompense that can bring back to the private respondents the child they have lost, their pain should at least be
assuaged by the civil damages to which they are entitled.

WHEREFORE, the challenged decision is AFFIRMED as above modified. The petition is DENIED, with costs
against the petitioners. It is so ordered.

Page | 294
G.R. No. L-20392 December 18, 1968

MARCIAL T. CAEDO, JUANA SANGALANG CAEDO, and the Minors, EPHRAIM CAEDO, EILEEN
CAEDO, ROSE ELAINE CAEDO, suing through their father, MARCIAL T. CAEDO, as guardian ad
litem, plaintiffs-appellants,
vs.
YU KHE THAI and RAFAEL BERNARDO, defendants-appellants.

Norberto J. Quisumbing for plaintiffs-appellants.

De Joya, Lopez, Dimaguila, Hermoso and Divino for defendants-appellants

MAKALINTAL, J.:

As a result of a vehicular accident in which plaintiff Marcial Caedo and several members of his family were
injured they filed this suit for recovery of damages from the defendants. The judgment, rendered by the Court of
First Instance of Rizal on February 26, 1960 (Q-2952), contains the following disposition:

IN VIEW OF THE FOREGOING, the court renders a judgment, one in favor of the plaintiffs and
against the defendants, Yu Khe Thai and Rafael Bernardo, jointly and severally, to pay to plaintiffs
Marcial Caedo, et al., the sum of P1,929.70 for actual damages; P48,000.00 for moral damages;
P10,000.00 for exemplary damages; and P5,000.00 for attorney's fees, with costs against the defendants.
The counterclaim of the defendants against the plaintiffs is hereby ordered dismissed, for lack of merits.

On March 12, 1960 the judgment was amended so as to include an additional award of P3,705.11 in favor of the
plaintiffs for the damage sustained by their car in the accident.

Both parties appealed to the Court of Appeals, which certified the case to us in view of the total amount of the
plaintiffs' claim.

There are two principal questions posed for resolution: (1) who was responsible for the accident? and (2) if it
was defendant Rafael Bernardo, was his employer, defendant Yu Khe Thai, solidarily liable with him? On the
first question the trial court found Rafael Bernardo negligent; and on the second, held his employer solidarily
liable with him.

Page | 295
The mishap occurred at about 5:30 in the morning of March 24, 1958 on Highway 54 (now E. de los Santos
Avenue) in the vicinity of San Lorenzo Village. Marcial was driving his Mercury car on his way from his home
in Quezon City to the airport, where his son Ephraim was scheduled to take a plane for Mindoro. With them in
the car were Mrs. Caedo and three daughters. Coming from the opposite direction was the Cadillac of Yu Khe
Thai, with his driver Rafael Bernardo at the wheel, taking the owner from his Parañaque home to Wack Wack
for his regular round of golf. The two cars were traveling at fairly moderate speeds, considering the condition of
the road and the absence of traffic — the Mercury at 40 to 50 kilometers per hour, and the Cadillac at
approximately 30 to 35 miles (48 to 56 kilometers). Their headlights were mutually noticeable from a distance.
Ahead of the Cadillac, going in the same direction, was a caretella owned by a certain Pedro Bautista.
The carretela was towing another horse by means of a short rope coiled around the rig's vertical post on the right
side and held at the other end by Pedro's son, Julian Bautista.

Rafael Bernardo testified that he was almost upon the rig when he saw it in front of him, only eight meters
away. This is the first clear indication of his negligence. The carretela was provided with two lights, one on
each side, and they should have given him sufficient warning to take the necessary precautions. And even if he
did not notice the lights, as he claimed later on at the trial, the carretela should anyway have been visible to him
from afar if he had been careful, as it must have been in the beam of his headlights for a considerable while.

In the meantime the Mercury was coming on its own lane from the opposite direction. Bernardo, instead of
slowing down or stopping altogether behind the carretela until that lane was clear, veered to the left in order to
pass. As he did so the curved end of his car's right rear bumper caught the forward rim of the rig's left wheel,
wrenching it off and carrying it along as the car skidded obliquely to the other lane, where it collided with the
oncoming vehicle. On his part Caedo had seen the Cadillac on its own lane; he slackened his speed, judged the
distances in relation to the carretela and concluded that the Cadillac would wait behind. Bernardo, however,
decided to take a gamble — beat the Mercury to the point where it would be in line with the carretela, or else
squeeze in between them in any case. It was a risky maneuver either way, and the risk should have been quite
obvious. Or, since the car was moving at from 30 to 35 miles per hour (or 25 miles according to Yu Khe Thai) it
was already too late to apply the brakes when Bernardo saw the carretela only eight meters in front of him, and
so he had to swerve to the left in spite of the presence of the oncoming car on the opposite lane. As it was, the
clearance Bernardo gave for his car's right side was insufficient. Its rear bumper, as already stated, caught the
wheel of the carretela and wrenched it loose. Caedo, confronted with the unexpected situation, tried to avoid the
collision at the last moment by going farther to the right, but was unsuccessful. The photographs taken at the
scene show that the right wheels of his car were on the unpaved shoulder of the road at the moment of impact.

There is no doubt at all that the collision was directly traceable to Rafael Bernardo's negligence and that he must
be held liable for the damages suffered by the plaintiffs. The next question is whether or not Yu Khe Thai, as
owner of the Cadillac, is solidarily liable with the driver. The applicable law is Article 2184 of the Civil Code,
which reads:

ART. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who
was in the vehicle, could have, by the use of due diligence, prevented the misfortune. It is disputably
presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic
regulations at least twice within the next preceding two months.

Under the foregoing provision, if the causative factor was the driver's negligence, the owner of the vehicle who
was present is likewise held liable if he could have prevented the mishap by the exercise of due diligence. The
rule is not new, although formulated as law for the first time in the new Civil Code. It was expressed in
Chapman vs. Underwood (1914), 27 Phil. 374, where this Court held:

Page | 296
 ... The same rule applies where the owner is present, unless the negligent acts of the driver are continued
for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his
driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver
to continue in a violation of the law by the performance of negligent acts, after he has had a reasonable
opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible
for such acts. The owner of an automobile who permits his chauffeur to drive up the Escolta, for
example, at a speed of 60 miles an hour, without any effort to stop him, although he has had a
reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the results
produced by the acts of the chauffeur. On the other hand, if the driver, by a sudden act of negligence,
and without the owner having a reasonable opportunity to prevent the act or its continuance, injures a
person or violates the criminal law, the owner of the automobile, although present therein at the time the
act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must
be continued in the presence of the owner for such a length of time that the owner, by his acquiescence,
makes his driver act his own.

The basis of the master's liability in civil law is not respondent superior but rather the relationship
of paterfamilias. The theory is that ultimately the negligence of the servant, if known to the master and
susceptible of timely correction by him, reflects his own negligence if he fails to correct it in order to prevent
injury or damage.

In the present case the defendants' evidence is that Rafael Bernardo had been Yu Khe Thai's driver since 1937,
and before that had been employed by Yutivo Sons Hardware Co. in the same capacity for over ten years.
During that time he had no record of violation of traffic laws and regulations. No negligence for having
employed him at all may be imputed to his master. Negligence on the part of the latter, if any, must be sought in
the immediate setting and circumstances of the accident, that is, in his failure to detain the driver from pursuing
a course which not only gave him clear notice of the danger but also sufficient time to act upon it. We do not
see that such negligence may be imputed. The car, as has been stated, was not running at an unreasonable speed.
The road was wide and open, and devoid of traffic that early morning. There was no reason for the car owner to
be in any special state of alert. He had reason to rely on the skill and experience of his driver. He became aware
of the presence of the carretela when his car was only twelve meters behind it, but then his failure to see it
earlier did not constitute negligence, for he was not himself at the wheel. And even when he did see it at that
distance, he could not have anticipated his driver's sudden decision to pass the carretela on its left side in spite
of the fact that another car was approaching from the opposite direction. The time element was such that there
was no reasonable opportunity for Yu Khe Thai to assess the risks involved and warn the driver accordingly.
The thought that entered his mind, he said, was that if he sounded a sudden warning it might only make the
other man nervous and make the situation worse. It was a thought that, wise or not, connotes no absence of that
due diligence required by law to prevent the misfortune.

The test of imputed negligence under Article 2184 of the Civil Code is, to a great degree, necessarily subjective.
Car owners are not held to a uniform and inflexible standard of diligence as are professional drivers. In many
cases they refrain from driving their own cars and instead hire other persons to drive for them precisely because
they are not trained or endowed with sufficient discernment to know the rules of traffic or to appreciate the
relative dangers posed by the different situations that are continually encountered on the road. What would be a
negligent omission under aforesaid Article on the part of a car owner who is in the prime of age and knows how
to handle a motor vehicle is not necessarily so on the part, say, of an old and infirm person who is not similarly
equipped.

The law does not require that a person must possess a certain measure of skill or proficiency either in the
mechanics of driving or in the observance of traffic rules before he may own a motor vehicle. The test of his
intelligence, within the meaning of Article 2184, is his omission to do that which the evidence of his own senses
Page | 297
tells him he should do in order to avoid the accident. And as far as perception is concerned, absent a minimum
level imposed by law, a maneuver that appears to be fraught with danger to one passenger may appear to be
entirely safe and commonplace to another. Were the law to require a uniform standard of perceptiveness,
employment of professional drivers by car owners who, by their very inadequacies, have real need of drivers'
services, would be effectively proscribed.

We hold that the imputation of liability to Yu Khe Thai, solidarily with Rafael Bernardo, is an error. The next
question refers to the sums adjudged by the trial court as damages. The award of P48,000 by way of moral
damages is itemized as follows:

1. Marcial Caedo P 20,000.00

2. Juana S. Caedo 15,000.00

3. Ephraim Caedo 3,000.00

4. Eileen Caedo 4,000.00

5. Rose Elaine Caedo 3,000.00

6. Merilyn Caedo 3,000.00

Plaintiffs appealed from the award, claiming that the Court should have granted them also actual or
compensatory damages, aggregating P225,000, for the injuries they sustained. Defendants, on the other hand
maintain that the amounts awarded as moral damages are excessive and should be reduced. We find no
justification for either side. The amount of actual damages suffered by the individual plaintiffs by reason of
their injuries, other than expenses for medical treatment, has not been shown by the evidence. Actual damages,
to be compensable, must be proven. Pain and suffering are not capable of pecuniary estimation, and constitute a
proper ground for granting moral, not actual, damages, as provided in Article 2217 of the Civil Code.

The injuries sustained by plaintiffs are the following:

MARCIAL T. CAEDO:

A. Contusion, with hematoma, scalp, frontal left; abrasions, chest wall, anterior;
B. Multiple fractures, ribs, right, lst to 5th inclusive. Third rib has a double fracture; Subparieto-
plaural hematoma; Basal disc atelectasis, lung, right lower lobe, secondary;
C. Pseudotosis, left, secondary to probable basal fracture, skull.

JUANA SANGALANG CAEDO:

A. Abrasions,multiple:
(1)frontal region, left; (2) apex of nose; (3) upper eyelid, left; (4) knees.

B. Wound, lacerated, irregular, deep, frontal;

C. Fracture,simple,2nd rib posterior, left with displacement.
D. Fracture, simple, base, proximal phalanx right, big toe.
E. Fracture, simple, base, metatarsals III and V right.
F. Concussion, cerebral.

Page | 298
 EPHRAIM CAEDO:

A.Abrasions, multiple:
(1) left temporal area; (2) left frontal; (3) left supraorbital

EILEEN CAEDO:

A. Lacerated wound (V-shaped), base, 5th finger, right, lateral aspect.

B.Abrasions, multiple:
(1) dorsum, proximal phalanx middle finger; (2) Knee, anterior, bilateral; (3) shin, lower 1/3.

ROSE ELAINE CAEDO:

A. Abrasions, multiple: (1) upper and lower lids; (2) left temporal; (3) nasolabial region; (4) leg,
lower third, anterior.

MARILYN CAEDO:

A. Abrasions, multiple: (1) shin, lower 1/3 right; (2) arm, lower third

C. Contusion with hematoma, shin, lower 1/3, anterior aspect, right. (See Exhibits D, D-1, D-2,
D-3, D-4, and D- 5)

It is our opinion that, considering the nature and extent of the above-mentioned injuries, the amounts of moral
damages granted by the trial court are not excessive.

WHEREFORE, the judgment appealed from is modified in the sense of declaring defendant-appellant Yu Khe
Thai free from liability, and is otherwise affirmed with respect to defendant Rafael Bernardo, with costs against
the latter.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro and Capistrano, JJ., concur.

Fernando, J., took no part.

Page | 299
QUEZON CITY GOVERNMENT G.R. No. 150304
and Engineer RAMIR J. TIAMZON,
Petitioners, Present:
Panganiban, J.,
Chairman,
Sandoval-Gutierrez,
- versus - Corona,
Carpio Morales, and
Garcia, JJ
Promulgated:
FULGENCIO DACARA,*
Respondent. June 15, 2005

PANGANIBAN, J.:

The review of cases under Rule 45 of the Rules of Court is limited to errors of law. Unless there is a showing

that the findings of the lower court are totally devoid of support or are glaringly erroneous, this Court will not

analyze or weigh evidence all over again. Under the circumstance, the factual findings and
conclusions of the Court of Appeals affirming those of the trial courts will be conclusive upon the Supreme

Page | 300
Court. Furthermore, well-entrenched is the rule that points of law, theories, issues and arguments not brought to

the attention of the trial court cannot be raised for the first time on appeal or certiorari. Finally, this Court

reiterates the principle that moral damages are designed to compensate the claimant for actual injury suffered,

not to impose a penalty on the wrongdoer. Hence, absent any definite finding as to what they consist of, the

alleged moral damages suffered would become a penalty rather than a compensation for actual injury suffered.

The Case

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, assailing the February 21,

2001 Decision[2] and the October 9, 2001 Resolution[3] of the Court of Appeals (CA) in CA-GR CV No. 29392.

The challenged Decision disposed as follows:

WHEREFORE, premises considered, the Decision dated June 29, 1990 in Civil Case
No. Q-88-233 should be AFFIRMED, with costs against the appellants.[4]

The assailed Resolution denied petitioners Motion for Reconsideration.

The Facts

The CA summarized the facts in this manner:

Sometime on February 28, 1988 at about 1:00 A.M., Fulgencio Dacara, Jr., son of Fulgencio P.
Dacara, Sr. and owner of 87 Toyota Corolla 4-door Sedan with Plate No. 877 (sic), while driving
the said vehicle, rammed into a pile of earth/street diggings found at Matahimik St., Quezon
City, which was then being repaired by the Quezon City government. As a result, Dacarra (sic),
Jr. allegedly sustained bodily injuries and the vehicle suffered extensive damage for it turned
turtle when it hit the pile of earth.

Indemnification was sought from the city government (Record, p. 22), which however, yielded
negative results. Consequently, Fulgencio P. Dacara (hereinafter referred to as FULGENCIO),
for and in behalf of his minor son, Jr., filed a Complaint (Record, p. 1) for damages against the
Quezon City and Engr. Ramir Tiamzon, as defendants, before the Regional Trial Court, National
Capital Judicial Region, Branch 101, Quezon City, docketed as Civil Case No. Q-88-233.
FULGENCIO prayed that the amount of not less than P20,000.00 actual or compensatory
damages, P150,000.00 moral damages, P30,000.00 exemplary damages, and P20,000.00
attorneys fees and costs of the suit be awarded to him.

Page | 301
 In an Answer with Affirmative and/or Special Defenses (Record, p. 11), defendants admitted the
occurrence of the incident but alleged that the subject diggings was provided with a moun[d] of
soil and barricaded with reflectorized traffic paint with sticks placed before or after it which was
visible during the incident on February 28, 1988 at 1:00 A.M. In short, defendants claimed that
they exercised due care by providing the area of the diggings all necessary measures to avoid
accident. Hence, the reason why Fulgencio Dacara, Jr. fell into the diggings was precisely
because of the latters negligence and failure to exercise due care.[5]

After trial on the merits, the Regional Trial Court (RTC), Branch 101, Quezon City, rendered its
Decision[6] dated June 29, 1990. The evidence proffered by the complainant (herein respondent) was found to be
sufficient proof of the negligence of herein petitioners. Under Article 2189 of the Civil Code, [7] the latter were
held liable as follows:

WHEREFORE, premises above considered, based on the quantum of evidence presented

by the plaintiff which tilts in their favor elucidating the negligent acts of the city government
together with its employees when considered in the light of Article 2189, judgment is hereby
rendered ordering the defendants to indemnify the plaintiff the sum of twenty thousand pesos as
actual/compensatory damages, P10,000.00 as moral damages, P5,000.00 as exemplary
damages, P10,000.00 as attorneys fees and other costs of suit.[8]

In their appeal to the CA, petitioners maintained that they had observed due diligence and care in installing
preventive warning devices, and that it was in fact the plaintiff who had failed to exercise prudence by driving
too fast to avoid the diggings. Moreover, the lower court allegedly erred in using Article 2189 of the Civil Code,
which supposedly applied only to liability for the death or injuries suffered by a person, not for damage to
property.

Ruling of the Court of Appeals

The CA agreed with the RTCs finding that petitioners negligence was the proximate cause of the

damage suffered by respondent.[9] Noting the failure of petitioners to present evidence to support

their contention that precautionary measures had indeed been observed, it ruled thus:

x x x. Sadly, the evidence indicates that [petitioners] failed to show that they placed sufficient
and adequate precautionary signs at Matahimik Street to minimize or prevent the dangers to life
and limb under the circumstances. Contrary to the testimony of the witnesses for the
[petitioners], namely Engr. Ramir Tiamzon, Ernesto Landrito and Eduardo Castillo, that there
were signs, gasera which was buried so that its light could not be blown off by the wind and
barricade, none was ever presented to stress and prove the sufficiency and adequacy of said
contention.[10]

Further upholding the trial courts finding of negligence on the part of herein petitioners, the CA gave this

opinion:

x x x. As observed by the trial court, the negligence of [petitioners] was clear based on
the investigation report of Pfc. William P. Villafranca stating to the effect that the subject vehicle
Page | 302
 rammed into a pile of earth from a deep excavation thereat without any warning devi[c]e
whatsoever and as a consequence thereof, Dacara, Jr. lost control of his driven car and finally
turned-turtle causing substantial damage to the same. As a defense against liability on the basis
of quasi-delict, one must have exercised the diligence of a good father of a family which
[petitioners] failed to establish in the instant case. [11]

Whether Article 2189 is applicable to cases in which there has been no death or physical injury, the CA

ruled in the affirmative:

x x x. More importantly, we find it illogical to limit the liability to death or personal

injury only as argued by appellants in the case at bar applying the foregoing provisions. For,
injury is an act that damages, harms or hurts and mean in common as the act or result of
inflicting on a person or thing something that causes loss, pain, distress, or impairment. Injury is
the most comprehensive, applying to an act or result involving an impairment or destruction of
right, health, freedom, soundness, or loss of something of value. [12]

Hence, this Petition.[13]

Issues

Petitioners raise the following issues for our consideration:

1. The Honorable Court of Appeals decided a question of law/substance contrary to applicable

law and jurisprudence when it affirmed the award of moral damage suit (sic) the amount
of P10,000.00.

