FIRST DIVISION

[G.R. No. 132344. February 17, 2000.]

UNIVERSITY OF THE EAST, Petitioner, v. ROMEO A. JADER, Respondent.

DECISION

YNARES-SANTIAGO, J.:

May an educational institution be held liable for damages for misleading a student into
believing that the latter had satisfied all the requirements for graduation when such is
not the case? This is the issue in the instant petition for review premised on the
following undisputed facts as summarized by the trial court and adopted by the Court of
Appeals (CA), 1 to wit: jgc:chanrobles.com.ph

"Plaintiff was enrolled in the defendants’ College of Law from 1984 up to 1988. In the
first semester of his last year (School year 1987-1988), he failed to take the regular
final examination in Practice Court I for which he was given an incomplete grade
(Exhibits ‘2’, also Exhibit ‘H’). He enrolled for the second semester as fourth year law
student (Exhibit ‘A’) and on February 1, 1988 he filed an application for the removal of
the incomplete grade given him by Professor Carlos Ortega (Exhibits ‘H-2’, also Exhibit
‘2’) which was approved by Dean Celedonio Tiongson after payment of the required fee.
He took the examination on March 28, 1988. On May 30, 1988, Professor Carlos Ortega
submitted his grade. It was a grade of five (5). (Exhibits ‘H-4’, also Exhibits ‘2-L’, ‘2-
N’).
chanrobles virtuallawlibrary:red

"In the meantime, the Dean and the Faculty Members of the College of Law met to
deliberate on who among the fourth year students should be allowed to graduate. The
plaintiff’s name appeared in the Tentative List of Candidates for graduation for the
Degree of Bachelor of Laws (LL.B) as of Second Semester (1987-1988) with the
following annotation: jgc:chanrobles.com.ph

"JADER ROMEO A.

Def. Conflict of Laws - x-1-87-88, Practice Court I - Inc., 1-87-88. C-1 to submit
transcript with S.O. (Exhibits ‘3’, ‘3-C-1’, ‘3-C-2’)." cralaw virtua1aw library

"The 35th Investitures & Commencement Ceremonies for the candidates of Bachelor of
Laws was scheduled on the 16th of April 1988 at 3:00 o’clock in the afternoon, and in
the invitation for that occasion the name of the plaintiff appeared as one of the
candidates. (Exhibits ‘B’, ‘B-6’, ‘B-6-A’). At the foot of the list of the names of the
candidates there appeared however the following annotation: chanrob1es virtual 1aw library

‘This is a tentative list. Degrees will be conferred upon these candidates who
satisfactorily complete requirements as stated in the University Bulletin and as
approved of the Department of Education, Culture and Sports (Exhibit ‘B-7-A’).
"The plaintiff attended the investiture ceremonies at F. dela Cruz Quadrangle, U.E.,
Recto Campus, during the program of which he went up the stage when his name was
called, escorted by her (sic) mother and his eldest brother who assisted in placing the
Hood, and his Tassel was turned from left to right, and he was thereafter handed by
Dean Celedonio a rolled white sheet of paper symbolical of the Law Diploma. His
relatives took pictures of the occasion (Exhibits ‘C’ to ‘C-6’, ‘D-3’ to ‘D-11’).

"He tendered a blow-out that evening which was attended by neighbors, friends and
relatives who wished him good luck in the forthcoming bar examination. There were
pictures taken too during the blow-out (Exhibits ‘D’ to ‘D-1’).

"He thereafter prepared himself for the bar examination. He took a leave of absence
without pay from his job from April 20, 1988 to September 30, 1988 (Exhibit ‘G’) and
enrolled at the pre-bar review class in Far Eastern University (Exhibits ‘F’ to ‘F-2’).
Having learned of the deficiency he dropped his review class and was not able to take
the bar examination." 2

Consequently, respondent sued petitioner for damages alleging that he suffered moral
shock, mental anguish, serious anxiety, besmirched reputation, wounded feelings and
sleepless nights when he was not able to take the 1988 bar examinations arising from
the latter’s negligence. He prayed for an award of moral and exemplary damages,
unrealized income, attorney’s fees, and costs of suit. chanrobles.com : virtual law library

In its answer with counterclaim, petitioner denied liability arguing mainly that it never
led respondent to believe that he completed the requirements for a Bachelor of Laws
degree when his name was included in the tentative list of graduating students. After
trial, the lower court rendered judgment as follows: chanrob1es virtual 1aw library

WHEREFORE, in view of the foregoing judgment is hereby rendered in favor of the

plaintiff and against the defendant ordering the latter to pay plaintiff the sum of THIRTY
FIVE THOUSAND FOUR HUNDRED SEVENTY PESOS (P35,470.00) with legal rate of
interest from the filing of the complaint until fully paid, the amount of FIVE THOUSAND
PESOS (P5,000.00) as attorney’s fees and the cost of suit.

Defendant’s counterclaim is, for lack of merit, hereby dismissed.

SO ORDERED. 3

which on appeal by both parties was affirmed by the Court of Appeals (CA) with
modification. The dispositive portion of the CA decision reads: chanrob1es virtual 1aw library

WHEREFORE, in the light of the foregoing, the lower Court’s Decision is hereby
AFFIRMED with the MODIFICATION that defendant-appellee, in addition to the sum
adjudged by the lower court in favor of plaintiff-appellant, is also ORDERED to pay
plaintiff-appellant the amount of FIFTY THOUSAND (P50,000.00) PESOS for moral
damages. Costs against Defendant-Appellee.

SO ORDERED. 4

Upon the denial of its motion for reconsideration, petitioner UE elevated the case to this
Court on a petition for review under Rule 45 of the Rules of Court, arguing that it has
no liability to respondent Romeo A. Jader, considering that the proximate and
immediate cause of the alleged damages incurred by the latter arose out of his own
negligence in not verifying from the professor concerned the result of his removal
exam. chanrobles virtuallawlibrary:red

The petition lacks merit.

When a student is enrolled in any educational or learning institution, a contract of

education is entered into between said institution and the student. The professors,
teachers or instructors hired by the school are considered merely as agents and
administrators tasked to perform the school’s commitment under the contract. Since
the contracting parties are the school and the student, the latter is not duty-bound to
deal with the former’s agents, such as the professors with respect to the status or
result of his grades, although nothing prevents either professors or students from
sharing with each other such information. The Court takes judicial notice of the
traditional practice in educational institutions wherein the professor directly furnishes
his/her students their grades. It is the contractual obligation of the school to timely
inform and furnish sufficient notice and information to each and every student as to
whether he or she had already complied with all the requirements for the conferment of
a degree or whether they would be included among those who will graduate. Although
commencement exercises are but a formal ceremony, it nonetheless is not an ordinary
occasion, since such ceremony is the educational institution’s way of announcing to the
whole world that the students included in the list of those who will be conferred a
degree during the baccalaureate ceremony have satisfied all the requirements for such
degree. Prior or subsequent to the ceremony, the school has the obligation to promptly
inform the student of any problem involving the latter’s grades and performance and
also most importantly, of the procedures for remedying the same.

Petitioner, in belatedly informing respondent of the result of the removal examination,

particularly at a time when he had already commenced preparing for the bar exams,
cannot be said to have acted in good faith. Absence of good faith must be sufficiently
established for a successful prosecution by the aggrieved party in a suit for abuse of
right under Article 19 of the Civil Code. Good faith connotes an honest intention to
abstain from taking undue advantage of another, even though the forms and
technicalities of the law, together with the absence of all information or belief of facts,
would render the transaction unconscientious. 5 It is the school that has access to
those information and it is only the school that can compel its professors to act and
comply with its rules, regulations and policies with respect to the computation and the
prompt submission of grades. Students do not exercise control, much less influence,
over the way an educational institution should run its affairs, particularly in disciplining
its professors and teachers and ensuring their compliance with the school’s rules and
orders. Being the party that hired them, it is the school that exercises general
supervision and exclusive control over the professors with respect to the submission of
reports involving the students’ standing. Exclusive control means that no other person
or entity had any control over the instrumentality which caused the damage or injury. 6

The college dean is the senior officer responsible for the operation of an academic
program, enforcement of rules and regulations, and the supervision of faculty and
student services. 7 He must see to it that his own professors and teachers, regardless
of their status or position outside of the university, must comply with the rules set by
the latter. The negligent act of a professor who fails to observe the rules of the school,
for instance by not promptly submitting a student’s grade, is not only imputable to the
professor but is an act of the school, being his employer.

Considering further, that the institution of learning involved herein is a university which
is engaged in legal education, it should have practiced what it inculcates in its students,
more specifically the principle of good dealings enshrined in Articles 19 and 20 of the
Civil Code which states: chanrob1es virtual 1aw library

ARTICLE 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.

ARTICLE 20. Every person who, contrary to law, wilfully or negligently causes damage
to another, shall indemnify the latter for the same. chanrobles.com.ph:red

Article 19 was intended to expand the concept of torts by granting adequate legal
remedy for the untold number of moral wrongs which is impossible for human foresight
to provide specifically in statutory law. 8 In civilized society, men must be able to
assume that others will do them no intended injury – that others will commit no
internal aggressions upon them; that their fellowmen, when they act affirmatively will
do so with due care which the ordinary understanding and moral sense of the
community exacts and that those with whom they deal in the general course of society
will act in good faith. The ultimate thing in the theory of liability is justifiable reliance
under conditions of civilized society. 9 Schools and professors cannot just take students
for granted and be indifferent to them, for without the latter, the former are useless.

Educational institutions are duty-bound to inform the students of their academic status
and not wait for the latter to inquire from the former. The conscious indifference of a
person to the rights or welfare of the person/persons who may be affected by his act or
omission can support a claim for damages. 10 Want of care to the conscious disregard
of civil obligations coupled with a conscious knowledge of the cause naturally calculated
to produce them would make the erring party liable. 11 Petitioner ought to have known
that time was of the essence in the performance of its obligation to inform respondent
of his grade. It cannot feign ignorance that respondent will not prepare himself for the
bar exams since that is precisely the immediate concern after graduation of an LL.B.
graduate. It failed to act seasonably. Petitioner cannot just give out its student’s grades
at any time because a student has to comply with certain deadlines set by the Supreme
Court on the submission of requirements for taking the bar. Petitioner’s liability arose
from its failure to promptly inform respondent of the result of an examination and in
misleading the latter into believing that he had satisfied all requirements for the course.
Worth quoting is the following disquisition of the respondent court: jgc:chanrobles.com.ph

"It is apparent from the testimony of Dean Tiongson that defendant-appellee University
had been informed during the deliberation that the professor in Practice Court I gave
plaintiff-appellant a failing grade. Yet, defendant-appellee still did not inform plaintiff-
appellant of his failure to complete the requirements for the degree nor did they
remove his name from the tentative list of candidates for graduation. Worse,
defendant-appellee university, despite the knowledge that plaintiff-appellant failed in
Practice Court I, again included plaintiff-appellant’s name in the "tentative" list of
candidates for graduation which was prepared after the deliberation and which became
the basis for the commencement rites program. Dean Tiongson reasons out that
plaintiff-appellant’s name was allowed to remain in the tentative list of candidates for
graduation in the hope that the latter would still be able to remedy the situation in the
remaining few days before graduation day. Dean Tiongson, however, did not explain
how plaintiff-appellant Jader could have done something to complete his deficiency if
defendant-appellee university did not exert any effort to inform plaintiff-appellant of his
failing grade in Practice Court I." 12

Petitioner cannot pass on its blame to the professors to justify its own negligence that
led to the delayed relay of information to Respondent. When one of two innocent
parties must suffer, he through whose agency the loss occurred must bear it. 13 The
modern tendency is to grant indemnity for damages in cases where there is abuse of
right, even when the act is not illicit. 14 If mere fault or negligence in one’s acts can
make him liable for damages for injury caused thereby, with more reason should abuse
or bad faith make him liable. A person should be protected only when he acts in the
legitimate exercise of his right, that is, when he acts with prudence and in good faith,
but not when he acts with negligence or abuse. 15

However, while petitioner was guilty of negligence and thus liable to respondent for the
latter’s actual damages, we hold that respondent should not have been awarded moral
damages. We do not agree with the Court of Appeals’ findings that respondent suffered
shock, trauma and pain when he was informed that he could not graduate and will not
be allowed to take the bar examinations. At the very least, it behooved on respondent
to verify for himself whether he has completed all necessary requirements to be eligible
for the bar examinations. As a senior law student, respondent should have been
responsible enough to ensure that all his affairs, specifically those pertaining to his
academic achievement, are in order. Given these considerations, we fail to see how
respondent could have suffered untold embarrassment in attending the graduation
rites, enrolling in the bar review classes and not being able to take the bar exams. If
respondent was indeed humiliated by his failure to take the bar, he brought this upon
himself by not verifying if he has satisfied all the requirements including his school
records, before preparing himself for the bar examination. Certainly, taking the bar
examinations does not only entail a mental preparation on the subjects thereof; there
are also prerequisites of documentation and submission of requirements which the
prospective examinee must meet. chanrobles.com : virtual law library

WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED with

MODIFICATION. Petitioner is ORDERED to PAY respondent the sum of Thirty-five
Thousand Four Hundred Seventy Pesos (P35,470.00), with legal interest of 6% per
annum computed from the date of filing of the complaint until fully paid; the amount of
Five Thousand Pesos (P5,000.00) as attorney’s fees; and the costs of the suit. The
award of moral damages is DELETED.

SO ORDERED.
FIRST DIVISION

[G.R. No. L-79237. October 18, 1988.]

UNIVERSITY OF SAN CARLOS and VICTORIA A. SATORRE, Petitioners, v.

COURT OF APPEALS and JENNIFER C. LEE, Respondents.

J.P. Garcia & Associate, for Petitioners.

Florido & Associates for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTION; MANDAMUS; NOT A PROPER REMEDY TO

COMPEL A UNIVERSITY TO CONFER A DEGREE WITH HONORS. — The principal issue
raised in this petition is whether or not mandamus is the proper remedy to compel a
university to confer a degree with honors. It is an accepted principle that schools of
learning are given ample discretion to formulate rules and guidelines in the granting of
honors for purposes of graduation. This is part of academic freedom. Within the
parameters of these rules, it is within the competence of universities and colleges to
determine who are entitled to the grant of honors among the graduating students. Its
discretion on this academic matter may not be disturbed much less controlled by the
courts unless there is grave abuse of discretion in its exercise.

2. CIVIL LAW; ACTION FOR DAMAGES MUST FAIL FOR LACK OF BASIS; SCHOOL ACTED
WITHIN THE SCOPE OF ITS DISCRETIONARY POWER. — Petitioners cannot be faulted
for refusing to vest the honors demanded of them by the private Respondent. One
failure would have been sufficient to disqualify her but she had one incomplete and two
failures. Her only change was to reverse her failing grades. This she accomplished thru
the back door. Nevertheless, even if she succeeded in removing her failing grades, it
was still within the sound discretion of the petitioners to determine whether private
respondent was entitled to graduate with honors. The Court finds that petitioners did
not commit a grave abuse of discretion in denying the honors sought by private
respondent under the circumstances. Indeed, the aforesaid change of grades did not
automatically entitle her to the award of honors. Private respondent not having
demonstrated that she has a clear legal right to the honors sought, her claim for
damages must necessarily fail.

DECISION

GANCAYCO, J.:

The principal issue raised in this petition is whether or not mandamus is the proper
remedy to compel a university to confer a degree with honors. The secondary question
is whether or not the refusal of that university to confer honors would constitute bad
faith so as to make it liable for damages.

Private respondent Jennifer C. Lee filed an action for mandamus with damages against
petitioners University of San Carlos and Victoria A. Satorre, docketed as Civil Case No.
R22022 in the Regional Trial Court, Branch XVIII, Cebu, asking that petitioners be
compelled to confer upon her the degree of Bachelor of Science in Commerce, major in
Accounting, cum laude, retroactive to March 28,1982, to execute and deliver to her all
necessary credentials evidencing her graduation with honors, and to pay her moral
damages in the amount of P300,000.00, exemplary damages in the amount of
P50,000.00, and attorney’s fees in the amount of P20,000.00. chanrobles.com.ph : virtual law library

After trial, the lower court rendered its Decision dated January 29, 1986, 1 the
dispositive portion of which reads as follows:
jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered in favor of plaintiff, and accordingly,

defendants University of San Carlos and Dean Victoria A. Satorre are ordered to confer
upon plaintiff, Jennifer C. Lee, the degree of Bachelor of Science in Commerce, major in
accounting, with cum laude honors (sic), retroactive to March 28, 1982, and to execute
and deliver to plaintiff all the necessary school credentials evidencing her graduation
with such honors; and said defendants are ordered to pay plaintiff jointly and severally
the sum of P75,000 as moral damages, the sum of P20,000 as exemplary damages,
with interest thereon at 12% per annum beginning July 22, 1982, until said amounts
are fully paid: and the sum of P15,000 as attorney’s fees. The counterclaim is ordered
dismissed. Costs against defendants." 2

Petitioners appealed to the respondent Court of Appeals where the case was docketed
as CA-G.R. No. SP-09368. In a decision dated May 28, 1987, the appellate court
affirmed in toto the decision of the trial court. 3

The motion for reconsideration filed by petitioners was denied in a Resolution of the
appellate court dated July 7, 1987. 4

Hence, this petition where petitioners allege as grounds thereof —

"(a) A university may not be compelled by mandamus to grant graduation honors to

any student who, according to the university’s standards, rules and regulations, does
not qualify for such honors; and

"(b) The decision penalizing petitioners to pay excessive moral and exemplary damages
and attorney’s fees is not justified by the facts and circumstances of this case and
disregards the many decisions of this Honorable Court setting reasonable standards and
limits in the award of such damages." (P. 2, petition; p. 12, rollo)

Private respondent enrolled in the College of Architecture, University of San Carlos

(USC), during the first semester of school year 1978-79. At the end of the second
semester of that school year, she obtained a grade of "I.C." (incomplete) in
Architecture 121, and grades of "5’s" (failures) in Architecture 122 and Architecture
123.

The following school year, 1979-1980, she shifted to the College of Commerce of the
USC. Some of the units she had completed when she was still an architecture student
were then carried over and credited in her new course. As a commerce student, she
obtained good grades. However, she was aware of her earlier failing grades in the
College of Architecture and that the same would be taken into consideration in the
evaluation of her overall academic performance to determine if she could graduate with
honors.chanrobles law library : red

So, on December 10, 1981, she wrote 5 the Council of Deans of the USC, requesting
that her grades of "5’s" in Architecture 121 and Architecture 122 be disregarded in the
computation of her grade average. She wrote a similar letter to the Ministry of
Education, Culture and Sports (MECS), in Region VII on January 5, 1982 6 and this
letter was referred to the President of the USC for comment and return to the MECS.

In the 3rd Indorsement dated February 4, 1982, the President of the USC informed the
MECS that the university policy was that any failing grade obtained by a student in any
course would disqualify the student for honors; that to deviate from that policy would
mean injustice to students similarly situated before who were not allowed to graduate
with honors; that the bad Fades given to her were justified and could not be deleted or
removed because her subjects were not "dropped" as required; that she had two
failures and one incomplete grade which became a failure upon her inaction to attend to
the incomplete Fade within one-year; and that while her three failures did not affect her
graduation from the College of Commerce, they nonetheless caused her disqualification
from graduating with honors. She was furnished a copy of said indorsement but she did
not ask for a reconsideration. chanrobles.com.ph : virtual law library

On March 17, 1982, when the USC President was out of town, private respondent wrote
to the USC Registrar 7 requesting that her failing Fades be changed. The USC Registrar
referred her letter to the MECS and the request for change of Fades was approved in a
4th indorsement of March 22, 1982. 8 Thus, her Fade of "IC" in Architecture 121 was
changed to "1.9" by Professor Victor Leves, Jr. and the grades of "5" in Architecture
122 and Architecture 123 were changed to "W" (Withdrawn).

On March 24, 1982, Mr. Marcelo Bacalso of MECS’ Higher Education Division discovered
that the change of the grade of private respondent from "IC" to "1.9" did not have the
supporting class record required, so he wrote to MECS Supervisor Mr. Ortiz requesting
the submission of the class record. 9

On March 28, 1982, the USC held its graduation exercises, and the private respondent
graduated with the degree of Bachelor of Science in Commerce, major in Accounting,
without honors.

On March 31, 1982, the private respondent, assisted by counsel, demanded from Dean
Victoria A. Satorre that she be allowed to graduate, cum laude. 10 Dean Satorre
explained that the matter was held in abeyance pending compliance with certain
requirements of the MECS through the memo of Mr. Bacalso. 11

On May 24, 1982, Arch. Leves, Jr., the teacher required to produce the class records,
reported he could not produce the same. 12 Thus, on May 27, 1982, Dean Satorre
wrote to the MECS Regional Director Aurelio Tiro asking for the revocation of the
change of grades of private Respondent. 13 The request was denied as there was no
positive proof of fraud. 14

It is an accepted principle that schools of learning are given ample discretion to

formulate rules and guidelines in the granting of honors for purposes of graduation.
This is part of academic freedom. Within the parameters of these rules, it is within the
competence of universities and colleges to determine who are entitled to the grant of
honors among the graduating students. Its discretion on this academic matter may not
be disturbed much less controlled by the courts unless there is grave abuse of
discretion in its exercise.
chanrobles.com:cralaw:red

In this case, the petitioner’s bulletin of information provides all students and all other
interested parties advise on the University policies and rules on enrollment and
academic achievements. Therein it is provided, among others, that a student may not
officially withdraw from subjects in the curriculum if he does not have the written
permission of his parents or guardian. 15 For an incomplete grade, there must be an
application for completion or removal within the period announced by the school
calendar and when not removed within one (1) year, it automatically becomes final. 16
A "DR" (Dropped) subject which is in the same category, as a "5" disqualifies a student
from receiving honors. 17 A candidate for honors should have earned no less than 18
units per semester but a working student should earn no less that 12 units. A failure in
any subject disqualifies a student from honors. Good moral character and exemplary
conduct are as important criteria for honors as academic achievements. 19

Private respondent should know and is presumed to know those University policies and
is bound to comply therewith.

It is precisely because she knew of these rules that she exerted all efforts to have her
final grades of "5’s" in Architecture 122 and Architecture 123 be disregarded in the
computation of honors. When her request was denied by the university, she did not ask
for a reconsideration thereof. Instead, in the middle part of March 1982 when the USC
President was out of town, she wrote another letter to the USC registrar asking her
failing grades be changed as above related. The matter was referred to the MECS and
the request was approved on March 22, 1982.

However, when it was discovered thereafter that the change of private respondent’s
grades from "IC" TO "1.9" was not supported by the corresponding class records and its
production was required the same could not be produced. There is thus no justification
for said change of grade. Moreover, the request for the change of the grade of
incomplete was not made by private respondent within one (1) year so that it became
final according to the rules. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

By the same token, the change of the grades of private respondent from "5" to "W"
(Withdrawn) in Architecture 122 and Architecture 123 was without the written
permission of her parents or guardian. Indeed, it is unusual that a student who got a
"5" in a subject, as in this case, should still be allowed to withdraw from such subject.
Withdrawal from subjects is not ordinarily allowed after mid-term examination, 20 so
much less after a failing grade in the subject has been received.

The change of grades of private respondent is thus open to question. Obviously, private
respondent employed undue and improper pressure on the MECS authorities to approve
the change of her grades to remove all obstacle to her graduation with honors.
Petitioners’ claim that the change of grades of the private respondent was attended
with fraud is not entirely misplaced. Petitioners cannot be faulted for refusing to vest
the honors demanded of them by the private Respondent. One failure would have been
sufficient to disqualify her but she had one incomplete and two failures. Her only
change was to reverse her failing grades. This she accomplished thru the back door.

Nevertheless, even if she succeeded in removing her failing grades, it was still within
the sound discretion of the petitioners to determine whether private respondent was
entitled to graduate with honors. The Court finds that petitioners did not commit a
grave abuse of discretion in denying the honors sought by private respondent under the
circumstances. Indeed, the aforesaid change of grades did not automatically entitle her
to the award of honors.

Private respondent not having demonstrated that she has a clear legal right to the
honors sought, her claim for damages must necessarily fail.

WHEREFORE, the petition is GRANTED and the subject decision of the respondent court
of May 28, 1987 and its resolution of July 7, 1987, are hereby REVERSED and SET
ASIDE and another judgment is hereby rendered DISMISSING the complaint without
pronouncement as to costs.

SO ORDERED.
G.R. No. 185559

JOSE G. TAN and ORENCIO C.

LUZURIAGA, Petitioner,
vs.
ROMEO H. VALERIANO,, Respondent.

DECISION

MARTIRES, J.:

For resolution is the Petition for Review on Certiorari,  docketed as G.R. No. 185559, assailing the
1

25 September 2008 Decision  and the 5 December 2008 Resolution  of the Court of Appeals (CA) in
2 3

CA-G.R. CV No. 88795.

THE FACTS

The present case arose from a damages suit for malicious prosecution filed by respondent Romeo
H. Valeriano (Valeriano) against petitioners Jose G. Tan, and Orencio C. Luzuriaga (petitioners), as
well as Toby Gonzales (Gonzales) and Antonio G. Gil an a (Gilana). 4

It is undisputed that on 4 January 2001, the Holy Name Society of Bulan, Sorsogon (Holy Name
Society), held a multi-sectoral consultative conference at the Bulan Parish Compound. Valeriano, the
president of the religious organization, delivered a welcome address during the conference. In his
address, Valeriano allegedly lambasted certain local officials of Bulan, Sorsogon, specifically
Municipal Councilors petitioners, Gilana and ViceMayor Gonzales.

The following day, or on 5 January 2001, petitioners, together with Gilana and Gonzales, filed before
the Civil Service Commission (CSC) an administrative complaint against Valeriano who was an
incumbent resident auditor of the Commission on Audit (COA). Believing that the real purpose of the
conference was to choose the candidates who will be endorsed by the Holy Name Society for the
2001 elections, petitioners, Gilana and Gonzales, charged Valeriano with acts of electioneering and
engaging in partisan politics. They were convinced that, through his opening remarks, Valeriano had
set the political tone of the conference. They also claimed that Valeriano did not advise or prevent
the other speakers from criticizing the local administration with which they are politically aligned or
identified.
5

The COA was furnished with a copy of the administrative complaint against Valeriano. The COA,
however, did not take any action on the complaint in view of the pendency of the case before the
CSC. 6

On 30 January 2001, the CSC dismissed the complaint due to a procedural defect, but without
prejudice to its re-filing.  The CSC noted that the complaint-affidavit was not filed under oath.
7

The petitioners subsequently re-filed a Complaint-Affidavit  dated 23 March 2001 before the CSC.
8

On motion of their counsel, however, the petitioners withdrew their complaint on 15 June 2001. 9

In the meantime, the petitioners and Gilana filed on 22 March 2001 another administrative
complaint  dated 13 March 2001 before the Office of the Ombudsman, this time for violation of
10
Republic Act No. 6713,  in relation to Section 55 of the Revised Administrative Code of 1987. This
11

complaint was dismissed by the Ombudsman on 21 June 2001 for want of evidence. 12

Aggrieved by the turn of events, Valeriano filed before Branch 65, Regional Trial
Court (RTC), Sorsogon City, a complaint for damages against the petitioners.