2. The Honorable Court of Appeals decided a question of law/substance contrary to applicable

law and jurisprudence when it affirmed the award of exemplary damage sin (sic) the amount
of P5,000.00 and attorneys fee in the [a]mount of P10,000.00.

3. The Honorable Court of Appeals gravely erred and/;or (sic) had acted with grave abuse of
discretion amounting to lack and/or excess of jurisdiction when it refused to hold that
respondents son in the person of Fulgencio Dacara, Jr. was negligent at the time of incident. [14]

Because the issues regarding the liability of petitioners for moral and exemplary damages presuppose that their

negligence caused the vehicular accident, we first resolve the question of negligence or the proximate cause of

the incident.

The Courts Ruling

Page | 303
The Petition is partly meritorious.
First Issue:
Negligence

Maintaining that they were not negligent, petitioners insist that they placed all the necessary

precautionary signs to alert the public of a roadside construction. They argue that the driver (Fulgencio Dacara

Jr.) of respondents car was overspeeding, and that his own negligence was therefore the sole cause of the

incident.

Proximate cause is defined as any cause that produces injury in a natural and continuous sequence,

unbroken by any efficient intervening cause, such that the result would not have occurred

otherwise.[15] Proximate cause is determined from the facts of each case, upon a combined consideration of

logic, common sense, policy and precedent. [16]

What really caused the subject vehicle to turn turtle is a factual issue that this Court cannot pass upon, absent

any whimsical or capricious exercise of judgment by the lower courts or an ample showing that they lacked any

basis for their conclusions.[17] The unanimity of the CA and the trial court in their factual ascertainment that

petitioners negligence was the proximate cause of the accident bars us from supplanting their findings and

substituting these with our own. The function of this Court is limited to the review of the appellate courts

alleged errors of law. It is not required to weigh all over again the factual evidence already considered in the

proceedings below.[18] Petitioners have not shown that they are entitled to an exception to this rule.[19] They

have not sufficiently demonstrated any special circumstances to justify a factual review.

That the negligence of petitioners was the proximate cause of the accident was aptly discussed in the lower

courts finding, which we quote:

Facts obtaining in this case are crystal clear that the accident of February 28, 1988 which caused
almost the life and limb of Fulgencio Dacara, Jr. when his car turned turtle was the existence of a
pile of earth from a digging done relative to the base failure at Matahimik Street nary a lighting

Page | 304
 device or a reflectorized barricade or sign perhaps which could have served as an adequate
warning to motorist especially during the thick of the night where darkness is pervasive.

Contrary to the testimony of the witnesses for the defense that there were signs, gasera which
was buried so that its light could not be blown off by the wind and barricade, none was ever
presented to stress the point that sufficient and adequate precautionary signs were placed at
Matahimik Street. If indeed signs were placed thereat, how then could it be explained that
according to the report even of the policeman which for clarity is quoted again, none was found
at the scene of the accident.

xxxxxxxxx

Negligence of a person whether natural or juridical over a particular set of events is transfixed by
the attending circumstances so that the greater the danger known or reasonably anticipated, the
greater is the degree of care required to be observed.

xxxxxxxxx

The provisions of Article 2189 of the New Civil Code capsulizes the responsibility of the
city government relative to the maintenance of roads and bridges since it exercises the control
and supervision over the same. Failure of the defendant to comply with the statutory provision
found in the subject-article is tantamount to negligence per se which renders the City government
liable. Harsh application of the law ensues as a result thereof but the state assumed the
responsibility for the maintenance and repair of the roads and bridges and neither exception nor
exculpation from liability would deem just and equitable. [20] (Emphasis supplied)

Petitioners belatedly point out that Fulgencio Jr. was driving at the speed of 60 kilometers per hour (kph)
when he met the accident. This speed was allegedly well above the maximum limit of 30 kph allowed on city
streets with light traffic, when not designated through streets, as provided under the Land Transportation and
Traffic Code (Republic Act 4136). Thus, petitioners assert that Fulgencio Jr., having violated a traffic
regulation, should be presumed negligent pursuant to Article 2185[21] of the Civil Code.[22]

These matters were, however, not raised by petitioners at any time during the trial. It is evident from the
records that they brought up for the first time the matter of violation of RA 4136 in their Motion for
Reconsideration[23] of the CA Decision dated February 21, 2001. It is too late in the day for them to raise this
new issue. It is well-settled that points of law, theories or arguments not brought out in the original proceedings
cannot be considered on review or appeal. [24] To consider their belatedly raised arguments at this stage of the
proceedings would trample on the basic principles of fair play, justice, and due process. [25]

Indeed, both the trial and the appellate courts findings, which are amply substantiated by the evidence

on record, clearly point to petitioner‘s negligence as the proximate cause of the damages suffered by

respondents car. No adequate reason has been given to overturn this factual conclusion.

Second Issue:
Moral Damages

Page | 305
Petitioners argue that moral damages are recoverable only in the instances specified in Article 2219 [26] of the

Civil Code. Although the instant case is an action for quasi-delict, petitioners contend that moral damages are

not recoverable, because no evidence of physical injury were presented before the trial court. [27]

To award moral damages, a court must be satisfied with proof of the following requisites: (1) an injury --

whether physical, mental, or psychological -- clearly sustained by the claimant; (2) a culpable act or omission

factually established; (3) a wrongful act or omission of the defendant as the proximate cause of the injury

sustained by the claimant; and (4) the award of damages predicated on any of the cases stated in Article

2219.[28]

Article 2219(2) specifically allows moral damages to be recovered for quasi-delicts, provided that the

act or omission caused physical injuries. There can be no recovery of moral damages unless the quasi-delict

resulted in physical injury.[29] This rule was enunciated in Malonzo v. Galang[30] as follows:

x x x. Besides, Article 2219 specifically mentions quasi-delicts causing physical injuries,

as an instance when moral damages may be allowed, thereby implying that all other quasi-delicts
not resulting in physical injuries are excluded, excepting of course, the special torts referred to in
Art. 309 (par. 9, Art. 2219) and in Arts. 21, 26, 27, 28, 29, 30, 32, 34 and 35 on the chapter on
human relations (par. 10, Art. 2219).

In the present case, the Complaint alleged that respondents son Fulgencio Jr. sustained physical injuries. The

son testified that he suffered a deep cut on his left arm when the car overturned after hitting a pile of earth that

had been left in the open without any warning device whatsoever.

It is apparent from the Decisions of the trial and the appellate courts, however, that no other evidence (such as a

medical certificate or proof of medical expenses) was presented to prove Fulgencio Jr.s bare assertion of

physical injury. Thus, there was no credible proof that would justify an award of moral damages based on

Article 2219(2) of the Civil Code.

Moreover, the Decisions are conspicuously silent with respect to the claim of respondent that his moral

sufferings were due to the negligence of petitioners. The Decision of the trial court, which summarizes the

Page | 306
testimony of respondents four witnesses, makes no mention of any statement regarding moral suffering, such as

mental anguish, besmirched reputation, wounded feelings, social humiliation and the like.

Moral damages are not punitive in nature, but are designed to compensate and alleviate in some way the

physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral

shock, social humiliation, and similar injury unjustly inflicted on a person.[31]Intended for the restoration of the

psychological or emotional status quo ante, the award of moral damages is designed to compensate emotional

injury suffered, not to impose a penalty on the wrongdoer.

For the court to arrive upon a judicious approximation of emotional or moral injury, competent and

substantial proof of the

suffering experienced must be laid before it. Essential to this approximation are definite findings as to what the

supposed moral damages suffered consisted of; otherwise, such damages would become a penalty rather than a

compensation for actual injury suffered. [32]

Furthermore, well-settled is the rule that moral damages cannot be awarded -- whether in a civil[33] or a criminal

case[34] -- in the absence of proof of physical suffering, mental anguish, fright, serious anxiety, besmirched

reputation, wounded feelings, moral shock, social humiliation, or similar injury. [35] The award of moral

damages must be solidly anchored on a definite showing that respondent actually experienced emotional and

mental sufferings. Mere allegations do not suffice; they must be substantiated by clear and convincing proof. [36]

Third Issue:
Exemplary Damages

Petitioners argue that exemplary damages and attorneys fees are not recoverable. Allegedly, the RTC

and the CA did not find that petitioners were guilty of gross negligence in the performance of their duty and
responsibilities.[37]

Page | 307
 Exemplary damages cannot be recovered as a matter of right. [38] While granting them is subject to the

discretion of the court, they can be awarded only after claimants have shown their entitlement to moral,

temperate or compensatory damages.[39] In the case before us, respondent sufficiently proved before the courts a

quo that petitioners negligence was the proximate cause of the incident, thereby establishing his right to actual

or compensatory damages. He has adduced adequate proof to justify his claim for the damages caused his car.

The question that remains, therefore, is whether exemplary damages may be awarded in addition to

compensatory damages.

Article 2231 of the Civil Code mandates that in cases of quasi-delicts, exemplary damages may be

recovered if the defendant acted with gross negligence. [40] Gross negligence means such utter want of care as to

raise a presumption that the persons at fault must have been conscious of the probable consequences of their

carelessness, and that they must have nevertheless been indifferent (or worse) to the danger of injury to the

person or property of others.[41] The negligence must amount to a reckless disregard for the safety of persons or

property. Such a circumstance obtains in the instant case.

A finding of gross negligence can be discerned from the Decisions of both the CA and the trial court.

We quote from the RTC Decision:

Sad to state that the City Government through its instrumentalities have (sic) failed to
show the modicum of responsibility, much less, care expected of them (sic) by the constituents
of this City. It is even more deplorable that it was a case of a street digging in a side street which
caused the accident in the so-called premier city.[42]

The CA reiterated the finding of the trial court that petitioners negligence was clear, considering that

there was no warning device whatsoever[43]at the excavation site.

The facts of the case show a complete disregard by petitioners of any adverse consequence of their failure to

install even a single warning device at the area under renovation. Considering further that the street was dimly

Page | 308
lit,[44] the need for adequate precautionary measures was even greater. By carrying on the road diggings without

any warning or barricade, petitioners demonstrated a wanton disregard for public safety. Indeed, the February

28, 1988 incident was bound to happen due to their gross negligence. It is clear that under the circumstances,

there is sufficient factual basis for a finding of gross negligence on their part.

Article 2229 of the Civil Code provides that exemplary damages may be imposed by way of example or

correction for the public good. The award of these damages is meant to be a deterrent to socially deleterious

actions.[45] Public policy requires such imposition to suppress wanton acts of an offender. [46] It must be

emphasized that local governments and their employees should be responsible not only for the maintenance of

roads and streets, but also for the safety of the public. Thus, they must secure construction areas with adequate

precautionary measures.

Not only is the work of petitioners impressed with public interest; their very existence is justified only

by public service. Hence, local governments have the paramount responsibility of keeping the interests of the

public foremost in their agenda. For these reasons, it is most disturbing to note that the present petitioners are

the very parties responsible for endangering the public through such a rash and reckless act.

WHEREFORE, the Petition is hereby PARTLY GRANTED. The Decision of the Court of Appeals

is AFFIRMED, with the MODIFICATIONthat the award of moral damages is DELETED. No costs.

SO ORDERED.

G.R. No. 61516 March 21, 1989

FLORENTINA A. GUILATCO, petitioner,
Page | 309
vs.
CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS, respondents.
Nolan R. Evangelista for petitioner.
The City Legal Officer for respondents.

SARMIENTO, J.:
In a civil action for recovery of damages filed by the petitioner Florentina A. Guilatco, the following judgment
was rendered against the respondent City of Dagupan:
xxx
(1) Ordering defendant City of Dagupan to pay plaintiff actual damages in the amount of P 15,924 (namely
P8,054.00 as hospital, medical and other expenses, P 7,420.00 as lost income for one (1) year and P 450.00 as
bonus). P 150,000.00 as moral damages, P 50,000.00 as exemplary damages, and P 3,000.00 as attorney's fees,
and litigation expenses, plus costs and to appropriate through its Sangguniang Panglunsod (City Council) said
amounts for said purpose;
(2) Dismissing plaintiff‘s complaint as against defendant City Engr. Alfredo G. Tangco; and
(3) Dismissing the counterclaims of defendant City of Dagupan and defendant City Engr. Alfredo G.
Tangco, for lack of merit.

The facts found by the trial court are as follows:

It would appear from the evidences that on July 25, 1978, herein plaintiff, a Court Interpreter of Branch
III, CFI--Dagupan City, while she was about to board a motorized tricycle at a sidewalk located at Perez Blvd.
(a National Road, under the control and supervision of the City of Dagupan) accidentally fell into a manhole
located on said sidewalk, thereby causing her right leg to be fractured. As a result thereof, she had to be
hospitalized, operated on, confined, at first at the Pangasinan Provincial Hospital, from July 25 to August 3,
1978 (or for a period of 16 days). She also incurred hospitalization, medication and other expenses to the tune
of P 8,053.65 or a total of P 10,000.00 in all, as other receipts were either lost or misplaced; during the period of
her confinement in said two hospitals, plaintiff suffered severe or excruciating pain not only on her right leg
which was fractured but also on all parts of her body; the pain has persisted even after her discharge from the
Medical City General Hospital on October 9, 1978, to the present. Despite her discharge from the Hospital
plaintiff is presently still wearing crutches and the Court has actually observed that she has difficulty in
locomotion. From the time of the mishap on July 25, 1978 up to the present, plaintiff has not yet reported for
duty as court interpreter, as she has difficulty of locomotion in going up the stairs of her office, located near the
city hall in Dagupan City. She earns at least P 720.00 a month consisting of her monthly salary and other means
of income, but since July 25, 1978 up to the present she has been deprived of said income as she has already
consumed her accrued leaves in the government service. She has lost several pounds as a result of the accident
and she is no longer her former jovial self, she has been unable to perform her religious, social, and other
activities which she used to do prior to the incident.

Dr. Norberto Felix and Dr. Dominado Manzano of the Provincial Hospital, as well as Dr. Antonio Sison
of the Medical City General Hospital in Mandaluyong, Rizal have confirmed beyond shadow of any doubt the
extent of the fracture and injuries sustained by the plaintiff as a result of the mishap. On the other hand,
Patrolman Claveria, De Asis and Cerezo corroborated the testimony of the plaintiff regarding the mishap and
they have confirmed the existence of the manhole on the sidewalk along Perez Blvd., at the time of the incident
on July 25, 1978 which was partially covered by a concrete flower pot by leaving gaping hole about 2 ft. long
by 1 1/2 feet wide or 42 cms. wide by 75 cms. long by 150 cms. deep.
Defendant Alfredo Tangco, City Engineer of Dagupan City and admittedly ex-officio Highway
Engineer, City Engineer of the Public Works and Building Official for Dagupan City, admitted the existence of
said manhole along the sidewalk in Perez Blvd., admittedly a National Road in front of the Luzon Colleges. He
also admitted that said manhole (there are at least 11 in all in Perez Blvd.) is owned by the National
Page | 310
Government and the sidewalk on which they are found along Perez Blvd. are also owned by the National
Government. But as City Engineer of Dagupan City, he supervises the maintenance of said manholes or
drainage system and sees to it that they are properly covered, and the job is specifically done by his
subordinates, Mr. Santiago de Vera (Maintenance Foreman) and Engr. Ernesto Solermo also a maintenance
Engineer. In his answer defendant Tangco expressly admitted in par. 7-1 thereof, that in his capacity as ex-
officio Highway Engineer for Dagupan City he exercises supervision and control over National roads, including
the Perez Blvd. where the incident happened.
On appeal by the respondent City of Dagupan, the appellate court reversed the lower court findings on
the ground that no evidence was presented by the plaintiff- appellee to prove that the City of Dagupan had
"control or supervision" over Perez Boulevard.
The city contends that Perez Boulevard, where the fatal drainage hole is located, is a national road that is not
under the control or supervision of the City of Dagupan. Hence, no liability should attach to the city. It submits
that it is actually the Ministry of Public Highways that has control or supervision through the Highway Engineer
which, by mere coincidence, is held concurrently by the same person who is also the City Engineer of Dagupan.
After examination of the findings and conclusions of the trial court and those of the appellate court, as well as
the arguments presented by the parties, we agree with those of the trial court and of the petitioner. Hence, we
grant the petition.
In this review on certiorari, we have simplified the errors assigned by the petitioner to a single issue:
whether or not control or supervision over a national road by the City of Dagupan exists, in effect binding the
city to answer for damages in accordance with article 2189 of the Civil Code.
The liability of public corporations for damages arising from injuries suffered by pedestrians from the
defective condition of roads is expressed in the Civil Code as follows:
Article 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries
suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and
other public works under their control or supervision.
It is not even necessary for the defective road or street to belong to the province, city or municipality for
liability to attach. The article only requires that either control or supervision is exercised over the defective road
or street.
In the case at bar, this control or supervision is provided for in the charter of Dagupan and is exercised
through the City Engineer who has the following duties:
Sec. 22. The City Engineer--His powers, duties and compensation-There shall be a city engineer, who shall be
in charge of the department of Engineering and Public Works. He shall receive a salary of not exceeding three
thousand pesos per annum. He shall have the following duties:
xxx
(j) He shall have the care and custody of the public system of waterworks and sewers, and all sources of
water supply, and shall control, maintain and regulate the use of the same, in accordance with the ordinance
relating thereto; shall inspect and regulate the use of all private systems for supplying water to the city and its
inhabitants, and all private sewers, and their connection with the public sewer system.
xxx
The same charter of Dagupan also provides that the laying out, construction and improvement of streets,
avenues and alleys and sidewalks, and regulation of the use thereof, may be legislated by the Municipal Board .
Thus the charter clearly indicates that the city indeed has supervision and control over the sidewalk where the
open drainage hole is located.
The express provision in the charter holding the city not liable for damages or injuries sustained by persons or
property due to the failure of any city officer to enforce the provisions of the charter, can not be used to exempt
the city, as in the case at bar.
The charter only lays down general rules regulating the liability of the city. On the other hand article 2189
applies in particular to the liability arising from "defective streets, public buildings and other public works."
The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or supervision over the said
road. But the city can not be excused from liability by the argument that the duty of the City Engineer to
Page | 311
supervise or control the said provincial road belongs more to his functions as an ex-officio Highway Engineer
of the Ministry of Public Highway than as a city officer. This is because while he is entitled to an honorarium
from the Ministry of Public Highways, his salary from the city government substantially exceeds the
honorarium.
We do not agree.
Alfredo G. Tangco "in his official capacity as City Engineer of Dagupan, as Ex- Officio Highway
Engineer, as Ex-Officio City Engineer of the Bureau of Public Works, and, last but not the least, as Building
Official for Dagupan City, receives the following monthly compensation: P 1,810.66 from Dagupan City; P
200.00 from the Ministry of Public Highways; P 100.00 from the Bureau of Public Works and P 500.00 by
virtue of P.D. 1096, respectively." This function of supervision over streets, public buildings, and other public
works pertaining to the City Engineer is coursed through a Maintenance Foreman and a Maintenance Engineer.
Although these last two officials are employees of the National Government, they are detailed with the City of
Dagupan and hence receive instruction and supervision from the city through the City Engineer.
There is, therefore, no doubt that the City Engineer exercises control or supervision over the public works in
question. Hence, the liability of the city to the petitioner under article 2189 of the Civil Code is clear.
Be all that as it may, the actual damages awarded to the petitioner in the amount of P 10,000.00 should
be reduced to the proven expenses of P 8,053.65 only. The trial court should not have rounded off the amount.
In determining actual damages, the court can not rely on "speculation, conjecture or guesswork" as to the
amount. Without the actual proof of loss, the award of actual damages becomes erroneous.
On the other hand, moral damages may be awarded even without proof of pecuniary loss, inasmuch as
the determination of the amount is discretionary on the court. Though incapable of pecuniary estimation, moral
damages are in the nature of an award to compensate the claimant for actual injury suffered but which for some
reason can not be proven. However, in awarding moral damages, the following should be taken into
consideration:
(1) First, the proximate cause of the injury must be the claimee's acts.
(2) Second, there must be compensatory or actual damages as satisfactory proof of the factual basis for
damages.
(3) Third, the award of moral damages must be predicated on any of the cases enumerated in the Civil Code.
In the case at bar, the physical suffering and mental anguish suffered by the petitioner were proven. Witnesses
from the petitioner's place of work testified to the degeneration in her disposition-from being jovial to
depressed. She refrained from attending social and civic activities.
Nevertheless the award of moral damages at P 150,000.00 is excessive. Her handicap was not permanent
and disabled her only during her treatment which lasted for one year. Though evidence of moral loss and
anguish existed to warrant the award of damages, the moderating hand of the law is called for. The Court has
time and again called attention to the reprehensible propensity of trial judges to award damages without basis,
resulting in exorbitant amounts.
Although the assessment of the amount is better left to the discretion of the trial court under preceding
jurisprudence, the amount of moral damages should be reduced to P 20,000.00.