The Ruling of the Regional Trial Court

After weighing the evidence, the R TC ruled that the act of filing of numerous cases against
Valeriano by petitioners, Gilana, and Gonzales was attended by malice, vindictiveness, and bad
faith.  The RTC observed that Valeriano earned the ire of petitioners, Gilana, and Gonzales because
13

he was the one who organized and led the sponsorship of the Multi-Sectoral Consultative
Conference which was attended by some opposition leaders who were allowed to air their views
freely relative to the theme: "Facing Socio-Economic Challenges in the 3rd Millennium, Its
Alternative for Good Governance," a theme which is not totally apolitical considering that it pertains
to alternative good governance.  The RTC noted that the fact that Valeriano was singled out by
14

petitioners, Gilana, and Gonzales, although his participation was only to deliver the Welcome
Address, is indicative of malice. Also, the R TC held that the act of filing numerous cases before the
CSC, COA, and the Ombudsman, which cases were subsequently found to be unsubstantiated, is
reflective of ill will or the desire for revenge.
15

Due to the unfounded complaints initiated by the petitioners, the RTC decided in favor of Valeriano.
By reason of his physical suffering, mental anguish, and social humiliation, the RTC awarded
Valeriano ₱300,000.00 as moral damages; ₱200,000.00 as exemplary damages; and ₱30,000.00 as
attorney's fees and litigation expenses. 16

The Ruling of the Court of Appeals

In the assailed decision, the CA reversed the trial court's ruling insofar as Gonzales and Gilana were
concerned,  but affirmed that petitioners should be held liable for damages.  It held that Gonzales
17 18

and Gilana did not act with malice to vex or humiliate Valeriano by the mere act of initiating an
administrative case against him with the CSC and the Ombudsman.  On the other hand, the CA held
19

that petitioners' act of refiling their complaint with the CSC in April 2001, notwithstanding the
pendency of the administrative case with the Ombudsman, shows bad faith.  The CA further held
20

that petitioners' intent to prejudice and injure Valeriano was revealed when they did not inform their
lawyer of the pending case with the Ombudsman. 21

The Issue

The pivotal issue in this case is whether petitioners acted with malice or bad faith in filing the
administrative complaints against Valeriano.

The Court's Ruling

We rule in the negative.

At the onset, we must remember that our scope of review in a Rule 45 petition is limited to questions
of law.  This limitation exists because the Supreme Court is not a trier of facts that undertakes the
22

re-examination and re-assessment of the evidence presented by the contending parties during the
trial.  The appreciation and resolution of factual issues are the functions of the lower courts, whose
23
resulting findings are then received with respect and are binding on the Supreme Court subject to
certain exceptions.24

These exceptional circumstances when we have entertained questions of fact are: (1) when the
findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made
is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when
the judgment is based on a misapprehension of facts; (5) when the findings of facts are
conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case,
or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the
findings are contrary to the trial court; (8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts set forth in the petition as well as in
the petitioner's main and reply briefs are not disputed by the respondent; (10) when the findings of
fact are premised on the supposed absence of evidence and contradicted by the evidence on
record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed
by the parties, which, if properly considered, would justify a different conclusion.25

The issue raised in the present petition is clearly not a question of law as it requires a re-examination
of the weight and probative value of the evidence presented by the litigants and, thus, asking us to
make a different factual conclusion. In other words, what is being asked of us now is to review the
factual circumstances that led to the filing of numerous administrative complaints against Valeriano,
and to determine the presence of ill motive, malice or bad faith to justify the award for damages.

After reviewing the records and the conclusions arrived at by the lower courts, however, we find that
they had misappreciated the factual circumstances in this case thereby qualifying this case as an
exception to the rule that a petition for review on certiorari is limited to questions of law.

Article 19 of the Civil Code contains what is commonly referred to as the principle of abuse of rights
which requires that everyone must act with justice, give everyone his due, and observe honesty and
good faith. The law recognizes a primordial limitation on all rights; that in their exercise, the norms of
human conduct must be observed. A right, though by itself legal because it is recognized or granted
by law as such, may nevertheless become the source of some illegality. 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 held responsible. 26

The elements of abuse of rights are the following: (a) the existence of a legal right or duty; (b) which
is exercised in bad faith; and (c) with the sole intent of prejudicing or injuring another.
27

The existence of malice or bad faith is the fundamental element in abuse of right. In an action to
recover damages based on malicious prosecution, it must be established that the prosecution was
impelled by legal malice.  There is necessity of proof that the suit was patently malicious as to
28

warrant the award of damages under Articles 19 to 21 of the Civil Code or that the suit was
grounded on malice or bad faith.  There is malice when the prosecution was prompted by a sinister
29

design to vex and humiliate a person, and that it was initiated deliberately by the defendant knowing
that his charges were false and groundless.  The award of damages arising from malicious
30

prosecution is justified if and only if it is proved that there was a misuse or abuse of judicial
processes.  Concededly, the mere act of submitting a case to the authorities for prosecution does
31

not make one liable for malicious prosecution. 32

In this case, what prompted petitioners to initiate the complaint against Valeriano was his vital
participation in the multi-sectoral conference that was held wherein certain local officials were the
subject of criticisms.
No less than the Constitution prohibits such officers and employees in the civil service in engaging in
partisan political activity, to wit:

Section 2. (4) No officer or employee in the civil service shall engage, directly or indirectly, in any
electioneering or partisan political campaign.

Correspondingly, the Revised Administrative Code of 1987, in its provisions on the Civil Service,
provides:

SEC. 55. Political Activity. - No officer or employee in the Civil Service including members of the
Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any
election except to vote nor shall he use his official authority or influence to coerce the political activity
of any other person or body. Nothing herein provided shall be understood to prevent any officer or
employee from expressing his views on current political problems or issues, or from mentioning the
names of candidates for public office whom he supports: Provided, That public officers and
employees holding political offices may take part in political and electoral activities but it shall be
unlawful for them to solicit contributions from their subordinates or subject them to any of the acts
involving subordinates prohibited in the Election Code. 33

During the consultative conference held by the Holy Name Society, speakers were allowed to
criticize certain incumbent local officials. The conference was held at a time so close to the holding
of the 2001 elections. Valeriano, an employee of the COA, was, incidentally, the president of said
religious organization. Given the law's prohibition on public officers and employees, such as
Valeriano, from engaging in certain forms of political activities, it could reasonably be said that those
who had filed the complaints against Valeriano before the CSC and the Office of the Ombudsman
had done so as they had reason to believe that Valeriano was violating the prohibition. Given the
circumstances of the conference, it can reasonably be said that the complaints were filed out of a
belief in a viable cause of action against Valeriano. Put in another way, it cannot be said, for certain,
that the complaints against Valeriano were filed simply out of malice.

Indeed, the CA, in absolving Gonzales and Gilana, found no malice or bad faith in the first complaint
with the CSC, to wit:

Defendants-appellants miserably failed to show that plaintiff-appellee Valeriano probably engaged in

partisan political activity when the latter urged the participants in his welcome address "to join hands
together to build and offer our constituents a good governance as alternative of which, I will leave it
to your noble hands." Witness for defendants-appellants Asotes did not even see and hear plaintiff-
appellee Valeriano deliver his welcome address.

However, there is no showing that defendants-appellants Gonzales and Gilana acted with
malice or sinister design to vex or humiliate plaintiff-appellee Valeriano by the mere act of
initiating an administrative case for electioneering against the latter with the CSC and with the
Office of the Ombudsman after the dismissal without prejudice of the complaint by the
CSC.  (emphasis supplied)
34

This Court, however, disagrees with the CA that the mere re-filing of the complaint with the CSC is
reason to hold petitioners liable for damages.  It must be remembered that the same complaint had
1âwphi1

earlier been dismissed on a technicality,  and that the CSC directed that the dismissal was without
35

prejudice, i.e., the complaint may be re-filed after compliance with the technical rules. Following the
discussion of the CA as quoted above, we can say that this same complaint was likewise not filed
out of malice. It was borne out of a reasonable belief on the illegality of Valeriano’s acts.
Parenthetically, whether Valeriano’s acts do amount to illegalities is another question altogether, one
that is not within the purview of the present review.

It is a doctrine well-entrenched in jurisprudence that the mere act of submitting a case to the
authorities for prosecution, of and by itself, does not make one liable for malicious prosecution, for
the law could not have meant to impose a penalty on the right to litigate. 36

Valeriano failed to prove that the subject complaints against him were motivated purely by a sinister
design. It is an elementary rule that good faith is presumed and that the burden of proving bad faith
rests upon a party alleging the same. Absent such, petitioners cannot be held liable for damages.

WHEREFORE, the foregoing premises considered, the Decision dated 25 September 2008, and the
Resolution dated 5 December 2008, of the Court of Appeals in CA-G.R. CV No. 88795 are
hereby REVERSED and SET ASIDE. A new judgment is rendered DISMISSING the complaint in
Civil Case No. 01-176 filed by Romeo H. Valeriano before the Regional Trial Court, Branch 65,
Bulan, Sorsogon, for lack of merit.

SO ORDERED.
G.R. No. 161188             June 13, 2008

Heirs of PURISIMA NALA, represented by their attorney-in-fact EFEGENIA DIGNA

DUYAN, petitioners,
vs.
ARTEMIO CABANSAG, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

This is a petition for review under Rule 45 of the Rules of Court assailing the Court of Appeals (CA)
Decision1 dated December 19, 2002 and Resolution2 dated October 28, 2003, dismissing petitioners'
appeal and affirming with modification the Regional Trial Court (RTC) Decision dated August 10,
1994 rendered in Civil Case No. Q-91-10541.

The facts of the case are as follows:

Artemio Cabansag (respondent) filed Civil Case No. Q-91-10541 for damages in October 1991.
According to respondent, he bought a 50-square meter property from spouses Eugenio Gomez, Jr.
and Felisa Duyan Gomez on July 23, 1990. Said property is part of a 400-square meter lot
registered in the name of the Gomez spouses. In October 1991, he received a demand letter from
Atty. Alexander del Prado (Atty. Del Prado), in behalf of Purisima Nala (Nala), asking for the
payment of rentals from 1987 to 1991 until he leaves the premises, as said property is owned by
Nala, failing which criminal and civil actions will be filed against him. Another demand letter was sent
on May 14, 1991. Because of such demands, respondent suffered damages and was constrained to
file the case against Nala and Atty. Del Prado.3

Atty. Del Prado claimed that he sent the demand letters in good faith and that he was merely acting
in behalf of his client, Nala, who disputed respondent's claim of ownership. Nala alleged that said
property is part of an 800-square meter property owned by her late husband, Eulogio Duyan, which
was subsequently divided into two parts. The 400-square meter property was conveyed to spouses
Gomez in a fictitious deed of sale, with the agreement that it will be merely held by them in trust for
the Duyan's children. Said property is covered by Transfer Certificate of Title (TCT) No. 281115 in
the name of spouses Gomez. Nala also claimed that respondent is only renting the property which
he occupies.4

After trial, the RTC of Quezon City, Branch 93, rendered its Decision on August 10, 1994, in favor of
respondent. The dispositive portion of the Decision provides:

WHEREFORE, premises considered, by preponderance of evidence, the Court finds in favor

of the plaintiff and hereby orders the defendants, jointly and severally, to pay plaintiff the
following:

1. P150,000.00 by way of moral damages;

2. P30,000.00 by way of exemplary damages;

3. P20,000.00 as and for reasonable attorney's fees and other litigation expenses;
and
 4. to pay the costs.

SO ORDERED.5

Nala and Atty. Del Prado appealed to the CA. The herein assailed CA Decision dated December 19,
2002 affirmed the RTC Decision with modification, thus:

WHEREFORE, premises considered, the instant appeal is hereby DISMISSED. The assailed
decision of the Regional Trial Court, Branch 93, Quezon City, in Civil Case No. Q-91-10541
is heretofore AFFIRMED with MODIFICATION. Defendants-appellants are ordered to pay,
jointly and severally, plaintiff-appellee the amount of P30,000.00 by way of moral damages. It
is further ordered to pay him exemplary damages in the amount of P10,000.00
and P10,000.00, attorney's fees.

SO ORDERED.6

In affirming the RTC Decision, the CA took note of the Decision dated September 5, 1994 rendered
by the RTC of Quezon City, Branch 80, dismissing Civil Case No. 91-8821, an action for
reconveyance of real property and cancellation of TCT No. 281115 with damages, filed by Nala
against spouses Gomez.7

Hence, herein petition by the heirs of Nala (petitioners)8 with the following assignment of errors:

a) Respondent Court of Appeals erred in not considering the right of Purisima Nala to assert
her rights and interest over the property.

b) Respondent Court of Appeals erred in not considering the Decision rendered by the Court
of Appeals in the case for reconveyance which upheld the rights and interest of Purisima
Nala and her children over a certain parcel of land, a portion of which is subject of the
present case.

c) Respondent Court of Appeals erred in awarding damages and attorney's fees without any
basis.9

Atty. Del Prado filed a motion for extension of time to file his separate petition but it was denied by
the Court per its Resolution dated January 19, 2004 issued in G.R. No. 160829.

Petitioners argue that their predecessor-in-interest had every right to protect and assert her interests
over the property. Nala had no knowledge that the property was sold by spouses Gomez to
respondent when the demand letters were sent. What she was aware of was the fact that spouses
Gomez were managing the rentals on the property by virtue of the implied trust created between
them and Eulogio Duyan. When spouses Gomez failed to remit the rentals and claimed ownership of
the property, it was then that Nala decided to procure the services of legal counsel to protect their
rights over the property.

Petitioners also contend that it was error for the CA to take note of the RTC Decision in Civil Case
No. 91-8821 without further noting that the CA had already reversed and set aside said RTC
Decision and ordered reconveyance of the property to Nala and her children in a Decision dated
March 8, 2000 rendered in CA-G.R. CV No. 49163. Petitioners also argue that respondent did not
substantiate his claim for damages.
Preliminarily, the Court notes that both the RTC and the CA failed to indicate the particular provision
of law under which it held petitioners liable for damages. Nevertheless, based on the allegations in
respondent's complaint, it may be gathered that the basis for his claim for damages is Article 19 of
the Civil Code, which provides:

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.

The foregoing provision sets the standards which may be observed not only in the exercise of one's
rights but also in the performance of one's duties. 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 held responsible. But a right, though by itself
legal because recognized or granted by law as such, may nevertheless become the source of some
illegality. A person should be protected only when he acts in the legitimate exercise of his right; that
is, when he acts with prudence and in good faith, but not when he acts with negligence or abuse.
There is an abuse of right when it is exercised only for the purpose of prejudicing or injuring another.
The exercise of a right must be in accordance with the purpose for which it was established, and
must not be excessive or unduly harsh; there must be no intention to injure another.[10]

In order to be liable for damages under the abuse of rights principle, the following requisites must
concur: (a) the existence of a legal right or duty; (b) which is exercised in bad faith; and (c) for the
sole intent of prejudicing or injuring another.11

It should be stressed that malice or bad faith is at the core of Article 19 of the Civil Code. Good faith
is presumed, and he who alleges bad faith has the duty to prove the same.12 Bad faith, on the other
hand, does not simply connote bad judgment to simple negligence, dishonest purpose or some
moral obloquy and conscious doing of a wrong, or a breach of known duty due to some motives or
interest or ill will that partakes of the nature of fraud. Malice connotes ill will or spite and speaks not
in response to duty. It implies an intention to do ulterior and unjustifiable harm.13

In the present case, there is nothing on record which will prove that Nala and her counsel, Atty. Del
Prado, acted in bad faith or malice in sending the demand letters to respondent. In the first place,
there was ground for Nala's actions since she believed that the property was owned by her husband
Eulogio Duyan and that respondent was illegally occupying the same. She had no knowledge that
spouses Gomez violated the trust imposed on them by Eulogio and surreptitiously sold a portion of
the property to respondent. It was only after respondent filed the case for damages against
Nala that she learned of such sale. The bare fact that respondent claims ownership over the
property does not give rise to the conclusion that the sending of the demand letters by Nala was
done in bad faith. Absent any evidence presented by respondent, bad faith or malice could not be
attributed to petitioner since Nala was only trying to protect their interests over the property.

Moreover, respondent failed to show that Nala and Atty. Del Prado's acts were done with the sole
intention of prejudicing and injuring him. It may be true that respondent suffered mental anguish,
serious anxiety and sleepless nights when he received the demand letters; however, there is a
material distinction between damages and injury. Injury is the legal invasion of a legal right while
damage is the hurt, loss or harm which results from the injury.14 Thus, there can be damage without
injury in those instances in which the loss or harm was not the result of a violation of a legal duty. In
such cases, the consequences must be borne by the injured person alone; the law affords no
remedy for damages resulting from an act which does not amount to a legal injury or wrong. These
situations are often called damnum absque injuria.15
Nala was acting well within her rights when she instructed Atty. Del Prado to send the demand
letters. She had to take all the necessary legal steps to enforce her legal/equitable rights over the
property occupied by respondent. One who makes use of his own legal right does no injury.16 Thus,
whatever damages are suffered by respondent should be borne solely by him.

Nala's acts in protecting her rights over the property find further solid ground in the fact that the
property has already been ordered reconveyed to her and her heirs. In its Decision dated March 8,
2000 in CA-G.R. CV No. 49163, the CA reversed and set aside the RTC's Decision and ordered the
reconveyance of the property to petitioners, and TCT No. 281115 was declared canceled. Said CA
Decision was affirmed by this Court in its Decision dated March 18, 2005 in G.R. No. 144148, which
became final and executory on July 27, 2005.

WHEREFORE, the petition is GRANTED. The Decision dated December 19, 2002 and Resolution
dated October 28, 2003 rendered by the Court of Appeals in CA-G.R. CV No. 48580
are NULLIFIED. Civil Case No. Q-91-10541 is DISMISSED for lack of merit.

Costs against respondent.

SO ORDERED.
[G.R. No. L-14628. September 30, 1960.]

FRANCISCO HERMOSISIMA, Petitioner, v. THE HON. COURT OF APPEALS, ET

AL., Respondents.

Regino Hermosisima for Petitioner.

F. P. Gabriel, Jr. for Respondents.

SYLLABUS

1. DAMAGES; BREACH OF PROMISE TO MARRY; NOT ACTIONABLE. — It is the clear and

manifest intent of Congress not to sanction actions for breach of promise to marry.

2. ID.; ID.; SEDUCTION AS GROUND FOR AWARD OF MORAL DAMAGES; NATURE OF

SEDUCTION CONTEMPLATED IN ARTICLE 2219 OF NEW CIVIL CODE. — The "seduction"
contemplated in Article 2219 of the New Civil Code as one of the cases where moral
damages may be recovered, is the crime punished as such in Articles 337 and 338 of
the Revised Penal Code.

3. ID.; ID.; ID.; ID.; WHEN SEDUCTION DOES NOT EXIST. — Where a woman, who
was an insurance agent and former high school teacher, around 36 years of age and
approximately 10 years older than the man, "overwhelmed by her love" for a man
approximately 10 years younger then her, had intimate relations with him, because she
"wanted to bind" him "by having a fruit of their engagement even before they had the
benefit of clergy," it cannot be said that he is morally guilty of seduction.

DECISION

CONCEPCION, J.:

An appeal by certiorari, taken by petitioner Francisco Hermosisima, from a decision of

the Court of Appeals modifying that of the Court of First Instance of Cebu.

On October 4, 1954, Soledad Cagigas, hereinafter referred to as complainant, filed with

said court of first instance a complaint for the acknowledgment of her child, Chris
Hermosisima, as natural child of said petitioner, as well as for support of said child and
moral damages for alleged breach of promise. Petitioner admitted the paternity of child
and expressed willingness to support the later, but denied having ever promised to
marry the complainant. Upon her motion, said court ordered petitioner, on October 27,
1954, to pay, by way of alimony pendente lite, P50.00 a month, which was, on
February 16, 1955, reduced to P30.00 a month. In due course, later on, said court
rendered a decision the dispositive part of which reads: jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered, declaring the child, Chris Hermosisima, as

the natural daughter of defendant, and confirming the order pendente lite, ordering
defendant to pay to the said child, through plaintiff, the sum of thirty pesos (P30.00),
payable on or before the fifth day of every month; sentencing defendant to pay to
plaintiff the sum of FOUR THOUSAND FIVE HUNDRED PESOS (P4,500.00) for actual and
compensatory damages; the sum Of FIVE THOUSAND PESOS (P5,000.00) as moral
damages; and the further sum of FIVE HUNDRED PESOS (P500.00) as attorney’s fees
for plaintiff, with costs against defendant." cralaw virtua1aw library

On appeal taken by petitioner, the Court of Appeals affirmed this decision, except as to
the actual and compensatory damages and the moral damages, which were increased
to P5,614.25 and P7,000.00, respectively.

The main issue before us is whether moral damages are recoverable, under our laws,
for breach of promise to marry. The pertinent facts are: chanrob1es virtual 1aw library

Complainant Soledad Cagigas, was born in July 1917. Since 1950, Soledad then a
teacher in the Sibonga Provincial High School in Cebu, and petitioner, who was almost
ten (10) years younger than she, used to go around together and were regarded as
engaged, although he had made no promise of marriage prior thereto. In 1951, she
gave up teaching and became a life insurance underwriter in the City of Cebu, where
intimacy developed among her and the petitioner, since one evening, in 1953, when
after coming from the movies, they had sexual intercourse in his cabin on board M/V
"Escaño" to which he was then attached as apprentice pilot. In February, 1954, Soledad
advised petitioner that she was in the family way, whereupon he promised to marry
her. Their child, Chris Hermosisima, was born on June 17, 1954, in a private maternity
and clinic. However, subsequently, or on July 24, 1954, defendant married one
Romanita Perez. Hence, the present action, which was commenced on or about October
4, 1954.

Referring now to the issue above referred to, it will be noted that the Civil Code of
Spain permitted the recovery of damages for breach of promise to marry. Articles 43
and 44 of said Code provides: chanrob1es virtual 1aw library

ART. 43. "A mutual promise of marriage shell not give rise to an obligation to contract
marriage. No court shell entertain any complaint by which the enforcement of such
promise is sought." cralaw virtua1aw library

ART. 44. "If the promise has been in a public or private instrument by an adult, or by a
minor with the concurrence of the person whose consent is necessary for the
celebration of the marriage, or if the banns have been published, the one who without
just cause refuses to marry shall be obliged to reimburse the other for the expenses
which he or she may have incurred by reason of the promised marriage.

"The action for reimbursement of expenses to which the foregoing article refers must
be brought within one year, computed from the day of the refusal to celebrate the
marriage."cralaw virtua1aw library

Inasmuch as these articles were never in force in the Philippines, this Court ruled in de
Jesus v. Syquia (58 Phil., 866), that "the action for breach of promise to marry has no
standing in the civil law, apart from the right to recover money or property advanced . .
. upon the faith of such promise." The Code Commission charged with the drafting of
the Proposed Civil Code of the Philippines deemed it best, however, to change the law
thereon. We quote from the report of the Code Commission on said Proposed Civil
Code: jgc:chanrobles.com.ph

"Articles 43 and 44 of the Civil Code of 1889 refer to the promise of marriage. But
these articles are not in force in the Philippines. The subject is regulated in the
proposed Civil Code not only as to the aspects treated of in said articles but also in
other particulars. It is advisable to furnish legislative solutions to some questions that
might arise relative to betrothal. Among the provisions proposed are: That authorizing
the adjudication of moral damages, in case of breach of promise of marriage, and that
creating liability for causing a marriage engagement to be broken." cralaw virtua1aw library

Accordingly, the following provisions were inserted in said Proposed Civil Code, under
Chapter I, Title III, Book I thereof: jgc:chanrobles.com.ph

"ART. 56. A mutual promise to marry may be made expressly or impliedly." cralaw virtua1aw library

"ART. 57. An engagement to be married must be agreed directly by the future

spouses." cralaw virtua1aw library

"ART. 58. A contract for a future marriage cannot, without the consent of the parent or
guardian, be entered into by a male between the ages of sixteen and twenty years or
by a female between the ages of sixteen and eighteen years. Without such consent of
the parents or guardian, the engagement to marry cannot be the basis of a civil action
for damages in case of breach of the promise.

"ART. 59. A promise to marry when made by a female under the age of fourteen years
is not civilly actionable, even though approved by the parent or guardian." cralaw virtua1aw library

"ART. 60. In cases referred to in the preceding articles, the criminal and civil
responsibility of a male for seduction shall not be affected." cralaw virtua1aw library

"ART. 61. No action for specific performance of a mutual promise to marry may be
brought." cralaw virtua1aw library

"ART. 62. An action for breach of promise to marry may be brought by the aggrieved
party even though a minor without the assistance of his or her parent or guardian.
Should the minor refuse to bring suit, the parent or guardian may institute the action."
virtua1aw library
cralaw

"ART. 63. Damages for breach of promise to marry shall include not only material and
pecuniary losses but also compensation for mental and moral suffering." cralaw virtua1aw library

"ART. 64. Any person, other than a rival, the parents, guardians and grandparents, of
the affianced parties, who causes a marriage engagement to be broken shall be liable
for damages, both material and moral, to the engaged person who is rejected." cralaw virtua1aw library

"ART. 65. In case of breach of promise to marry, the party breaking the engagement
shall be obliged to return what he or she has received from the other as gift on account
of the promise of the marriage." cralaw virtua1aw library
These articles were, however, eliminated in Congress. The reason therefor are set forth
in the report of the corresponding Senate Committee, from which we quote: jgc:chanrobles.com.ph

"The elimination of this Chapter is proposed. That breach of promise to marry is not
actionable has been definitely decided in the case of De Jesus v. Syquia, 53 Phil., 366.
The history of bleach of promise suits in the United States and in England has shown
that no other action lends itself more readily to abuse by designing women and
unscrupulous man. It is this experience which has led to the abolition of rights of action
in the so-called Balm suits in many of the American States.

See statutes of: chanrob1es virtual 1aw library

Florida 1945 — pp. 1342-1344

Maryland 1945 — pp. 1759-1762

Nevada 1948 — p. 74

Maine 1941 — pp. 140-141

New Hampshire 1941 — p. 223

California 1939 — p. 1245

Massachusetts 1938 — p. 326

Indiana 1936 — p. 1009

Michigan 1935 — p. 201

New York 1935

Pennsylvania p. 450

"The Commission perhaps thought that it has followed the more progressive trend in
legislation when it provided for breach of promise to marry suits. But it is clear that the
creation of such causes of action at a time when so many States, in consequence of
years of experience are doing away with them, may well prove to be a step in the
wrong direction. (Congressional Record, Vol. IV, No. 79, Thursday, May 19, 1949, p.
2352.)"