As for the award of exemplary damages, the trial court correctly pointed out the basis:
To serve as an example for the public good, it is high time that the Court, through this case, should serve
warning to the city or cities concerned to be more conscious of their duty and responsibility to their
constituents, especially when they are engaged in construction work or when there are manholes on their
sidewalks or streets which are uncovered, to immediately cover the same, in order to minimize or prevent
accidents to the poor pedestrians.
Too often in the zeal to put up "public impact" projects such as beautification drives, the end is more important
than the manner in which the work is carried out. Because of this obsession for showing off, such trivial details
as misplaced flower pots betray the careless execution of the projects, causing public inconvenience and
inviting accidents.

Page | 312
 Pending appeal by the respondent City of Dagupan from the trial court to the appellate court, the
petitioner was able to secure an order for garnishment of the funds of the City deposited with the Philippine
National Bank, from the then presiding judge, Hon. Willelmo Fortun. This order for garnishment was revoked
subsequently by the succeeding presiding judge, Hon. Romeo D. Magat, and became the basis for the
petitioner's motion for reconsideration which was also denied.

We rule that the execution of the judgment of the trial court pending appeal was premature. We do not find any
good reason to justify the issuance of an order of execution even before the expiration of the time to appeal.
WHEREFORE, the petition is GRANTED. The assailed decision and resolution of the respondent Court of
Appeals are hereby REVERSED and SET ASIDE and the decision of the trial court, dated March 12, 1979
and amended on March 13, 1979, is hereby REINSTATED with the indicated modifications as regards the
amounts awarded:
(1) Ordering the defendant City of Dagupan to pay the plaintiff actual damages in the amount of P
15,924 (namely P 8,054.00 as hospital, medical and other expenses; P 7,420.00 as lost income for one (1) year
and P 450.00 as bonus); P 20,000.00 as moral damages and P 10,000.00 as exemplary damages.
The attorney's fees of P 3,000.00 remain the same.
SO ORDERED.

G.R. No. 61516 March 21, 1989

FLORENTINA A. GUILATCO, petitioner,
vs.
CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS, respondents.
Nolan R. Evangelista for petitioner.
The City Legal Officer for respondents.

SARMIENTO, J.:
In a civil action for recovery of damages filed by the petitioner Florentina A. Guilatco, the following judgment
was rendered against the respondent City of Dagupan:
xxx
(1) Ordering defendant City of Dagupan to pay plaintiff actual damages in the amount of P 15,924 (namely
P8,054.00 as hospital, medical and other expenses, P 7,420.00 as lost income for one (1) year and P 450.00 as
bonus). P 150,000.00 as moral damages, P 50,000.00 as exemplary damages, and P 3,000.00 as attorney's fees,
and litigation expenses, plus costs and to appropriate through its Sangguniang Panglunsod (City Council) said
amounts for said purpose;
(2) Dismissing plaintiff‘s complaint as against defendant City Engr. Alfredo G. Tangco; and
(3) Dismissing the counterclaims of defendant City of Dagupan and defendant City Engr. Alfredo G.
Tangco, for lack of merit.

The facts found by the trial court are as follows:

It would appear from the evidences that on July 25, 1978, herein plaintiff, a Court Interpreter of Branch
III, CFI--Dagupan City, while she was about to board a motorized tricycle at a sidewalk located at Perez Blvd.
(a National Road, under the control and supervision of the City of Dagupan) accidentally fell into a manhole
located on said sidewalk, thereby causing her right leg to be fractured. As a result thereof, she had to be
hospitalized, operated on, confined, at first at the Pangasinan Provincial Hospital, from July 25 to August 3,
1978 (or for a period of 16 days). She also incurred hospitalization, medication and other expenses to the tune
of P 8,053.65 or a total of P 10,000.00 in all, as other receipts were either lost or misplaced; during the period of
her confinement in said two hospitals, plaintiff suffered severe or excruciating pain not only on her right leg
which was fractured but also on all parts of her body; the pain has persisted even after her discharge from the
Medical City General Hospital on October 9, 1978, to the present. Despite her discharge from the Hospital
Page | 313
plaintiff is presently still wearing crutches and the Court has actually observed that she has difficulty in
locomotion. From the time of the mishap on July 25, 1978 up to the present, plaintiff has not yet reported for
duty as court interpreter, as she has difficulty of locomotion in going up the stairs of her office, located near the
city hall in Dagupan City. She earns at least P 720.00 a month consisting of her monthly salary and other means
of income, but since July 25, 1978 up to the present she has been deprived of said income as she has already
consumed her accrued leaves in the government service. She has lost several pounds as a result of the accident
and she is no longer her former jovial self, she has been unable to perform her religious, social, and other
activities which she used to do prior to the incident.

Dr. Norberto Felix and Dr. Dominado Manzano of the Provincial Hospital, as well as Dr. Antonio Sison
of the Medical City General Hospital in Mandaluyong, Rizal have confirmed beyond shadow of any doubt the
extent of the fracture and injuries sustained by the plaintiff as a result of the mishap. On the other hand,
Patrolman Claveria, De Asis and Cerezo corroborated the testimony of the plaintiff regarding the mishap and
they have confirmed the existence of the manhole on the sidewalk along Perez Blvd., at the time of the incident
on July 25, 1978 which was partially covered by a concrete flower pot by leaving gaping hole about 2 ft. long
by 1 1/2 feet wide or 42 cms. wide by 75 cms. long by 150 cms. deep.
Defendant Alfredo Tangco, City Engineer of Dagupan City and admittedly ex-officio Highway
Engineer, City Engineer of the Public Works and Building Official for Dagupan City, admitted the existence of
said manhole along the sidewalk in Perez Blvd., admittedly a National Road in front of the Luzon Colleges. He
also admitted that said manhole (there are at least 11 in all in Perez Blvd.) is owned by the National
Government and the sidewalk on which they are found along Perez Blvd. are also owned by the National
Government. But as City Engineer of Dagupan City, he supervises the maintenance of said manholes or
drainage system and sees to it that they are properly covered, and the job is specifically done by his
subordinates, Mr. Santiago de Vera (Maintenance Foreman) and Engr. Ernesto Solermo also a maintenance
Engineer. In his answer defendant Tangco expressly admitted in par. 7-1 thereof, that in his capacity as ex-
officio Highway Engineer for Dagupan City he exercises supervision and control over National roads, including
the Perez Blvd. where the incident happened.
On appeal by the respondent City of Dagupan, the appellate court reversed the lower court findings on
the ground that no evidence was presented by the plaintiff- appellee to prove that the City of Dagupan had
"control or supervision" over Perez Boulevard.
The city contends that Perez Boulevard, where the fatal drainage hole is located, is a national road that is not
under the control or supervision of the City of Dagupan. Hence, no liability should attach to the city. It submits
that it is actually the Ministry of Public Highways that has control or supervision through the Highway Engineer
which, by mere coincidence, is held concurrently by the same person who is also the City Engineer of Dagupan.
After examination of the findings and conclusions of the trial court and those of the appellate court, as well as
the arguments presented by the parties, we agree with those of the trial court and of the petitioner. Hence, we
grant the petition.
In this review on certiorari, we have simplified the errors assigned by the petitioner to a single issue:
whether or not control or supervision over a national road by the City of Dagupan exists, in effect binding the
city to answer for damages in accordance with article 2189 of the Civil Code.
The liability of public corporations for damages arising from injuries suffered by pedestrians from the
defective condition of roads is expressed in the Civil Code as follows:
Article 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries
suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and
other public works under their control or supervision.
It is not even necessary for the defective road or street to belong to the province, city or municipality for
liability to attach. The article only requires that either control or supervision is exercised over the defective road
or street.
In the case at bar, this control or supervision is provided for in the charter of Dagupan and is exercised
through the City Engineer who has the following duties:
Page | 314
Sec. 22. The City Engineer--His powers, duties and compensation-There shall be a city engineer, who shall be
in charge of the department of Engineering and Public Works. He shall receive a salary of not exceeding three
thousand pesos per annum. He shall have the following duties:
xxx
(j) He shall have the care and custody of the public system of waterworks and sewers, and all sources of
water supply, and shall control, maintain and regulate the use of the same, in accordance with the ordinance
relating thereto; shall inspect and regulate the use of all private systems for supplying water to the city and its
inhabitants, and all private sewers, and their connection with the public sewer system.
xxx
The same charter of Dagupan also provides that the laying out, construction and improvement of streets,
avenues and alleys and sidewalks, and regulation of the use thereof, may be legislated by the Municipal Board .
Thus the charter clearly indicates that the city indeed has supervision and control over the sidewalk where the
open drainage hole is located.
The express provision in the charter holding the city not liable for damages or injuries sustained by persons or
property due to the failure of any city officer to enforce the provisions of the charter, can not be used to exempt
the city, as in the case at bar.
The charter only lays down general rules regulating the liability of the city. On the other hand article 2189
applies in particular to the liability arising from "defective streets, public buildings and other public works."
The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or supervision over the said
road. But the city can not be excused from liability by the argument that the duty of the City Engineer to
supervise or control the said provincial road belongs more to his functions as an ex-officio Highway Engineer
of the Ministry of Public Highway than as a city officer. This is because while he is entitled to an honorarium
from the Ministry of Public Highways, his salary from the city government substantially exceeds the
honorarium.
We do not agree.
Alfredo G. Tangco "in his official capacity as City Engineer of Dagupan, as Ex- Officio Highway
Engineer, as Ex-Officio City Engineer of the Bureau of Public Works, and, last but not the least, as Building
Official for Dagupan City, receives the following monthly compensation: P 1,810.66 from Dagupan City; P
200.00 from the Ministry of Public Highways; P 100.00 from the Bureau of Public Works and P 500.00 by
virtue of P.D. 1096, respectively." This function of supervision over streets, public buildings, and other public
works pertaining to the City Engineer is coursed through a Maintenance Foreman and a Maintenance Engineer.
Although these last two officials are employees of the National Government, they are detailed with the City of
Dagupan and hence receive instruction and supervision from the city through the City Engineer.
There is, therefore, no doubt that the City Engineer exercises control or supervision over the public works in
question. Hence, the liability of the city to the petitioner under article 2189 of the Civil Code is clear.
Be all that as it may, the actual damages awarded to the petitioner in the amount of P 10,000.00 should
be reduced to the proven expenses of P 8,053.65 only. The trial court should not have rounded off the amount.
In determining actual damages, the court can not rely on "speculation, conjecture or guesswork" as to the
amount. Without the actual proof of loss, the award of actual damages becomes erroneous.
On the other hand, moral damages may be awarded even without proof of pecuniary loss, inasmuch as
the determination of the amount is discretionary on the court. Though incapable of pecuniary estimation, moral
damages are in the nature of an award to compensate the claimant for actual injury suffered but which for some
reason can not be proven. However, in awarding moral damages, the following should be taken into
consideration:
(1) First, the proximate cause of the injury must be the claimee's acts.
(2) Second, there must be compensatory or actual damages as satisfactory proof of the factual basis for
damages.
(3) Third, the award of moral damages must be predicated on any of the cases enumerated in the Civil Code.

Page | 315
In the case at bar, the physical suffering and mental anguish suffered by the petitioner were proven. Witnesses
from the petitioner's place of work testified to the degeneration in her disposition-from being jovial to
depressed. She refrained from attending social and civic activities.
Nevertheless the award of moral damages at P 150,000.00 is excessive. Her handicap was not permanent
and disabled her only during her treatment which lasted for one year. Though evidence of moral loss and
anguish existed to warrant the award of damages, the moderating hand of the law is called for. The Court has
time and again called attention to the reprehensible propensity of trial judges to award damages without basis,
resulting in exorbitant amounts.
Although the assessment of the amount is better left to the discretion of the trial court under preceding
jurisprudence, the amount of moral damages should be reduced to P 20,000.00.

As for the award of exemplary damages, the trial court correctly pointed out the basis:
To serve as an example for the public good, it is high time that the Court, through this case, should serve
warning to the city or cities concerned to be more conscious of their duty and responsibility to their
constituents, especially when they are engaged in construction work or when there are manholes on their
sidewalks or streets which are uncovered, to immediately cover the same, in order to minimize or prevent
accidents to the poor pedestrians.
Too often in the zeal to put up "public impact" projects such as beautification drives, the end is more important
than the manner in which the work is carried out. Because of this obsession for showing off, such trivial details
as misplaced flower pots betray the careless execution of the projects, causing public inconvenience and
inviting accidents.

Pending appeal by the respondent City of Dagupan from the trial court to the appellate court, the
petitioner was able to secure an order for garnishment of the funds of the City deposited with the Philippine
National Bank, from the then presiding judge, Hon. Willelmo Fortun. This order for garnishment was revoked
subsequently by the succeeding presiding judge, Hon. Romeo D. Magat, and became the basis for the
petitioner's motion for reconsideration which was also denied.

We rule that the execution of the judgment of the trial court pending appeal was premature. We do not find any
good reason to justify the issuance of an order of execution even before the expiration of the time to appeal.
WHEREFORE, the petition is GRANTED. The assailed decision and resolution of the respondent Court of
Appeals are hereby REVERSED and SET ASIDE and the decision of the trial court, dated March 12, 1979
and amended on March 13, 1979, is hereby REINSTATED with the indicated modifications as regards the
amounts awarded:
(1) Ordering the defendant City of Dagupan to pay the plaintiff actual damages in the amount of P
15,924 (namely P 8,054.00 as hospital, medical and other expenses; P 7,420.00 as lost income for one (1) year
and P 450.00 as bonus); P 20,000.00 as moral damages and P 10,000.00 as exemplary damages.
The attorney's fees of P 3,000.00 remain the same.
SO ORDERED.

Page | 316
G.R. No. 163212 March 13, 2007

CANDANO SHIPPING LINES, INC., Petitioner,

vs.
FLORENTINA J. SUGATA-ON, Respondent.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, seeking to reverse and
set aside the Court of Appeals Decision1 dated 23 May 2003 and its Resolution dated 1 April 2004, affirming
with modification the Decision of the Regional Trial Court (RTC) of Manila, Branch 20, finding Candano
Shipping Lines, Inc. (Candano Shipping) liable for the death of Melquiades Sugata-on. The dispositive portion
of the assailed decision of the appellate court reads:

IN VIEW OF ALL THE FOREGOING, the appealed decision is AFFIRMED, with the MODIFICATION that:
(1) the awarded compensation for the death of Melquiades Sugata-on is reduced to ₱608,400.00; and, (2) the
award of moral and exemplary damages as well as attorney‘s fees is deleted. No pronouncement as to costs.

The factual and procedural antecedents of this instant petition are as follows:

Candano Shipping is a domestic corporation engaged in the business of coastwise trading within the
Philippines. On 7 March 1994, Melquiades Sugata-on was employed by Candano Shipping as Third Marine
Engineer on board its cargo vessel, M/V David, Jr., with the monthly salary of ₱7,800.00.

On 25 March 1996, M/V David, Jr. left the port of Davao City with its cargo and 20 crew members. The voyage
was initially uneventful until around seven o‘clock in the evening of 27 March 1996 when the vessel
encountered rough seas and strong winds while traversing the waters of Lianga Bay, Surigao del Sur, causing
her to tilt at three degrees on its starboard side. Due to the violent waves which continuously hammered the
tilting vessel, the seawaters slowly swallowed up the main deck causing the tilting to worsen up to 30 degrees.
In an effort to salvage the vessel, the ship captain changed its course from the north to the south but the tilting
continued to grow to a dangerously high level, rendering the vessel beyond control. It was at this point when the
ship captain ordered the crew members to abandon the vessel. Despite the efforts exerted by the crew members
to save the vessel, M/V David, Jr. sank together with her cargo at around eleven o‘clock in the evening at
Bakulin Point, Lianga Bay, Surigao del Sur. Among the 20 crew members, twelve survived, one died and seven
were missing. One of those who were missing was Melquiades Sugata-on (Melquiades), the husband of herein

Page | 317
respondent, Florentina Sugata-on, (Florentina) as shown in the List of Surviving Crew of the Ill-Fated David,
Jr., prepared by Candano Shipping.

Upon learning of Melquiades‘ fate, Florentina immediately went to the office of Candano Shipping in Manila to
claim the death benefits of her husband but it refused to pay.

Such refusal prompted Florentina to institute on 31 January 1997, an action seeking indemnity for the death of
her husband against Candano Shipping before the RTC of Manila, Branch 20. She grounded her case on the
provision of Article 1711 of the New Civil Code, which imposes upon the employer liability for the death of his
employee in the course of employment, even if the death is caused by a fortuitous event. Accordingly,
Florentina prayed that actual, moral and exemplary damages including attorney‘s fees, be awarded in her favor.

In its Answer, Candano Shipping countered that Florentina had no cause of action against it because the death
of Melquiades was not yet an established fact since he was merely reported missing upon the sinking of M/V
David, Jr. The filing of the case before the RTC therefore was premature for she should have waited until the
body of Melquiades could be recovered or until the lapse of time which would render the provision of Article
391 of the New Civil Code on presumptive death operative.

The RTC resolved the controversy in favor of Florentina and ratiocinated that the provision of Article 391 of the
New Civil Code on presumptive death had become operative since the period of four years had already elapsed
since Melquiades was reported missing upon the sinking incident which occurred on 27 March 1996. In a
Decision promulgated on 15 February 2001, the RTC ordered Candano Shipping to indemnify Florentina for the
death of her husband, in the following amounts:

WHEREFORE, premises considered, judgment is hereby rendered ordering defendant Candano Shipping Lines,
Inc. to indemnify plaintiff Forentina J. Sugata-on the amount of ₱988,400.00 as actual damages, ₱100,000.00 as
moral damages ₱50,000.00 as exemplary damages and 10% of the amount due as and for attorney‘s fees plus
the cost of suit.

The award for actual damages amounting to ₱988,400.00 was computed by the lower court by adopting the
formula in the computation of loss of earning capacity enunciated in the case of Villa Rey Transit, Inc. v. Court
of Appeals, wherein the annual expenses of the deceased are deducted from his gross annual income and
multiplied by life expectancy (gross annual income – annual expense x life expectancy).

The Motion for Reconsideration interposed by Candano Shipping was denied by the RTC for lack of cogent
reason to disturb or reconsider its decision.

Aggrieved, Candano Shipping elevated the adverse RTC decision to the Court of Appeals, which in turn,
affirmed with modification the judgment of the lower court. The award for actual damages was reduced from
₱998,400.00 to ₱608,400.00, while the awards for moral and exemplary damages including attorney‘s fees were
deleted for lack of sufficient basis for their allowance.

In arriving at the sum of ₱608,400.00, the appellate court applied the standard prescribed by Article 194 of the
Labor Code of the Philippines, as amended, to wit:

ART. 194. DEATH. – (a) Under such regulations as the Commission may approve, the System shall pay to the
primary beneficiaries upon the death of the covered employee under this Title an amount equivalent to his
monthly income benefit, plus ten percent thereof for each dependent child, but not exceeding five, beginning
with the youngest and without substitution, except as provided for in paragraph (j) of Article 167 hereof;
Provided, however, That the monthly income benefit shall be guaranteed for five years: Provided, further, That
Page | 318
if he has no primary beneficiary, the System shall pay to his secondary beneficiaries the monthly income benefit
not to exceed sixty months; Provided, finally, That the minimum monthly death benefit shall not be less that
fifteen thousand pesos.

In a Resolution issued on 1 April 2004, the Court of Appeals denied the Motion for Reconsideration filed by
Candano Shipping for failure to offer any justifiable ground to modify, reverse or reconsider the questioned
decision.

Hence, this instant Petition for Review on Certiorari filed by Candano Shipping raising the following issues:

WHETHER OR NOT THE FORMULA FOR FIXING THE AMOUNT OF DEATH

COMPENSATION IN ARTICLE 194 OF THE LABOR CODE APPLIES IN DETERMINING THE
COMPENSATION CLAIMED BY THE HEIR OF THE DECEASED EMPLOYEE AGAINST THE
EMPLOYER UNDER ARTICLE 1711?

WHETHER OR NOT IT IS PERMITTED FOR THE COURT OF APPEALS, ON ORDINARY

APPEAL, TO APPLY ART. 194 OF THE LABOR CODE ON A CLAIM FOR DEATH
COMPENSATION OF AN EMPLOYEE AGAINST THE EMPLOYER FILED AND TRIED BEFORE
THE REGULAR COURTS ON THE BASIS OF ARTICLE 1711 OF THE CIVIL CODE AND THE
DOCTRINE ENUNCIATED IN THE VILLA REY TRANSIT CASE?

WHETHER OR NOT APPLICATION OF ARTICLE 194 OF THE LABOR CODE ON THE CLAIM
FOR DEATH COMPENSATION OF RESPONDENT OUSTS THE REGULAR COURTS,
INCLUDING THE COURT OF APPEALS OF JURISDICTION OVER THE CASE?

IN THE EVENT THAT THE SUPREME COURT RULES THAT THE COURT OF APPEALS
APPLICATION OF ARTICLE 194 OF THE LABOR CODE IN THIS CASE SHOULD BE SET
ASIDE, IS RESPONDENT ENTITLED TO RECOVER DEATH COMPENSATION FROM
PETITIONER IN ACCORDANCE WITH HER THEORY OF THE CASE AS ALLEGED, ARGUED
AND TRIED BEFORE THE TRIAL COURT.

Since the factual findings of the RTC and the Court of Appeals that the non-recovery of Melquiades‘ body for
the period of four (4) years from 27 March 1996 creates a presumption that he is already dead and that his death
was caused by a fortuitous event, were already settled, and considering that these findings were not controverted
by the parties in this instant petition, we find no compelling reason to disturb the same. Henceforth, we will
limit our discussion to the computation of the amount of indemnification.

In its Petition, Candano Shipping argues that the application of the measure stipulated under Article 194 of the
Labor Code is erroneous since it applies only to death compensation to be paid by the Social Security System to
the beneficiaries of a deceased member, to which proposition Florentina concedes. We agree. The remedy
availed by Sugata-on in filing the claim under the New Civil Code has been validly recognized by the prevailing
jurisprudence on the matter.

In the case of Floresca v. Philex Mining Company, we declared that the employees may invoke either the
Workmen‘s Compensation Act or the provisions of the Civil Code, subject to the consequence that the choice of
one remedy will exclude the other and that the acceptance of the compensation under the remedy chosen will
exclude the other remedy. The exception is where the claimant who had already been paid under the
Workmen‘s Compensation Act may still sue for damages under the Civil Code on the basis of supervening facts
or developments occurring after he opted for the first remedy.

Page | 319
Stated differently, save for the recognized exception, an employee cannot pursue both remedies simultaneously
but has the option to proceed by interposing one remedy and waiving his right over the other. As we have
explained in Floresca, this doctrinal rule is rooted on the theory that the basis of the compensation under the
Workmen‘s Compensation Act is separate and distinct from the award of damages under the Civil Code, thus:

The rationale in awarding compensation under the Workmen‘s Compensation Act differs from that in giving
damages under the Civil Code. The compensation acts are based on a theory of compensation distinct from the
existing theories of damages, payments under the acts being made as compensation and not as damages (99
C.J.S. 53). Compensation is given to mitigate harshness and insecurity of industrial life for the workman and his
family. Hence, an employer is liable whether negligence exists or not since liability is created by law. Recovery
under the Act is not based on any theory of actionable wrong on the part of the employer (99 D.J.S. 36).

In other words, under compensation acts, the employer is liable to pay compensation benefits for loss of
income, as long as the death, sickness or injury is work-connected or work-aggravated, even if the death or
injury is not due to the fault of the employer (Murillo v. Mendoza, 66 Phil. 689). On the other hand, damages
are awarded to one as a vindication of the wrongful invasion of his rights. It is the indemnity recoverable by a
person who has sustained injury either in his person, property or relative rights, through the act or default of
another (25 C.J.S. 452).

The principle underscored in the case of Floresca was further affirmed in the later case of Ysmael Maritime
Corporation v. Avelino, wherein we emphasized that once the claimant had already exercised his choice to
pursue his right under one remedy, he is barred from proceeding with an alternative remedy. As eloquently laid
down by Chief Justice Marcelo Fernan:

It is therefore clear that respondents had not only opted to recover under the Act but they had also been duly
paid. At the very least, a sense of fair play would demand that if a person entitled to a choice of remedies made
a first election and accepted the benefits thereof, he should no longer be allowed to exercise the second
option. "Having staked his fortunes on a particular remedy, (he) is precluded from pursuing the alternate course,
at least until the prior claim is rejected by the Compensation Commission."

In the case at bar, Florentina was forced to institute a civil suit for indemnity under the New Civil Code, after
Candano Shipping refused to compensate her husband‘s death.

The pertinent provision of the New Civil Code reads:

Article 1711. Owners of enterprises and other employers are obliged to pay compensation for the death of or
injuries to their laborers, workmen, mechanics or other employees, even though the event may have been purely
accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the course of
employment. The employer is also liable for compensation if the employee contracts any illness or diseases
caused by such employment or as the result of the nature of employment. If the mishap was due to the
employee‘s own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liable for
compensation. When the employee‘s lack of due care contributed to his death or injury, the compensation shall
be equitably reduced.

In the case of Philippine Air Lines, Inc. v. Court of Appeals, this Court validated the strength of the
aforementioned provision and made the employer liable for the injury suffered by its employee in the course of
employment. We thus ruled:

Having affirmed the gross negligence of PAL in allowing Capt. Delfin Bustamante to fly the plane to Daet on
January 8, 1951 whose slow reaction and poor judgment was the cause of the crash-landing of the plane which
Page | 320
resulted in private respondent Samson hitting his head against the windshield and causing him injuries for
which reason PAL terminated his services and employment as pilot after refusing to provide him with the
necessary medical treatment of respondent‘s periodic spells, headache and general debility produced from said
injuries, We must necessarily affirm likewise the award of damages or compensation under the provisions of
Art. 1711 and Art. 1712 of the New Civil Code. x x x.

As early as the case of Valencia v. Manila Yacht Club, Inc., this Court, speaking through the renowned civilist,
Mr. Justice J.B.L. Reyes, made a pronouncement that Article 1711 of the Civil Code imposes upon the
employer the obligation to compensate the employee for injury or sickness occasioned by his employment, and
thus articulated:

>Appellant‘s demand for compensation is predicated on employer‘s liability for the sickness of, or injury to, his
employee imposed by Article 1711 of the Civil Code, which reads:

Article 1711. Owners of enterprises and other employers are obliged to pay compensation for the death x x x.

We find the abovequoted provision to be applicable and controlling in this case. The matter of the amount of
compensation and allowable medical expenses should be properly determined by the Municipal Court after the
parties are heard accordingly.

Given that the right of the claimant arose from the contract of employment and the corresponding obligation
imposed by the New Civil Code upon the employer to indemnify the former for death and injury of the
employee circumstanced by his employment, necessarily, the provisions of the same code on damages shall
govern the extent of the employer‘s liability.

The pertinent provision on damages under the New Civil Code provides:

Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or
compensatory damages.

Article 2200. Indemnification for damages shall comprehend not only the value of the loss suffered, but also
that of the profits which the obligee failed to obtain.

In order to give breath to the aforestated provisions on damages of the New Civil Code, they must be
transformed into a more tangible and practical mathematical form, so that the purpose of the law to indemnify
the employee or his heirs for his death or injury occasioned by his employment, as envisioned by the Article
1711 of the same code may be realized. We deem it best to adopt the formula for loss of earning capacity
enunciated in the case of Villa Rey v. Court of Appeals, in computing the amount of actual damages to be
awarded to the claimant under Article 1711 of the New Civil Code.

In Villa Rey, the common carrier was made liable for the death of its passenger on board a passenger bus owned
and operated by Villa Rey Transit, Inc. going to Manila from Lingayen, Pangasinan. While the bus was nearing
Sadsaran Bridge in Barrio Sto. Domingo, Minalin, Pampanga, it frontally hit the rear side of bull cart filled with
hay and bamboo poles. The protruding end of one bamboo pole, about eight feet long, penetrated through the
glass windshield of the bus and hit the face of Policarpio Quintos, Jr., who was then sitting at the front row,
causing his death.

The obligation of the common carrier to indemnify its passenger or his heirs for injury or death arose from the
contract of carriage entered into by the common carrier and the passenger. By the very nature of the obligation
Page | 321
which is imbued with public interest, in contract of carriage the carrier assumes the express obligation to
transport its passenger to his destination safely and to observe extraordinary diligence with due regard to all the
circumstances, and any injury that might be suffered by the passenger is right away attributable to the fault or
negligence of the carrier and thus gives rise to the right of the passenger or his heirs for indemnity.

In the same breadth, the employer shall be liable for the death or personal injury of its employees in the course
of employment as sanctioned by Article 1711 of the New Civil Code. The liability of the employer for death or
personal injury of his employees arose from the contract of employment entered into between the employer and
his employee which is likewise imbued with public interest. Accordingly, when the employee died or was
injured in the occasion of employment, the obligation of the employer for indemnity, automatically attaches.
The indemnity may partake of the form of actual, moral, nominal, temperate, liquidated or exemplary damages,
as the case may be depending on the factual milieu of the case and considering the criterion for the award of
these damages as outlined by our jurisprudence. In the case at bar, only the award of actual damages,
specifically the award for unearned income is warranted by the circumstances since it has been duly proven that
the cause of death of Melquiades is a fortuitous event for which Candano Shipping cannot be faulted.

The formula for the computation of unearned income is:

Net Earning Capacity = life expectancy x (gross annual income - reasonable and necessary living expenses).

Life expectancy is determined in accordance with the formula:

2 / 3 x [80 – age of deceased at the time of death]

Jurisprudence provides that the first factor, i.e., life expectancy, shall be computed by applying the formula (2/3
x [80 - age at death]) adopted in the American Expectancy Table of Mortality or the Actuarial of Combined
Experience Table of Mortality.30

In the computation of the second factor, it is computed by multiplying the life expectancy by the net earnings of
the deceased, i.e., the total earnings less expenses necessary in the creation of such earnings or income and less
living and other incidental expenses. The loss is not equivalent to the entire earnings of the deceased, but only
such portion that he would have used to support his dependents or heirs. Hence, we deduct from his gross
earnings the necessary expenses supposed to be used by the deceased for his own needs. The Court explained
in Villa Rey:1avvphi1

[(The award of damages for loss of earning capacity is)] concerned with the determination of losses or damages
sustained by the private respondents, as dependents and intestate heirs of the deceased, and that said damages
consist, not of the full amount of his earnings, but of the support they received or would have received from him
had he not died in consequence of negligence of petitioner‘s agent. In fixing the amount of that support, we
must reckon with the ‗necessary expenses of his own living‘, which should be deducted from his earnings.
Thus, it has been consistently held that earning capacity, as an element of damages to one‘s estate for his death
by wrongful act is necessarily his net earning capacity or his capacity to acquire money, ‗less necessary expense
for his own living.‘ Stated otherwise, the amount recoverable is not the loss of entire earning, but rather the loss
of that portion of the earnings which the beneficiary would have received. In other words, only net earnings,
and not gross earnings are to be considered that is, the total of the earnings less expenses necessary in the
creation of such earnings or income and less living and other incidental expenses.

In computing the third factor, the necessary living expense, a survey of more recent jurisprudence shows that
this Court consistently pegged the amount at 50% of the gross annual income. We held in Smith Bell Dodwell

Page | 322
Shipping Agency Corp. v. Borja, that when there is no showing that the living expenses constituted the smaller
percentage of the gross income, we fix the living expenses at half of the gross income.

Applying the aforestated jurisprudential guidelines in the computation of the amount of award for damages set
out in Villa Rey, we now proceed to determining Melquiades‘ life expectancy, thus:

Life expectancy = 2 / 3 x [80 – age of deceased at the time of death]

2 /3 x [80 – 56]

2 / 3 x [24]

Life expectancy = 16

With 16 more years of life expectancy and a monthly income of ₱7,800.00, as evidenced by the pay slips duly
presented before the RTC, Melquiades‘ earning capacity is computed as follows:

Net Earning Capacity = life expectancy x (gross annual income - reasonable and necessary living expenses).

= 16 x ( ₱93,600.00 – ₱ 46,800.00)

= 16 x ( ₱ 46,800.00 )

Net Earning Capacity = ₱ 748,800.00

The argument raised by Candano Shipping that the formula for determining the life expectancy under Villa
Reycannot be automatically applied without proof of the basis for the expected length of life of a Filipino does
not merit our consideration. The formula for life expectancy has been repeatedly adopted in our jurisprudence in
fixing the amount of indemnity for the death of a party. This was adopted from the American Expectancy Table
of Mortality or the Actuarial of Combined Experience Table of Mortality which was used by insurers in
determining the capital sum to be charged for annuity.

Admittedly, in several cases, this Court reduced the life expectancy multiplier considering the medical history
such as when the deceased previously underwent a major surgery or when it was shown that he was treated for
chest pains, backache or occasional feeling of tiredness and the fact that the deceased has been consistently
engaged in a dangerous and risky activity tending to shorten his life. Failing to prove, however, that any of these
circumstances is attendant in the case at bar, Candano Shipping cannot validly assert that the standard life
expectancy factor laid down in Villa Rey cannot be applied in this case.

Accordingly, Florentina is entitled to recover the amount of ₱748,800.00 as actual damages for the death of her
husband. The awards of moral and exemplary damages are deleted. However, the award of costs of litigation
and attorney‘s fees are proper.

WHEREFORE, in view of the foregoing, the instant petition is DENIED and the Decision dated 23 May 2003
as well as the Resolution dated 1 April 2004, rendered by the Court of Appeals in CA-G.R. CV No. 70410, are
hereby PARTIALLY AFFIRMED in so far as it finds petitioner liable to respondent for damages.

Pursuant to the appropriate provisions of the New Civil Code and the prevailing jurisprudence on the matter,
petitioner Candano Shipping Lines, Inc., is ORDERED to pay the amount of ₱748,800.00, as actual damages,
plus 10% of the amount awarded as attorney‘s fee plus cost of the suit.
Page | 323
SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

G.R. No. L-25499 February 18, 1970

VILLA REY TRANSIT, INC., petitioner,

vs.
THE COURT OF APPEALS, TRINIDAD A. QUINTOS, PRIMA A. QUINTOS, AND JULITA A.
QUINTOS, respondents.