The views thus expressed were accepted by both houses of Congress. In the light of the
clear and manifest intent of our law making body not to sanction actions for breach of
promise to marry, the award of moral damages made by the lower court is, accordingly,
untenable. The Court of Appeals said in justification of said award: jgc:chanrobles.com.ph

"Moreover, it appearing that because of defendant-appellant’s seductive powers,

plaintiff-appellee, overwhelmed by her love for him finally yielded to his sexual desires
in spite of her age and self- control, she being a woman after all, we hold that said
defendant- appellant is liable for seduction and, therefore, moral damages may be
recovered from him under the provisions of Article 2219, paragraph 3, of the new Civil
Code."cralaw virtua1aw library

Apart from the fact that the general tenor of said Article 2219, particularly the
paragraphs preceding and those following the one cited by the Court of Appeals, and
the language used in said paragraph strongly indicates that the "seduction" therein
contemplated is the crime punished as such in Articles 337 and 338 of the Revised
Penal Code, which admittedly does not exist in the present case, we find ourselves
unable to say that petitioner is morally guilty of seduction, not only because he is
approximately ten (10) years younger than the complainant — who was around thirty-
six (36) years of age, and as highly enlightened as a former high school teacher and a
life insurance agent are supposed to be — when she became intimate with petitioner,
then a mere apprentice pilot, but, also, because, the court of first instance found that,
complainant "surrendered herself" to petitioner because, "overwhelmed by her love" for
him, she "wanted to bind" him "by having a fruit of their engagement even before they
had the benefit of clergy." cralaw virtua1aw library

The court of first instance sentenced petitioner to pay the following: (1) a monthly
pension of P30.00 for the support of the child; (2) P4,500, representing the income that
complainant had allegedly failed to earn during her pregnancy and shortly after the
birth of the child, as actual and compensatory damages; (3) P5,000, as moral
damages; and (4) P500.00, as attorney’s fees. The Court of Appeals added to the
second item the sum of P1,114.25 — consisting of P144.20, for hospitalization and
medical attendance, in connection with the parturiation, and the balance representing
expenses incurred to support the child — and increased the moral damages to
P7,000.00.

With the elimination of this award for moral damages, the decision of the Court of
Appeals is hereby affirmed, therefore, in all other respects, without special
pronouncement as to costs in this instance. It is so ordered.
G.R. No. L-20089      December 26, 1964

BEATRIZ P. WASSMER, plaintiff-appellee,
vs.
FRANCISCO X. VELEZ, defendant-appellant.

Jalandoni & Jamir for defendant-appellant.

Samson S. Alcantara for plaintiff-appellee.

BENGZON, J.P., J.:

The facts that culminated in this case started with dreams and hopes, followed by appropriate
planning and serious endeavors, but terminated in frustration and, what is worse, complete public
humiliation.

Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get
married and set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his
bride-to-be:

Dear Bet —

Will have to postpone wedding — My mother opposes it. Am leaving on the Convair
today.

Please do not ask too many people about the reason why — That would only create
a scandal.

Paquing

But the next day, September 3, he sent her the following telegram:

NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE

MAMA PAPA LOVE .

PAKING

Thereafter Velez did not appear nor was he heard from again.

Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced
evidence before the clerk of court as commissioner, and on April 29, 1955, judgment was rendered
ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as moral and
exemplary damages; P2,500.00 as attorney's fees; and the costs.

On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and
motion for new trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2,
1955, ordered the parties and their attorneys to appear before it on August 23, 1955 "to explore at
this stage of the proceedings the possibility of arriving at an amicable settlement." It added that
should any of them fail to appear "the petition for relief and the opposition thereto will be deemed
submitted for resolution."
On August 23, 1955 defendant failed to appear before court. Instead, on the following day his
counsel filed a motion to defer for two weeks the resolution on defendants petition for relief. The
counsel stated that he would confer with defendant in Cagayan de Oro City — the latter's residence
— on the possibility of an amicable element. The court granted two weeks counted from August 25,
1955.

Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on
September 8, 1955 but that defendant and his counsel had failed to appear.

Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the
parties and their attorneys to appear on July 13, 1956. This time. however, defendant's counsel
informed the court that chances of settling the case amicably were nil.

On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has
appealed to this Court. In his petition of June 21, 1955 in the court a quo defendant alleged
excusable negligence as ground to set aside the judgment by default. Specifically, it was stated that
defendant filed no answer in the belief that an amicable settlement was being negotiated.

A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence,
must be duly supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3,
Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his petition of June 21, 1955
stated: "That he has a good and valid defense against plaintiff's cause of action, his failure to marry
the plaintiff as scheduled having been due to fortuitous event and/or circumstances beyond his
control." An affidavit of merits like this stating mere conclusions or opinions instead of facts is not
valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800,
December 29, 1960.)

Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere
surplusage, because the judgment sought to be set aside was null and void, it having been based on
evidence adduced before the clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October
30, 1962, this Court pointed out that the procedure of designating the clerk of court as commissioner
to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to
defendant's consent to said procedure, the same did not have to be obtained for he was declared in
default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First
Instance, L-14557, October 30, 1959).

In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is
contrary to law. The reason given is that "there is no provision of the Civil Code authorizing" an
action for breach of promise to marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-
14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere
breach of a promise to marry" is not an actionable wrong. We pointed out that Congress deliberately
eliminated from the draft of the new Civil Code the provisions that would have it so.

It must not be overlooked, however, that the extent to which acts not contrary to law may be
perpetrated with impunity, is not limitless for Article 21 of said Code provides that "any person who
wilfully 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."

The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract
marriage, which was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4,
1954. Invitations were printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh.
C). The bride-to-be's trousseau, party drsrses and other apparel for the important occasion were
purchased (Tsn., 7-8). Dresses for the maid of honor and the flower girl were prepared. A
matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn.,
6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,:
simply left a note for plaintiff stating: "Will have to postpone wedding — My mother opposes it ... " He
enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired
plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard
from again.

Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to
marry is not an actionable wrong. But to formally set a wedding and go through all the above-
described preparation and publicity, only to walk out of it when the matrimony is about to be
solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which
defendant must be held answerable in damages in accordance with Article 21 aforesaid.

Defendant urges in his afore-stated petition that the damages awarded were excessive. No question
is raised as to the award of actual damages. What defendant would really assert hereunder is that
the award of moral and exemplary damages, in the amount of P25,000.00, should be totally
eliminated.

Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in
the cases mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that
the same could not be adjudged against him because under Article 2232 of the New Civil Code the
condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner." The argument is devoid of merit as under the above-narrated circumstances of
this case defendant clearly acted in a "wanton ... , reckless [and] oppressive manner." This Court's
opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral
and exemplary damages is deemed to be a reasonable award.

PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is
hereby affirmed, with costs.
[G.R. No. 101749. July 10, 1992.]

CONRADO BUNAG, JR., Petitioner, v. HON. COURT OF APPEALS, First Division,

and ZENAIDA B. CIRILO, Respondents.

Conrado G. Bunag for Petitioner.

Ocampo, Dizon & Domingo Law Office for Respondents.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE COURT OF APPEALS ARE AS

A RULE CONCLUSIVE UPON THIS COURT. — The issue raised primarily and ineluctably
involves questions of fact. We are, therefore, once again constrained to stress the well-
entrenched statutory and jurisprudential mandate that findings of fact of the Court of
Appeals are, as a rule, conclusive upon this Court. Only questions of law, distinctly set
forth, may be raised in a petition for review on certiorari under Rule 45 of the Rules of
Court, subject to clearly settled exceptions in case law.

2. ID.; ID.; ID.; SUPREME COURT’S FUNCTION IS LIMITED TO REVIEWING ERRORS. —

Our jurisdiction in cases brought to us from the Court of Appeals is limited to reviewing
and revising the errors of law imputed to the latter, its findings of fact being conclusive.
This Court has emphatically declared that it is not its function to analyze or weigh such
evidence all over again, its jurisdiction being limited to reviewing errors of law that
might have been committed by the lower court. Barring, therefore, a showing that the
findings complained of are totally devoid of support in the record, or that they are so
glaringly erroneous as to constitute serious abuse of discretion, such findings must
stand, for this Court is not expected required to examine or contrast the oral and
documentary evidence submitted by the parties. 7 Neither does the instant case reveal
any feature falling within any of the exceptions which under our decisional rules may
warrant a review of the factual findings of the Court of Appeals.

3. CIVIL LAW; DAMAGES; BREACH OF PROMISE TO MARRY; GENERALLY NOT

ACTIONABLE; EXCEPTION. — It is true that in this jurisdiction, we adhere to the time-
honored rule that an action for breach of promise to marry has no standing in the civil
law, apart from the right to recover money or property advanced by the plaintiff upon
the faith of such promise. Generally, therefore, a breach of promise to marry per se is
not actionable, except where the plaintiff has actually incurred expenses for the
wedding and the necessary incidents thereof.

4. ID.; ID.; ID.; MORAL DAMAGES; RATIONALE. — However, the award of moral
damages is allowed in cases specified in or analogous to those provided in Article 2219
of the Civil Code. Correlatively, under Article 21 of said Code, in relation to paragraph
10 of said Article 2219, any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall compensate the
latter for moral damages. Article 21 was adopted to remedy the countless gaps in the
statutes which leave so many victims of moral wrongs helpless even though they have
actually suffered material and moral injury, and is intended to vouchsafe adequate legal
remedy for that untold number of moral wrongs which is impossible for human foresight
to specifically provide for in the statutes.

5. ID.; ID.; ID.; ID.; AWARDED WHERE PETITIONER FORCIBLY ABDUCTED

RESPONDENT AND HAD CARNAL KNOWLEDGE WITH HER. — Under the circumstances
obtaining in the case at bar, the acts or petitioner in forcibly abducting private
respondent and having carnal knowledge with her against her will, and thereafter
promising to marry her in order to escape criminal liability, only to thereafter renege on
such promise after cohabiting with her for twenty-one days, irremissibly constitutes
acts contrary to morals and good customs. These are grossly insensate and
reprehensible transgressions which indisputably warrant and abundantly justify the
award of moral and exemplary damages, pursuant to Article 21, in relation to
paragraphs 3 and 10, Article 2219, and Articles 2229 and 2234 of the Civil Code.

6. REMEDIAL LAW; CRIMINAL PROCEDURE; EXTINCTION OF PENAL ACTION DOES NOT

CARRY WITH IT EXTINCTION OF CIVIL LIABILITY; EXCEPTION. — Generally, the basis
of civil liability from crime is the fundamental postulate of our law that every person
criminally liable for a felony is also civilly liable. In other words, criminal liability will
give rise to civil liability ex delicto only if the same felonious act or omission results in
damage or injury to another and is the direct and proximate cause thereof. Hence,
extinction of the penal action does not carry with it the extinction of civil liability unless
the extinction proceeds from a declaration in a final judgment that the fact from which
the civil might arise did not exist.

7. ID.; ID.; ID.; CASE AT BAR. — In the instant case, the dismissal of the complaint for
forcible abduction with rape was by mere resolution of the fiscal at the preliminary
investigation stage. There is no declaration in a final judgment that the fact from which
the civil case might arise did not exist. Consequently, the dismissal did not in any way
affect the right of herein private respondent to institute a civil action arising from the
offense because such preliminary dismissal of the penal action did not carry with it the
extinction of the civil action.

8. ID.; ID.; ID.; RATIONALE. — The reason most often given for this holding is that the
two proceedings involved are not between the same parties. Furthermore, it has long
been emphasized, with continuing validity up to now, that there are different rules as to
the competency of witnesses and the quantum of evidence in criminal civil proceedings.
In a criminal action, the State must prove its case by evidence which shows the guilt of
the accused beyond reasonable doubt, while in a civil action it is sufficient for the
plaintiff to sustain his cause by preponderance of evidence only. Thus, in Rillon, Et. Al.
v. Rillon, we stressed that it is not now necessary that a criminal prosecution for rape
be first instituted and prosecuted to final judgment before a civil action based on said
offense in favor of the offended woman can likewise be instituted and prosecuted to
final judgment.

DECISION

REGALADO, J.:
Petitioner appeals for the reversal of the decision 1 of respondent Court of Appeals
promulgated on May 17, 1991 in CA-G.R. CV No. 07054, entitled "Zenaida B. Cirilo v.
Conrado Bunag, Sr. and Conrado Bunag, Jr.," which affirmed in toto the decision of the
Regional Trial Court, Branch XI at Bacoor, Cavite, and, implicitly, respondent court’s
resolution of September 3, 1992 2 denying petitioner’s motion for reconsideration.

Respondent court having assiduously discussed the salient antecedents of this case,
vis-a-vis the factual findings of the court below, the evidence of record and the
contentions of the parties, it is appropriate that its findings, which we approve and
adopt, be extensively reproduced hereunder: jgc:chanrobles.com.ph

"Based on the evidence on record, the following facts are considered indisputable: On
the afternoon of September 8, 1973, Defendant-Appellant Bunag, Jr. brought plaintiff-
appellant to a motel or hotel where they had sexual intercourse. Later that evening,
said defendant-appellant brought plaintiff-appellant to the house of his grandmother
Juana de Leon in Pamplona, Las Piñas, Metro Manila, where they lived together as
husband and wife for 21 days, or until September 29, 1973. On September 10,
1973, Defendant-Appellant Bunag, Jr. and plaintiff-appellant filed their respective
applications for a marriage license with the Office of the Local Civil Registrar of Bacoor,
Cavite. On October 1, 1973, after leaving plaintiff-appellant, Defendant-
Appellant Bunag, Jr. filed an affidavit withdrawing his application for a marriage license.

"Plaintiff-appellant contends that on the afternoon of September 8, 1973, Defendant-

Appellant Bunag, Jr., together with an unidentified male companion, abducted her in
the vicinity of the San Juan de Dios Hospital in Pasay City and brought her to a motel
where she was raped. The court a quo, which adopted the evidence, summarized the
same which we paraphrased as follows: chanrobles virtual lawlibrary

`Plaintiff was 26 years old on November 5, 1974 when she testified, single and had
finished a college course in Commerce (t.s.n., p. 4, Nov. 5, 1974). It appears that on
September 8, 1973, at about 4:00 o’clock in the afternoon, while she was walking along
Figueras Street, Pasay City on her way to the San Juan de Dios Canteen to take her
snack, defendant, Conrado Bunag, Jr., came riding in a car driven by a male
companion. Plaintiff and defendant Bunag, Jr. were sweethearts, but two weeks before
September 8, 1973, they had a quarrel, and Bunag, Jr. wanted to talk matters over
with plaintiff, so that he invited her to take their merienda at the Aristocrat Restaurant
in Manila instead of at San Juan de Dios Canteen, to which plaintiff obliged, as she
believed in his sincerity (t.s.n., pp. 8-10, Nov. 5, 1974).’

`Plaintiff rode in the case and took the front seat beside the driver while Bunag, Jr.
seated himself by her right side. The car traveled north on its way to the Aristocrat
Restaurant but upon reaching San Juan Street in Pasay City, it turned abruptly to the
right, to which plaintiff protested, but which the duo ignored and instead threatened her
not to make any noise as they were ready to die and would bump the car against the
post if she persisted. Frightened and silenced, the car traveled its course thru F.B.
Harrison Boulevard until they reached a motel. Plaintiff was then pulled and dragged
from the car against her will, and amidst her cries and pleas. In spite of her struggle
she was no match to the joint strength of the two male combatants because of her
natural weakness being a woman and her small stature. Eventually, she was brought
inside the hotel where the defendant Bunag, Jr. deflowered her against her will and
consent. She could not fight back and repel the attack because after Bunag, Jr. had
forced her to lie down and embraced her, his companion held her two feet, removed
her panty, after which he left. Bunag, Jr. threatened her that he would ask his
companion to come back and hold her feet if she did not surrender her womanhood to
him, thus he succeeded in feasting on her virginity. Plaintiff described the pains she felt
and how blood came out of her private parts after her vagina was penetrated by the
penis of the defendant Bunag, Jr. (t.s.n., pp. 17-24, Nov. 5, 1974).

`After that outrage on her virginity, plaintiff asked Bunag, Jr. once more to allow her to
go home but the latter would not consent and stated that he would only let her go after
they were married as he intended to marry her, so much so that she promised not to
make any scandal and to marry him. Thereafter, they took a taxi together after the car
that they used had already gone, and proceeded to the house of Juana de Leon, Bunag,
Jr.’s grandmother in Pamplona, Las Piñas, Metro Manila where they arrived at 9:30
o’clock in the evening (t.s.n., p. 26, Nov. 5, 1974). At about ten (10) o’clock that same
evening, defendant Conrado Bunag, Sr., father of Bunag, Jr. arrived and assured
plaintiff that the following day which was a Monday, she and Bunag, Jr. would go to
Bacoor, to apply for a marriage license, which they did. They filed their applications for
marriage license (Exhibits `A’ and `C’) and after that plaintiff and defendant Bunag, Jr.
returned to the house of Juana de Leon and lived there as husband and wife from
September 8, 1973 to September 29, 1973. chanrobles law library

`On September 29, 1973 complaint Bunag, Jr. left and never returned, humiliating
plaintiff and compelled her to go back to her parents on October 3, 1973. Plaintiff was
ashamed when she went home and could not sleep and eat because of the deception
done against her by defendant-appellants (t.s.n., p. 35, Nov. 5, 1974).

`The testimony of plaintiff was corroborated in toto by her uncle, Vivencio Bansagan
who declared that on September 8, 1973 when plaintiff failed to arrive home at 9:00
o’clock in the evening, his sister who is the mother of plaintiff asked him to look for her
but his efforts proved futile, and he told his sister that plaintiff might have married
(baka nag-asawa, t.s.n., pp. 5-6, March 18, 1976). However, in the afternoon of the
next day (Sunday), his sister told him that Francisco Cabrera, accompanied by barrio
captain Jacinto Manalili of Ligas, Bacoor, Cavite, informed her that plaintiff and Bunag,
Jr. were in Cabrera’s house, so that her sister requested him to go and see the plaintiff,
which he did, and at the house of Mrs. Juana de Leon in Pamplona, Las Piñas, Metro
Manila he met defendant Conrado Bunag, Sr., who told him, `Pare, the children are
here already. Let us settle the matter and have them married.’

`He conferred with plaintiff who told that as she had already lost her honor, she would
bear her sufferings as Boy Bunag, Jr. and his father promised they would be married.’

"Defendants-appellants, on the other hand, deny that defendant-appellant Conrado

Bunag, Jr. abducted and raped plaintiff-appellant on September 8, 1973. On the
contrary, plaintiff-appellant and defendant-appellant Bunag, Jr. eloped on that date
because of the opposition of the latter’s father to their relationship.

"Defendants-appellants claim that defendant-appellant Bunag, Jr. and plaintiff-appellant

had earlier made plans to elope and get married, and this fact was known to their
friends, among them, Architect Chito Rodriguez. The couple made good their plans to
elope on the afternoon of September 8, 1973, when defendant-appellant Bunag, Jr.,
accompanied by his friend Guillermo Ramos, Jr., met plaintiff-appellant and her
officemate named Lydia in the vicinity of the San Juan de Dios Hospital. The foursome
then proceeded to (the) aforesaid hospital’s canteen where they had some snacks.
Later, Guillermo Ramos, Jr. took Lydia to Quirino Avenue where she could get a ride
home, thereby leaving the defendant-appellant Bunag, Jr. and plaintiff-appellant alone.
According to defendant-appellant Bunag, Jr., after Guillermo Ramos, Jr. and Lydia left,
he and plaintiff-appellant took a taxi to the Golden Gate and Flamingo Hotels where
they tried to get a room, but these were full. They finally got a room at the Holiday
Hotel, where defendant-appellant registered using his real name and residence
certificate number. Three hours later, the couple checked out of the hotel and
proceeded to the house of Juana de Leon at Pamplona, Las Piñas, where they stayed
until September 19, 1973. Defendant-appellant claims that bitter disagreements with
plaintiff-appellant over money and the threats made to his life prompted him to break
off their plan to get married.
chanrobles lawlibrary : rednad

"During this period, Defendant-Appellant Bunag, Sr. denied having gone to the house of

Juan de Leon and telling plaintiff-appellant that she would be wed to defendant-
appellant Bunag, Jr. In fact, he phoned Atty. Conrado Adreneda, member of the board
of directors of Mandala Corporation, Defendant-Appellant Bunag, Jr.’s employer, three
times between the evening of September 8, 1973 and September 9, 1973 inquiring as
to the whereabouts of his son. He came to know about his son’s whereabouts when he
was told of the couple’s elopement late in the afternoon of September 9, 1973 by his
mother Candida Gawaran. He likewise denied having met relatives and emissaries of
plaintiff-appellant and agreeing to her marriage to his son. 3

A complaint for damages for alleged breach of promise to marry was filed by herein
private respondent Zenaida B. Cirilo against petitioner Conrado Bunag, Jr. and his
father, Conrado Bunag, Sr., as Civil Case No. N-2028 of the Regional Trial Court,
Branch XIX at Bacoor, Cavite. On August 20, 1983, on a finding, inter alia, that
petitioner had forcibly abducted and raped private respondent, the trial court rendered
a decision 4 ordering petitioner Bunag, Jr. to pay private respondent P80,000.00 as
moral damages, P20,000.00 as exemplary damages, P20,000.00 by way of temperate
damages, and P10,000.00 for and as attorney’s fees, as well as the costs of suit.
Defendant Conrado Bunag, Sr. was absolved from any and all liability.

Private respondent appealed that portion of the lower court’s decision disculpating
Conrado Bunag, Sr. from civil liability in this case. On the other hand, the Bunags, as
defendants-appellants, assigned in their appeal several errors allegedly committed by
the trial court, which were summarized by respondent court as follows: (1) in finding
that defendant-appellant Conrado Bunag, Jr. forcibly abducted and raped plaintiff-
appellant; (2) in finding that defendants-appellants promised plaintiff-appellant that she
would be wed to defendant-appellant Conrado Bunag, Jr.; and (3) in awarding plaintiff-
appellant damages for the breach of defendants-appellants’ promise of marriage. 5

As stated at the outset, on May 17, 1991 respondent Court of Appeals rendered
judgment dismissing both appeals and affirming in toto the decision of the trial court.
His motion for reconsideration having been denied, petitioner Bunag, Jr. is before us on
a petition for review, contending that (1) respondent court failed to consider vital
exhibits, testimonies and incidents for petitioner’s defense, resulting in the
misapprehensions of facts and violative of the law on preparation of judgments; and (2)
it erred in the application of the proper law and jurisprudence by holding that there was
forcible abduction with rape, not just a simple elopement and an agreement to marry,
and in the award of excessive damages. 6

Petitioner Bunag, Jr. first contends that both the trial and appellate courts failed to take
into consideration the alleged fact that he and private respondent had agreed to marry,
and that there was no case of forcible abduction with rape, but one of simple elopement
and agreement to marry. It is averred that the agreement to marry has been
sufficiently proven by the testimonies of the witnesses for both parties and the exhibits
presented in court.

This submission, therefore, clearly hinges on the credibility of the witnesses and
evidence presented by the parties and the weight accorded thereto in the factual
findings of the trial court and the Court of Appeals. In effect, what petitioner would
want this Court to do is to evaluate and analyze anew the evidence, both testimonial
and documentary, presented before and calibrated by the trial court, and as further
meticulously reviewed and discussed by respondent court.

The issue raised primarily and ineluctably involves questions of fact. We are, therefore,
once again constrained to stress the well-entrenched statutory and jurisprudential
mandate that findings of fact of the Court of Appeals are, as a rule, conclusive upon this
Court. Only questions of law, distinctly set forth, may be raised in a petition for review
on certiorari under Rule 45 of the Rules of Court, subject to clearly settled exceptions in
case law.

Our jurisdiction in cases brought to us from the Court of Appeals is limited to reviewing
and revising the errors of law imputed to the latter, its findings of fact being conclusive.
This Court has emphatically declared that it is not its function to analyze or weigh such
evidence all over again, its jurisdiction being limited to reviewing errors of law that
might have been committed by the lower court. Barring, therefore, a showing that the
findings complained of are totally devoid of support in the record, or that they are so
glaringly erroneous as to constitute serious abuse of discretion, such findings must
stand, for this Court is not expected required to examine or contrast the oral and
documentary evidence submitted by the parties. 7 Neither does the instant case reveal
any feature falling within any of the exceptions which under our decisional rules may
warrant a review of the factual findings of the Court of Appeals. On the foregoing
considerations and our review of the records, we sustain the holding of respondent
court in favor of private Respondent.

Petitioner likewise asserts that since the action involves a breach of promise to marry,
the trial court erred in awarding damages. chanrobles.com : virtual law library

It is true that in this jurisdiction, we adhere to the time-honored rule that an action for
breach of promise to marry has no standing in the civil law, apart from the right to
recover money or property advanced by the plaintiff upon the faith of such promise. 8
Generally, therefore, a breach of promise to marry per se is not actionable, except
where the plaintiff has actually incurred expenses for the wedding and the necessary
incidents thereof.

However, the award of moral damages is allowed in cases specified in or analogous to

those provided in Article 2219 of the Civil Code. Correlatively, under Article 21 of said
Code, in relation to paragraph 10 of said Article 2219, any person who wilfully causes
loss or injury to another in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for moral damages. 9 Article 21 was adopted to
remedy the countless gaps in the statutes which leave so many victims of moral wrongs
helpless even though they have actually suffered material and moral injury, and is
intended to vouchsafe adequate legal remedy for that untold number of moral wrongs
which is impossible for human foresight to specifically provide for in the statutes. 10

Under the circumstances obtaining in the case at bar, the acts or petitioner in forcibly
abducting private respondent and having carnal knowledge with her against her will,
and thereafter promising to marry her in order to escape criminal liability, only to
thereafter renege on such promise after cohabiting with her for twenty-one days,
irremissibly constitutes acts contrary to morals and good customs. These are grossly
insensate and reprehensible transgressions which indisputably warrant and abundantly
justify the award of moral and exemplary damages, pursuant to Article 21, in relation
to paragraphs 3 and 10, Article 2219, and Articles 2229 and 2234 of the Civil Code.

Petitioner would, however, belabor the fact that said damages were awarded by the
trial court on the basis of a finding that he is guilty of forcible abduction with rape,
despite the prior dismissal of the complaint therefor filed by private respondent with the
Pasay City Fiscal’s Office.

Generally, the basis of civil liability from crime is the fundamental postulate of our law
that every person criminally liable for a felony is also civilly liable. In other words,
criminal liability will give rise to civil liability ex delicto only if the same felonious act or
omission results in damage or injury to another and is the direct and proximate cause
thereof. 11 Hence, extinction of the penal action does not carry with it the extinction of
civil liability unless the extinction proceeds from a declaration in a final judgment that
the fact from which the civil might arise did not exist. 12

In the instant case, the dismissal of the complaint for forcible abduction with rape was
by mere resolution of the fiscal at the preliminary investigation stage. There is no
declaration in a final judgment that the fact from which the civil case might arise did
not exist. Consequently, the dismissal did not in any way affect the right of herein
private respondent to institute a civil action arising from the offense because such
preliminary dismissal of the penal action did not carry with it the extinction of the civil
action.

The reason most often given for this holding is that the two proceedings involved are
not between the same parties. Furthermore, it has long been emphasized, with
continuing validity up to now, that there are different rules as to the competency of
witnesses and the quantum of evidence in criminal civil proceedings. In a criminal
action, the State must prove its case by evidence which shows the guilt of the accused
beyond reasonable doubt, while in a civil action it is sufficient for the plaintiff to sustain
his cause by preponderance of evidence only. 13 Thus, in Rillon, Et. Al. v. Rillon, 14 we
stressed that it is not now necessary that a criminal prosecution for rape be first
instituted and prosecuted to final judgment before a civil action based on said offense in
favor of the offended woman can likewise be instituted and prosecuted to final
judgment.

WHEREFORE, the petition is hereby DENIED for lack of merit, and the assailed
judgment and resolution are hereby AFFIRMED.

SO ORDERED.
THIRD DIVISION

[G.R. No. 97336. February 19, 1993.]

GASHEM SHOOKAT BAKSH, Petitioner, v. HON. COURT OF APPEALS and

MARILOU T. GONZALES, Respondents.

Public Attorney’s Office for Petitioner.

Corleto R. Castro for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF THE TRIAL

COURT; RULE AND EXCEPTIONS. — It is the rule in this jurisdiction that appellate
courts will not disturb the trial court’s findings as to the credibility of witnesses, the
latter court having heard the witnesses and having had the opportunity to observe
closely their deportment and manner of testifying, unless the trial court had plainly
overlooked facts of substance or value which, if considered, might affect the result of
the case. (People v. Garcia, 89 SCRA 440 [1979]; People v. Bautista, 92 SCRA 465
[1979]; People v. Abejuela, 92 SCRA 503 [1979]; People v. Arciaga, 98 SCRA 1 [1980];
People v. Marzan, 128 SCRA 203 [1984]; People v. , Alcid, 135 SCRA 280 [1985];
People v. Sanchez, 199 SCRA 414 [1991]; People v. Atilano, 204 SCRA 278 [1991]).
Equally settled is the rule that only questions of law may be raised in a petition for
review on certiorari under Rule 45 of the Rules of Court. It is not the function of this
Court to analyze or weigh all over again the evidence introduced by the parties before
the lower court. There are, however, recognized exceptions to this rule. Thus, in Medina
v. Asistio, Jr., this Court took the time, again, to enumerate these exceptions:" (1)
When the conclusion is a finding grounded entirely on speculation, surmises or
conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is
manifestly mistaken, absurd or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3)
Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4)
When the judgment is based on a misapprehension of facts (Cruz v. Sosing, L-4875,
Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-
9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings, went
beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401
[1958]); (7) The findings of the Court of Appeals are contrary to those of the trial court
(Garcia v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA
593 [1986]); (8) When the findings of fact are conclusions without citation of specific
evidence on which they are based (Ibid.,); (9) When the facts set forth in the petition
as well as in the petitioners’ main and reply briefs are not disputed by the respondents
(Ibid.,); and (10) The finding of fact of the Court of Appeals is premised on the
supposed absence of evidence and is contradicted by the evidence on record (Salazar v.
Gutierrez, 33 SCRA 242 [1970])." Petitioner has not endeavored to point out to Us the
existence of any of the above quoted exceptions in this case. Consequently, the factual
findings of the trial and appellate courts must be respected.
2. CIVIL LAW; QUASI-DELICT; TORTS; ART. 21 OF THE CIVIL CODE; CONSTRUED. —
Article 2176 of the Civil Code, which defines a quasi-delict is limited to negligent acts or
omissions and excludes the notion of willfulness or intent. Quasi-delict, known in
Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an Anglo-
American or common law concept. Torts is much broader than culpa aquiliana because
it includes not only negligence, but intentional criminal acts as well such as assault and
battery, false imprisonment and deceit. In the general scheme of the Philippine legal
system envisioned by the Commission responsible for drafting the New Civil Code,
intentional and malicious acts. with certain exceptions, are to. be governed by the
Revised Penal Code while negligent acts or omissions are to be covered by Article 2176
of the Civil Code. In between these opposite spectrums are injurious acts which, in the
absence of Article 21, would have been beyond redress. Thus, Article 21 fills that
vacuum. It is even postulated that together with Articles 19 and 20 of the Civil Code,
Article 21 has greatly broadened the scope of the law on civil wrongs; it has become
much more supple and adaptable than the Anglo-American law on torts. (TOLENTINO,
A.M. Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985
ed., 72).

3. ID.; ID.; ID.; ID.; BREACH OF PROMISE TO MARRY; RULE; RATIONALE. — The
existing rule is that a breach of promise to marry per se is not an actionable wrong
(Hermosisima v. Court of Appeals, 109 Phil. 629 [1960]; Estopa v. Piansay, 109 Phil.
640 [1960]) Congress deliberately eliminated from the draft of the New Civil Code the
provisions that would have made it so. The reason therefor is set forth in the report of
the Senate Committee on the Proposed Civil Code, from which We quote: "The
elimination of this chapter is proposed. That breach of promise to marry is not
actionable has been definitely decided in the case of De Jesus v. Syquia (58 Phil. 866
[1933]). The history of breach of promise suits in the United States and in England has
shown that no other action lends itself more readily to abuse by designing women and
unscrupulous men. It is this experience which has led to the abolition of rights of action
in the so-called Heart Balm suits in many of the American states . . ." This
notwithstanding, the said Code contains a provision, Article 21, which is designed to
expand the concept of torts or quasi-delict in this jurisdiction by granting adequate
legal remedy for the untold number of moral wrongs which is impossible for human
foresight to specifically enumerate and punish in the statute books (Philippine National
Bank v. Court of Appeals, 83 SCRA 237 [1978]).

4. ID.; ID.; ID.; ID.; ID.; AWARD OF DAMAGES, JUSTIFIED BECAUSE OF FRAUD AND
DECEIT BEHIND IT; CASE AT BAR. — In the light of the above laudable purpose of
Article 21, We are of the opinion, and so hold, that where a man’s promise to marry is
in fact the proximate cause of the acceptance of his love by a woman and his
representation to fulfill that promise thereafter becomes the proximate cause of the
giving of herself unto him in a sexual congress, proof that he had, in reality, no
intention of marrying her and that the promise was only a subtle scheme or deceptive
device to entice or inveigle her to accept him and to obtain her consent to the sexual
act, could justify the award of damages pursuant to Article 21 not because of such
promise to marry but because of the fraud and deceit behind it and the willful injury to
her honor and reputation which followed thereafter. It is essential, however, that such
injury should have been committed in a manner contrary to morals, good customs or
public policy. In the instant case, respondent Court found that it was the petitioner’s
"fraudulent and deceptive protestations of love for and promise to marry plaintiff that
made her surrender her virtue and womanhood to him and to live with him on the
honest and sincere belief that he would keep said promise, and it was likewise these
fraud and deception on appellant’s part that made plaintiff’s parents agree to their
daughter’s living-in with him preparatory to their supposed marriage." In short, the
private respondent surrendered her virginity, the cherished possession of every single
Filipina, not because of lust but because of moral seduction — the kind illustrated by
the Code Commission in its example earlier adverted to. The petitioner could not be
held liable for criminal seduction punished under either Article 337 or Article 338 of the
Revised Penal Code because the private respondent was above eighteen (18) years of
age at the time of the seduction. Prior decisions of this Court clearly suggest that Article
21 may be applied-in a breach of promise to marry where the woman is a victim of
moral seduction.

5. ID.; PARI DELICTO RULE; DEFINED; NOT APPRECIATED IN CASE AT BAR. — The pari
delicto rule does not apply in this case for while indeed, the private respondent may not
have been impelled by the purest of intentions, she eventually submitted to the
petitioner in sexual congress not out of lust, but because of moral seduction. In fact, it
is apparent that she had qualms of conscience about the entire episode for as soon as
she found out that the petitioner was not going to marry her after all, she left him. She
is not, therefore, in pari delicto with the petitioner. Pari delicto means "in equal fault; in
a similar offense or crime; equal in guilt or in legal fault." (Black’s Laws Dictionary, Fifth
ed., 1004). At most, it could be conceded that she is merely in delicto. "Equity often
interferes for the relief of the less guilty of the parties, where his transgression has
been brought about by the imposition or undue influence of the party on whom the
burden of the original wrong principally rests, or where his consent to the transaction
was itself procured by fraud." (37 AM Jur 2d. 401). In Mangayao v. Lasud, (11 SCRA
158 [1964]) We declared: "Appellants likewise stress that both parties being at fault,
there should be no action by one against the other (Art. 1412, New Civil Code). This
rule, however, has been interpreted as applicable only where the fault on both sides is,
more or less, equivalent. It does not apply where one party is literate or intelligent and
the other one is not (c.f. Bough v. Cantiveros, 40 Phil. 209)."

DECISION

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and
set aside the Decision 1 of the respondent Court of Appeals in CA-G.R. CV No. 24256
which affirmed in toto the 16 October 1989 Decision or Branch 38 (Lingayen) of the
Regional Trial Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is the issue
of whether or not damages may be recovered for a breach of promise to marry on the
basis of Article 21 of the Civil Code of the Philippines. chanrobles virtual lawlibrary

The antecedents of this case are not complicated: chanrob1es virtual 1aw library

On 27 October 1987, private respondent, without the assistance of counsel, filed with
the aforesaid trial court a complaint 2 for damages against the petitioner for the alleged
violation of their agreement to get married. She alleges in said complaint that: she is
twenty-two (22) years old, single, Filipino and a pretty lass of good moral character and
reputation duly respected in her community; petitioner, on the other hand, is an Iranian
citizen residing at the Lozano Apartments, Guilig, Dagupan City, and is an exchange
student taking a medical course at the Lyceum Northwestern Colleges in Dagupan City;
before 20 August 1987, the latter courted and proposed to marry her; she accepted his
love on the condition that they would get married; they therefore argued to get married
after the end of the school semester, which was in October of that year; petitioner then
visited the private respondent’s parents in Bañaga, Bugallon, Pangasinan to secure their
approval to the marriage; sometime in 20 August 1987, the petitioner forced her to live
with him in the Lozano Apartments; she was a virgin before she began living with him;
a week before the filing of the complaint, petitioner’s attitude towards her started to
change; he maltreated and threatened to kill her; as a result of such maltreatment, she
sustained injuries, during a confrontation with a representative of the barangay captain
of Guilig a day before the filing of the complaint, petitioner repudiated their marriage
agreement and asked her not to live with him anymore and; the petitioner is already
married to someone living in Bacolod City. Private respondent then prayed for judgment
ordering the petitioner to pay her damages in the amount of not less than P45,000.00,
reimbursement for actual expenses amounting to P600.00, attorney’s fees and costs,
and granting her such other relief and remedies as may be just and equitable. The
complaint was docketed as Civil Case No 16503.

In his Answer with Counterclaim, 3 petitioner admitted only the personal circumstances
of the parties as averred in the complaint and denied the rest of the allegations either
for lack of knowledge or information sufficient to form a belief as to the truth thereof or
because the true facts are those alleged as his Special and Affirmative Defenses. He
thus claimed that he never proposed marriage to or agreed to be married with the
private respondent; he neither sought the consent and approval of her parents nor
forced her to live in his apartment; he did not maltreat her, but only told her to stop
coming to his place because he discovered that she had deceived him by stealing his
money and passport; and finally, no confrontation took place with a representative of
the barangay captain. Insisting, in his Counterclaim, that the complaint is baseless and
unfounded and that as a result thereof, he was unnecessarily dragged into court and
compelled to incur expenses, and has suffered mental anxiety and a besmirched
reputation, he prayed for an award of P5,000.00 for miscellaneous expenses and
P25,000.00 as moral damages.

After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order
4 embodying the stipulated facts which the parties had agreed upon, to wit: jgc:chanrobles.com.ph

"1. That the plaintiff is single and resident (sic) of Bañaga, Bugallon, Pangasinan, while
the defendant is single, Iranian, citizen and resident (sic) of Lozano Apartment, Guilig,
Dagupan City since September 1, 1987 up to the present;

2. That the defendant is presently studying at Lyceum-Northwestern, Dagupan City,

College of Medicine, second year medicine proper.

3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette, Fernandez Avenue,

Dagupan City since July, 1986 up to the present and a (sic) high school graduate;
4. That the parties happened to know each other when the Manager of the Mabuhay
Luncheonette, Johnny Rabino introduced the defendant to the plaintiff on August 3,
1986." chanroblesvirtualawlibrary

After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered
on 16 October 1989 a decision 5 favoring the private Respondent. The petitioner was
thus ordered to pay the latter damages and attorney’s fees; the dispositive portion of
the decision reads: jgc:chanrobles.com.ph

"IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of
the plaintiff and against the defendant.

1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand
(P20,000.00) pesos as moral damages.

2. Condemning further the defendant to pay the plaintiff the sum of three thousand
(P3,000.00) pesos as atty’s fees and two thousand (P2,000.00) pesos at (sic) litigation
expenses and to pay the costs.

3. All other claims are denied." 6

The decision is anchored on the trial court’s findings and conclusions that (a) petitioner
and private respondent were lovers, (b) private respondent is not a woman of loose
morals or questionable virtue who readily submits to sexual advances, (c) petitioner,
through machinations, deceit and false pretenses, promised to marry private
respondent, (d) because of his persuasive promise to marry her, she allowed herself to
be deflowered by him, (e) by reason of that deceitful promise, private respondent and
her parents — in accordance with Filipino customs and traditions — made some
preparations for the wedding that was to be held at the end of October 1987 by looking
for pigs and chickens, inviting friends and relatives and contracting sponsors, (f)
petitioner did not fulfill his promise to marry her and (g) such acts of the petitioner,
who is a foreigner and who has abused Philippine hospitality, have offended our sense
of morality, good customs, culture and traditions. The trial court gave full credit to the
private respondent’s testimony because, inter alia, she would not have had the temerity
and courage to come to court and expose her honor and reputation to public scrutiny
and ridicule if her claim was false. 7

The above findings and conclusions were culled from the detailed summary of the
evidence for the private respondent in the foregoing decision, digested by the
respondent Court as follows: jgc:chanrobles.com.ph

"According to plaintiff, who claimed that she was a virgin at the time and that she never
had a boyfriend before, defendant started courting her just a few days after they first
met. He later proposed marriage to her several times and she accepted his love as well
as his proposal of marriage on August 20, 1987, on which same day he went with her
to her hometown of Banaga, Bugallon, Pangasinan, as he wanted to meet her parents
and inform them of their relationship and their intention to get married. The
photographs Exhs. "A" to "E" (and their submarkings) of defendant with members of
plaintiff’s family or with plaintiff, were taken that day. Also on that occasion, defendant
told plaintiff’s parents and brothers and sisters that he intended to marry her during the
semestral break in October, 1987, and because plaintiff’s parents thought he was good
and trusted him, they agreed to his proposal for him to marry their daughter, and they
likewise allowed him to stay in their house and sleep with plaintiff during the few days
that they were in Bugallon. When plaintiff and defendant later returned to Dagupan
City, they continued to live together in defendant’s apartment. However, in the early
days of October, 1987, defendant would tie plaintiff’s hands and feet while he went to
school, and he even gave her medicine at 4 o’clock in the morning that made her sleep
the whole day and night until the following day. As a result of this live-in relationship,
plaintiff became pregnant, but defendant gave her some medicine to abort the foetus.
Still plaintiff continued to live with defendant and kept reminding him of his promise to
marry her until he told her that he could not do so because he was already married to a
girl in Bacolod City. That was the time plaintiff left defendant, went home to her
parents, and thereafter consulted a lawyer who accompanied her to the barangay
captain in Dagupan City. Plaintiff, her lawyer, her godmother, and a barangay tanod
send by the barangay captain went to talk to defendant to still convince him to marry
plaintiff, but defendant insisted that he could not do so because he was already married
to a girl in Bacolod City, although the truth, as stipulated by the parties at the pre-trial,
is that defendant is still single.

Plaintiff’s father, a tricycle driver, also claimed that after defendant had informed them
of his desire to marry Marilou, he already looked for sponsors for the wedding, started
preparing for the reception by looking for pigs and chickens, and even already invited
many relatives and friends to the forthcoming wedding." 8

Petitioner appealed the trial court’s decision to the respondent Court of Appeals which
docketed the case as CA-G R. CV No. 24256. In his Brief, 9 he contended that the trial
court erred (a) in not dismissing the case for lack of factual and legal basis and (b) in
ordering him to pay moral damages, attorney’s fees, litigation expenses and costs. chanrobles virtual lawlibrary

On 18 February 1991, respondent Court promulgated the challenged decision 10

affirming in toto the trial court’s ruling of 16 October 1989. In sustaining the trial
court’s findings of fact, respondent Court made the following analysis: jgc:chanrobles.com.ph

"First of all, plaintiff, then only 21 years old when she met defendant who was already
23 years old at the time, does not appear to be a girl of loose morals. It is
uncontradicted that she was a virgin prior to her unfortunate experience with defendant
and never had a boyfriend. She is, as described by the lower court, a barrio lass ‘not
used and accustomed to the trend of modern urban life’, and certainly would (sic) not
have allowed ‘herself to be deflowered by the defendant if there was no persuasive
promise made by the defendant to marry her.’ In fact, we agree with the lower court
that plaintiff and defendant must have been sweethearts or so the plaintiff must have
thought because of the deception of defendant, for otherwise, she would not have
allowed herself to be photographed with defendant in public in so (sic) loving and
tender poses as those depicted in the pictures Exhs. "D" and "E." We cannot believe,
therefore, defendant’s pretense that plaintiff was a nobody to him except a waitress at
the restaurant where he usually ate. Defendant in fact admitted that he went to
plaintiff’s hometown of Banaga, Bugallon, Pangasinan, at least thrice; at (sic) the town
fiesta on February 27, 1987 (p. 54, tsn May 18, 1988), at (sic) a beach party together
with the manager and employees of the Mabuhay Luncheonette on March 3, 1987 (p.
50, tsn id.), and on April 1, 1987 when he allegedly talked to plaintiff’s mother who told
him to marry her daughter (pp. 55-56, tsn id.). Would defendant have left Dagupan
City where he was involved in the serious study of medicine to go to plaintiff’s
hometown in Banaga, Bugallon, unless there was (sic) some kind of special relationship
between them? And this special relationship must indeed have led to defendant’s
insincere proposal of marriage to plaintiff, communicated not only to her but also to her
parents, and (sic) Marites Rabino, the owner of the restaurant where plaintiff was
working and where defendant first proposed marriage to her, also knew of this love
affair and defendant’s proposal of marriage to plaintiff, which she declared was the
reason why plaintiff resigned from her job at the restaurant after she had accepted
defendant’s proposal (pp. 6-7, tsn March 7, 1988).

Upon the other hand, appellant does not appear to be a man of good moral character
and must think so low and have so little respect and regard for Filipino women that he
openly admitted that when he studied in Bacolod City for several years where he
finished his B.S. Biology before he came to Dagupan City to study medicine, he had a
common-law wife in Bacolod City. In other words, he also lived with another woman in
Bacolod City but did not marry that woman, just like what he did to plaintiff. It is not
surprising, then, that he felt so little compunction or remorse in pretending to love and
promising to marry plaintiff, a young, innocent, trustful country girl, in order to satisfy
his lust on her." 11

and then concluded: jgc:chanrobles.com.ph

"In sum, we are strongly convinced and so hold that it was defendant-appellant’s
fraudulent and deceptive protestations of love for and promise to marry plaintiff that
made her surrender her virtue and womanhood to him and to live with him on the
honest and sincere belief that he would keep said promise, and it was likewise these
(sic) fraud and deception on appellant’s part that made plaintiff’s parents agree to their
daughter’s living-in with him preparatory to their supposed marriage. And as these acts
of appellant are palpably and undoubtedly against morals, good customs, and public
policy, and are even gravely and deeply derogatory and insulting to our women, coming
as they do from a foreigner who has been enjoying the hospitality of our people and
taking advantage of the opportunity to study in one of our institutions of
learning, Defendant-Appellant should indeed be made, under Art. 21 of the Civil Code
of the Philippines, to compensate for the moral damages and injury that he had caused
plaintiff, as the lower court ordered him to do in its decision in this case." 12

Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he
raises therein the single issue of whether or not Article 21 of the Civil Code applies to
the case at bar. 13

It is petitioner’s thesis that said Article 21 is not applicable because he had not
committed any moral wrong or injury or violated any good custom or public policy; he
has not professed love or proposed marriage to the private respondent; and he has
never maltreated her. He criticizes the trial court for liberally invoking Filipino customs,
traditions and culture, and ignoring the fact that since he is a foreigner, he is not
conversant with such Filipino customs, traditions and culture. As an Iranian Moslem, he
is not familiar with Catholic and Christian ways. He stresses that even if he had made a
promise to marry, the subsequent failure to fulfill the same is excusable or tolerable
because of his Moslem upbringing; he then alludes to the Muslim Code which
purportedly allows a Muslim to take four (4) wives and concludes that on the basis
thereof, the trial court erred in ruling that he does not possess good moral character.
Moreover, his controversial "common law wife" is now his legal wife as their marriage
had been solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful
cohabitation with the private respondent, petitioner claims that even if responsibility
could be pinned on him for the live-in relationship, the private respondent should also
be faulted for consenting to an illicit arrangement. Finally, petitioner asseverates that
even if it was to be assumed arguendo that he had professed his love to the private
respondent and had also promised to marry her, such acts would not be actionable in
view of the special circumstances of the case. The mere breach of promise is not
actionable. 14

On 26 August 1991, after the private respondent had filed her Comment to the petition
and the petitioner had filed his Reply thereto, this Court gave due course to the petition
and required the parties to submit their respective Memoranda, which they
subsequently complied with. chanrobles.com.ph : virtual law library

As may be gleaned from the foregoing summation of the petitioner’s arguments in

support of his thesis, it is clear that questions of fact, which boil down to the issue of
the credibility of witnesses, are also raised. It is the rule in this jurisdiction that
appellate courts will not disturb the trial court’s findings as to the credibility of
witnesses, the latter court having heard the witnesses and having had the opportunity
to observe closely their deportment and manner of testifying, unless the trial court had
plainly overlooked facts of substance or value which, if considered, might affect the
result of the case. 15

Petitioner has miserably failed to convince Us that both the appellate and trial courts
had overlooked any fact of substance or value which could alter the result of the case.

Equally settled is the rule that only questions of law may be raised in a petition for
review on certiorari under Rule 45 of the Rules of Court. It is not the function of this
Court to analyze or weigh all over again the evidence introduced by the parties before
the lower court. There are, however, recognized exceptions to this rule. Thus, in Medina
v. Asistio, Jr., 16 this Court took the time, again, to enumerate these exceptions: chanrob1es virtual 1aw library

x           x          x

"(1) When the conclusion is a finding grounded entirely on speculation, surmises or

conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is
manifestly mistaken, absurd or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3)
Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4)
When the judgment is based on a misapprehension of facts (Cruz v. Sosing, L-4875,
Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-
9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings, went
beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401
[1958]); (7) The findings of the Court of Appeals are contrary to those of the trial court
(Garcia v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA
593 [1986]); (8) When the findings of fact are conclusions without citation of specific
evidence on which they are based (Ibid.,); (9) When the facts set forth in the petition
as well as in the petitioners’ main and reply briefs are not disputed by the respondents
(Ibid.,); and (10) The finding of fact of the Court of Appeals is premised on the
supposed absence of evidence and is contradicted by the evidence on record (Salazar v.
Gutierrez, 33 SCRA 242 [1970])." cralaw virtua1aw library

Petitioner has not endeavored to point out to Us the existence of any of the above
quoted exceptions in this case. Consequently, the factual findings of the trial and
appellate courts must be respected.

And now to the legal issue.

The existing rule is that a breach of promise to marry per se is not an actionable wrong.
17 Congress deliberately eliminated from the draft of the New Civil Code the provisions
that would have made it so. The reason therefor is set forth in the report of the Senate
Committee on the Proposed Civil Code, from which We quote: jgc:chanrobles.com.ph

"The elimination of this chapter is proposed. That breach of promise to marry is not
actionable has been definitely decided in the case of De Jesus v. Syquia. 18 The history
of breach of promise suits in the United States and in England has shown that no other
action lends itself more readily to abuse by designing women and unscrupulous men. It
is this experience which has led to the abolition of rights of action in the so-called Heart
Balm suits in many of the American states .." 19

This notwithstanding, the said Code contains a provision, Article 21, which is designed
to expand the concept of torts or quasi-delict in this jurisdiction by granting adequate
legal remedy for the untold number of moral wrongs which is impossible for human
foresight to specifically enumerate and punish in the statute books. 20

As the Code Commission itself stated in its Report: jgc:chanrobles.com.ph

"‘But the Code Commission has gone farther than the sphere of wrongs defined or
determined by positive law. Fully sensible that there are countless gaps in the statutes,
which leave so many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury, the Commission has deemed it necessary, in the
interest of justice, to incorporate in the proposed Civil Code the following rule: chanrobles law library : red

‘ARTICLE 23. Any person who wilfully 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.’

‘An example will illustrate the purview of the foregoing norm: ‘A’ seduces the nineteen-
year old daughter of ‘X.’ A promise of marriage either has not been made, or can not be
proved. The girl becomes pregnant. Under the present laws, there is no crime, as the
girl is above eighteen years of age. Neither can any civil action for breach of promise of
marriage be filed. Therefore, though the grievous moral wrong has been committed,
and though the girl and her family have suffered incalculable moral damage, she and
her parents cannot bring any action for damages. But under the proposed article, she
and her parents would have such a right of action.
Thus at one stroke, the legislator, if the foregoing rule is approved, would vouchsafe
adequate legal remedy for that untold number of moral wrongs which it is impossible
for human foresight to provide for specifically in the statutes." 21

Article 2176, of the Civil Code, which defines a quasi-delict thus: jgc:chanrobles.com.ph

"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." cralaw virtua1aw library

is limited to negligent acts or omissions and excludes the notion of willfulness or intent.
Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept
while torts is an Anglo-American or common law concept. Torts is much broader than
culpa aquiliana because it includes not only negligence, but intentional criminal acts as
well such as assault and battery, false imprisonment and deceit. In the general scheme
of the Philippine legal system envisioned by the Commission responsible for drafting the
New Civil Code, intentional and malicious acts. with certain exceptions, are to. be
governed by the Revised Penal Code while negligent acts or omissions are to be
covered by Article 2176 of the Civil Code. 22 In between these opposite spectrums are
injurious acts which, in the absence of Article 21, would have been beyond redress.
Thus, Article 21 fills that vacuum. It is even postulated that together with Articles 19
and 20 of the Civil Code, Article 21 has greatly broadened the scope of the law on civil
wrongs; it has become much more supple and adaptable than the Anglo-American law
on torts. 23

In the light of the above laudable purpose of Article 21, We are of the opinion, and so
hold, that where a man’s promise to marry is in fact the proximate cause of the
acceptance of his love by a woman and his representation to fulfill that promise
thereafter becomes the proximate cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of marrying her and that the
promise was only a subtle scheme or deceptive device to entice or inveigle her to
accept him and to obtain her consent to the sexual act, could justify the award of
damages pursuant to Article 21 not because of such promise to marry but because of
the fraud and deceit behind it and the willful injury to her honor and reputation which
followed thereafter. It is essential, however, that such injury should have been
committed in a manner contrary to morals, good customs or public policy.