Laurea and Pison for petitioner.

Bonifacio M. Abad, Jr. for respondents.

CONCEPCION, C.J.:

Petitioner, Villa Rey Transit, Inc., seeks the review by certiorari of a decision of the Court of Appeals affirming
that of the Court of First Instance of Pangasinan. The basic facts are set forth in said decision of the Court of
Appeals, from which We quote:

At about 1:30 in the morning of March 17, 1960, an Izuzu First Class passenger bus owned and
operated by the defendant, bearing Plate No. TPU-14871-Bulacan and driven by Laureano
Casim, left Lingayen, Pangasinan, for Manila. Among its paying passengers was the deceased,
Policronio Quintos, Jr. who sat on the first seat, second row, right side of the bus. At about 4:55
o'clock a.m. when the vehicle was nearing the northern approach of the Sadsaran Bridge on the
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 national highway in barrio Sto. Domingo, municipality of Minalin, Pampanga, it frontally hit the
rear side of a bullcart filled with hay. As a result the end of a bamboo pole placed on top of the
hayload and tied to the cart to hold it in place, hit the right side of the windshield of the bus. The
protruding end of the bamboo pole, about 8 feet long from the rear of the bullcart, penetrated
through the glass windshield and landed on the face of Policronio Quintos, Jr. who, because of
the impact, fell from his seat and was sprawled on the floor. The pole landed on his left eye and
the bone of the left side of his face was fractured. He suffered other multiple wounds and was
rendered unconscious due, among other causes to severe cerebral concussion. A La Mallorca
passenger bus going in the opposite direction towards San Fernando, Pampanga, reached the
scene of the mishap and it was stopped by Patrolman Felino Bacani of the municipal police force
of Minalin who, in the meantime, had gone to the scene to investigate. Patrolman Bacani placed
Policronio Quintos, Jr. and three other injured men who rode on the bullcart aboard the La
Mallorca bus and brought them to the provincial hospital of Pampanga at San Fernando for
medical assistance. Notwithstanding such assistance, Policronio Quintos, Jr. died at 3:15 p.m. on
the same day, March 17, 1960, due to traumatic shock due to cerebral injuries.

The private respondents, Trinidad, Prima and Julita, all surnamed Quintos, are the sisters and only surviving
heirs of Policronio Quintos Jr., who died single, leaving no descendants nor ascendants. Said respondents herein
brought this action against herein petitioner, Villa Rey Transit, Inc., as owner and operator of said passenger
bus, bearing Plate No. TPU-14871-Bulacan, for breach of the contract of carriage between said petitioner and
the deceased Policronio Quintos, Jr., to recover the aggregate sum of P63,750.00 as damages, including
attorney's fees. Said petitioner — defendant in the court of first instance — contended that the mishap was due
to a fortuitous event, but this pretense was rejected by the trial court and the Court of Appeals, both of which
found that the accident and the death of Policronio had been due to the negligence of the bus driver, for whom
petitioner was liable under its contract of carriage with the deceased. In the language of His Honor, the trial
Judge:

The mishap was not the result of any unforeseeable fortuitous event or emergency but was the
direct result of the negligence of the driver of the defendant. The defendant must, therefore,
respond for damages resulting from its breach of contract for carriage. As the complaint alleged a
total damage of only P63,750.00 although as elsewhere shown in this decision the damages for
wake and burial expenses, loss of income, death of the victim, and attorneys fee reach the
aggregate of P79,615.95, this Court finds it just that said damages be assessed at total of only
P63,750.00 as prayed for in plaintiffs' amended complaint.

The despositive part of the decision of the trial Court reads:

WHEREFORE, judgment is hereby rendered ordering the defendant to pay to the plaintiffs the
amount of P63,750.00 as damages for breach of contract of carriage resulting from the death of
Policronio Quintos, Jr.

which, as above indicated, was affirmed by the Court of Appeals. Hence, the present petition for review on
certiorari, filed by Villa Rey Transit, Inc.

The only issue raised in this appeal is the amount of damages recoverable by private respondents herein. The
determination of such amount depends, mainly upon two (2) factors, namely: (1) the number of years on the
basis of which the damages shall be computed and (2) the rate at which the losses sustained by said respondents
should be fixed.

Page | 325
The first factor was based by the trial court — the view of which was concurred in by the Court of Appeals —
upon the life expectancy of Policronio Quintos, Jr., which was placed at 33-1/3 years — he being over 29 years
of age (or around 30 years for purposes of computation) at the time of his demise — by applying the formula
(2/3 x [80-301 = life expectancy) adopted in the American Expectancy Table of Mortality or the actuarial of
Combined Experience Table of Mortality. Upon the other hand, petitioner maintains that the lower courts had
erred in adopting said formula and in not acting in accordance with Alcantara v. Surro1 in which the damages
were computed on a four (4) year basis, despite the fact that the victim therein was 39 years old, at the time of
his death, and had a life expectancy of 28.90 years.

The case cited is not, however, controlling in the one at bar. In the Alcantara case, none of the parties had
questioned the propriety of the four-year basis adopted by the trial court in making its award of damages. Both
parties appealed, but only as regards the amount thereof. The plaintiffs assailed the non-inclusion, in its
computation, of the bonus that the corporation, which was the victim's employer, had awarded to deserving
officers and employees, based upon the profits earned less than two (2) months before the accident that resulted
in his death. The defendants, in turn, objected to the sum awarded for the fourth year, which was treble that of
the previous years, based upon the increases given, in that fourth year, to other employees of the same
corporation. Neither this objection nor said claim for inclusion of the bonus was sustained by this Court.
Accordingly, the same had not thereby laid down any rule on the length of time to be used in the computation of
damages. On the contrary, it declared:

The determination of the indemnity to be awarded to the heirs of a deceased person has therefore
no fixed basis. Much is left to the discretion of the court considering the moral and material
damages involved, and so it has been said that "(t)here can be no exact or uniform rule for
measuring the value of a human life and the measure of damages cannot be arrived at by precise
mathematical calculation, but the amount recoverable depends on the particular facts and
circumstances of each case. The life expectancy of the deceased or of the beneficiary, whichever
is shorter, is an important factor.' (25 C.J.S. 1241.) Other factors that are usually considered are:
(1) pecuniary loss to plaintiff or beneficiary (25 C.J.S. 1243-1250) ; (2) loss of support (25
C.J.S., 1250-1251); (3) loss of service (25 C.J.S. 1251-1254); (4) loss of society (25 C.J.S. 1254-
1255); (5) mental suffering of beneficiaries (25 C.J.S., 1258-1259) ; and (6) medical and funeral
expenses (26 C.J.S., 1254-1260)."2

Thus, life expectancy is, not only relevant, but, also, an important element in fixing the amount recoverable by
private respondents herein. Although it is not the sole element determinative of said amount, no cogent reason
has been given to warrant its disregard and the adoption, in the case at bar, of a purely arbitrary standard, such
as a four-year rule. In short, the Court of Appeals has not erred in basing the computation of petitioner's liability
upon the life expectancy of Policronio Quintos, Jr.

With respect to the rate at which the damages shall be computed, petitioner impugns the decision appealed from
upon the ground that the damages awarded therein will have to be paid now, whereas most of those sought to be
indemnified will be suffered years later. This argument is basically true, and this is, perhaps, one of the reasons
why the Alcantara case points out the absence of a "fixed basis" for the ascertainment of the damages
recoverable in litigations like the one at bar. Just the same, the force of the said argument of petitioner herein is
offset by the fact that, although payment of the award in the case at bar will have to take place upon the finality
of the decision therein, the liability of petitioner herein had been fixed at the rate only of P2,184.00 a year,
which is the annual salary of Policronio Quintos, Jr. at the time of his death, as a young "training assistant" in
the Bacnotan Cement Industries, Inc. In other words, unlike the Alcantara case, on which petitioner relies, the
lower courts did not consider, in the present case, Policronio's potentiality and capacity to increase his future
income. Indeed, upon the conclusion of his training period, he was supposed to have a better job and be
promoted from time to time, and, hence, to earn more, if not — considering the growing importance of trade,
Page | 326
commerce and industry and the concomitant rise in the income level of officers and employees
therein — much more.

At this juncture, it should be noted, also, that We are mainly concerned with the determination of the losses or
damages sustained by the private respondents, as dependents and intestate heirs of the deceased, and that said
damages consist, not of the full amount of his earnings, but of the support, they received or would have received
from him had he not died in consequence of the negligence of petitioner's agent. In fixing the amount of that
support, We must reckon with the "necessary expenses of his own living", which should be deducted from his
earnings. Thus, it has been consistently held that earning capacity, as an element of damages to one's estate for
his death by wrongful act is necessarily his net earning capacity or his capacity to acquire money, "less the
necessary expense for his own living.3 Stated otherwise, the amount recoverable is not loss of the entire earning,
but rather the loss of that portion of the earnings which the beneficiary would have received. 4 In other words,
only net earnings, not gross earning, are to be considered5 that is, the total of the earnings less expenses
necessary in the creation of such earnings or income6 and less living and other incidental expenses.7

All things considered, We are of the opinion that it is fair and reasonable to fix the deductible living and other
expenses of the deceased at the sum of P1,184.00 a year, or about P100.00 a month, and that, consequently, the
loss sustained by his sisters may be roughly estimated at P1,000.00 a year or P33,333.33 for the 33-1/3 years of
his life expectancy. To this sum of P33,333.33, the following should be added: (a) P12,000.00, pursuant to Arts.
104 and 107 of the Revised Penal Code, in relation to Article 2206 of our Civil Code, as construed and applied
by this Court;8 (b) P1,727.95, actually spent by private respondents for medical and burial expenses; and (c)
attorney's fee, which was fixed by the trial court, at P500.00, but which, in view of the appeal taken by
petitioner herein, first to the Court of Appeals and later to this Supreme Court, should be increased to
P2,500.00. In other words, the amount adjudged in the decision appealed from should be reduced to the
aggregate sum of P49,561.28, with interest thereon, at the legal rate, from December 29, 1961, date of the
promulgation of the decision of the trial court.

Thus modified, said decision and that of the Court of Appeals are hereby affirmed, in all other respects, with
costs against petitioner, Villa Rey Transit, Inc. It is so ordered.

RODEL CRISOSTOMO, G.R. No. 171526

Petitioner,

Present:

CORONA, C. J., Chairperson,

- versus - VELASCO, JR.,
LEONARDO- DE CASTRO,
DEL CASTILLO, and
PEREZ, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. September 1, 2010

DEL CASTILLO, J.:

For review under Rule 45 of the Rules of Court is the Decision[1] dated September 22, 2005 of the Court of Appeals in
CA-G.R. CR.-H.C. No. 01192, affirming with modification the Decision[2] rendered by the Regional Trial Court of
Page | 327
Malolos, Bulacan, Branch 12, in Criminal Case No. 1632-M-2001, finding petitioner Rodel Crisostomo guilty beyond
reasonable doubt of the complex crime of Robbery with Homicide.

Factual Antecedents

The Information filed against petitioner and his two companions designated only as John Doe and Peter Doe contained
the following accusatory allegations:
That on or about the 12th day of February, 2001, in the municipality of San Miguel, province of Bulacan,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
helping one another, armed with a gun, did then and there willfully, unlawfully and feloniously, with
intent [to] gain and by means of force, violence and intimidation upon person, enter the gasoline station
owned by Jose Buencamino and once inside, take, rob and carry away with them P40,000.00, belonging
to the said Jose Buencamino, to the damage and prejudice of the latter in the amount of P40,000.00, and
on the occasion of the commission of the said robbery or by reason thereof, the herein accused,
in furtherance of their conspiracy, did then and there willfully, unlawfully and feloniously, attack, assault
and shoot Janet Ramos, cashier of said gasoline station, thereby inflicting on her serious physical injuries
which directly caused her death.

Contrary to law.[3]

During his arraignment, petitioner entered a plea of not guilty.[4] Thereafter, trial ensued.

Version of the Prosecution

On February 12, 2001, at around 12:20 in the afternoon, Rodelio Pangilinan (Rodelio) was working at a gasoline station
owned by Jose Buencamino (Jose) at Buliran, San Miguel, Bulacan.He was by the gasoline tank which was two or three
arms length from the cashiers office when three armed men on board a motorcycle arrived. Two of the men immediately
went to the cashier while the driver stayed on the motorcycle. Inside the office, one of the men pulled out a fan knife while
the other, armed with a gun, fired a shot at Janet Ramos (Janet), the cashier.They forcibly took the money in the cash
register and the man with the gun fired a second shot that fatally hit Janet in the right side of her head. The two armed men
returned to their companion waiting by the motorcycle and together sped away from the scene of the crime.

Rodelio gave a description of the driver of the motorcycle but not of the two armed men who entered the cashiers
office since they had their backs turned to him. The National Bureau of Investigation (NBI) prepared a cartographic
sketch based on the information provided by Rodelio. Jose, the owner of the gas station, stated that the stolen money was
worth P40,000.00.Receipts in the amount of P14,500.00 were presented as funeral expenses.

Page | 328
On February 23, 2001, the petitioner was detained after being implicated in a robbery that occurred in San Miguel,
Bulacan. During his detention, Rodelio and another gasoline boy arrived and identified him in a police lineup as one of the
three robbers who killed Janet.

Version of the Defense

Petitioner denied committing the crime for which he was charged. He maintained that the face of the man depicted in the
cartographic sketch by the NBI was completely different from his appearance in the police lineup in which Rodelio
pointed at him as one of the perpetrators. He argued that the only reason why Rodelio pointed to him in the police lineup
was because he was the only one in handcuffs.

Ruling of the Regional Trial Court

The trial court rendered its Decision convicting petitioner of robbery with homicide. The dispositive portion reads:

WHEREFORE, finding herein accused RODEL CRISOSTOMO y DE LEON guilty as principal beyond
reasonable doubt of the crime of robbery with homicide as charged, there being no circumstances,
aggravating or mitigating, found attendant in the commission thereof, he is hereby sentenced to suffer the
penalty of reclusion perpetua, to indemnify the heirs of victim Janet Ramos in the amount of P75,000.00,
the owner or operator, Jose Buencamino, Jr., of the gasoline station that was robbed, in the amount
of P40,000.00 plus P14,500.00 as funeral expenses (Exh. H) defrayed by said owner for its cashier Janet
Ramos, as actual damages, and to pay the costs of the proceedings.

In the service of his sentence said accused, a detention prisoner, shall be credited with the full time during
which he had undergone preventive imprisonment, pursuant to Art. 29 of the Revised Penal Code.
SO ORDERED.[5]

Not satisfied, petitioner filed a Motion for Reconsideration and Inhibition,[6] which was denied by the trial court in an
Order[7] dated January 13, 2003.

Ruling of the Court of Appeals

Upon review of the case pursuant to this Courts ruling in People v. Mateo,[8] the CA affirmed with modification
the conviction of petitioner. The dispositive portion of the CAs Decision reads:

In VIEW OF ALL THE FOREGOING, the appealed decision is AFFIRMED, with a

modification that the awarded civil indemnity is reduced from P75,000.00 to P50,000,00. Costs de oficio.
SO ORDERED.[9]

Issue

Page | 329
Before us, the petitioner assails the Decision of the CA and raises the following issue:

WHETHER X X X THE X X X COURT OF APPEALS COMMITTED ERROR IN NOT HOLDING

THAT THE TRIAL COURT GRIEVOUSLY ERRED IN THE APRPECIATION OF FACTS AND
APPLYING THE LAW IN CONVICTING ACCUSED OF ROBBERY WITH HOMICIDE.[10]

Our Ruling

The petition is unmeritorious.

The trial court properly denied the motion for inhibition.

Petitioner claims that his motion for inhibition should have been granted since his counsel filed a case against the
wife of the trial judge involving a land dispute. Petitioner alleges that the case rendered the trial judge partial, biased and,
thus, incapable of rendering a just and wise decision.

We are not convinced. It must be stressed that as a rule, a motion to inhibit must be denied if filed after x x x the
Court had already given its opinion on the merits of the case, the rationale being that a litigant cannot be permitted to
speculate upon the action of the court x x x (only to) raise an objection of this sort after a decision had been
rendered.[11] Here, petitioners Motion for Reconsideration and Inhibition was filed on November 29, 2002[12] after the trial
court rendered its Decision on November 14, 2002.[13] Accordingly, the trial judge did not commit any impropriety in
denying the motion to inhibit as it came after the case had been decided on the merits.

Further, in a motion for inhibition, [t]he movant must x x x prove the ground of bias and prejudice by clear and
convincing evidence to disqualify a judge from participating in a particular trial.[14] Bare allegations of partiality x x x [is
not sufficient] in the absence of clear and convincing evidence to overcome the presumption that the judge will undertake
his noble role to dispense justice according to law and evidence and without fear or favor.[15] Petitioners bare allegations in
his motion to inhibit are not adequate grounds for the disqualification or inhibition of the trial judge. Thus, credence
should not be given to the issue of alleged prejudice and partiality of the trial judge.

Petitioner is guilty of the complex crime of robbery with homicide.

Robbery with homicide exists when a homicide is committed either by reason, or on occasion, of the robbery. To
sustain a conviction for robbery with homicide, the prosecution must prove the following elements: (1) the taking of
personal property belonging to another; (2) with intent to gain; (3) with the use of violence or intimidation against a
person; and[,] (4) on the occasion or by reason of the robbery, the crime of homicide, as used in its generic sense, was
Page | 330
committed. A conviction requires certitude that the robbery is the main purpose and objective of the malefactor and the
killing is merely incidental to the robbery. The intent to rob must precede the taking of human life but the killing may
occur before, during or after the robbery.[16]
In this case, the prosecution successfully adduced proof beyond reasonable doubt that the genuine intention of the
petitioner and his companions was to rob the gasoline station. Rodelio testified that at around 12:20 in the afternoon of
February 12, 2001, the petitioner and his companions arrived on board a motorcycle at the gas station located at Buliran,
San Miguel, Bulacan.While the petitioner stayed on the motorcycle, his companions entered the cashiers office. One of
them pulled out a fan knife while the other fired his gun at Janet. After divesting the amount of P40,000.00, the man with
the gun fired a fatal shot to the head of Janet. The petitioners companions returned to and boarded their motorcycle, and
sped away together.[17]

From the foregoing, it is clear that the overriding intention of the petitioner and his cohorts was to rob the gasoline
station. The killing was merely incidental, resulting by reason or on occasion of the robbery.
The petitioner attempts to discredit Rodelio, the eyewitness presented by the prosecution, by asserting that his testimony is
in conflict with the statements in his affidavit. In his testimony, Rodelio said that it was one of the men who entered the
cashiers office who was holding a gun while in his sworn statement, he alleged that petitioner had a .45 caliber pistol
which was poked at him.