In the instant case, respondent Court found that it was the petitioner’s "fraudulent and
deceptive protestations of love for and promise to marry plaintiff that made her
surrender her virtue and womanhood to him and to live with him on the honest and
sincere belief that he would keep said promise, and it was likewise these fraud and
deception on appellant’s part that made plaintiff’s parents agree to their daughter’s
living-in with him preparatory to their supposed marriage." 24 In short, the private
respondent surrendered her virginity, the cherished possession of every single Filipina,
not because of lust but because of moral seduction — the kind illustrated by the Code
Commission in its example earlier adverted to. The petitioner could not be held liable
for criminal seduction punished under either Article 337 or Article 338 of the Revised
Penal Code because the private respondent was above eighteen (18) years of age at
the time of the seduction.
Prior decisions of this Court clearly suggest that Article 21 may be applied-in a breach
of promise to marry where the woman is a victim of moral seduction. Thus, in
Hermosisima v. Court of Appeals, 25 this Court denied recovery of damages to the
woman because: chanrobles.com:cralaw:red

". . . we find ourselves unable to say that petitioner is morally guilty of seduction, not
only because he is approximately ten (10) years younger than the complainant — who
was around thirty-six (36) years of age, and as highly enlightened as a former high
school teacher and a life insurance agent are supposed to be — when she became
intimate with petitioner, then a mere apprentice pilot, but, also, because the court of
first instance found that, complainant ‘surrendered herself’ to petitioner because,
‘overwhelmed by her love’ for him, she ‘wanted to bind’ him ‘by having a fruit of their
engagement even before they had the benefit of clergy.’"

In Tanjanco v. Court of Appeals, 26 while this Court likewise hinted at possible recovery
if there had been moral seduction, recovery was eventually denied because We were
not convinced that such seduction existed. The following enlightening disquisition and
conclusion were made in the said case: jgc:chanrobles.com.ph

"The Court of Appeals seems to have overlooked that the example set forth in the Code
Commission’s memorandum refers to a tort upon a minor who had been seduced. The
essential feature is seduction, that in law is more than mere sexual intercourse, or a
breach of a promise of marriage; it connotes essentially the idea of deceit, enticement,
superior power or abuse of confidence on the part of the seducer to which the woman
has yielded (U.S. v. Buenaventura, 27 Phil. 121; U.S. v. Arlante, 9 Phil. 595).

It has been ruled in the Buenaventura case (supra) that —

‘To constitute seduction there must in all cases be some sufficient promise or
inducement and the woman must yield because of the promise or other inducement. If
she consents merely from carnal lust and the intercourse is from mutual desire, there is
no seduction (43 Cent Dig. tit. Seduction, par. 56). She must be induced to depart from
the path of virtue by the use of some species of arts, persuasions and wiles, which are
calculated to have and do have that effect, and which result in her ultimately
submitting her person to the sexual embraces of her seducer’ (27 Phil. 123).

And in American Jurisprudence we find: chanrob1es virtual 1aw library

‘On the other hand, in an action by the woman, the enticement, persuasion or
deception is the essence of the injury; and a mere proof of intercourse is insufficient to
warrant a recovery.

Accordingly it is not seduction where the willingness arises out sexual desire or curiosity
of the female, and the defendant merely affords her the needed opportunity for the
commission of the act. It has been emphasized that to allow a recovery in all such
cases would tend to the demoralization of the female sex, and would be a reward for
unchastity by; which a class of adventuresses would be swift to profit.’ (47 Am. Jur.
662).
x           x          x

Over and above the partisan allegations, the facts stand out that for one whole year,
from 1958 to 1959, the plaintiff-appellee, a woman of adult age, maintained intimate
sexual relations with appellant, with repeated acts of intercourse. Such conduct is
incompatible with the idea of seduction. Plainly there is here voluntariness and mutual
passion; for had the appellant been deceived, had she surrendered exclusively because
of the deceit, artful persuasions and wiles of the defendant, she would not have again
yielded to his embraces, much less for one year, without exacting early fulfillment of
the alleged promises of marriage, and would have cut short all sexual relations upon
finding that defendant did not intend to fulfill his promise. Hence, we conclude that no
case is made under Article 21 of the Civil Code, and no other cause of action being
alleged, no error was committed by the Court of First Instance in dismissing the
complaint." 27

In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who
recently retired from this Court, opined that in a breach of promise to marry where
there had been carnal knowledge, moral damages may be recovered: jgc:chanrobles.com.ph

". . . if there be criminal or moral seduction, but not if the intercourse was due to
mutual lust. (Hermosisima v. Court of Appeals, L-14628, Sept. 30, 1960; Estopa v.
Piansay, Jr., L-14733, Sept. 30, 1960; Batarra v. Marcos, 7 Phil. 56 (sic); Beatriz
Galang v. Court of Appeals, Et Al., L-17248, Jan. 29, 1962). (In other words, if the
CAUSE be the promise to marry, and the EFFECT be the carnal knowledge, there is a
chance that there was criminal or moral seduction, hence recovery of moral damages
will prosper. If it be the other way around, there can be no recovery of moral damages,
because here mutual lust has intervened). . . . ." cralaw virtua1aw library

together with "ACTUAL damages, should there be any, such as the expenses for the
wedding preparations (See Domalagon v. Bolifer, 33 Phil. 471)."  chanrobles law library : red

Senator Arturo M. Tolentino 29 is also of the same persuasion: jgc:chanrobles.com.ph

"It is submitted that the rule in Batarra v. Marcos 30 still subsists, notwithstanding the
incorporation of the present article 31 in the Code. The example given by the Code
Commission is correct, if there was seduction, not necessarily in the legal sense, but in
the vulgar sense of deception. But when the sexual act is accomplished without any
deceit or qualifying circumstance of abuse of authority or influence, but the woman,
already of age, has knowingly given herself to a man, it cannot be said that there is an
injury which can be the basis for indemnity.

But so long as there is fraud, which is characterized by wilfullness (sic), the action lies.
The court, however, must weigh the degree of fraud, if it is sufficient to deceive the
woman under the circumstances, because an act which would deceive a girl sixteen
years of age may not constitute deceit as to an experienced woman thirty years of age.
But so long as there is a wrongful act and a resulting injury, there should be civil
liability, even if the act is not punishable under the criminal law and there should have
been an acquittal or dismissal of the criminal case for that reason." cralaw virtua1aw library
We are unable to agree with the petitioner’s alternative proposition to the effect that
granting, for argument’s sake, that he did promise to marry the private respondent, the
latter is nevertheless also at fault. According to him, both parties are in pari delicto;
hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid down in
Batarra v. Marcos, 32 the private respondent cannot recover damages from the
petitioner. The latter even goes as far as stating that if the private respondent had
"sustained any injury or damage in their relationship, it is primarily because of her own
doing," 33 for:jgc:chanrobles.com.ph

". . . She is also interested in the petitioner as the latter will become a doctor sooner or
later. Take notice that she is a plain high school graduate and a mere employee . .
(Annex C) or a waitress (TSN, p. 51, January 25, 1988) in a luncheonette and without
doubt, is in need of a man who can give her economic security. Her family is in dire
need of financial assistance (TSN, pp. 51-53, May 18, 1988). And this predicament
prompted her to accept a proposition that may have been offered by the petitioner." 34

These statements reveal the true character and motive of the petitioner. It is clear that
he harbors a condescending, if not sarcastic, regard for the private respondent on
account of the latter’s ignoble birth, inferior educational background, poverty and, as
perceived by him, dishonorable employment. Obviously then, from the very beginning,
he was not at all moved by good faith and an honest motive. Marrying with a woman so
circumstanced could not have even remotely occurred to him. Thus, his profession of
love and promise to marry were empty words directly intended to fool, dupe, entice,
beguile and deceive the poor woman into believing that indeed, he loved her and would
want her to be his life s partner. His was nothing but pure lust which he wanted
satisfied by a Filipina who honestly believed that by accepting his proffer of love and
proposal of marriage, she would be able to enjoy a life of ease and security. Petitioner
clearly violated the Filipino s concept of morality and so brazenly defied the traditional
respect Filipinos have for their women. It can even be said that the petitioner
committed such deplorable acts in blatant disregard of Article 19 of the Civil Code which
directs every person to act with justice, give everyone his due and observe honesty and
good faith in the exercise of his rights and in the performance of his obligations.

No foreigner must be allowed to make a mockery of our laws, customs and traditions.

The pari delicto rule does not apply in this case for while indeed, the private respondent
may not have been impelled by the purest of intentions, she eventually submitted to
the petitioner in sexual congress not out of lust, but because of moral seduction. In
fact, it is apparent that she had qualms of conscience about the entire episode for as
soon as she found out that the petitioner was not going to marry her after all, she left
him. She is not, therefore, in pari delicto with the petitioner. Pari delicto means "in
equal fault; in a similar offense or crime; equal in guilt or in legal fault." 35 At most, it
could be conceded that she is merely in delicto. chanrobles virtual lawlibrary

"Equity often interferes for the relief of the less guilty of the parties, where his
transgression has been brought about by the imposition or undue influence of the party
on whom the burden of the original wrong principally rests, or where his consent to the
transaction was itself procured by fraud." 36

In Mangayao v. Lasud, 37 We declared: jgc:chanrobles.com.ph

"Appellants likewise stress that both parties being at fault, there should be no action by
one against the other (Art. 1412, New Civil Code). This rule, however, has been
interpreted as applicable only where the fault on both sides is, more or less, equivalent.
It does not apply where one party is literate or intelligent and the other one is not (c.f.
Bough v. Cantiveros, 40 Phil. 209)." cralaw virtua1aw library

We should stress, however, that while We find for the private respondent, let it not be
said that this Court condones the deplorable behavior of her parents in letting her and
the petitioner stay together in the same room in their house after giving approval to
their marriage. It is the solemn duty of parents to protect the honor of their daughters
and infuse upon them the higher values of morality and dignity.

WHEREFORE, finding no reversible error in the challenged decision, the instant petition
is hereby DENIED, with costs against the petitioner. chanroblesvirtualawlibrary

SO ORDERED.
G.R. No. L-44190 October 30, 1980

MANILA GAS CORPORATION, petitioner-appellant,

vs.
COURT OF APPEALS and ISIDRO M. ONGSIP, respondents-appellees.

MAKASIAR, J.:

This petition for certiorari treated as a special civil action seeks to review the decision of the Court of
Appeals in CA-G.R. No. 50956-R dated July 6, 1976 affirming the decision of the Court of First
Instance of Rizal, Pasay City Branch VII in Civil Case No. 3019-P dated May 2,1972.

Manila Gas Corporation, the petitioner herein, is a public utility company duly authorized to conduct
and operate the gainful business of servicing and supplying gas in the City of Manila and its suburbs
for public necessity and convenience while private respondent, Isidro M. Ongsip, is a businessman
holding responsible positions in a number of business firms and associations in the Philippines.

On May 20, 1964, respondent Ongsip applied for gas service connection with petitioner Manila Gas
Corporation. A 1 x 4 burner gas was installed by petitioner's employees in respondent's kitchen at
his residence at 2685 Park Avenue, Pasay City.

On July 27, 1965, respondent Ongsip requested petitioner to install additional appliances as well as
additional gas service connections in his 46-door Reyno Apartment located also in the same
compound. In compliance with said request, petitioner installed two 20-gallon capacity water storage
heaters and two heavy-duty gas burners and replaced the original gas meter with a bigger 50-light
capacity gas meter. The installations and connections were all done solely by petitioner's
employees. There was no significant change in the meter reading despite additional installations.

In May and June of 1966 no gas consumption was registered in the meter, prompting petitioner to
issue a 'meter order' with instructions to change the gas meter in respondent's residence.

On August 17, 1966, at around 1 o'clock in the afternoon, petitioner's employee led by Mariano
Coronal, the then Chief of the Distribution Department, went to Ongsip's place. After Identifying
themselves to the houseboy therein that they are from the Manila Gas Corporation, but without
notifying or informing respondent Ongsip, they changed the gas meter and installed new tube
connections. At the time the work was being undertaken, private respondent was taking a nap but he
was informed afterwards of what had taken place by his houseboy.

On that same afternoon, at about 5 o'clock, petitioner's employees returned with a photographer who
took pictures of the premises. Respondent Ongsip inquired from Coronel why they were taking
pictures but the latter simply gave him a calling card with instructions to go to his (Coronel's) office.
There, he was informed about the existence of a by-pass valve or "jumper" in the gas connection
and that unless he gave Coronel P3,000.00, he would be deported. Respondent Ongsip refused to
give the money, saying that he was not afraid as he had committed no wrong and that he could not
be deported because he is already a Filipino citizen.By the end of August, a reading was made on
the new meter and expectedly, it registered a sudden increase in gas consumption.
Thereafter, in October, 1966, a complaint for qualified theft was filed by petitioner against
respondent Ongsip in the Pasay City Fiscal's Office docketed as I.S. No. 51441 (p. 3, Folder of
Exhibits)

In February, 1967, pending investigation of the criminal complaint, petitioner disconnected

respondent's gas service for alleged failure and/or refusal to pay his gas consumptions from July,
1965 to January, 1967 in violation of petitioner's regulation agreed upon in the 'Application for Gas
Service' which states that:

xxx xxx xxx

(8) The Corporation is authorized to discontinue service to the customer for any of the following
reasons:

After 72 hours' notice in writing for

a) violation of the conditions herein set forth;

b) Non-payment of bills overdue;

xx xx (p. 1, Folder of Exhibits).

Subsequently, the complaint was dismissed by the city fiscal of Pasay City in a resolution dated May
29, 1967, on the ground that —

. . there is no evidence to establish the fact that there is an illegal installation or

jumper in the premises of Isidro Ongsip and this is sustained by the fact that the
prosecution witnesses did not attempt to excavate the premises of Isidro Ongsip in
order to determine with certainty that there is an illegal installation. Without
excavating the premises of Isidro Ongsip it is impossible to conclude with reasonable
certainty that there is a jumper or illegal installation because illegal installation or
jumper must not only proceed from an assumption but must be based from actual
facts as proved (pp. 4-6 Folder of Exhibits).

On July 14, 1967, following the dismissal by the investigating fiscal of the complaint for qualified theft
and the disconnection by petitioner of his gas service, respondent Ongsip filed a complaint with the
Court of First Instance of Rizal, Pasay City Branch VII for moral and exemplary damages against
petitioner Manila Gas Corporation based on two causes of action, firstly: the malicious, oppressive
and malevolent filing of the criminal complaint as a result of which "plaintiff has suffered mental
anguish, serious anxiety, social humiliation, ridicule, embarrassment and degradation in the eyes of
his business associates, friends, relatives and the general public"; and, secondly: the illegal closure
of respondent Ongsip's gas service connection without court order and without notice of warning
purely "to further harass, humiliate and ridicule plaintiff, thereby again exposing unjustly, cruelly and
oppressively the plaintiff, as well as his family, to social humiliation and degradation, to public
contempt and ridicule, to personal discredit and dishonor and thus causing the plaintiff plaintiff and
the members of his family irreparable injuries consisting of business and social humiliation, personal
dishonor, mental anguish, serious anxieties, wounded feelings and besmirched reputation". In
addition to attorney's fees and costs of litigation, respondent Ongsip likewise prayed that "pending
final determination of the case that a writ of preliminary mandatory injunction forthwith issue,
commanding the defendant corporation, its agents and employees to reconnect the gas service and
supply at the residence and apartment of plaintiff at 2685 Park Avenue, Pasay City" (pp. 1-11, ROA).

On July 19, 1967, petitioner filed a motion to dismiss alleging the complaint states no valid cause of
action. Respondent Ongsip filed an opposition thereto (pp. 12-24, ROA).

On August 11, 1967, the trial court issued an order denying petitioner's motion to dismiss (pp. 24-25,
ROA).

Consequently, on September 8, 1967, petitioner filed its answer stating that the filing of the criminal
complaint in the Pasay City Fiscal's Office which was made the basis of the first cause of action was
precipitated by the discovery of an illegal by-pas tube or "jumper" in the kitchen cabinet and
immediately below the gas burners in respondent's residence. With respect to the second cause of
action, petitioner stated that the cutting-off or the disconnection of private respondent's gas service
was on account of the latter's failure to settle and pay outstanding and due payments representing
gas consumptions from July, 1965 to January, 1967. In both instances, according to petitioner, there
was no intent to threaten, ridicule, embarrass or humiliate respondent Ongsip. A counterclaim for
actual or compensatory damages and exemplary damages was interposed therein (pp. 24-31, ROA).

In the meantime, the court had issued an order dated September 6, 1967 granting the writ of
preliminary mandatory injunction as prayed for in the complaint for damages upon respondent
Ongsip's filing of a bond in the amount of P10,000.00 (pp. 33-34, ROA).

On May 2, 1972, the trial court rendered its decision

(a) Ordering defendant to pay plaintiff:

(1) P50,000.00 as moral damages in the FIRST CAUSE OF ACTION;

(2) P10,000.00 as exemplary damages in the FIRST CAUSE OF ACTION;

(3) P30,000.00 as moral damages in the SECOND CAUSE OF ACTION;

(4) P5,000.00 as exemplary damages in the SECOND CAUSE OF ACTION;

(5) P10,000.00 as attorney's fees; and

(6) the costs of the suit; AND

(b) Dismissing the defendant's counterclaim [pp. 44-76, ROA].

Within the reglementary period, petitioner appealed to the Court of Appeals assigning two errors, to
wit:

The lower court erred in concluding that the filing of the criminal complaint was
motivated purely 'to harass, threaten and ridicule' plaintiff despite clear and
convincing evidence showing the actual existence of a gas jumper by-pass in
plaintiff's establishment.
 The lower court erred in concluding without basis and findings of facts that the
closure of plaintiff's gas service was arrogant and abusive despite provision of a
contract to the contrary (p. 7, Brief for Defendant-Appellant).

On July 6, 1976, the said Court rendered its decision, pertinent portions of which are quoted
hereinbelow:

We are inclined to concur with the court a quo that the existence of a 'jumper' was
merely a presumption on the part of Coronel. Indeed the discrepancy or fluctuation in
the gas consumption in appellee's place could very well be attributed to many
factors, such as a defective meter or a reduction in the use of the appliances on the
premises considering that the restaurant/hotel business is transient. Neither can
appellant attribute any defect in the installation of the appliances to the appellee as
the installation was undertaken by the former's employees (T.S.N. pp. 12-13,
December 17, 1968). Similarly, the gas meter was installed by defendant
corporation, so that when a report was made that the original meter was defective, a
new one was installed (T.S.N., pp. 27-28, December 1, 1970).

Again, according to the testimony of Delfin Custodia, mechanical engineer of

defendant-appellant, the second meter that was installed on August 11, 1966 was
replaced as being defective because 'some of its parts were worn out and that it was
not properly registering,' (T.S.N., pp. 14-15, December 2, 1970). Therefore, rather
than impute the fluctuation in gas consumption to a 'jumper' in the service
connection, it would be more in keeping with the circumstance of the case to attribute
this to the faulty meter installed by defendant-appellant. Indeed, from the evidence
for the appellant itself that the old installation was embedded in the cement wall
(which was later changed by appellant to exposed pipes; t.s.n. p. 55, March 3, 1971).
We are of the belief that it was unlikely for the appellee to install a 'jumper' in the
cement wall, a conclusion which bears support in the report of the City Fiscal, Pasay
City that 'Isidro Ongsip was agreeable to have his place excavated and demolished
provided that if there is no illegal installation or jumper found in the premises, the
Manila Gas Corporation should answer for whatever damages that may be incurred
in connection with its excavation of the premises "which offer was declined by
appellant, indicating that it was not certain as to the existence of such jumper
(Resolution, Exhibit 'D'). In the light of the foregoing, appellant's first assigmment of
error must necessarily fail.

Anent the second assignment of error, it appears that the gas service to appellee's
compound was disconnected on the basis of non-payment of three-months bills,
which were admittedly computed only on the average consumption registered,
without benefit of meter reading (T.s.n. p. 13, April 30, 1971), and without previous
notice of disconnection or reminder to pay (T.s.n. pp. 44-45, Id., p. 30, May 18,
1971).

Considering that the availability of the gas service was of utmost importance to
appellee in the pursuit of his business venture (hotel-motel restaurant), it is not
difficult to foresee the losses that the business must have incurred as a consequence
of appellant's unwarranted and arbitrary act. It may not be amiss to take note at his
juncture that in assessing the damages in favor of appellee, the court a quo did not
award him actual damages, but merely moral and exemplary damages plus
attorney's fees pursuant to Articles 2208 paragraphs (1) and (11); Articles 2217,
 2219 paragraph (8) and 2229 of the New Civil Code. And, considering further the
provisions of Article 2216 of said Code:

No proof of pecuniary loss is necessary in order that moral nominal,

temperate, liquidated or exemplary damages may be adjudicated.
Theassessment of such damages, except liquidated ones, is left to
the discretion of the Court, according to the circumstances of each
case;

which is amply supported by the evidence on record, taking into consideration

appellee's standing in the community, WE find that the award must be sustained.

WHEREFORE, the decision appealed from is hereby affirmed in toto, it being in

accordance with the law and evidence adduced during the trial. Costs against
appellant (pp. 75-85, rec.).

Hence, on September 1, 1976, Manila Gas Corporation filed a petition for review by way of appeal to
this Court based on the following grounds, to wit:

I. The derision is not supported by the facts and the evidence.

Rather, the decision is belied and rebuked by the clear and
overwhelming evidence.

A. The finding that witness Mariano Coronel is an unreliable witness

is totally unsupported by any evidence.

B. The filing of the criminal complaint against Ongsip was not

actuated by malice on the part of petitioner.

C. The filing of the criminal complaint against respondent Ongsip was

based on probable cause.

D. The closure of Ongsip's gas service was made after due notice to
pay his back accounts was given and after a warning of
disconnection.

II. The decision of respondent court is contrary to settled

jurisprudence enunciated by this Honorable Supreme Court and is
unsupported by any evidence.

A. Advice of counsel is a complete defense against a suit for

malicious prosecution.

III. The decision of respondent court on the Second Cause of Action

of respondent Ongsip is based on a misapprehension of facts.

IV. Under the facts and the law, petitioner is not liable for moral and
exemplary damages.
 V. Assuming arguendo that the petitioner is liable for moral and
exemplary damages, the amount awarded by the trial court and
affirmed by the Court of Appeals are grossly, exorbitant as to call for
a review thereof" (pp. 22-23, rec.).

On December 13, 1976, this Court, after considerating the allegations, issues and arguments
adduced in the petition for review on certiorari of the decision of the Court of Appeals, private
respondent's comment thereon as well as petitioner's reply to said comment, resolved to GIVE
LIMITED DUE COURSE to the petition as to whether or not the damages awarded by the trial court
as affirmed by the Court of Appeals per its decision of July 6, 1976 are excessive and should be
reduced and to TREAT the petition for review as a special civil action.

WE are thus constricted to a single issue in this case: whether or not the amount of moral and
exemplary damages awarded by the trial court and affirmed by the Court of appeals is excessive.

Article 2217 of the Civil Code states that "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 the defendant's wrongful act or omission." On the other hand, Article
2229 provides that "exemplary or corrective damages are imposed, by way of example or correction
for the public good, in addition, to the moral, temperate, liquidated or compensatory damages"
(emphasis supplied).

The first cause of action, for which respondent Ongsip was awarded moral and exemplary damages
in the amount of P50,000.00 and P10,000.00, respectively, is predicated on Article 2219 of the Civil
Code which states that "moral damages may be recovered in the following and analogous cases: .. .
(8) malicious prosecution; .. .

To constitute malicious prosecution, there must be proof that the prosecution was prompted by a
siniter design to vex and humiliate a person that it was initiated deliberately by the defendant
knowing that his charges were false and groundless. Concededly, the mere act of submitting a case
to the authorities for prosecution does not make one liable for malicious prosecution. (Salao vs.
Salao, 70 SCRA 65 [March 16, 1976]; Ramos vs. Ramos, 61 SCRA 284 [December 3, 19741]; Solis
& Yarisantos vs. Salvador, 14 SCRA 887] [August 14, 1965]; Buenaventura, et al. vs. Sto. Domingo,
et al., 103 Phil. 239 [1958]; Barreto vs. Arevalo, 99 Phil. 771 [1956]).

In the instant case, however, there is reason to believe that there was malicious intent in the filing of
the complaint for qualified theft. This intent is traceable to that early afternoon of August 17, 1966,
when petitioner's employees, upon being ordered, came to private respondent's residence and
changed the defective gas meter and tube connections without notice. In other words, respondent
Ongsip had no opportunity to observe the works. Nonetheless, if indeed he had installed an illegal
by-pass tube or jumper, he could have easily asked for its immediate removal soon after his
houseboy told him what petitioner's employees did. As established by the facts, he had not even
attempted to refuse entrance to petitioner's employees headed by Mariano Coronel nor to question
their authority upon their return later that same afternoon with a photographer. Little did he realize
that the pictures of the premises that were being taken would be used as evidence against him.
Surprisingly, when respondent Ongsip asked Coronel why they were taking pictures, Coronel just
gave him a calling card and instructed him to go to his office. It was quite an unusual gesture.
Obviously, Coronel had something in mind. As correctly observed by the trial court in its decision—

A significant fact brought about by the testimony of Coronel himself is the total
absence of immediate accusation against Plaintiff right at the very moment when the
 by-pass valve was allegedly discovered. Right then and there Coronel should have
told Plaintiff that he was using a by-pass valve and in effect stealing gas from
Defendant. There would have been nothing wrong with that. The circumstance was
familiar to that of catching a thief in flagrante delicto. But the truth is that when
Coronel and his men entered Plaintiff's compound and made changes therein,
Plaintiff was sleeping. He had no knowledge of what was then going on. Coronel and
his men told the 'boy' of Plaintiff that the changes were being made so that the
consumption of gas could be decreased. So that when Plaintiff woke up at four
o'clock in the afternoon, Coronel and his men had already made the changes and
had already gone. They returned however at five o'clock, this time with a
photographer. This was the time when Plaintiff met Coronel. Here was then the
opportunity for Coronel to confront Plaintiff with the allegedly discovered 'by-pass
valve' and bluntly, even brutally, tell him that there was thievery of gas. This, Coronel
did not do. .. .. ."

It bears noting that when he was informed as to the existence of a 'jumper' in his gas connection,
respondent Ongsip did not show any sign of fear or remorse and did not yield to the threatening
demand of Coronel. Experience tells us that this is not the attitude of a guilty person. On the
contrary, this is the attitude of someone who knows how to take a firm stand where his principles
and rights are concerned. To prove his innocence, he was even willing to have his place excavated
but petitioner would not dare take the consequences. Besides, Delfin Custodio, petitioner's own
mechanical engineer, testified that the second gas meter was replaced as being defective because
"some of its parts were worn out and that it was not properly registering."