Such an argument fails to impress as discrepancies between sworn statements and testimonies made at the witness stand
do not necessarily discredit the witness. Sworn statements/affidavits are generally subordinated in importance to open
court declarations because the former are often executed when the affiants mental faculties are not in such a state as to
afford him a fair opportunity of narrating in full the incident which transpired. Testimonies given during trials are much
more exact and elaborate. Thus, testimonial evidence carries more weight than sworn statements/affidavits.[18]

Further, to the extent that inconsistencies were in fact shown, they appear to [this] Court to relate to details of peripheral
significance which do not negate or dissolve the positive identification [by the eyewitness of the petitioner and his co-
accused] as the perpetrators of the crime.[19]

That Rodelio had to be subpoenaed five times and be arrested in order to testify for the prosecution do not weaken the
case against the petitioner and his cohorts. During cross-examination, Rodelio explained that his failure to respond
immediately to the subpoena was because he does not know how to go to court. Thus:

Q: Why did you fail to appear before this Honorable Court when you were first summoned to appear
before this court?
A: Because my employer was sick, sir.

COURT:
Q: Who was that employer?

Page | 331
 A: Ping Buencamino, your Honor.

ATTY. KLIATCHKO:
Q: Assuming that he is sick why did you not go to this Honorable Court?
A: I have no companion. I have no idea.

Q: You have no idea about what?

A: I do not know how to come to this court, sir.[20]

Even assuming that Rodelio was initially reluctant to testify and get involved in the ensuing criminal prosecution against
the petitioner and his co-accused, this is but normal and does not by itself affect [his] credibility.[21]

The petitioner also avers that he was not the person depicted in the cartographic sketch. However, a cartographic sketch,
unlike a photograph, is only intended to give the law enforcers a general idea of the likeness of a suspect and is never
expected to exactly resemble his actual facial appearance. Even the description of the suspect given in the cartographic
sketch may not be unerringly exact.[22] What is important is the fact that the petitioner was positively identified by Rodelio
as the perpetrator of the crime even without a moustache and curly hair.

We are not likewise impressed with petitioners assertion that the case against him was weakened with the failure to
present Reinerio, the other eyewitness to the commission of the crime and one of the prosecutions proposed witnesses. As
a rule, the prosecution has the exclusive prerogative to determine whom to present as witnesses. [It] need not present each
and every witness but only such as may be needed to meet the quantum of proof necessary to establish the guilt of the
accused beyond reasonable doubt.[23] Here, the testimony of Reinerio would merely corroborate the statements of Rodelio
on the witness stand, which when considered together with the other evidence presented by the prosecution, established
beyond reasonable doubt the culpability of the petitioner and his cohorts. Further, there is nothing on record which would
show that Rodelio was actuated by ill motive or hate in imputing a serious offense of robbery with homicide against the
petitioner.

We are also not impressed with the petitioners insistence that his identification in the police lineup was highly
irregular. There is simply no factual basis to prove that he was the only suspect in the lineup with handcuffs that prompted
Rodelio to point to him as the suspect. It is worth stressing that the police investigators are presumed to have performed
their duties regularly and in good faith.[24] In the absence of sufficient proof to overturn this presumption, petitioners
positive identification by Rodelio remains free from any stain of wrongdoing.

Besides, not only did Rodelio identify the petitioner in the police lineup, he also positively identified petitioner
when he testified in court.

Page | 332
 The petitioners contention that he did not conspire with the other accused in the commission of the crime cannot
be given credence. There is no doubt that the petitioner participated actively in the commission of the crime. He was
positively identified as the driver of the motorcycle with his two male companions on board. They arrived together at the
gasoline station. His cohorts then went inside the office to conduct the robbery while he remained on the motorcycle and
waited for his cohorts. After his two companions stole the money and killed the cashier, they sped away from the scene of
the crime in each others company using the same motorcycle.

Against the testimony of the prosecutions eyewitness, the petitioner could only rely on the defense of denial. This
defense, however, deserves scant consideration since denial cannot prevail over the positive testimony of a witness. A
mere denial, just like alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight than
the declaration of credible witnesses who [testified] on affirmative matters.[25]

The concerted manner [in which the petitioner and his] companions perpetrated the crime showed beyond
reasonable doubt the presence of conspiracy. Where conspiracy is established, it matters not who among the accused
actually shot and killed the victim. The consistent doctrinal rule is that when a homicide takes place by reason or on the
occasion of the robbery, all those who took part shall be guilty of the special complex crime of robbery with homicide
whether or not they actually participated in the killing, unless there is proof that they had endeavored to prevent the
killing.[26] There was no evidence adduced in this case that petitioner attempted to prevent his companions from shooting
the victim. Thus, regardless of the acts individually performed by [the petitioner] and his co-accused, and applying the
basic principle in conspiracy that the act of one is the act of all, [the petitioner] is guilty as a co-conspirator. Being co-
conspirators, the criminal liabilities of the [petitioner and his co-accused] are one and the same
.[27]
The Proper Penalty

The crime of robbery with homicide is punishable under Article 294 (as amended by Republic Act No. 7659) of the
Revised Penal Code by reclusion perpetua to death. Article 63[28] of the Revised Penal Code states that when the law
prescribes a penalty consisting of two indivisible penalties, and the crime is neither attended by mitigating nor aggravating
circumstances, the lesser penalty shall be imposed. Considering that no modifying circumstance was proven to have
attended the commission of the crime, the trial court correctly sentenced the petitioner to suffer the penalty of reclusion
perpetua.[29]
The Civil Liabilities

In robbery with homicide, civil indemnity and moral damages in the amount of P50,000.00 each is granted automatically
in the absence of any qualifying aggravating circumstances.[30]These awards are mandatory without need of allegation and
evidence other than the death of the victim owing to the fact of the commission of the crime. In this case, the CA properly
awarded the amount of P50,000.00 as civil indemnity. In addition, we also award the amount of P50,000.00 as moral
damages.[31]
Page | 333
To be entitled to compensatory damages, it is necessary to prove the actual amount of loss with a reasonable degree of
certainty, premised upon competent proof and the best evidence obtainable to the injured party. [R]eceipts should support
claims of actual damages.[32] Thus, as correctly held by the trial court and affirmed by the CA, the amount of P14,500.00
incurred as funeral expenses can be sustained since these are expenditures supported by receipts. Also, the courts below
correctly held petitioner liable to return the amount of P40,000.00 which was stolen from the gas station before the victim
was shot and killed.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 01192 that affirmed with modification
the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 12, in Criminal Case No. 1632-M-2001
is AFFIRMED with further MODIFICATION that petitioner is hereby ordered to pay the heirs of the victim moral
damages in the amount ofP50,000.00.
SO ORDERED.

G.R. No. 97412 July 12, 1994

EASTERN SHIPPING LINES, INC., petitioner,

vs.
HON. COURT OF APPEALS AND MERCANTILE INSURANCE COMPANY, INC., respondents.
Page | 334
Alojada & Garcia and Jimenea, Dala & Zaragoza for petitoner.

Zapa Law Office for private respondent.

VITUG, J.:

The issues, albeit not completely novel, are: (a) whether or not a claim for damage sustained on a shipment of
goods can be a solidary, or joint and several, liability of the common carrier, the arrastre operator and the
customs broker; (b) whether the payment of legal interest on an award for loss or damage is to be computed
from the time the complaint is filed or from the date the decision appealed from is rendered; and (c) whether the
applicable rate of interest, referred to above, is twelve percent (12%) or six percent (6%).

The findings of the court a quo, adopted by the Court of Appeals, on the antecedent and undisputed facts that
have led to the controversy are hereunder reproduced:

This is an action against defendants shipping company, arrastre operator and broker-forwarder
for damages sustained by a shipment while in defendants' custody, filed by the insurer-subrogee
who paid the consignee the value of such losses/damages.

On December 4, 1981, two fiber drums of riboflavin were shipped from Yokohama, Japan for
delivery vessel "SS EASTERN COMET" owned by defendant Eastern Shipping Lines under Bill
of Lading
No. YMA-8 (Exh. B). The shipment was insured under plaintiff's Marine Insurance Policy No.
81/01177 for P36,382,466.38.

Upon arrival of the shipment in Manila on December 12, 1981, it was discharged unto the
custody of defendant Metro Port Service, Inc. The latter excepted to one drum, said to be in bad
order, which damage was unknown to plaintiff.

On January 7, 1982 defendant Allied Brokerage Corporation received the shipment from
defendant Metro Port Service, Inc., one drum opened and without seal (per "Request for Bad
Order Survey." Exh. D).

On January 8 and 14, 1982, defendant Allied Brokerage Corporation made deliveries of the
shipment to the consignee's warehouse. The latter excepted to one drum which contained
spillages, while the rest of the contents was adulterated/fake (per "Bad Order Waybill" No.
10649, Exh. E).

Plaintiff contended that due to the losses/damage sustained by said drum, the consignee suffered
losses totaling P19,032.95, due to the fault and negligence of defendants. Claims were presented
against defendants who failed and refused to pay the same (Exhs. H, I, J, K, L).

As a consequence of the losses sustained, plaintiff was compelled to pay the consignee
P19,032.95 under the aforestated marine insurance policy, so that it became subrogated to all the
rights of action of said consignee against defendants (per "Form of Subrogation", "Release" and
Philbanking check, Exhs. M, N, and O). (pp. 85-86, Rollo.)

There were, to be sure, other factual issues that confronted both courts. Here, the appellate court said:
Page | 335
Defendants filed their respective answers, traversing the material allegations of the complaint
contending that: As for defendant Eastern Shipping it alleged that the shipment was discharged
in good order from the vessel unto the custody of Metro Port Service so that any damage/losses
incurred after the shipment was incurred after the shipment was turned over to the latter, is no
longer its liability (p. 17, Record); Metroport averred that although subject shipment was
discharged unto its custody, portion of the same was already in bad order (p. 11, Record); Allied
Brokerage alleged that plaintiff has no cause of action against it, not having negligent or at fault
for the shipment was already in damage and bad order condition when received by it, but
nonetheless, it still exercised extra ordinary care and diligence in the handling/delivery of the
cargo to consignee in the same condition shipment was received by it.

From the evidence the court found the following:

The issues are:

1. Whether or not the shipment sustained losses/damages;

2. Whether or not these losses/damages were sustained while in the custody of

defendants (in whose respective custody, if determinable);

3. Whether or not defendant(s) should be held liable for the losses/damages (see
plaintiff's pre-Trial Brief, Records, p. 34; Allied's pre-Trial Brief, adopting
plaintiff's Records, p. 38).

As to the first issue, there can be no doubt that the shipment sustained
losses/damages. The two drums were shipped in good order and condition, as
clearly shown by the Bill of Lading and Commercial Invoice which do not
indicate any damages drum that was shipped (Exhs. B and C). But when on
December 12, 1981 the shipment was delivered to defendant Metro Port Service,
Inc., it excepted to one drum in bad order.

Correspondingly, as to the second issue, it follows that the losses/damages were

sustained while in the respective and/or successive custody and possession of
defendants carrier (Eastern), arrastre operator (Metro Port) and broker (Allied
Brokerage). This becomes evident when the Marine Cargo Survey Report (Exh.
G), with its "Additional Survey Notes", are considered. In the latter notes, it is
stated that when the shipment was "landed on vessel" to dock of Pier # 15, South
Harbor, Manila on December 12, 1981, it was observed that "one (1) fiber drum
(was) in damaged condition, covered by the vessel's Agent's Bad Order Tally
Sheet No. 86427." The report further states that when defendant Allied Brokerage
withdrew the shipment from defendant arrastre operator's custody on January 7,
1982, one drum was found opened without seal, cello bag partly torn but contents
intact. Net unrecovered spillages was
15 kgs. The report went on to state that when the drums reached the consignee,
one drum was found with adulterated/faked contents. It is obvious, therefore, that
these losses/damages occurred before the shipment reached the consignee while
under the successive custodies of defendants. Under Art. 1737 of the New Civil
Code, the common carrier's duty to observe extraordinary diligence in the
vigilance of goods remains in full force and effect even if the goods are
temporarily unloaded and stored in transit in the warehouse of the carrier at the
Page | 336
 place of destination, until the consignee has been advised and has had reasonable
opportunity to remove or dispose of the goods (Art. 1738, NCC). Defendant
Eastern Shipping's own exhibit, the "Turn-Over Survey of Bad Order Cargoes"
(Exhs. 3-Eastern) states that on December 12, 1981 one drum was found "open".

and thus held:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:

A. Ordering defendants to pay plaintiff, jointly and severally:

1. The amount of P19,032.95, with the present legal interest of 12% per
annum from October 1, 1982, the date of filing of this complaints, until fully paid
(the liability of defendant Eastern Shipping, Inc. shall not exceed US$500 per
case or the CIF value of the loss, whichever is lesser, while the liability of
defendant Metro Port Service, Inc. shall be to the extent of the actual invoice
value of each package, crate box or container in no case to exceed P5,000.00
each, pursuant to Section 6.01 of the Management Contract);

2. P3,000.00 as attorney's fees, and

3. Costs.

B. Dismissing the counterclaims and crossclaim of defendant/cross-claimant Allied Brokerage

Corporation.

SO ORDERED. (p. 207, Record).

Dissatisfied, defendant's recourse to US.

The appeal is devoid of merit.

After a careful scrutiny of the evidence on record. We find that the conclusion drawn therefrom
is correct. As there is sufficient evidence that the shipment sustained damage while in the
successive possession of appellants, and therefore they are liable to the appellee, as subrogee for
the amount it paid to the consignee. (pp. 87-89, Rollo.)

The Court of Appeals thus affirmed in toto the judgment of the court
a quo.

In this petition, Eastern Shipping Lines, Inc., the common carrier, attributes error and grave abuse of discretion
on the part of the appellate court when —

I. IT HELD PETITIONER CARRIER JOINTLY AND SEVERALLY LIABLE WITH THE

ARRASTRE OPERATOR AND CUSTOMS BROKER FOR THE CLAIM OF PRIVATE
RESPONDENT AS GRANTED IN THE QUESTIONED DECISION;

II. IT HELD THAT THE GRANT OF INTEREST ON THE CLAIM OF PRIVATE

RESPONDENT SHOULD COMMENCE FROM THE DATE OF THE FILING OF THE
COMPLAINT AT THE RATE OF TWELVE PERCENT PER ANNUM INSTEAD OF FROM
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 THE DATE OF THE DECISION OF THE TRIAL COURT AND ONLY AT THE RATE OF
SIX PERCENT PER ANNUM, PRIVATE RESPONDENT'S CLAIM BEING INDISPUTABLY
UNLIQUIDATED.

The petition is, in part, granted.

In this decision, we have begun by saying that the questions raised by petitioner carrier are not all that novel.
Indeed, we do have a fairly good number of previous decisions this Court can merely tack to.

The common carrier's duty to observe the requisite diligence in the shipment of goods lasts from the time the
articles are surrendered to or unconditionally placed in the possession of, and received by, the carrier for
transportation until delivered to, or until the lapse of a reasonable time for their acceptance by, the person
entitled to receive them (Arts. 1736-1738, Civil Code; Ganzon vs. Court of Appeals, 161 SCRA 646; Kui Bai
vs. Dollar Steamship Lines, 52 Phil. 863). When the goods shipped either are lost or arrive in damaged
condition, a presumption arises against the carrier of its failure to observe that diligence, and there need not be
an express finding of negligence to hold it liable (Art. 1735, Civil Code; Philippine National Railways vs. Court
of Appeals, 139 SCRA 87; Metro Port Service vs. Court of Appeals, 131 SCRA 365). There are, of course,
exceptional cases when such presumption of fault is not observed but these cases, enumerated in Article
17341 of the Civil Code, are exclusive, not one of which can be applied to this case.

The question of charging both the carrier and the arrastre operator with the obligation of properly delivering the
goods to the consignee has, too, been passed upon by the Court. In Fireman's Fund Insurance vs. Metro Port
Services (182 SCRA 455), we have explained, in holding the carrier and the arrastre operator liable
in solidum, thus:

The legal relationship between the consignee and the arrastre operator is akin to that of a
depositor and warehouseman (Lua Kian v. Manila Railroad Co., 19 SCRA 5 [1967]. The
relationship between the consignee and the common carrier is similar to that of the consignee
and the arrastre operator (Northern Motors, Inc. v. Prince Line, et al., 107 Phil. 253 [1960]).
Since it is the duty of the ARRASTRE to take good care of the goods that are in its custody and
to deliver them in good condition to the consignee, such responsibility also devolves upon the
CARRIER. Both the ARRASTRE and the CARRIER are therefore charged with the obligation
to deliver the goods in good condition to the consignee.

We do not, of course, imply by the above pronouncement that the arrastre operator and the customs broker are
themselves always and necessarily liable solidarily with the carrier, or vice-versa, nor that attendant facts in a
given case may not vary the rule. The instant petition has been brought solely by Eastern Shipping Lines,
which, being the carrier and not having been able to rebut the presumption of fault, is, in any event, to be held
liable in this particular case. A factual finding of both the court a quo and the appellate court, we take note, is
that "there is sufficient evidence that the shipment sustained damage while in the successive possession of
appellants" (the herein petitioner among them). Accordingly, the liability imposed on Eastern Shipping Lines,
Inc., the sole petitioner in this case, is inevitable regardless of whether there are others solidarily liable with it.

It is over the issue of legal interest adjudged by the appellate court that deserves more than just a passing
remark.

Let us first see a chronological recitation of the major rulings of this Court:

The early case of Malayan Insurance Co., Inc., vs. Manila Port
Service,2 decided3 on 15 May 1969, involved a suit for recovery of money arising out of short deliveries and
Page | 338
pilferage of goods. In this case, appellee Malayan Insurance (the plaintiff in the lower court) averred in its
complaint that the total amount of its claim for the value of the undelivered goods amounted to P3,947.20. This
demand, however, was neither established in its totality nor definitely ascertained. In the stipulation of facts
later entered into by the parties, in lieu of proof, the amount of P1,447.51 was agreed upon. The trial court
rendered judgment ordering the appellants (defendants) Manila Port Service and Manila Railroad Company to
pay appellee Malayan Insurance the sum of P1,447.51 with legal interest thereon from the date the complaint
was filed on 28 December 1962 until full payment thereof. The appellants then assailed, inter alia, the award of
legal interest. In sustaining the appellants, this Court ruled:

Interest upon an obligation which calls for the payment of money, absent a stipulation, is the
legal rate. Such interest normally is allowable from the date of demand, judicial or extrajudicial.
The trial court opted for judicial demand as the starting point.

But then upon the provisions of Article 2213 of the Civil Code, interest "cannot be recovered
upon unliquidated claims or damages, except when the demand can be established with
reasonable certainty." And as was held by this Court in Rivera vs. Perez,4 L-6998, February 29,
1956, if the suit were for damages, "unliquidated and not known until definitely ascertained,
assessed and determined by the courts after proof (Montilla c. Corporacion de P.P. Agustinos,
25 Phil. 447; Lichauco v. Guzman,
38 Phil. 302)," then, interest "should be from the date of the decision." (Emphasis supplied)

The case of Reformina vs. Tomol,5 rendered on 11 October 1985, was for "Recovery of Damages for Injury to
Person and Loss of Property." After trial, the lower court decreed:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and third party defendants
and against the defendants and third party plaintiffs as follows:

Ordering defendants and third party plaintiffs Shell and Michael, Incorporated to pay jointly and
severally the following persons:

xxx xxx xxx

(g) Plaintiffs Pacita F. Reformina and Francisco Reformina the sum of P131,084.00 which is the
value of the boat F B Pacita III together with its accessories, fishing gear and equipment minus
P80,000.00 which is the value of the insurance recovered and the amount of P10,000.00 a month
as the estimated monthly loss suffered by them as a result of the fire of May 6, 1969 up to the
time they are actually paid or already the total sum of P370,000.00 as of June 4, 1972 with legal
interest from the filing of the complaint until paid and to pay attorney's fees of P5,000.00 with
costs against defendants and third party plaintiffs. (Emphasis supplied.)

On appeal to the Court of Appeals, the latter modified the amount of damages awarded but sustained the
trial court in adjudging legal interest from the filing of the complaint until fully paid. When the appellate
court's decision became final, the case was remanded to the lower court for execution, and this was
when the trial court issued its assailed resolution which applied the 6% interest per annum prescribed in
Article 2209 of the Civil Code. In their petition for review on certiorari, the petitioners contended that
Central Bank Circular
No. 416, providing thus —

By virtue of the authority granted to it under Section 1 of Act 2655, as amended, Monetary
Board in its Resolution No. 1622 dated July 29, 1974, has prescribed that the rate of interest for
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 the loan, or forbearance of any money, goods, or credits and the rate allowed in judgments, in the
absence of express contract as to such rate of interest, shall be twelve (12%) percent per annum.
This Circular shall take effect immediately. (Emphasis found in the text) —

should have, instead, been applied. This Court 6 ruled:

The judgments spoken of and referred to are judgments in litigations involving loans or
forbearance of any money, goods or credits. Any other kind of monetary judgment which has
nothing to do with, nor involving loans or forbearance of any money, goods or credits does not
fall within the coverage of the said law for it is not within the ambit of the authority granted to
the Central Bank.

xxx xxx xxx

Coming to the case at bar, the decision herein sought to be executed is one rendered in an Action
for Damages for injury to persons and loss of property and does not involve any loan, much less
forbearances of any money, goods or credits. As correctly argued by the private respondents, the
law applicable to the said case is Article 2209 of the New Civil Code which reads —

Art. 2209. — If the obligation consists in the payment of a sum of money, and the
debtor incurs in delay, the indemnity for damages, there being no stipulation to
the contrary, shall be the payment of interest agreed upon, and in the absence of
stipulation, the legal interest which is six percent per annum.

The above rule was reiterated in Philippine Rabbit Bus Lines, Inc., v. Cruz,7 promulgated on 28 July 1986. The
case was for damages occasioned by an injury to person and loss of property. The trial court awarded private
respondent Pedro Manabat actual and compensatory damages in the amount of P72,500.00 with legal interest
thereon from the filing of the complaint until fully paid. Relying on the Reformina v. Tomol case, this
Court8 modified the interest award from 12% to 6% interest per annum but sustained the time computation
thereof, i.e., from the filing of the complaint until fully paid.

In Nakpil and Sons vs. Court of Appeals,9 the trial court, in an action for the recovery of damages arising from
the collapse of a building, ordered,
inter alia, the "defendant United Construction Co., Inc. (one of the petitioners)
. . . to pay the plaintiff, . . . , the sum of P989,335.68 with interest at the legal rate from November 29, 1968, the
date of the filing of the complaint until full payment . . . ." Save from the modification of the amount granted by
the lower court, the Court of Appeals sustained the trial court's decision. When taken to this Court for review,
the case, on 03 October 1986, was decided, thus:

WHEREFORE, the decision appealed from is hereby MODIFIED and considering the special
and environmental circumstances of this case, we deem it reasonable to render a decision
imposing, as We do hereby impose, upon the defendant and the third-party defendants (with the
exception of Roman Ozaeta) a solidary (Art. 1723, Civil Code, Supra.
p. 10) indemnity in favor of the Philippine Bar Association of FIVE MILLION (P5,000,000.00)
Pesos to cover all damages (with the exception to attorney's fees) occasioned by the loss of the
building (including interest charges and lost rentals) and an additional ONE HUNDRED
THOUSAND (P100,000.00) Pesos as and for attorney's fees, the total sum being payable upon
the finality of this decision. Upon failure to pay on such finality, twelve (12%) per cent interest
per annum shall be imposed upon aforementioned amounts from finality until paid. Solidary

Page | 340
 costs against the defendant and third-party defendants (Except Roman Ozaeta). (Emphasis
supplied)

A motion for reconsideration was filed by United Construction, contending that "the interest of twelve
(12%) per cent per annum imposed on the total amount of the monetary award was in contravention of
law." The Court10 ruled out the applicability of the Reformina and Philippine Rabbit Bus Lines cases
and, in its resolution of 15 April 1988, it explained:

There should be no dispute that the imposition of 12% interest pursuant to Central Bank Circular
No. 416 . . . is applicable only in the following: (1) loans; (2) forbearance of any money, goods
or credit; and
(3) rate allowed in judgments (judgments spoken of refer to judgments involving loans or
forbearance of any money, goods or credits. (Philippine Rabbit Bus Lines Inc. v. Cruz, 143
SCRA 160-161 [1986]; Reformina v. Tomol, Jr., 139 SCRA 260 [1985]). It is true that in the
instant case, there is neither a loan or a forbearance, but then no interest is actually imposed
provided the sums referred to in the judgment are paid upon the finality of the judgment. It is
delay in the payment of such final judgment, that will cause the imposition of the interest.

It will be noted that in the cases already adverted to, the rate of interest is imposed on the total
sum, from the filing of the complaint until paid; in other words, as part of the judgment for
damages. Clearly, they are not applicable to the instant case. (Emphasis supplied.)

The subsequent case of American Express International, Inc., vs. Intermediate Appellate Court11 was a petition
for review on certiorari from the decision, dated 27 February 1985, of the then Intermediate Appellate Court
reducing the amount of moral and exemplary damages awarded by the trial court, to P240,000.00 and
P100,000.00, respectively, and its resolution, dated 29 April 1985, restoring the amount of damages awarded by
the trial court, i.e., P2,000,000.00 as moral damages and P400,000.00 as exemplary damages with interest
thereon at 12% per annum from notice of judgment, plus costs of suit. In a decision of 09 November 1988, this
Court, while recognizing the right of the private respondent to recover damages, held the award, however, for
moral damages by the trial court, later sustained by the IAC, to be inconceivably large. The Court 12 thus set
aside the decision of the appellate court and rendered a new one, "ordering the petitioner to pay private
respondent the sum of One Hundred Thousand (P100,000.00) Pesos as moral damages, with
six (6%) percent interest thereon computed from the finality of this decision until paid. (Emphasis supplied)

Reformina came into fore again in the 21 February 1989 case of Florendo v. Ruiz13 which arose from a breach
of employment contract. For having been illegally dismissed, the petitioner was awarded by the trial court moral
and exemplary damages without, however, providing any legal interest thereon. When the decision was
appealed to the Court of Appeals, the latter held:

WHEREFORE, except as modified hereinabove the decision of the CFI of Negros Oriental dated
October 31, 1972 is affirmed in all respects, with the modification that defendants-appellants,
except defendant-appellant Merton Munn, are ordered to pay, jointly and severally, the amounts
stated in the dispositive portion of the decision, including the sum of P1,400.00 in concept of
compensatory damages, with interest at the legal rate from the date of the filing of the complaint
until fully paid(Emphasis supplied.)

The petition for review to this Court was denied. The records were thereupon transmitted to the trial
court, and an entry of judgment was made. The writ of execution issued by the trial court directed that
only compensatory damages should earn interest at 6% per annum from the date of the filing of the

Page | 341
 complaint. Ascribing grave abuse of discretion on the part of the trial judge, a petition
for certiorari assailed the said order. This Court said:

. . . , it is to be noted that the Court of Appeals ordered the payment of interest "at the legal
rate" from the time of the filing of the complaint. . . Said circular [Central Bank Circular No. 416]
does not apply to actions based on a breach of employment contract like the case at bar.
(Emphasis supplied)

The Court reiterated that the 6% interest per annum on the damages should be computed from the time
the complaint was filed until the amount is fully paid.

Quite recently, the Court had another occasion to rule on the matter. National Power Corporation
vs. Angas,14decided on 08 May 1992, involved the expropriation of certain parcels of land. After conducting a
hearing on the complaints for eminent domain, the trial court ordered the petitioner to pay the private
respondents certain sums of money as just compensation for their lands so expropriated "with legal interest
thereon . . . until fully paid." Again, in applying the 6% legal interest per annum under the Civil Code, the
Court15 declared:

. . . , (T)he transaction involved is clearly not a loan or forbearance of money, goods or credits
but expropriation of certain parcels of land for a public purpose, the payment of which is without
stipulation regarding interest, and the interest adjudged by the trial court is in the nature of
indemnity for damages. The legal interest required to be paid on the amount of just compensation
for the properties expropriated is manifestly in the form of indemnity for damages for the delay
in the payment thereof. Therefore, since the kind of interest involved in the joint judgment of the
lower court sought to be enforced in this case is interest by way of damages, and not by way of
earnings from loans, etc. Art. 2209 of the Civil Code shall apply.

Concededly, there have been seeming variances in the above holdings. The cases can perhaps be classified into
two groups according to the similarity of the issues involved and the corresponding rulings rendered by the
court. The "first group" would consist of the cases of Reformina v. Tomol (1985), Philippine Rabbit Bus Lines
v. Cruz(1986), Florendo v. Ruiz (1989)
and National Power Corporation v. Angas (1992). In the "second group" would be Malayan Insurance
Company v.Manila Port Service (1969), Nakpil and Sons v. Court of Appeals (1988), and American Express
International v.Intermediate Appellate Court (1988).

In the "first group", the basic issue focuses on the application of either the 6% (under the Civil Code) or 12%
(under the Central Bank Circular) interest per annum. It is easily discernible in these cases that there has been a
consistent holding that the Central Bank Circular imposing the 12% interest per annum applies only to loans or
forbearance16 of money, goods or credits, as well as to judgments involving such loan or forbearance of money,
goods or credits, and that the 6% interest under the Civil Code governs when the transaction involves the
payment of indemnities in the concept of damage arising from the breach or a delay in the performance of
obligations in general. Observe, too, that in these cases, a common time frame in the computation of the 6%
interest per annum has been applied, i.e., from the time the complaint is filed until the adjudged amount is fully
paid.

The "second group", did not alter the pronounced rule on the application of the 6% or 12% interest per
annum,17depending on whether or not the amount involved is a loan or forbearance, on the one hand, or one of
indemnity for damage, on the other hand. Unlike, however, the "first group" which remained consistent in
holding that the running of the legal interest should be from the time of the filing of the complaint until fully
paid, the "second group" varied on the commencement of the running of the legal interest.
Page | 342
Malayan held that the amount awarded should bear legal interest from the date of the decision of the court a
quo,explaining that "if the suit were for damages, 'unliquidated and not known until definitely ascertained,
assessed and determined by the courts after proof,' then, interest 'should be from the date of the
decision.'" American Express International v. IAC, introduced a different time frame for reckoning the 6%
interest by ordering it to be "computed from the finality of (the) decision until paid." The Nakpil and Sons case
ruled that 12% interest per annum should be imposed from the finality of the decision until the judgment
amount is paid.

The ostensible discord is not difficult to explain. The factual circumstances may have called for different
applications, guided by the rule that the courts are vested with discretion, depending on the equities of each
case, on the award of interest. Nonetheless, it may not be unwise, by way of clarification and reconciliation, to
suggest the following rules of thumb for future guidance.

I. When an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or quasi-delicts18 is
breached, the contravenor can be held liable for damages. 19 The provisions under Title XVIII on "Damages" of
the Civil Code govern in determining the measure of recoverable damages. 20

II. With regard particularly to an award of interest in the concept of actual and compensatory damages, the rate
of interest, as well as the accrual thereof, is imposed, as follows:

1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or forbearance
of money, the interest due should be that which may have been stipulated in writing.21 Furthermore, the interest
due shall itself earn legal interest from the time it is judicially demanded.22 In the absence of stipulation, the rate
of interest shall be 12% per annum to be computed from default, i.e., from judicial or extrajudicial demand
under and subject to the provisions of Article 116923 of the Civil Code.

2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the amount
of damages awarded may be imposed at the discretion of the court24 at the rate of 6% per annum.25 No interest,
however, shall be adjudged on unliquidated claims or damages except when or until the demand can be
established with reasonable certainty.26 Accordingly, where the demand is established with reasonable certainty,
the interest shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil
Code) but when such certainty cannot be so reasonably established at the time the demand is made, the interest
shall begin to run only from the date the judgment of the court is made (at which time the quantification of
damages may be deemed to have been reasonably ascertained). The actual base for the computation of legal
interest shall, in any case, be on the amount finally adjudged.

3. When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal
interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 12% per annum from such
finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of
credit.

WHEREFORE, the petition is partly GRANTED. The appealed decision is AFFIRMED with the
MODIFICATION that the legal interest to be paid is SIX PERCENT (6%) on the amount due computed from
the decision, dated
03 February 1988, of the court a quo. A TWELVE PERCENT (12%) interest, in lieu of SIX PERCENT (6%),
shall be imposed on such amount upon finality of this decision until the payment thereof.

SO ORDERED.

Page | 343
G.R. No. 170813 April 16, 2008

B.F. METAL (CORPORATION), petitioners,

vs.
SPS. ROLANDO M. LOMOTAN and LINAFLOR LOMOTAN and RICO UMUYON, respondents.

DECISION

TINGA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure,
assailing the award of damages against petitioner in the Decision1 and Resolution2 of the Court of Appeals in
CA-G.R. CV No. 58655. The Court of Appeals affirmed with modification the Decision of the Regional Trial
Court (RTC), Branch 72, Antipolo, Rizal in Civil Case No. 1567-A, which found petitioner corporation and its
driver, Onofre V. Rivera, solidarily liable to respondents for damages.

The following factual antecedents are not disputed.

In the morning of 03 May 1989, respondent Rico Umuyon ("Umuyon") was driving the owner-type jeep owned
by respondents, Spouses Rolando and Linaflor Lomotan ("Spouses Lomotan"). The jeep was cruising along
Felix Avenue in Cainta, Rizal at a moderate speed of 20 to 30 kilometers per hour. Suddenly, at the opposite
lane, the speeding ten-wheeler truck driven by Onofre Rivera overtook a car by invading the lane being
traversed by the jeep and rammed into the jeep. The jeep was a total wreck while Umuyon suffered "blunt
thoracic injury with multiple rib fracture, fractured scapula (L), with pneumohemothorax," which entailed his
hospitalization for 19 days. Also in view of the injuries he sustained, Umuyon could no longer drive, reducing
his daily income from P150.00 to P100.00.

On 27 October 1989, respondents instituted a separate and independent civil action for damages against
petitioner BF Metal Corporation ("petitioner") and Rivera before the Regional Trial Court (RTC) of Antipolo,
Rizal. The complaint essentially alleged that defendant Rivera‘s gross negligence and recklessness was the
immediate and proximate cause of the vehicular accident and that petitioner failed to exercise the required
diligence in the selection and supervision of Rivera. The complaint prayed for the award of actual, exemplary
and moral damages and attorney‘s fees in favor of respondents.

In the Answer, petitioner and Rivera denied the allegations in the complaint and averred that respondents were
not the proper parties-in-interest to prosecute the action, not being the registered owner of the jeep; that the sole
and proximate cause of the accident was the fault and negligence of Umuyon; and that petitioner exercised due
diligence in the selection and supervision of its employees.

During the trial, respondents offered the testimonies of Umuyon, SPO1 Rico Canaria, SPO4 Theodore Cadaweg
and Nicanor Fajardo, the auto-repair shop owner who gave a cost estimate for the repair of the wrecked jeep.

Page | 344
Among the documentary evidence presented were the 1989 cost estimate of Pagawaan Motors, Inc.,3 which
pegged the repair cost of the jeep at P96,000.00, and the cost estimate of Fajardo Motor Works4 done in 1993,
which reflected an increased repair cost at P130,655.00. They also presented in evidence a copy of the Decision
of the RTC, Assisting Branch 74, Cainta, Rizal in Criminal Case No. 4742, entitled People of the Philippines v.
Onofre V. Rivera, finding Rivera guilty of reckless imprudence resulting in damage to property with physical
injuries.

For its part, petitioner presented at the hearing Rivera himself and Habner Revarez, petitioner‘s production
control superintendent. Included in its documentary evidence were written guidelines in preventive maintenance
of vehicles and safety driving rules for drivers.

On 21 April 1997, the trial court rendered its Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered ordering defendants to pay jointly and
severally to herein plaintiffs the following sums:

(a) Actual Damages --- i. P96,700.00 for cost of the owner-type jeep

ii. P15,000.00 medical expenses

iii. P50,000.00 for loss of earnings

(b) Moral Damages --- P100,000.00

(c) Exemplary Damages --- P100,000.00

(d) Attorney‘s Fees --- P25,000.00 plus P1,000.00 for every Court appearance

Costs of Suit.

SO ORDERED.5

The trial court declared Rivera negligent when he failed to determine with certainty that the opposite lane was
clear before overtaking the vehicle in front of the truck he was driving. It also found petitioner negligent in the
selection and supervision of its employees when it failed to prove the proper dissemination of safety driving
instructions to its drivers. Petitioner and Rivera appealed the decision to the Court of Appeals.