Evidently, petitioner Manila Gas Corporation, in failing to recover its lost revenue caused by the gas
meter's incorrect recording, sought to vindicate its financial loss by filing the complaint for qualified
theft against respondent Ongsip knowing it to be false. It was actually intended to vex and humiliate
private respondent and to blacken his reputation not only as a businessman but also as a person.
Qualified theft is a serious offense indicating moral depravity in an individual. To be accused of such
crime without basis is shocking and libelous. It stigmatized private respondent causing him
emotional depression and social degradation. Petitioner should have realized that what is believed to
be a vindication of a proprietary right is no justification for subjecting one's name to indignity and
dishonor. One can thus imagine the anguish, anxiety, shock and humiliation suffered by respondent
Ongsip. The fact that the complaint for qualified theft was dismissed by the Pasay City fiscal is no
consolation. The damage had been done. Necessarily, indemnification had to be made.

The trial court awarded P50,000.00 as moral damages and P10,000.00 as exemplary damages.

WE give due consideration to respondent Ongsip's social and financial status as a businessman and
the mental anguish he suffered as a result of the false imputation. However, We also consider
petitioner's financial capability. Petitioner is a public utility corporation whose primary concern is
service to the people, the profit motive being merely secondary. Under the circumstances, We are of
the opinion that the award of moral and exemplary damages should be reduced to P25,000.00 and
P5,000.00, respectively. This award is sanctioned by Article 2234 of the Civil Code which states that:

When the amount of the exemplary damages need not be proved, the plaintiff 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. In case liquidated damages have been agreed upon, although no proof of
loss is necessary in order that such liquidated damages may be recovered
nevertheless, before the court may consider the question of granting exemplary in
addition to the liquidated damages, the plaintiff must show that he would be entitled
 to moral, temperate or compensatory damages were it not for the stipulation for
liquidated damages (emphasis supplied).

On the second cause of action which is based on the illegal disconnection of respondent Ongsip's
gas service constituting breach of contract, the trial court awarded P30,000.00 as moral damages
and P5,000.00 as exemplary damages.

Petitioner contends that the disconnection was on account of respondent Ongsip's failure to pay his
gas consumptions for more than three months. While private respondent admits having accounts
with petitioner, he denies having been notified thereof or having received any warning of the
disconnection In determining the propriety of the award, it is material to establish that prior notice or
warning had been given to respondent Ongsip before the gas service was disconnected, in
accordance with the terms of the contract. In this regard, We find the trial court's observation in its
decision to be well-founded, to quote:

Defendant would insist that the household helpers inside Plaintiff's premises refused
to receive notices or to sign them. Defendant has not given the Court any plausible
reason why these persons would refuse to receive, or sign for, notices of demands
for payments or warnings of threatened disconnection of the service. The very
evidence of Defendants indicates that Plaintiff had long been a customer of
Defendant. Plaintiff has been paying his bills. Plaintiff had not suffered any financial
reverses. As a matter of fact, upon the suggestion of the Court, Plaintiff readily made
payment of his count with Defendant. He made payment not because the service
would be restored. When he made the payment the Court had already issued a
mandatory preliminary injunction, ordering Defendant to restore gas service in the
premises of Plaintiff. Plaintiff made the payment to comply with the suggestion of the
Court because the Court rather than enforce its order, would like the parties to settle
the case amicably.

What is peculiar in the stand of Defendant is that while it would insist on the giving of
notices and warnings, it did not have any competent and sufficient evidence to prove
the Same. Demands in open were made by Plaintiff counsel whether Defendant
could show any written evidence showing that notices and warnings were sent to
Plaintiff. Not a single piece of evidence was produced. Normally, if a notice is
refused, then the original and its copies would still be in the hands of the public utility
concerned. In the instant case, it has to be repeated, not a single copy, original or
duplicate, triplicate, etc. of any notice to pay or warning of disconnection was
produced in court. The court cannot believe that Defendant, as what the testimonies
of its witnesses would like to impress upon this Court, conducts its business that
way. Defendant is a big business concern and it cannot be said that it treats its
business as a joke. Its personnel should realize this, for only with such an awareness
can they respond faithfully to their responsibilities as members of a big business
enterprise imbued with public interest over which the Philippine Government is
concerned.

Quite obviously, petitioner's act in disconnecting respondent Ongsip's gas service without prior
notice constitutes breach of contract amounting to an independent tort. The prematurity of the action
is indicative of an intent to cause additional mental and moral suffering to private respondent. This is
a clear violation of Article 21 of the Civil Code which provides that "any person who wilfully causes
loss or injury to another in a manner that is contrary to morals, good customs or public policy shall
compensate the latter for damages." This is reiterated by paragraph 10 of Article 2219 of the Code.
Moreover, the award of moral damages is sanctioned by Article 2220 which provides that "willful
injury to property may be a legal ground for awarding moral damages if the court should find that,
under the circumstances, such damages are justly due. The same rule applies to breaches of
contract where the defendant acted fraudulently or in bad faith" (emphasis suplied).

WE are not unmindful of the fact that at the time the gas service was disconnected, respondent
Ongsip admitted having been in default of at least three months' bills. WE have established however
that no notice to that effect has been served on him. It must be pointed out that respondent Ongsip
is an old man involved in a number of business and social undertakings. It is quite natural and
understandable that at times he forgets some minor obligations and details of his concern. This is
the time when reminders and friendly notices become indispensable. The rudiments of procedural
due proccess dictate that he should have been notified of any back accounts. In the past,
respondent Ongsip had not been remiss in the payment of his bills. Petitioner should have at least
accorded him the courtesy, if not the right, as per contract, of being notified before effecting
disconnection so that he could take steps or initiate measures to avoid such embarrassment.
Apparently, such misconduct or omission on the part of petitioner formed part of a malevolent
scheme to harass and humiliate private respondent, exposing him to further ignominy and greater
mental torture. Respondent Ongsip's default in payment cannot be utilized by petitioner to defeat or
nullify the claim for damages. At most, this circumstance can be considered as a mitigating factor in
ascertaining the amount of damages to which respondent Ongsip is entitled. In consequence
thereof, We reduce the amount of moral damages to P15,000.00 The award of P5,000.00 as
exemplary damages, on the other hand, is sustained, being similarly warranted by Article 2234 of the
Civil Code aforequoted as complemented by Article 2220.

The award of attorney's fees in the amount of P10,000.00 is justified under the circumstances.

WHEREFORE, PETITIONER MANILA GAS CORPORATION IS HEREBY DIRECTED TO PAY

(1) RESPONDENT ISIDRO M. ONGSIP P25,000.00 AS MORAL

DAMAGES AND P5,000.00 AS EXEMPLARY DAMAGES FOR THE
FIRST CAUSE OF ACTION, P15,000.00 AS MORAL DAMAGES
AND P5,000.00 AS EXEMPLARY DAMAGES FOR THE SECOND
CAUSE OF ACTION, AND P10,000.00 AS ATTORNEY'S FEES;
AND

(2) THE COSTS.

MODIFIED AS ABOVE STATED, THE DECISION OF RESPONDENT COURT OF APPEALS IS

HEREBY AFFIRMED IN ALL OTHER RESPECTS.

SO ORDERED.
G.R. No. 151866             September 9, 2004

SOLEDAD CARPIO, petitioner,
vs.
LEONORA A. VALMONTE, respondent.

DECISION

TINGA, J.:

Assailed in the instant petition for review is the Decision of the Court of Appeals in C.A.-G.R. CV No.
69537,1 promulgated on 17 January 2002.2 The appellate court reversed the trial court’s decision
denying respondent’s claim for damages against petitioner and ordered the latter to pay moral
damages to the former in the amount of P100,000.00.

Respondent Leonora Valmonte is a wedding coordinator. Michelle del Rosario and Jon Sierra
engaged her services for their church wedding on 10 October 1996. At about 4:30 p.m. on that day,
Valmonte went to the Manila Hotel where the bride and her family were billeted. When she arrived at
Suite 326-A, several persons were already there including the bride, the bride’s parents and
relatives, the make-up artist and his assistant, the official photographers, and the fashion designer.
Among those present was petitioner Soledad Carpio, an aunt of the bride who was preparing to
dress up for the occasion.

After reporting to the bride, Valmonte went out of the suite carrying the items needed for the wedding
rites and the gifts from the principal sponsors. She proceeded to the Maynila Restaurant where the
reception was to be held. She paid the suppliers, gave the meal allowance to the band, and went
back to the suite. Upon entering the suite, Valmonte noticed the people staring at her. It was at this
juncture that petitioner allegedly uttered the following words to Valmonte: "Ikaw lang ang lumabas ng
kwarto, nasaan ang dala mong bag? Saan ka pumunta? Ikaw lang and lumabas ng kwarto, ikaw
ang kumuha." Petitioner then ordered one of the ladies to search Valmonte’s bag. It turned out that
after Valmonte left the room to attend to her duties, petitioner discovered that the pieces of jewelry
which she placed inside the comfort room in a paper bag were lost. The jewelry pieces consist of two
(2) diamond rings, one (1) set of diamond earrings, bracelet and necklace with a total value of about
one million pesos. The hotel security was called in to help in the search. The bags and personal
belongings of all the people inside the room were searched. Valmonte was allegedly bodily
searched, interrogated and trailed by a security guard throughout the evening. Later, police officers
arrived and interviewed all persons who had access to the suite and fingerprinted them including
Valmonte. During all the time Valmonte was being interrogated by the police officers, petitioner kept
on saying the words "Siya lang ang lumabas ng kwarto." Valmonte’s car which was parked at the
hotel premises was also searched but the search yielded nothing.

A few days after the incident, petitioner received a letter from Valmonte demanding a formal letter of
apology which she wanted to be circulated to the newlyweds’ relatives and guests to redeem her
smeared reputation as a result of petitioner’s imputations against her. Petitioner did not respond to
the letter. Thus, on 20 February 1997, Valmonte filed a suit for damages against her before the
Regional Trial Court (RTC) of Pasig City, Branch 268. In her complaint, Valmonte prayed that
petitioner be ordered to pay actual, moral and exemplary damages, as well as attorney’s fees.

Responding to the complaint, petitioner denied having uttered words or done any act to confront or
single out Valmonte during the investigation and claimed that everything that transpired after the
theft incident was purely a police matter in which she had no participation. Petitioner prayed for the
dismissal of the complaint and for the court to adjudge Valmonte liable on her counterclaim.
The trial court rendered its Decision on 21 August 2000, dismissing Valmonte’s complaint for
damages. It ruled that when petitioner sought investigation for the loss of her jewelry, she was
merely exercising her right and if damage results from a person exercising his legal right, it
is damnum absque injuria. It added that no proof was presented by Valmonte to show that petitioner
acted maliciously and in bad faith in pointing to her as the culprit. The court said that Valmonte failed
to show that she suffered serious anxiety, moral shock, social humiliation, or that her reputation was
besmirched due to petitioner’s wrongful act.

Respondent appealed to the Court of Appeals alleging that the trial court erred in finding that
petitioner did not slander her good name and reputation and in disregarding the evidence she
presented.

The Court of Appeals ruled differently. It opined that Valmonte has clearly established that she was
singled out by petitioner as the one responsible for the loss of her jewelry. It cited the testimony of
Serena Manding, corroborating Valmonte’s claim that petitioner confronted her and uttered words to
the effect that she was the only one who went out of the room and that she was the one who took
the jewelry. The appellate court held that Valmonte’s claim for damages is not predicated on the fact
that she was subjected to body search and interrogation by the police but rather petitioner’s act of
publicly accusing her of taking the missing jewelry. It categorized petitioner’s utterance defamatory
considering that it imputed upon Valmonte the crime of theft. The court concluded that petitioner’s
verbal assault upon Valmonte was done with malice and in bad faith since it was made in the
presence of many people without any solid proof except petitioner’s suspicion. Such unfounded
accusation entitles Valmonte to an award of moral damages in the amount of ₱100,000.00 for she
was publicly humiliated, deeply insulted, and embarrassed. However, the court found no sufficient
evidence to justify the award of actual damages.

Hence, this petition.

Petitioner contends that the appellate court’s conclusion that she publicly humiliated respondent
does not conform to the evidence presented. She adds that even on the assumption that she uttered
the words complained of, it was not shown that she did so with malice and in bad faith.

In essence, petitioner would want this Court to review the factual conclusions reached by the
appellate court. The cardinal rule adhered to in this jurisdiction is that a petition for review must raise
only questions of law,3 and judicial review under Rule 45 does not extend to an evaluation of the
sufficiency of evidence unless there is a showing that the findings complained of are totally devoid of
support in the record or that they are so glaringly erroneous as to constitute serious abuse of
discretion.4 This Court, while not a trier of facts, may review the evidence in order to arrive at the
correct factual conclusion based on the record especially so when the findings of fact of the Court of
Appeals are at variance with those of the trial court, or when the inference drawn by the Court of
Appeals from the facts is manifestly mistaken.5

Contrary to the trial court’s finding, we find sufficient evidence on record tending to prove that
petitioner’s imputations against respondent was made with malice and in bad faith.

Petitioner’s testimony was shorn of substance and consists mainly of denials. She claimed not to
have uttered the words imputing the crime of theft to respondent or to have mentioned the latter’s
name to the authorities as the one responsible for the loss of her jewelry. Well-settled is the rule that
denials, if unsubstantiated by clear and convincing evidence, are negative and self-serving which
merit no weight in law and cannot be given greater evidentiary value over the testimony of credible
witnesses who testify on affirmative matters.6
Respondent, however, has successfully refuted petitioner’s testimony. Quite credibly, she has
narrated in great detail her distressing experience on that fateful day. She testified as to how rudely
she was treated by petitioner right after she returned to the room. Petitioner immediately confronted
her and uttered the words "Ikaw lang ang lumabas ng kwarto. Nasaan ang dala mong bag? Saan ka
pumunta? Ikaw ang kumuha." Thereafter, her body was searched including her bag and her car.
Worse, during the reception, she was once more asked by the hotel security to go to the ladies room
and she was again bodily searched.7

Sereña Manding, a make-up artist, corroborated respondent’s testimony. She testified that petitioner
confronted respondent in the presence of all the people inside the suite accusing her of being the
only one who went out of the comfort room before the loss of the jewelry. Manding added that
respondent was embarrassed because everybody else in the room thought she was a thief.8 If only
to debunk petitioner’s assertion that she did not utter the accusatory remarks in question publicly
and with malice, Manding’s testimony on the point deserves to be reproduced. Thus,

Q After that what did she do?

A Then Leo came out from the other room she said, she is (sic) the one I only saw from the
comfort room.

Q Now, what exact word (sic) were said by Mrs. Carpio on that matter?

A She said "siya lang yung nakita kong galing sa C.R."

Q And who was Mrs. Carpio or the defendant referring to?

A Leo Valmonte.

Q Did she say anything else, the defendant?

A Her jewelry were lost and Leo was the only one she saw in the C.R. After that she get (sic)
the paper bag then the jewelry were already gone.

Q Did she confront the plaintiff Mrs. Valmonte regarding that fact?

A Yes.

Q What did the defendant Mrs. Carpio tell the plaintiff, Mrs. Valmonte?

A "Ikaw yung nakita ko sa C.R. nawawala yung alahas ko."

Q When the defendant Mrs. Carpio said that to plaintiff Mrs. Valmonte were there other
people inside the room?

A Yes, sir.

Q Were they able to hear what Mrs. Carpio said to Mrs. Valmonte?

A Yes, sir.
 Q What was your thinking at that time that Mrs. Carpio said that to Mrs. Valmonte?

A "Nakakahiya kasi akala ng iba doon na talagang magnanakaw siya. Kasi marami na
kaming nandodoon, dumating na yung couturier pati yung video man and we sir.

Q Who was the person you [were] alleging "na nakakahiya" whose (sic) being accused or
being somebody who stole those item of jewelry?

A "Nakakahiya para kay Leo kasi pinagbibintangan siya. Sa dami namin doon siya yung
napagbintangan."

Q And who is Leo, what is her full name?

A Leo Valmonte.

Q Did the defendant tell this matter to other people inside the room?

A Yes, the mother of the bride.

Q And who else did she talk to?

A The father of the bride also.

Q And what did the defendant tell the mother regarding this matter?

A "Nawawala yung alahas ko." Sabi naman nung mother baka naman hindi mo dala tignan
mo munang mabuti.

Q Who was that other person that she talked to?

A Father of the bride.9

Significantly, petitioner’s counsel elected not to pursue her cross-examination of the witness on this
point following her terse and firm declaration that she remembered petitioner’s exact defamatory
words in answer to the counsel’s question.10

Jaime Papio, Security Supervisor at Manila Hotel, likewise contradicted petitioner’s allegation that
she did not suspect or mention the name of respondent as her suspect in the loss of the jewelry.11

To warrant recovery of damages, there must be both a right of action, for a wrong inflicted by the
defendant, and the damage resulting therefrom to the plaintiff. Wrong without damage, or damage
without wrong, does not constitute a cause of action.12

In the sphere of our law on human relations, the victim of a wrongful act or omission, whether done
willfully or negligently, is not left without any remedy or recourse to obtain relief for the damage or
injury he sustained. Incorporated into our civil law are not only principles of equity but also universal
moral precepts which are designed to indicate certain norms that spring from the fountain of good
conscience and which are meant to serve as guides for human conduct.13 First of these fundamental
precepts is the principle commonly known as "abuse of rights" under Article 19 of the Civil Code. It
provides that "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." To find the existence of
an abuse of right, the following elements must be present: (1) there is a legal right or duty; (2) which
is exercised in bad faith; (3) for the sole intent or prejudicing or injuring another.14 When a right is
exercised in a manner which discards these norms resulting in damage to another, a legal wrong is
committed for which the actor can be held accountable.15 One is not allowed to exercise his right in a
manner which would cause unnecessary prejudice to another or if he would thereby offend morals or
good customs. Thus, a person should be protected only when he acts in the legitimate exercise of
his right, that is when he acts with prudence and good faith; but not when he acts with negligence or
abuse.16

Complementing the principle of abuse of rights are the provisions of Articles 20 and 21 of the Civil
Code which read, thus:

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another,
shall indemnify the latter for the same.

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

The foregoing rules provide the legal bedrock for the award of damages to a party who
suffers damage whenever one commits an act in violation of some legal provision, or an act
which though not constituting a transgression of positive law, nevertheless violates certain
rudimentary rights of the party aggrieved.

In the case at bar, petitioner’s verbal reproach against respondent was certainly uncalled for
considering that by her own account nobody knew that she brought such kind and amount of jewelry
inside the paper bag.17 This being the case, she had no right to attack respondent with her
innuendos which were not merely inquisitive but outrightly accusatory. By openly accusing
respondent as the only person who went out of the room before the loss of the jewelry in the
presence of all the guests therein, and ordering that she be immediately bodily searched, petitioner
virtually branded respondent as the thief. True, petitioner had the right to ascertain the identity of the
malefactor, but to malign respondent without an iota of proof that she was the one who actually stole
the jewelry is an act which, by any standard or principle of law is impermissible. Petitioner had
willfully caused injury to respondent in a manner which is contrary to morals and good customs. Her
firmness and resolve to find her missing jewelry cannot justify her acts toward respondent. She did
not act with justice and good faith for apparently, she had no other purpose in mind but to prejudice
respondent. Certainly, petitioner transgressed the provisions of Article 19 in relation to Article 21 for
which she should be held accountable.

Owing to the rule that great weight and even finality is given to factual conclusions of the Court of
Appeals which affirm those of the trial court,18 we sustain the findings of the trial court and the
appellate court that respondent’s claim for actual damages has not been substantiated with
satisfactory evidence during the trial and must therefore be denied. To be recoverable, actual
damages must be duly proved with reasonable degree of certainty and the courts cannot rely on
speculation, conjecture or guesswork.19

Respondent, however, is clearly entitled to an award of moral damages. Moral damages may be
awarded whenever the defendant’s wrongful act or omission is the proximate cause of the plaintiff’s
physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury20 in the cases specified or analogous to those
provided in Article 2219 of the Civil Code.21 Though no proof of pecuniary loss is necessary in order
that moral damages may be adjudicated, courts are mandated to take into account all the
circumstances obtaining in the case and assess damages according to their discretion.22 Worthy of
note is that moral damages are not awarded to penalize the defendant,23 or to enrich a complainant,
but to enable the latter to obtain means, diversions or amusements that will serve to alleviate the
moral suffering he has undergone, by reason of defendant’s culpable action. In any case, award of
moral damages must be proportionate to the sufferings inflicted.24

Based on the foregoing jurisprudential pronouncements, we rule that the appellate court did not err
in awarding moral damages. Considering respondent’s social standing, and the fact that her
profession is based primarily on trust reposed in her by her clients, the seriousness of the
imputations made by petitioner has greatly tarnished her reputation and will in one way or the other,
affect her future dealings with her clients, the award of ₱100,000.00 as moral damages appears to
be a fair and reasonable assessment of respondent’s damages.

WHEREFORE, the instant Petition is DENIED. Costs against petitioner.

SO ORDERED.
G.R. No. 151866             September 9, 2004

SOLEDAD CARPIO, petitioner,
vs.
LEONORA A. VALMONTE, respondent.

DECISION

TINGA, J.:

Assailed in the instant petition for review is the Decision of the Court of Appeals in C.A.-G.R. CV No.
69537,1 promulgated on 17 January 2002.2 The appellate court reversed the trial court’s decision
denying respondent’s claim for damages against petitioner and ordered the latter to pay moral
damages to the former in the amount of P100,000.00.

Respondent Leonora Valmonte is a wedding coordinator. Michelle del Rosario and Jon Sierra
engaged her services for their church wedding on 10 October 1996. At about 4:30 p.m. on that day,
Valmonte went to the Manila Hotel where the bride and her family were billeted. When she arrived at
Suite 326-A, several persons were already there including the bride, the bride’s parents and
relatives, the make-up artist and his assistant, the official photographers, and the fashion designer.
Among those present was petitioner Soledad Carpio, an aunt of the bride who was preparing to
dress up for the occasion.

After reporting to the bride, Valmonte went out of the suite carrying the items needed for the wedding
rites and the gifts from the principal sponsors. She proceeded to the Maynila Restaurant where the
reception was to be held. She paid the suppliers, gave the meal allowance to the band, and went
back to the suite. Upon entering the suite, Valmonte noticed the people staring at her. It was at this
juncture that petitioner allegedly uttered the following words to Valmonte: "Ikaw lang ang lumabas ng
kwarto, nasaan ang dala mong bag? Saan ka pumunta? Ikaw lang and lumabas ng kwarto, ikaw
ang kumuha." Petitioner then ordered one of the ladies to search Valmonte’s bag. It turned out that
after Valmonte left the room to attend to her duties, petitioner discovered that the pieces of jewelry
which she placed inside the comfort room in a paper bag were lost. The jewelry pieces consist of two
(2) diamond rings, one (1) set of diamond earrings, bracelet and necklace with a total value of about
one million pesos. The hotel security was called in to help in the search. The bags and personal
belongings of all the people inside the room were searched. Valmonte was allegedly bodily
searched, interrogated and trailed by a security guard throughout the evening. Later, police officers
arrived and interviewed all persons who had access to the suite and fingerprinted them including
Valmonte. During all the time Valmonte was being interrogated by the police officers, petitioner kept
on saying the words "Siya lang ang lumabas ng kwarto." Valmonte’s car which was parked at the
hotel premises was also searched but the search yielded nothing.

A few days after the incident, petitioner received a letter from Valmonte demanding a formal letter of
apology which she wanted to be circulated to the newlyweds’ relatives and guests to redeem her
smeared reputation as a result of petitioner’s imputations against her. Petitioner did not respond to
the letter. Thus, on 20 February 1997, Valmonte filed a suit for damages against her before the
Regional Trial Court (RTC) of Pasig City, Branch 268. In her complaint, Valmonte prayed that
petitioner be ordered to pay actual, moral and exemplary damages, as well as attorney’s fees.

Responding to the complaint, petitioner denied having uttered words or done any act to confront or
single out Valmonte during the investigation and claimed that everything that transpired after the
theft incident was purely a police matter in which she had no participation. Petitioner prayed for the
dismissal of the complaint and for the court to adjudge Valmonte liable on her counterclaim.
The trial court rendered its Decision on 21 August 2000, dismissing Valmonte’s complaint for
damages. It ruled that when petitioner sought investigation for the loss of her jewelry, she was
merely exercising her right and if damage results from a person exercising his legal right, it
is damnum absque injuria. It added that no proof was presented by Valmonte to show that petitioner
acted maliciously and in bad faith in pointing to her as the culprit. The court said that Valmonte failed
to show that she suffered serious anxiety, moral shock, social humiliation, or that her reputation was
besmirched due to petitioner’s wrongful act.

Respondent appealed to the Court of Appeals alleging that the trial court erred in finding that
petitioner did not slander her good name and reputation and in disregarding the evidence she
presented.

The Court of Appeals ruled differently. It opined that Valmonte has clearly established that she was
singled out by petitioner as the one responsible for the loss of her jewelry. It cited the testimony of
Serena Manding, corroborating Valmonte’s claim that petitioner confronted her and uttered words to
the effect that she was the only one who went out of the room and that she was the one who took
the jewelry. The appellate court held that Valmonte’s claim for damages is not predicated on the fact
that she was subjected to body search and interrogation by the police but rather petitioner’s act of
publicly accusing her of taking the missing jewelry. It categorized petitioner’s utterance defamatory
considering that it imputed upon Valmonte the crime of theft. The court concluded that petitioner’s
verbal assault upon Valmonte was done with malice and in bad faith since it was made in the
presence of many people without any solid proof except petitioner’s suspicion. Such unfounded
accusation entitles Valmonte to an award of moral damages in the amount of ₱100,000.00 for she
was publicly humiliated, deeply insulted, and embarrassed. However, the court found no sufficient
evidence to justify the award of actual damages.

Hence, this petition.

Petitioner contends that the appellate court’s conclusion that she publicly humiliated respondent
does not conform to the evidence presented. She adds that even on the assumption that she uttered
the words complained of, it was not shown that she did so with malice and in bad faith.

In essence, petitioner would want this Court to review the factual conclusions reached by the
appellate court. The cardinal rule adhered to in this jurisdiction is that a petition for review must raise
only questions of law,3 and judicial review under Rule 45 does not extend to an evaluation of the
sufficiency of evidence unless there is a showing that the findings complained of are totally devoid of
support in the record or that they are so glaringly erroneous as to constitute serious abuse of
discretion.4 This Court, while not a trier of facts, may review the evidence in order to arrive at the
correct factual conclusion based on the record especially so when the findings of fact of the Court of
Appeals are at variance with those of the trial court, or when the inference drawn by the Court of
Appeals from the facts is manifestly mistaken.5

Contrary to the trial court’s finding, we find sufficient evidence on record tending to prove that
petitioner’s imputations against respondent was made with malice and in bad faith.

Petitioner’s testimony was shorn of substance and consists mainly of denials. She claimed not to
have uttered the words imputing the crime of theft to respondent or to have mentioned the latter’s
name to the authorities as the one responsible for the loss of her jewelry. Well-settled is the rule that
denials, if unsubstantiated by clear and convincing evidence, are negative and self-serving which
merit no weight in law and cannot be given greater evidentiary value over the testimony of credible
witnesses who testify on affirmative matters.6
Respondent, however, has successfully refuted petitioner’s testimony. Quite credibly, she has
narrated in great detail her distressing experience on that fateful day. She testified as to how rudely
she was treated by petitioner right after she returned to the room. Petitioner immediately confronted
her and uttered the words "Ikaw lang ang lumabas ng kwarto. Nasaan ang dala mong bag? Saan ka
pumunta? Ikaw ang kumuha." Thereafter, her body was searched including her bag and her car.
Worse, during the reception, she was once more asked by the hotel security to go to the ladies room
and she was again bodily searched.7

Sereña Manding, a make-up artist, corroborated respondent’s testimony. She testified that petitioner
confronted respondent in the presence of all the people inside the suite accusing her of being the
only one who went out of the comfort room before the loss of the jewelry. Manding added that
respondent was embarrassed because everybody else in the room thought she was a thief.8 If only
to debunk petitioner’s assertion that she did not utter the accusatory remarks in question publicly
and with malice, Manding’s testimony on the point deserves to be reproduced. Thus,

Q After that what did she do?

A Then Leo came out from the other room she said, she is (sic) the one I only saw from the
comfort room.

Q Now, what exact word (sic) were said by Mrs. Carpio on that matter?

A She said "siya lang yung nakita kong galing sa C.R."

Q And who was Mrs. Carpio or the defendant referring to?

A Leo Valmonte.

Q Did she say anything else, the defendant?

A Her jewelry were lost and Leo was the only one she saw in the C.R. After that she get (sic)
the paper bag then the jewelry were already gone.

Q Did she confront the plaintiff Mrs. Valmonte regarding that fact?

A Yes.

Q What did the defendant Mrs. Carpio tell the plaintiff, Mrs. Valmonte?

A "Ikaw yung nakita ko sa C.R. nawawala yung alahas ko."

Q When the defendant Mrs. Carpio said that to plaintiff Mrs. Valmonte were there other
people inside the room?

A Yes, sir.

Q Were they able to hear what Mrs. Carpio said to Mrs. Valmonte?

A Yes, sir.
 Q What was your thinking at that time that Mrs. Carpio said that to Mrs. Valmonte?

A "Nakakahiya kasi akala ng iba doon na talagang magnanakaw siya. Kasi marami na
kaming nandodoon, dumating na yung couturier pati yung video man and we sir.

Q Who was the person you [were] alleging "na nakakahiya" whose (sic) being accused or
being somebody who stole those item of jewelry?

A "Nakakahiya para kay Leo kasi pinagbibintangan siya. Sa dami namin doon siya yung
napagbintangan."

Q And who is Leo, what is her full name?

A Leo Valmonte.

Q Did the defendant tell this matter to other people inside the room?

A Yes, the mother of the bride.

Q And who else did she talk to?

A The father of the bride also.

Q And what did the defendant tell the mother regarding this matter?

A "Nawawala yung alahas ko." Sabi naman nung mother baka naman hindi mo dala tignan
mo munang mabuti.

Q Who was that other person that she talked to?

A Father of the bride.9

Significantly, petitioner’s counsel elected not to pursue her cross-examination of the witness on this
point following her terse and firm declaration that she remembered petitioner’s exact defamatory
words in answer to the counsel’s question.10

Jaime Papio, Security Supervisor at Manila Hotel, likewise contradicted petitioner’s allegation that
she did not suspect or mention the name of respondent as her suspect in the loss of the jewelry.11

To warrant recovery of damages, there must be both a right of action, for a wrong inflicted by the
defendant, and the damage resulting therefrom to the plaintiff. Wrong without damage, or damage
without wrong, does not constitute a cause of action.12

In the sphere of our law on human relations, the victim of a wrongful act or omission, whether done
willfully or negligently, is not left without any remedy or recourse to obtain relief for the damage or
injury he sustained. Incorporated into our civil law are not only principles of equity but also universal
moral precepts which are designed to indicate certain norms that spring from the fountain of good
conscience and which are meant to serve as guides for human conduct.13 First of these fundamental
precepts is the principle commonly known as "abuse of rights" under Article 19 of the Civil Code. It
provides that "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." To find the existence of
an abuse of right, the following elements must be present: (1) there is a legal right or duty; (2) which
is exercised in bad faith; (3) for the sole intent or prejudicing or injuring another.14 When a right is
exercised in a manner which discards these norms resulting in damage to another, a legal wrong is
committed for which the actor can be held accountable.15 One is not allowed to exercise his right in a
manner which would cause unnecessary prejudice to another or if he would thereby offend morals or
good customs. Thus, a person should be protected only when he acts in the legitimate exercise of
his right, that is when he acts with prudence and good faith; but not when he acts with negligence or
abuse.16

Complementing the principle of abuse of rights are the provisions of Articles 20 and 21 of the Civil
Code which read, thus:

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another,
shall indemnify the latter for the same.

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

The foregoing rules provide the legal bedrock for the award of damages to a party who
suffers damage whenever one commits an act in violation of some legal provision, or an act
which though not constituting a transgression of positive law, nevertheless violates certain
rudimentary rights of the party aggrieved.

In the case at bar, petitioner’s verbal reproach against respondent was certainly uncalled for
considering that by her own account nobody knew that she brought such kind and amount of jewelry
inside the paper bag.17 This being the case, she had no right to attack respondent with her
innuendos which were not merely inquisitive but outrightly accusatory. By openly accusing
respondent as the only person who went out of the room before the loss of the jewelry in the
presence of all the guests therein, and ordering that she be immediately bodily searched, petitioner
virtually branded respondent as the thief. True, petitioner had the right to ascertain the identity of the
malefactor, but to malign respondent without an iota of proof that she was the one who actually stole
the jewelry is an act which, by any standard or principle of law is impermissible. Petitioner had
willfully caused injury to respondent in a manner which is contrary to morals and good customs. Her
firmness and resolve to find her missing jewelry cannot justify her acts toward respondent. She did
not act with justice and good faith for apparently, she had no other purpose in mind but to prejudice
respondent. Certainly, petitioner transgressed the provisions of Article 19 in relation to Article 21 for
which she should be held accountable.

Owing to the rule that great weight and even finality is given to factual conclusions of the Court of
Appeals which affirm those of the trial court,18 we sustain the findings of the trial court and the
appellate court that respondent’s claim for actual damages has not been substantiated with
satisfactory evidence during the trial and must therefore be denied. To be recoverable, actual
damages must be duly proved with reasonable degree of certainty and the courts cannot rely on
speculation, conjecture or guesswork.19

Respondent, however, is clearly entitled to an award of moral damages. Moral damages may be
awarded whenever the defendant’s wrongful act or omission is the proximate cause of the plaintiff’s
physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury20 in the cases specified or analogous to those
provided in Article 2219 of the Civil Code.21 Though no proof of pecuniary loss is necessary in order
that moral damages may be adjudicated, courts are mandated to take into account all the
circumstances obtaining in the case and assess damages according to their discretion.22 Worthy of
note is that moral damages are not awarded to penalize the defendant,23 or to enrich a complainant,
but to enable the latter to obtain means, diversions or amusements that will serve to alleviate the
moral suffering he has undergone, by reason of defendant’s culpable action. In any case, award of
moral damages must be proportionate to the sufferings inflicted.24

Based on the foregoing jurisprudential pronouncements, we rule that the appellate court did not err
in awarding moral damages. Considering respondent’s social standing, and the fact that her
profession is based primarily on trust reposed in her by her clients, the seriousness of the
imputations made by petitioner has greatly tarnished her reputation and will in one way or the other,
affect her future dealings with her clients, the award of ₱100,000.00 as moral damages appears to
be a fair and reasonable assessment of respondent’s damages.

WHEREFORE, the instant Petition is DENIED. Costs against petitioner.

SO ORDERED.
G.R. No. 152411             September 29, 2004

UNIVERSITY OF THE PHILIPPINES, petitioner,

vs.
PHILAB INDUSTRIES, INC., respondent.

DECISION

CALLEJO, SR., J.:

Before the Court is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-
G.R. CV No. 44209, as well as its Resolution2 denying the petitioner’s motion for the reconsideration
thereof. Themo1 mo2 Court of Appeals set aside the Decision3 of Branch 150 of the Regional Trial Court
(RTC) of Makati City, which dismissed the complaint of the respondent against the petitioner for sum
of money and damages.

The Facts of the Case

Sometime in 1979, the University of the Philippines (UP) decided to construct an integrated system
of research organization known as the Research Complex. As part of the project, laboratory
equipment and furniture were purchased for the National Institute of Biotechnology and Applied
Microbiology (BIOTECH) at the UP Los Baños. Providentially, the Ferdinand E. Marcos Foundation
(FEMF) came forward and agreed to fund the acquisition of the laboratory furniture, including the
fabrication thereof.

Renato E. Lirio, the Executive Assistant of the FEMF, gave the go-signal to BIOTECH to contact a
corporation to accomplish the project. On July 23, 1982, Dr. William Padolina, the Executive Deputy
Director of BIOTECH, arranged for Philippine Laboratory Industries, Inc. (PHILAB), to fabricate the
laboratory furniture and deliver the same to BIOTECH for the BIOTECH Building Project, for the
account of the FEMF. Lirio directed Padolina to give the go-signal to PHILAB to proceed with the
fabrication of the laboratory furniture, and requested Padolina to forward the contract of the project
to FEMF for its approval.

On July 13, 1982, Padolina wrote Lirio and requested for the issuance of the purchase order and
downpayment for the office and laboratory furniture for the project, thus:

1 Supply and Installation of Laboratory furniture for the BIOTECH Building

. Project
Amount : P2,934,068.90
Supplier : Philippine Laboratory Furniture Co.,
College, Laguna
Attention : Mr. Hector C. Navasero
President
Downpayment : 40% or ₱1,173,627.56
2 Fabrication and Supply of office furniture for the BIOTECH Building Project
.
Amount : P573,375.00
Supplier : Trans-Oriental Woodworks, Inc.
 1st Avenue, Bagumbayan Tanyag, Taguig, Metro
Manila
Downpayment : 50% or ₱286,687.504

Padolina assured Lirio that the contract would be prepared as soon as possible before the issuance
of the purchase orders and the downpayment for the goods, and would be transmitted to the FEMF
as soon as possible.

In a Letter dated July 23, 1982, Padolina informed Hector Navasero, the President of PHILAB, to
proceed with the fabrication of the laboratory furniture, per the directive of FEMF Executive Assistant
Lirio. Padolina also requested for copies of the shop drawings and a sample contract5 for the project,
and that such contract and drawings had to be finalized before the down payment could be remitted
to the PHILAB the following week. However, PHILAB failed to forward any sample contract.

Subsequently, PHILAB made partial deliveries of office and laboratory furniture to BIOTECH after
having been duly inspected by their representatives and FEMF Executive Assistant Lirio.

On August 24, 1982, FEMF remitted ₱600,000 to PHILAB as downpayment for the laboratory
furniture for the BIOTECH project, for which PHILAB issued Official Receipt No. 253 to FEMF. On
October 22, 1982, FEMF made another partial payment of ₱800,000 to PHILAB, for which the latter
issued Official Receipt No. 256 to FEMF. The remittances were in the form of checks drawn by
FEMF and delivered to PHILAB, through Padolina.

On October 16, 1982, UP, through Emil Q. Javier, the Chancellor of UP Los Baños and FEMF,
represented by its Executive Officer, Rolando Gapud, executed a Memorandum of Agreement
(MOA) in which FEMF agreed to grant financial support and donate sums of money to UP for the
construction of buildings, installation of laboratory and other capitalization for the project, not to
exceed ₱29,000,000.00. The obligations of FEMF under the MOA are the following:

ARTICLE II

OBLIGATIONS OF THE FOUNDATION

2.1. The FOUNDATION, in carrying out its principal objectives of promoting philantrophic and
scientific projects through financial support to such projects that will contribute to the
country’s economic development, shall grant such financial support and donate such sums
of money to the RESEARCH COMPLEX as may be necessary for the construction of
buildings, installation of laboratories, setting up of offices and physical plants and facilities
and other capital investment of the RESEARCH COMPLEX and/or any of its component
Research Institutes not to exceed ₱29 Million. For this purpose, the FOUNDATION shall:

(a) Acquire and donate to the UNIVERSITY the site for the RESEARCH COMPLEX;
and

(b) Donate or cause to be donated to the UNIVERSITY the sum of TWENTY-NINE

MILLION PESOS (₱29,000,000.00) for the construction of the buildings of the
National Institutes of Biotechnology and Applied Microbiology (BIOTECH) and the
installation of their laboratories and their physical plants and other facilities to enable
them to commence operations.
 2.2. In addition, the FOUNDATION shall, subject to the approval of the Board of Trustees of
the FOUNDATION, continue to support the activities of the RESEARCH COMPLEX by way
of recurrent additional grants and donations for specific research and development projects
which may be mutually agreed upon and, from time to time, additional grants and donations
of such amounts as may be necessary to provide the RESEARCH COMPLEX and/or any of
its Research Institutes with operational flexibility especially with regard to incentives to staff
purchase of equipment/facilities, travel abroad, recruitment of local and expatriate staff and
such other activities and inputs which are difficult to obtain under usual government rules
and regulations.6

The Board of Regents of the UP approved the MOA on November 25, 1982.7

In the meantime, Navasero promised to submit the contract for the installation of laboratory furniture
to BIOTECH, by January 12, 1983. However, Navasero failed to do so. In a Letter dated February 1,
1983, BIOTECH reminded Navasero of the need to submit the contract so that it could be submitted
to FEMF for its evaluation and approval.8 Instead of submitting the said contract, PHILAB submitted
to BIOTECH an accomplishment report on the project as of February 28, 1983, and requested
payment thereon.9 By May 1983, PHILAB had completed 78% of the project, amounting to
₱2,288,573.74 out of the total cost of ₱2,934,068.90. The FEMF had already paid forty percent
(40%) of the total cost of the project. On May 12, 1983, Padolina wrote Lirio and furnished him the
progress billing from PHILAB.10 On August 11, 1983, the FEMF made another partial payment of
₱836,119.52 representing the already delivered laboratory and office furniture after the requisite
inspection and verification thereof by representatives from the BIOTECH, FEMF, and PHILAB. The
payment was made in the form of a check, for which PHILAB issued Official Receipt No. 202 to
FEMF through Padolina.11

On July 1, 1984, PHILAB submitted to BIOTECH Invoice No. 01643 in the amount of ₱702,939.40
for the final payment of laboratory furniture. Representatives from BIOTECH, PHILAB, and Lirio for
the FEMF, conducted a verification of the accomplishment of the work and confirmed the same.
BIOTECH forwarded the invoice to Lirio on December 18, 1984 for its payment.12 Lirio, in turn,
forwarded the invoice to Gapud, presumably sometime in the early part of 1985. However, the FEMF
failed to pay the bill. PHILAB reiterated its request for payment through a letter on May 9,
1985.13 BIOTECH again wrote Lirio on March 21, 1985, requesting the payment of PHILAB’s bill.14 It
sent another letter to Gapud, on November 22, 1985, again appealing for the payment of PHILAB’s
bill.15 In a Letter to BIOTECH dated December 5, 1985, PHILAB requested payment of ₱702,939.40
plus interest thereon of ₱224,940.61.16 There was, however, no response from the FEMF. On
February 24, 1986, PHILAB wrote BIOTECH, appealing for the payment of its bill even on
installment basis.17

President Marcos was ousted from office during the February 1986 EDSA Revolution. On March 26,
1986, Navasero wrote BIOTECH requesting for its much-needed assistance for the payment of the
balance already due plus interest of ₱295,234.55 for its fabrication and supply of laboratory
furniture.18

On April 22, 1986, PHILAB wrote President Corazon C. Aquino asking her help to secure the
payment of the amount due from the FEMF.19 The letter was referred to then Budget Minister Alberto
Romulo, who referred the letter to then UP President Edgardo Angara on June 9, 1986. On
September 30, 1986, Raul P. de Guzman, the Chancellor of UP Los Baños, wrote then Chairman of
the Presidential Commission on Good Government (PCGG) Jovito Salonga, submitting PHILAB’s
claim to be officially entered as "accounts payable" as soon as the assets of FEMF were liquidated
by the PCGG.20
In the meantime, the PCGG wrote UP requesting for a copy of the relevant contract and the MOA for
its perusal.21

Chancellor De Guzman wrote Navasero requesting for a copy of the contract executed between
PHILAB and FEMF. In a Letter dated October 20, 1987, Navasero informed De Guzman that
PHILAB and FEMF did not execute any contract regarding the fabrication and delivery of laboratory
furniture to BIOTECH.

Exasperated, PHILAB filed a complaint for sum of money and damages against UP. In the
complaint, PHILAB prayed that it be paid the following:

(1) PESOS: SEVEN HUNDRED TWO THOUSAND NINE HUNDRED THIRTY NINE &
40/100 (₱702,939.40) plus an additional amount (as shall be determined during the hearing)
to cover the actual cost of money which at the time of transaction the value of the peso was
eleven to a dollar (₱11.00:$1) and twenty seven (27%) percent interest on the total amount
from August 1982 until fully paid;

(2) PESOS: ONE HUNDRED THOUSAND (₱100,000.00) exemplary damages;

(3) FIFTY THOUSAND [PESOS] (₱50,000.00) as and for attorney’s fees; and

(4) Cost of suit.22

PHILAB alleged, inter alia, that:

3. Sometime in August 1982, defendant, through its officials, particularly MR. WILLIAM
PADOLINA, Director, asked plaintiff to supply and install several laboratory furnitures and
equipment at BIOTECH, a research laboratory of herein defendant located at its campus in
College, Laguna, for a total contract price of PESOS: TWO MILLION NINE HUNDRED
THIRTY-NINE THOUSAND FIFTY-EIGHT & 90/100 (₱2,939,058.90);

4. After the completion of the delivery and installation of said laboratory furnitures and
equipment at defendant’s BIOTECH Laboratory, defendant paid three (3) times on
installment basis:

a) ₱600,000.00 as per Official Receipt No. 253 dated August 24, 1982;

b) ₱800,000.00 as per Official Receipt No. 256 dated October 22, 1982;

c) ₱836,119.52 as per Official Receipt No. 202 dated August 11, 1983;

thus leaving a balance of PESOS: SEVEN HUNDRED TWO THOUSAND NINE HUNDRED
THIRTY-NINE & 40/100 (₱702,939.40).

5. That notwithstanding repeated demands for the past eight years, defendant arrogantly and
maliciously made plaintiff believe that it was going to pay the balance aforestated, that was
why plaintiff’s President and General Manager himself, HECTOR C. NAVASERO, personally
went to and from UP Los Baños to talk with defendant’s responsible officers in the hope of
expecting payment, when, in truth and in fact, defendant had no intention to pay whatsoever
right from the start on a misplaced ground of technicalities. Some of plaintiff’s demand letters
 since year 1983 up to the present are hereto attached as Annexes A, B, C, D, E, F, G, and H
hereof;

6. That by reason of defendant’s malicious, evil and unnecessary misrepresentations that it

was going to pay its obligation and asking plaintiff so many red tapes and requirements to
submit, compliance of all of which took plaintiff almost eight (8) years to finish, when, in truth
and in fact, defendant had no intention to pay, defendant should be ordered to pay plaintiff
no less than PESOS: ONE HUNDRED THOUSAND (₱100,000.00) exemplary damages, so
that other government institutions may be warned that they must not unjustly enrich
themselves at the expense of the people they serve.23

In its answer, UP denied liability and alleged that PHILAB had no cause of action against it because
it was merely the donee/beneficiary of the laboratory furniture in the BIOTECH; and that the FEMF,
which funded the project, was liable to the PHILAB for the purchase price of the laboratory furniture.
UP specifically denied obliging itself to pay for the laboratory furniture supplied by PHILAB.

After due proceedings, the trial court rendered judgment dismissing the complaint without prejudice
to PHILAB’s recourse against the FEMF. The fallo of the decision reads:

WHEREFORE, this case is hereby DISMISSED for lack of merit without prejudice to
plaintiff's recourse to the assets of the Marcos Foundation for the unpaid balance of
₱792,939.49.

SO ORDERED.24

Undaunted, PHILAB appealed to the Court of Appeals (CA) alleging that the trial court erred in
finding that:

1. the contract for the supply and installation of subject laboratory furniture and equipment
was between PHILAB and the Marcos Foundation; and,

2. the Marcos Foundation, not the University of the Philippines, is liable to pay the
respondent the balance of the purchase price.25

The CA reversed and set aside the decision of the RTC and held that there was never a contract
between FEMF and PHILAB. Consequently, PHILAB could not be bound by the MOA between the
FEMF and UP since it was never a party thereto. The appellate court ruled that, although UP did not
bind itself to pay for the laboratory furniture; nevertheless, it is liable to PHILAB under the maxim:
"No one should unjustly enrich himself at the expense of another."

The Present Petition

Upon the denial of its motion for reconsideration of the appellate court’s decision, UP, now the
petitioner, filed its petition for review contending that:

I. THE COURT OF APPEALS ERRED WHEN IT FAILED TO APPLY THE LAW ON

CONTRACTS BETWEEN PHILAB AND THE MARCOS FOUNDATION.

II. THE COURT OF APPEALS ERRED IN APPLYING THE LEGAL PRINCIPLE OF UNJUST
ENRICHMENT WHEN IT HELD THAT THE UNIVERSITY, AND NOT THE MARCOS
FOUNDATION, IS LIABLE TO PHILAB.26
Prefatorily, the doctrinal rule is that pure questions of facts may not be the subject of appeal by
certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as this mode of appeal is generally
restricted to questions of law.27 However, this rule is not absolute. The Court may review the factual
findings of the CA should they be contrary to those of the trial court.28 Correspondingly, this Court
may review findings of facts when the judgment of the CA is premised on a misapprehension of
facts.29

On the first assigned error, the petitioner argues that the CA overlooked the evidentiary effect and
substance of the corresponding letters and communications which support the statements of the
witnesses showing affirmatively that an implied contract of sale existed between PHILAB and the
FEMF. The petitioner furthermore asserts that no contract existed between it and the respondent as
it could not have entered into any agreement without the requisite public bidding and a formal written
contract.

The respondent, on the other hand, submits that the CA did not err in not applying the law on
contracts between the respondent and the FEMF. It, likewise, attests that it was never privy to the
MOA entered into between the petitioner and the FEMF. The respondent adds that what the FEMF
donated was a sum of money equivalent to ₱29,000,000, and not the laboratory equipment supplied
by it to the petitioner. The respondent submits that the petitioner, being the recipient of the laboratory
furniture, should not enrich itself at the expense of the respondent.

The petition is meritorious.

It bears stressing that the respondent’s cause of action is one for sum of money predicated on the
alleged promise of the petitioner to pay for the purchase price of the furniture, which, despite
demands, the petitioner failed to do. However, the respondent failed to prove that the petitioner ever
obliged itself to pay for the laboratory furniture supplied by it. Hence, the respondent is not entitled to
its claim against the petitioner.

There is no dispute that the respondent is not privy to the MOA executed by the petitioner and
FEMF; hence, it is not bound by the said agreement. Contracts take effect only between the parties
and their assigns.30 A contract cannot be binding upon and cannot be enforced against one who is
not a party to it, even if he is aware of such contract and has acted with knowledge
thereof.31 Likewise admitted by the parties, is the fact that there was no written contract executed by
the petitioner, the respondent and FEMF relating to the fabrication and delivery of office and
laboratory furniture to the BIOTECH. Even the CA failed to specifically declare that the petitioner and
the respondent entered into a contract of sale over the said laboratory furniture. The parties are in
accord that the FEMF had remitted to the respondent partial payments via checks drawn and issued
by the FEMF to the respondent, through Padolina, in the total amount of ₱2,288,573.74 out of the
total cost of the project of ₱2,934,068.90 and that the respondent received the said checks and
issued receipts therefor to the FEMF. There is also no controversy that the petitioner did not pay a
single centavo for the said furniture delivered by the respondent that the petitioner had been using
ever since.

We agree with the petitioner that, based on the records, an implied-in-fact contract of sale was
entered into between the respondent and FEMF. A contract implied in fact is one implied from facts
and circumstances showing a mutual intention to contract. It arises where the intention of the parties
is not expressed, but an agreement in fact creating an obligation. It is a contract, the existence and
terms of which are manifested by conduct and not by direct or explicit words between parties but is
to be deduced from conduct of the parties, language used, or things done by them, or other pertinent
circumstances attending the transaction. To create contracts implied in fact, circumstances must
warrant inference that one expected compensation and the other to pay.32 An implied-in-fact contract
requires the parties’ intent to enter into a contract; it is a true contract.33 The conduct of the parties is
to be viewed as a reasonable man would view it, to determine the existence or not of an implied-in-
fact contract.34 The totality of the acts/conducts of the parties must be considered to determine their
intention. An implied-in-fact contract will not arise unless the meeting of minds is indicated by some
intelligent conduct, act or sign.35

In this case, the respondent was aware, from the time Padolina contacted it for the fabrication and
supply of the laboratory furniture until the go-signal was given to it to fabricate and deliver the
furniture to BIOTECH as beneficiary, that the FEMF was to pay for the same. Indeed, Padolina
asked the respondent to prepare the draft of the contract to be received by the FEMF prior to the
execution of the parties (the respondent and FEMF), but somehow, the respondent failed to prepare
one. The respondent knew that the petitioner was merely the donee-beneficiary of the laboratory
furniture and not the buyer; nor was it liable for the payment of the purchase price thereof. From the
inception, the FEMF paid for the bills and statement of accounts of the respondent, for which the
latter unconditionally issued receipts to and under the name of the FEMF. Indeed, witness Lirio
testified:

Q: Now, did you know, Mr. Witness, if PHILAB Industries was aware that it was the Marcos
Foundation who would be paying for this particular transaction for the completion of this
particular transaction?

A: I think they are fully aware.

Q: What is your basis for saying so?

A: First, I think they were appraised by Dr. Padolina. Secondly, there were occasions during
our inspection in Los Baños, at the installation site, there were occasions, two or three
occasions, when we met with Mr. Navasero who is the President, I think, or manager of
PHILAB, and we appraised him that it was really between the foundation and him to which
includes (sic) the construction company constructing the building. He is fully aware that it is
the foundation who (sic) engaged them and issued the payments.36

The respondent, in its Letter dated March 26, 1986, informed the petitioner and sought its assistance
for the collection of the amount due from the FEMF:

Dear Dr. Padolina:

May we request for your much-needed assistance in the payment of the balance still due us
on the laboratory furniture we supplied and installed two years ago?

Business is still slow and we will appreciate having these funds as soon as possible to keep
up our operations.

We look forward to hearing from you regarding this matter.