On 13 April 2005, the Court of Appeals rendered the assailed Decision. It affirmed the trial court‘s finding that
Rivera‘s negligence was the proximate cause of the accident and that petitioner was liable under Article 2180 of
the Civil Code for its negligence in the selection and supervision of its employees. However, the appellate court
modified the amount of damages awarded to respondents. The dispositive portion of the Decision reads:

WHEREFORE, the decision appealed from is AFFIRMED with MODIFICATION to read as follows:

Page | 345
"WHEREFORE, premises considered, judgment is hereby rendered ordering defendants to pay jointly and
severally to herein plaintiffs the following sums:

(a) Actual Damages --- i. P130,655.00, for cost of repairing the owner-type
jeep.

ii. P10,167.99 in medical expenses.

iii. P2,850.00 for lost earnings during medical

treatment.

(b) Moral Damages --- P100,000.00

(c) Exemplary Damages --- P100,000.00

(d) Attorney‘s Fees --- P25,000.00

Costs of suit." SO ORDERED.7

On 12 December 2005, the Court of Appeals denied the motion for reconsideration of its Decision. Only
petitioner filed the instant petition, expressly stating that it is assailing only the damages awarded by the
appellate court.

The instant petition raises the following issues: (1) whether the amount of actual damages based only on a job
estimate should be lowered; (2) whether Spouses Lomotan are also entitled to moral damages; and (3) whether
the award of exemplary damages and attorneys is warranted. For their part, respondents contend that the
aforementioned issues are factual in nature and therefore beyond the province of a petitioner for review under
Rule 45.

This is not the first instance where the Court has given due course to a Rule 45 petition seeking solely the
review of the award of damages. A party‘s entitlement to damages is ultimately a question of law because not
only must it be proved factually but also its legal justification must be shown. In any case, the trial court and the
appellate court have different findings as to the amount of damages to which respondents are entitled. When the
factual findings of the trial and appellate courts are conflicting, the Court is constrained to look into the
evidence presented before the trial court so as to resolve the herein appeal.

The trial court split the award of actual damages into three items, namely, the cost of the wrecked jeep, the
medical expenses incurred by respondent Umuyon and the monetary value of his earning capacity. On appeal,
the Court of Appeals reduced the amount of medical expenses and loss of earning capacity to which respondent
Umuyon is entitled but increased from P96,700.00 to P130,655.00 the award in favor of Spouses Lomotan for
the cost of repairing the wrecked jeep.

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The instant petition assails only the modified valuation of the wrecked jeep. Petitioner points out that the
alleged cost of repairing the jeep pegged at P130,655.00 has not been incurred but is only a job estimate or a
sum total of the expenses yet to be incurred for its repair. It argues that the best evidence obtainable to prove
with a reasonable degree of certainty the value of the jeep is the acquisition cost or the purchase price of the
jeep minus depreciation for one year of use equivalent to 10% of the purchase price.

Petitioner‘s argument is partly meritorious.

Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or
compensatory damages. Actual damages are such compensation or damages for an injury that will put the
injured party in the position in which he had been before he was injured. They pertain to such injuries or losses
that are actually sustained and susceptible of measurement. To justify an award of actual damages, there must
be competent proof of the actual amount of loss. Credence can be given only to claims which are duly supported
by receipts.

In People v. Gopio, the Court allowed the reimbursement of only the laboratory fee that was duly receipted as
"the rest of the documents, which the prosecution presented to prove the actual expenses incurred by the victim,
were merely a doctor‘s prescription and a handwritten list of food expenses." In Viron Transportation Co., Inc.
v. Delos Santos, the Court particularly disallowed the award of actual damages, considering that the actual
damages suffered by private respondents therein were based only on a job estimate and a photo showing the
damage to the truck and no competent proof on the specific amounts of actual damages suffered was presented.

In the instant case, no evidence was submitted to show the amount actually spent for the repair or replacement
of the wrecked jeep. Spouses Lomotan presented two different cost estimates to prove the alleged actual
damage of the wrecked jeep. Exhibit "B," is a job estimate by Pagawaan Motors, Inc., which pegged the repair
cost of the jeep at P96,000.00, while Exhibit "M," estimated the cost of repair at P130,655.00. Following Viron,
neither estimate is competent to prove actual damages. Courts cannot simply rely on speculation, conjecture or
guesswork in determining the fact and amount of damages.

As correctly pointed out by petitioner, the best evidence to prove the value of the wrecked jeep is reflected in
Exhibit "I," the Deed of Sale showing the jeep‘s acquisition cost at P72,000.00. However, the depreciation value
of equivalent to 10% of the acquisition cost cannot be deducted from it in the absence of proof in support
thereof.

Petitioner also questions the award of moral and exemplary damages in favor of Spouses Lomotan. It argues
that the award of moral damages was premised on the resulting physical injuries arising from the quasi-delict;
since only respondent Umuyon suffered physical injuries, the award should pertain solely to him.
Correspondingly, the award of exemplary damages should pertain only to respondent Umuyon since only the
latter is entitled to moral damages, petitioner adds.

In the case of moral damages, recovery is more an exception rather than the rule. Moral damages are not
punitive in nature but are designed to compensate and alleviate the physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar harm
unjustly caused to a person. In order that an award of moral damages can be aptly justified, the claimant must be
able to satisfactorily prove that he has suffered such damages and that the injury causing it has sprung from any
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of the cases listed in Articles 2219 and 2220 of the Civil Code. Then, too, the damages must be shown to be the
proximate result of a wrongful act or omission. The claimant must establish the factual basis of the damages and
its causal tie with the acts of the defendant. In fine, an award of moral damages would require, firstly, evidence
of besmirched reputation or physical, mental or psychological suffering sustained by the claimant; secondly, a
culpable act or omission factually established; thirdly, proof that the wrongful act or omission of the defendant
is the proximate cause of the damages sustained by the claimant; and fourthly, that the case is predicated on any
of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code.

In culpa aquiliana, or quasi-delict, (a) when an act or omission causes physical injuries, or (b) where the
defendant is guilty of intentional tort, moral damages may aptly be recovered. This rule also applies, as
aforestated, to breaches of contract where the defendant acted fraudulently or in bad faith. In culpa criminal,
moral damages could be lawfully due when the accused is found guilty of physical injuries, lascivious acts,
adultery or concubinage, illegal or arbitrary detention, illegal arrest, illegal search, or defamation.

Undoubtedly, petitioner is liable for the moral damages suffered by respondent Umuyon. Its liability is based on
a quasi-delict or on its negligence in the supervision and selection of its driver, causing the vehicular accident
and physical injuries to respondent Umuyon. Rivera is also liable for moral damages to respondent Umuyon
based on either culpa criminal or quasi-delict. Since the decision in the criminal case, which found Rivera
guilty of criminal negligence, did not award moral damages, the same may be awarded in the instant civil action
for damages.

Jurisprudence show that in criminal offenses resulting to the death of the victim, an award within the range
of P50,000.00 to P100,000.00 as moral damages has become the trend. Under the circumstances, because
respondent Umuyon did not die but had become permanently incapacitated to drive as a result of the accident,
the award of P30,000.00 for moral damages in his favor is justified.

However, there is no legal basis in awarding moral damages to Spouses Lomotan whether arising from the
criminal negligence committed by Rivera or based on the negligence of petitioner under Article 2180. Article
2219 speaks of recovery of moral damages in case of a criminal offense resulting in physical injuries or quasi-
delicts causing physical injuries, the two instances where Rivera and petitioner are liable for moral damages to
respondent Umuyon. Article 2220 does speak of awarding moral damages where there is injury to property, but
the injury must be willful and the circumstances show that such damages are justly due. There being no proof
that the accident was willful, Article 2220 does not apply.

Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition
to moral, temperate, liquidated or compensatory damages. Exemplary damages cannot be recovered as a matter
of right; the court will decide whether or not they should be adjudicated. In quasi-delicts, exemplary damages
may be granted if the defendant acted with gross negligence. While the amount of the exemplary damages need
not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before
the court may consider the question of whether or not exemplary damages should be awarded.

As correctly pointed out by the Court of Appeals, Spouses Lomotan have shown that they are entitled to
compensatory damages while respondent Umuyon can recover both compensatory and moral damages. To serve
as an example for the public good, the Court affirms the award of exemplary damages in the amount
of P100,000.00 to respondents. Because exemplary damages are awarded, attorney‘s fees may also be awarded

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in consonance with Article 2208 (1). The Court affirms the appellate court‘s award of attorney‘s fees in the
amount of P25,000.00.

WHEREFORE, the instant petition for certiorari is PARTIALLY GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 58655 is AFFIRMED with MODIFICATION. The award of actual damages for
the cost of repairing the owner-type jeep is hereby REDUCED to P72,000.00 while the moral damages
of P30,000.00 is awarded solely to respondent Umuyon. All other awards of the Court of Appeals
are AFFIRMED. Following jurisprudence, petitioner is ordered to PAY legal interest of 6% per annum from
the date of promulgation of the Decision dated 21 April 1997 of the Regional Trial Court, Branch 72, Antipolo,
Rizal and 12% per annum from the time the Decision of this Court attains finality, on all sums awarded until
their full satisfaction.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, G.R. No. 174470

Appellee, [Formerly G. R. Nos. 159844-46]
Present:
QUISUMBING, J.,
Chairman,
- versus - CARPIO,
CARPIO MORALES, and
TINGA,
VELASCO, JJ.
FILOMINO LIZANO y MARVILLA
Appellant.
Promulgated:
April 27, 2007

DECISION

TINGA, J.:

For consideration is an appeal by Filomino Lizano y Marvilla (appellant) from the Decision dated 28 April 2006
of the Court of Appeals in CA-G.R. CR-H.C. No. 01659, affirming the 30 May 2003 Decision of the Regional
Trial Court (RTC) of Calauag, Quezon, which found him guilty beyond reasonable doubt of the crime of rape.

On 20 February 1997, appellant was charged with three (3) counts of rape in three (3) separate Informations,
which, except for the date, similarly read as follow:

That on or about the month of January 1996, at Sitio San Jose Ilaya, Barangay Sta. Cecilia, in the Municipality
of Tagkawayan, Province of Quezon, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, who is the uncle of the offended party, with lewd design, by means of force, violence and
intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of on, AAA a
minor, 11 years of age, against her will.

Contrary to law.

The two (2) other Informations alleged that appellant had raped AAA on 18 and 19 January 1997, respectively.

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Appellant pleaded not guilty on all three charges. Trial then proceeded.

The victim, AAA, testified that she had been staying in her grandmothers house in Barangay Sta. Cecilia,
Tagkawayan, Quezon, together with appellant and his wife, BBB who is AAAs aunt. Sometime in January
1996, AAA, who was then only 11 years old, was sleeping inside the house when appellant lay down beside her
and began undressing her while threatening to kill her, her grandmother and aunt should she reveal his acts to
anybody. Afterwards, appellant also took off his clothes. He then went on top of AAA and inserted his penis
into her vagina, causing her to feel pain. A year later, on 18 January 1997, appellant raped AAA again. The
following day, at around 10:30 a.m., appellant raped her for the third time. She, however, declared during
direct-examination that there were only slight penetrations in these two occasions. AAA was only forced to
disclose the incident to an uncle, a brother of her mother, upon the prodding of BBB, who chanced upon AAA
while inside the room of appellant.

The prosecution also presented CCC to testify on the age of her daughter, AAA. CCC stated in court that AAA
was born on 14 May 1985. AAAs birth certificate attesting to the same data was likewise presented in court.

The third witness for the prosecution was Delia Mayuga Ayuda, a Medical Clerk at the Tagkawayan District
Hospital, whose duty was to keep all the files of the patients in the hospital. She identified the signature of Dr.
Juvy Paz Purino in the Medico-Legal Certificate which contained the following findings:

- superficial lacerations at 6 oclock and 8 oclock positions, hymen

NOI- Allegedly raped by someone

DOI- January 18, 1997
TOI- P.M.
POI- San Jose Tagkawayan, Quezon

Appellant testified on his behalf, raising denial and alibi as defenses. Appellant denied raping AAA sometime
January 1996. He averred that on 19 January 1997, he was driving his tricycle the whole day and got home 11
a.m. the next day. He however recalled an incident where he asked AAA to get a spare part of a tricycle in the
living room. Unable to follow his orders, appellant followed AAA inside the house. It was at that moment when
his wife, BBB, arrived and accused him of raping AAA. Appellant maintained that BBB had induced AAA to
charge him with rape because of their frequent quarrels.

The trial court found the first incident of rape as credible and found appellant guilty in Criminal Case No. 2857-
C. However, he was acquitted in Criminal Case Nos. 2858-C and 2859-C for insufficiency of evidence.

From the decision in Criminal Case No. 2857-C, appellant directly appealed to this Court. Conformably with
our ruling in People v. Mateo, the appeal was remanded to the Court of Appeals for intermediate review.

On 28 April 2006, the Court of Appeals promulgated a Decision dismissing the appeal and affirming in toto the
decision of the RTC.

Both parties opted not to file Supplemental Briefs and instead adopted their Briefs before the appellate court.

In this appeal, appellant contends that the prosecutions evidence is insufficient to sustain his conviction,
especially taking into account the alleged delay on the part of the victim in reporting the rape. Thus, the
resolution of this case hinges on the straightforward issue of whether the prosecution was able to establish
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appellants guilt beyond reasonable doubt based on the complainants testimony.

In the prosecution of rape cases, conviction or acquittal depends on the credence to be accorded to the
complainants testimony because of the fact that usually the participants are the only witnesses to the
occurrences. Thus, the issue boils down to credibility. Significantly, findings of fact of the trial court should not
be disturbed on appeal since conclusions as to the credibility of witnesses in rape cases hinge heavily on the
sound judgment of the trial court which is in a better position to decide the question, having heard the witnesses
and observed their deportment and manner of testifying.

In the case at bar, the trial court aptly observed:

In the first incident, the private complainant AAA then an 11 years old [sic] girl in a clear, convincing and
straightforward manner testified how the accused Filomino Lizano undressed her and then afterwards, he
undressed also, put himself on top of her and inserted his penis to her private part. AAA clearly stated that the
accuseds penis was able to fully penetrate her vagina and it was painful. . . Her clear account of the first incident
of rape unequivocally show that she was indeed raped by the accused Filomino Lizano.

We find no cogent reason to depart from these findings. During the direct examination, AAA recounted the rape
incident and positively identified appellant as the perpetrator, thus:

Q: Do you know this Filomino Lizano?

A: Yes, sir.

Q: Why do you know him?

A: He is the husband of my auntie, sir.

xxxx

Q: If this Filomino Lizano is in Court, will you be able to point to him?

A: Yes, sir.

Q: Please do so. (Witness pointing to a man who identified himself to be Filomino Lizano).

Q: Now, in January, 1996, how old were you then?

A: 11 years old, sir.

Q: And on that month, do you remember any unusual incident that happened to you?
A: Yes, sir.

Q: And what was that unusual incident?

A: I was raped by Filomino Lizano, sir.

Q: Where?
A: In the house of my grandmother, sir.

Q: Where is that house of your Lola located?

A: In Brgy. Sta. Cecilia, Tagkawayan, Quezon.

Q: Will you tell or relay to this Court that particular incident that you are referring to that you were raped by
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Filomino Lizano?
A: He slept beside me, sir.

Q: And after sleeping beside you, what did he do if he did anything?

A: He undressed me, sir.

Q: After undressing you, did he do anything more?

A: He told me not to tell anybody.

Q: And did he tell you what will happen if you will tell anyone about that incident?

xxxx

WITNESS:

Because if I inform [sic] about the incident, he will kill us, sir.

FISCAL BONIFACIO

Q: When you say us, whom was he referring to?

A: My grandmother, auntie, and myself, sir.

Q: After he undressed you, is there anything more he did?

A: He undressed himself also, sir.

Q: Then anything more?

A: He put himself on top of me, sir.

Q: And when he put himself on top of you, did he do anything more?

A: He entered his penis to my private part, sir.

Q: Do you know if he was able to fully penetrate his penis on your private part?
A: Yes, sir.

Q: What did you feel when he was doing that?

A: It was painful, sir.

In her sworn statement taken before the Police Station in Tagkawayan Quezon, AAA narrated the same details
contained in her testimony before the trial court.

These positive declarations bolster the inevitable conclusion that appellant had indeed raped AAA. The trial
court correctly lent credence to the straightforward version of the victim as against the bare denial by appellant.
It has been an oft-repeated rule that mere denial, if unsubstantiated by clear and convincing evidence, has no
weight in law and cannot be given greater evidentiary value than the positive testimony of a rape victim. As
between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is
generally held to prevail.

Appellants main argument, however, is premised on the delay incurred by the victim in reporting the crime.
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Appellant underscores the failure of the victim to report the alleged rape which occurred in January 1996 even
when there was no showing that appellant was continuously threatening her after the said incident.

His does not persuade.

The Solicitor General correctly points out that delay in reporting a rape incident does not impair the credibility
of the victim in the face of threats of death or physical violence. Indeed, delay in revealing the commission of
rape is not an indication of a fabricated charge. Such intimidation must be viewed in light of the victim's
perception and judgment at the time of the commission of the crime and not by any hard and fast rule. It is
enough that the intimidation produces a fear that if the victim does not yield to the perverse impulses of the
accused, something would happen to her at the moment, or even thereafter, as when she is threatened with death
if she would report the incident.

AAA satisfactorily explained the delay. Appellant threatened to kill her, her grandmother and aunt should she
report the incident to anybody. This immediate threat directed at AAA, who was then only eleven (11) years
old, engendered fear on her part to reveal the unpleasant incident. A rape victim cannot, after all, be expected to
summon the courage to report a sexual assault committed against her person, where the act was accompanied by
a death threat.

Under Article 335 of the Revised Penal Code, rape, which is punishable by reclusion perpetua is committed by
having carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious;
3. When the woman is under twelve years of age or is demented.

Hence, the trial court correctly imposed the penalty of reclusion perpetua for the rape of AAA, who was then
under 12 years old, as proven by the prosecution through the testimony of her mother and the presentation of
AAAs birth certificate. We affirm the trial courts award of civil indemnity and moral damages each in the
amounts of P50,000.00 in line with current jurisprudence. Civil indemnity is automatically imposed upon the
accused without need of proof other than the fact of the commission of rape. Moral damages is also
automatically granted in rape cases without need of further proof other than the commission of the crime
because it is assumed that a rape victim had actually suffered moral injuries entitling her to such award.

WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals dated 28 April 2006 is
AFFIRMED. Appellant FILOMINO LIZANO y MARVILLA is hereby found guilty beyond reasonable doubt
of statutory rape and is sentenced to suffer the penalty of reclusion perpetua, and is ordered to pay the victim
the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages.

SO ORDERED.

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