Very truly yours,

PHILAB INDUSTRIES, INC.37

The respondent even wrote former President Aquino seeking her assistance for the payment of the
amount due, in which the respondent admitted it tried to collect from her predecessor, namely, the
former President Ferdinand E. Marcos:

YOUR EXCELLENCY:

At the instance of the national government, subject laboratory furnitures were supplied by
our company to the National Institute of Biotechnology & Applied Microbiology (BIOTECH),
University of the Philippines, Los Baños, Laguna, in 1984.

Out of the total contract price of PESOS: TWO MILLION NINE HUNDRED THIRTY-NINE
THOUSAND FIFTY-EIGHT & 90/100 (₱2,939,058.90), the previous administration had so far
paid us the sum of ₱2,236,119.52 thus leaving a balance of PESOS: ONE MILLION FOUR
HUNDRED TWELVE THOUSAND SEVEN HUNDRED FORTY-EIGHT & 61/100
(₱1,412.748.61) inclusive of interest of 24% per annum and 30% exchange rate adjustment.

On several occasions, we have tried to collect this amount from your predecessor, the latest
of which was subject invoice (01643) we submitted to DR. W. PADOLINA, deputy director of
BIOTECH. But this, notwithstanding, our claim has remained unacted upon up to now. Copy
of said invoice is hereto attached for easy reference.

Now that your excellency is the head of our government, we sincerely hope that payment of
this obligation will soon be made as this is one project the Republic of the Philippines has
use of and derives benefit from.38

Admittedly, the respondent sent to the petitioner its bills and statements of accounts for the
payments of the laboratory furniture it delivered to the petitioner which the petitioner, through
Padolina, transmitted to the FEMF for its payment. However, the FEMF failed to pay the last
statement of account of the respondent because of the onset of the EDSA upheaval. It was only
when the respondent lost all hope of collecting its claim from the government and/or the PCGG did it
file the complaint against the petitioner for the collection of the payment of its last delivery of
laboratory furniture.

We reject the ruling of the CA holding the petitioner liable for the claim of the respondent based on
the maxim that no one should enrich itself at the expense of another.

Unjust enrichment claims do not lie simply because one party benefits from the efforts or obligations
of others, but instead it must be shown that a party was unjustly enriched in the sense that the term
unjustly could mean illegally or unlawfully.39

Moreover, to substantiate a claim for unjust enrichment, the claimant must unequivocally prove that
another party knowingly received something of value to which he was not entitled and that the state
of affairs are such that it would be unjust for the person to keep the benefit.40 Unjust enrichment is a
term used to depict result or effect of failure to make remuneration of or for property or benefits
received under circumstances that give rise to legal or equitable obligation to account for them; to be
entitled to remuneration, one must confer benefit by mistake, fraud, coercion, or request.41 Unjust
enrichment is not itself a theory of reconvey. Rather, it is a prerequisite for the enforcement of the
doctrine of restitution.42

Article 22 of the New Civil Code reads:

 Every person who, through an act of performance by another, or any other means, acquires
or comes into possession of something at the expense of the latter without just or legal
ground, shall return the same to him. (Boldface supplied)

In order that accion in rem verso may prosper, the essential elements must be present: (1) that the
defendant has been enriched, (2) that the plaintiff has suffered a loss, (3) that the enrichment of the
defendant is without just or legal ground, and (4) that the plaintiff has no other action based on
contract, quasi-contract, crime or quasi-delict.43

An accion in rem verso is considered merely an auxiliary action, available only when there is no
other remedy on contract, quasi-contract, crime, and quasi-delict. If there is an obtainable action
under any other institution of positive law, that action must be resorted to, and the principle of accion
in rem verso will not lie.44

The essential requisites for the application of Article 22 of the New Civil Code do not obtain in this
case. The respondent had a remedy against the FEMF via an action based on an implied-in-fact
contract with the FEMF for the payment of its claim. The petitioner legally acquired the laboratory
furniture under the MOA with FEMF; hence, it is entitled to keep the laboratory furniture.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Decision of the Court
of Appeals is REVERSED AND SET ASIDE. The Decision of the Regional Trial Court, Makati City,
Branch 150, is REINSTATED. No costs.

SO ORDERED.
G.R. No. 145391            August 26, 2002

AVELINO CASUPANAN and ROBERTO CAPITULO, petitioners,

vs.
MARIO LLAVORE LAROYA, respondent.

CARPIO, J.:

The Case

This is a petition for review on certiorari to set aside the Resolution1 dated December 28, 1999
dismissing the petition for certiorari and the Resolution2 dated August 24, 2000 denying the motion
for reconsideration, both issued by the Regional Trial Court of Capas, Tarlac, Branch 66, in Special
Civil Action No. 17-C (99).

The Facts

Two vehicles, one driven by respondent Mario Llavore Laroya ("Laroya" for brevity) and the other
owned by petitioner Roberto Capitulo ("Capitulo" for brevity) and driven by petitioner Avelino
Casupanan ("Casupanan" for brevity), figured in an accident. As a result, two cases were filed with
the Municipal Circuit Trial Court ("MCTC" for brevity) of Capas, Tarlac. Laroya filed a criminal case
against Casupanan for reckless imprudence resulting in damage to property, docketed as Criminal
Case No. 002-99. On the other hand, Casupanan and Capitulo filed a civil case against Laroya for
quasi-delict, docketed as Civil Case No. 2089.

When the civil case was filed, the criminal case was then at its preliminary investigation stage.
Laroya, defendant in the civil case, filed a motion to dismiss the civil case on the ground of forum-
shopping considering the pendency of the criminal case. The MCTC granted the motion in the Order
of March 26, 1999 and dismissed the civil case.

On Motion for Reconsideration, Casupanan and Capitulo insisted that the civil case is a separate
civil action which can proceed independently of the criminal case. The MCTC denied the motion for
reconsideration in the Order of May 7, 1999. Casupanan and Capitulo filed a petition for certiorari
under Rule 65 before the Regional Trial Court ("Capas RTC" for brevity) of Capas, Tarlac, Branch
66,3 assailing the MCTC’s Order of dismissal.

The Trial Court’s Ruling

The Capas RTC rendered judgment on December 28, 1999 dismissing the petition for certiorari for
lack of merit. The Capas RTC ruled that the order of dismissal issued by the MCTC is a final order
which disposes of the case and therefore the proper remedy should have been an appeal. The
Capas RTC further held that a special civil action for certiorari is not a substitute for a lost appeal.
Finally, the Capas RTC declared that even on the premise that the MCTC erred in dismissing the
civil case, such error is a pure error of judgment and not an abuse of discretion.

Casupanan and Capitulo filed a Motion for Reconsideration but the Capas RTC denied the same in
the Resolution of August 24, 2000.

Hence, this petition.

The Issue
The petition premises the legal issue in this wise:

"In a certain vehicular accident involving two parties, each one of them may think and believe
that the accident was caused by the fault of the other. x x x [T]he first party, believing himself
to be the aggrieved party, opted to file a criminal case for reckless imprudence against the
second party. On the other hand, the second party, together with his operator, believing
themselves to be the real aggrieved parties, opted in turn to file a civil case for quasi-delict
against the first party who is the very private complainant in the criminal case."4

Thus, the issue raised is whether an accused in a pending criminal case for reckless imprudence
can validly file, simultaneously and independently, a separate civil action for quasi-delict against the
private complainant in the criminal case.

The Court’s Ruling

Casupanan and Capitulo assert that Civil Case No. 2089, which the MCTC dismissed on the ground
of forum-shopping, constitutes a counterclaim in the criminal case. Casupanan and Capitulo argue
that if the accused in a criminal case has a counterclaim against the private complainant, he may file
the counterclaim in a separate civil action at the proper time. They contend that an action on quasi-
delict is different from an action resulting from the crime of reckless imprudence, and an accused in
a criminal case can be an aggrieved party in a civil case arising from the same incident. They
maintain that under Articles 31 and 2176 of the Civil Code, the civil case can proceed independently
of the criminal action. Finally, they point out that Casupanan was not the only one who filed the
independent civil action based on quasi-delict but also Capitulo, the owner-operator of the vehicle,
who was not a party in the criminal case.

In his Comment, Laroya claims that the petition is fatally defective as it does not state the real
antecedents. Laroya further alleges that Casupanan and Capitulo forfeited their right to question the
order of dismissal when they failed to avail of the proper remedy of appeal. Laroya argues that there
is no question of law to be resolved as the order of dismissal is already final and a petition for
certiorari is not a substitute for a lapsed appeal.

In their Reply, Casupanan and Capitulo contend that the petition raises the legal question of whether
there is forum-shopping since they filed only one action - the independent civil action for quasi-
delict against Laroya.

Nature of the Order of Dismissal

The MCTC dismissed the civil action for quasi-delict on the ground of forum-shopping under
Supreme Court Administrative Circular No. 04-94. The MCTC did not state in its order of
dismissal5 that the dismissal was with prejudice. Under the Administrative Circular, the order of
dismissal is without prejudice to refiling the complaint, unless the order of dismissal expressly states
it is with prejudice.6 Absent a declaration that the dismissal is with prejudice, the same is deemed
without prejudice. Thus, the MCTC’s dismissal, being silent on the matter, is a dismissal without
prejudice.

Section 1 of Rule 417 provides that an order dismissing an action without prejudice is not appealable.
The remedy of the aggrieved party is to file a special civil action under Rule 65. Section 1 of Rule 41
expressly states that "where the judgment or final order is not appealable, the aggrieved party may
file an appropriate special civil action under Rule 65." Clearly, the Capas RTC’s order dismissing the
petition for certiorari, on the ground that the proper remedy is an ordinary appeal, is erroneous.
Forum-Shopping

The essence of forum-shopping is the filing of multiple suits involving the same parties for the same
cause of action, either simultaneously or successively, to secure a favorable judgment.8 Forum-
shopping is present when in the two or more cases pending, there is identity of parties, rights of
action and reliefs sought.9 However, there is no forum-shopping in the instant case because the law
and the rules expressly allow the filing of a separate civil action which can proceed independently of
the criminal action.

Laroya filed the criminal case for reckless imprudence resulting in damage to property based on the
Revised Penal Code while Casupanan and Capitulo filed the civil action for damages based on
Article 2176 of the Civil Code. Although these two actions arose from the same act or omission, they
have different causes of action. The criminal case is based on culpa criminal punishable under the
Revised Penal Code while the civil case is based on culpa aquiliana actionable under Articles 2176
and 2177 of the Civil Code. These articles on culpa aquiliana read:

"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. 2177. Responsibility for fault or negligence under the preceding article is entirely
separate and distinct from the civil liability arising from negligence under the Penal Code. But
the plaintiff cannot recover damages twice for the same act or omission of the defendant."

Any aggrieved person can invoke these articles provided he proves, by preponderance of evidence,
that he has suffered damage because of the fault or negligence of another. Either the private
complainant or the accused can file a separate civil action under these articles. There is nothing in
the law or rules that state only the private complainant in a criminal case may invoke these articles.

Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure ("2000 Rules"
for brevity) expressly requires the accused to litigate his counterclaim in a separate civil action, to
wit:

"SECTION 1. Institution of criminal and civil actions. – (a) x x x.

No counterclaim, cross-claim or third-party complaint may be filed by the accused in the

criminal case, but any cause of action which could have been the subject thereof may be
litigated in a separate civil action." (Emphasis supplied)

Since the present Rules require the accused in a criminal action to file his counterclaim in a separate
civil action, there can be no forum-shopping if the accused files such separate civil action.

Filing of a separate civil action

Section 1, Rule 111 of the 1985 Rules on Criminal Procedure ("1985 Rules" for brevity), as amended
in 1988, allowed the filing of a separate civil action independently of the criminal action provided the
offended party reserved the right to file such civil action. Unless the offended party reserved the civil
action before the presentation of the evidence for the prosecution, all civil actions arising from the
same act or omission were deemed "impliedly instituted" in the criminal case. These civil actions
referred to the recovery of civil liability ex-delicto, the recovery of damages for quasi-delict, and the
recovery of damages for violation of Articles 32, 33 and 34 of the Civil Code on Human Relations.

Thus, to file a separate and independent civil action for quasi-delict under the 1985 Rules, the
offended party had to reserve in the criminal action the right to bring such action. Otherwise, such
civil action was deemed "impliedly instituted" in the criminal action. Section 1, Rule 111 of the 1985
Rules provided as follows:

"Section 1. – Institution of criminal and civil actions. – When a criminal action is instituted, the
civil action for the recovery of civil liability is impliedly instituted with the criminal action,
unless the offended party waives the action, reserves his right to institute it separately, or
institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and
damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising
from the same act or omission of the accused.

A waiver of any of the civil actions extinguishes the others. The institution of, or the
reservation of the right to file, any of said civil actions separately waives the others.

The reservation of the right to institute the separate civil actions shall be made before the
prosecution starts to present its evidence and under circumstances affording the offended
party a reasonable opportunity to make such reservation.

In no case may the offended party recover damages twice for the same act or omission of
the accused.

x x x." (Emphasis supplied)

Section 1, Rule 111 of the 1985 Rules was amended on December 1, 2000 and now provides as
follows:

"SECTION 1. Institution of criminal and civil actions. – (a) When a criminal action is
instituted, the civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted with the criminal action unless the offended party
waives the civil action, reserves the right to institute it separately or institutes the civil action
prior to the criminal action.

The reservation of the right to institute separately the civil action shall be made before the
prosecution starts presenting its evidence and under circumstances affording the offended
party a reasonable opportunity to make such reservation.

xxx

(b) x x x

Where the civil action has been filed separately and trial thereof has not yet commenced, it
may be consolidated with the criminal action upon application with the court trying the latter
case. If the application is granted, the trial of both actions shall proceed in accordance with
section 2 of this rule governing consolidation of the civil and criminal actions." (Emphasis
supplied)
Under Section 1 of the present Rule 111, what is "deemed instituted" with the criminal action is only
the action to recover civil liability arising from the crime or ex-delicto. All the other civil actions under
Articles 32, 33, 34 and 2176 of the Civil Code are no longer "deemed instituted," and may be filed
separately and prosecuted independently even without any reservation in the criminal action. The
failure to make a reservation in the criminal action is not a waiver of the right to file a separate and
independent civil action based on these articles of the Civil Code. The prescriptive period on the civil
actions based on these articles of the Civil Code continues to run even with the filing of the criminal
action. Verily, the civil actions based on these articles of the Civil Code are separate, distinct and
independent of the civil action "deemed instituted" in the criminal action.10

Under the present Rule 111, the offended party is still given the option to file a separate civil action
to recover civil liability ex-delicto by reserving such right in the criminal action before the prosecution
presents its evidence. Also, the offended party is deemed to make such reservation if he files a
separate civil action before filing the criminal action. If the civil action to recover civil liability ex-
delicto is filed separately but its trial has not yet commenced, the civil action may be consolidated
with the criminal action. The consolidation under this Rule does not apply to separate civil actions
arising from the same act or omission filed under Articles 32, 33, 34 and 2176 of the Civil Code.11

Suspension of the Separate Civil Action

Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, if reserved in the
criminal action, could not be filed until after final judgment was rendered in the criminal action. If the
separate civil action was filed before the commencement of the criminal action, the civil action, if still
pending, was suspended upon the filing of the criminal action until final judgment was rendered in
the criminal action. This rule applied only to the separate civil action filed to recover liability ex-
delicto. The rule did not apply to independent civil actions based on Articles 32, 33, 34 and 2176 of
the Civil Code, which could proceed independently regardless of the filing of the criminal action.

The amended provision of Section 2, Rule 111 of the 2000 Rules continues this procedure, to wit:

"SEC. 2. When separate civil action is suspended. – After the criminal action has been
commenced, the separate civil action arising therefrom cannot be instituted until final
judgment has been entered in the criminal action.

If the criminal action is filed after the said civil action has already been instituted, the
latter shall be suspended in whatever stage it may be found before judgment on the
merits. The suspension shall last until final judgment is rendered in the criminal
action. Nevertheless, before judgment on the merits is rendered in the civil action, the same
may, upon motion of the offended party, be consolidated with the criminal action in the court
trying the criminal action. In case of consolidation, the evidence already adduced in the civil
action shall be deemed automatically reproduced in the criminal action without prejudice to
the right of the prosecution to cross-examine the witnesses presented by the offended party
in the criminal case and of the parties to present additional evidence. The consolidated
criminal and civil actions shall be tried and decided jointly.

During the pendency of the criminal action, the running of the period of prescription of the
civil action which cannot be instituted separately or whose proceeding has been suspended
shall be tolled.

x x x." (Emphasis supplied)

Thus, Section 2, Rule 111 of the present Rules did not change the rule that the separate civil action,
filed to recover damages ex-delicto, is suspended upon the filing of the criminal action. Section 2 of
the present Rule 111 also prohibits the filing, after commencement of the criminal action, of a
separate civil action to recover damages ex-delicto.

When civil action may proceed independently

The crucial question now is whether Casupanan and Capitulo, who are not the offended parties in
the criminal case, can file a separate civil action against the offended party in the criminal case.
Section 3, Rule 111 of the 2000 Rules provides as follows:

"SEC 3. When civil action may proceed independently. - In the cases provided in Articles 32,
33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be
brought by the offended party. It shall proceed independently of the criminal action and
shall require only a preponderance of evidence. In no case, however, may the offended party
recover damages twice for the same act or omission charged in the criminal action."
(Emphasis supplied)

Section 3 of the present Rule 111, like its counterpart in the amended 1985 Rules, expressly allows
the "offended party" to bring an independent civil action under Articles 32, 33, 34 and 2176 of the
Civil Code. As stated in Section 3 of the present Rule 111, this civil action shall proceed
independently of the criminal action and shall require only a preponderance of evidence. In no case,
however, may the "offended party recover damages twice for the same act or omission charged in
the criminal action."

There is no question that the offended party in the criminal action can file an independent civil action
for quasi-delict against the accused. Section 3 of the present Rule 111 expressly states that the
"offended party" may bring such an action but the "offended party" may not recover damages twice
for the same act or omission charged in the criminal action. Clearly, Section 3 of Rule 111 refers to
the offended party in the criminal action, not to the accused.

Casupanan and Capitulo, however, invoke the ruling in Cabaero vs. Cantos12 where the Court held
that the accused therein could validly institute a separate civil action for quasi-delict against the
private complainant in the criminal case. In Cabaero, the accused in the criminal case filed his
Answer with Counterclaim for malicious prosecution. At that time the Court noted the "absence of
clear-cut rules governing the prosecution on impliedly instituted civil actions and the necessary
consequences and implications thereof." Thus, the Court ruled that the trial court should confine
itself to the criminal aspect of the case and disregard any counterclaim for civil liability. The Court
further ruled that the accused may file a separate civil case against the offended party "after the
criminal case is terminated and/or in accordance with the new Rules which may be promulgated."
The Court explained that a cross-claim, counterclaim or third-party complaint on the civil aspect will
only unnecessarily complicate the proceedings and delay the resolution of the criminal case.

Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000 Rules precisely to
address the lacuna mentioned in Cabaero. Under this provision, the accused is barred from filing a
counterclaim, cross-claim or third-party complaint in the criminal case. However, the same provision
states that "any cause of action which could have been the subject (of the counterclaim, cross-claim
or third-party complaint) may be litigated in a separate civil action." The present Rule 111 mandates
the accused to file his counterclaim in a separate civil actiosn which shall proceed independently of
the criminal action, even as the civil action of the offended party is litigated in the criminal action.

Conclusion
Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176
of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the
offended party even without reservation. The commencement of the criminal action does not
suspend the prosecution of the independent civil action under these articles of the Civil Code. The
suspension in Section 2 of the present Rule 111 refers only to the civil action arising from the crime,
if such civil action is reserved or filed before the commencement of the criminal action.

Thus, the offended party can file two separate suits for the same act or omission. The first a criminal
case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a
civil case for quasi-delict - without violating the rule on non-forum shopping. The two cases can
proceed simultaneously and independently of each other. The commencement or prosecution of the
criminal action will not suspend the civil action for quasi-delict. The only limitation is that the offended
party cannot recover damages twice for the same act or omission of the defendant. In most cases,
the offended party will have no reason to file a second civil action since he cannot recover damages
twice for the same act or omission of the accused. In some instances, the accused may be insolvent,
necessitating the filing of another case against his employer or guardians.

Similarly, the accused can file a civil action for quasi-delict for the same act or omission he is
accused of in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present
Rule 111 which states that the counterclaim of the accused "may be litigated in a separate civil
action." This is only fair for two reasons. First, the accused is prohibited from setting up any
counterclaim in the civil aspect that is deemed instituted in the criminal case. The accused is
therefore forced to litigate separately his counterclaim against the offended party. If the accused
does not file a separate civil action for quasi-delict, the prescriptive period may set in since the
period continues to run until the civil action for quasi-delict is filed.

Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code,
in the same way that the offended party can avail of this remedy which is independent of the criminal
action. To disallow the accused from filing a separate civil action for quasi-delict, while refusing to
recognize his counterclaim in the criminal case, is to deny him due process of law, access to the
courts, and equal protection of the law.

Thus, the civil action based on quasi-delict filed separately by Casupanan and Capitulo is proper.
The order of dismissal by the MCTC of Civil Case No. 2089 on the ground of forum-shopping is
erroneous.

We make this ruling aware of the possibility that the decision of the trial court in the criminal case
may vary with the decision of the trial court in the independent civil action. This possibility has
always been recognized ever since the Civil Code introduced in 1950 the concept of an independent
civil action under Articles 32, 33, 34 and 2176 of the Code. But the law itself, in Article 31 of the
Code, expressly provides that the independent civil action "may proceed independently of the
criminal proceedings and regardless of the result of the latter." In Azucena vs. Potenciano,13 the
Court declared:

"x x x. There can indeed be no other logical conclusion than this, for to subordinate the civil
action contemplated in the said articles to the result of the criminal prosecution — whether it
be conviction or acquittal — would render meaningless the independent character of the civil
action and the clear injunction in Article 31 that this action 'may proceed independently of the
criminal proceedings and regardless of the result of the latter.’"

More than half a century has passed since the Civil Code introduced the concept of a civil action
separate and independent from the criminal action although arising from the same act or omission.
The Court, however, has yet to encounter a case of conflicting and irreconcilable decisions of trial
courts, one hearing the criminal case and the other the civil action for quasi-delict. The fear of
conflicting and irreconcilable decisions may be more apparent than real. In any event, there are
sufficient remedies under the Rules of Court to deal with such remote possibilities.

One final point. The Revised Rules on Criminal Procedure took effect on December 1, 2000 while
the MCTC issued the order of dismissal on December 28, 1999 or before the amendment of the
rules. The Revised Rules on Criminal Procedure must be given retroactive effect considering the
well-settled rule that -

"x x x statutes regulating the procedure of the court will be construed as applicable to actions
pending and undetermined at the time of their passage. Procedural laws are retroactive in
that sense and to that extent."14

WHEREFORE, the petition for review on certiorari is hereby GRANTED. The Resolutions dated
December 28, 1999 and August 24, 2000 in Special Civil Action No. 17-C (99) are ANNULLED and
Civil Case No. 2089 is REINSTATED.

SO ORDERED.
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.:

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 not 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.

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 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 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.

Separate Opinions

MALCOLM, J., concurring:
After mature deliberation, I have finally decided to concur with the judgment in this case. I do so
because of my understanding of the "last clear chance" rule of the law of negligence as particularly
applied to automobile accidents. This rule cannot be invoked where the negligence of the plaintiff is
concurrent with that of the defendant. Again, if a traveler when he reaches the point of collision is in
a situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery.
But Justice Street finds as a fact that the negligent act of the interval of time, and that at the moment
the plaintiff had no opportunity to avoid the accident. Consequently, the "last clear chance" rule is
applicable. In other words, when a traveler has reached a point where he cannot extricate himself
and vigilance on his part will not avert the injury, his negligence in reaching that position becomes
the condition and not the proximate cause of the injury and will not preclude a recovery. (Note
especially Aiken vs. Metcalf [1917], 102 Atl., 330.)
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.
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". 16 They 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

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. 24 Implicit 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

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". 29 And 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

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:

"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.

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 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.
G.R. No. 160889             April 27, 2007

DR. MILAGROS L. CANTRE, Petitioner,

vs.
SPS. JOHN DAVID Z. GO and NORA S. GO, Respondents.

DECISION

QUISUMBING, J.:

For review on certiorari are the Decision1 dated October 3, 2002 and Resolution2 dated November
19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184, which affirmed with modification the
Decision3 dated March 3, 1997 of the Regional Trial Court of Quezon City, Branch 98, in Civil Case
No. Q-93-16562.

The facts, culled from the records, are as follows:

Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the Dr. Jesus
Delgado Memorial Hospital. She was the attending physician of respondent Nora S. Go, who was
admitted at the said hospital on April 19, 1992.

At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However, at around
3:30 a.m., Nora suffered profuse bleeding inside her womb due to some parts of the placenta which
were not completely expelled from her womb after delivery. Consequently, Nora suffered
hypovolemic shock, resulting in a drop in her blood pressure to "40" over "0." Petitioner and the
assisting resident physician performed various medical procedures to stop the bleeding and to
restore Nora’s blood pressure. Her blood pressure was frequently monitored with the use of a
sphygmomanometer. While petitioner was massaging Nora’s uterus for it to contract and stop
bleeding, she ordered a droplight to warm Nora and her baby.4 Nora remained unconscious until she
recovered.

While in the recovery room, her husband, respondent John David Z. Go noticed a fresh gaping
wound two and a half (2 ½) by three and a half (3 ½) inches in the inner portion of her left arm, close
to the armpit.5 He asked the nurses what caused the injury. He was informed it was a burn.
Forthwith, on April 22, 1992, John David filed a request for investigation.6 In response, Dr. Rainerio
S. Abad, the medical director of the hospital, called petitioner and the assisting resident physician to
explain what happened. Petitioner said the blood pressure cuff caused the injury.

On May 7, 1992, John David brought Nora to the National Bureau of Investigation for a physical
examination, which was conducted by medico-legal officer Dr. Floresto Arizala, Jr.7 The medico-legal
officer later testified that Nora’s injury appeared to be a burn and that a droplight when placed near
the skin for about 10 minutes could cause such burn.8 He dismissed the likelihood that the wound
was caused by a blood pressure cuff as the scar was not around the arm, but just on one side of the
arm.9

On May 22, 1992, Nora’s injury was referred to a plastic surgeon at the Dr. Jesus Delgado Memorial
Hospital for skin grafting.10 Her wound was covered with skin sourced from her abdomen, which
consequently bore a scar as well. About a year after, on April 30, 1993, scar revision had to be
performed at the same hospital.11 The surgical operation left a healed linear scar in Nora’s left arm
about three inches in length, the thickest portion rising about one-fourth (1/4) of an inch from the
surface of the skin. The costs of the skin grafting and the scar revision were shouldered by the
hospital.12

Unfortunately, Nora’s arm would never be the same.  Aside from the unsightly mark, the pain in her
1a\^/phi1.net

left arm remains. When sleeping, she has to cradle her wounded arm. Her movements now are also
restricted. Her children cannot play with the left side of her body as they might accidentally bump the
injured arm, which aches at the slightest touch.

Thus, on June 21, 1993, respondent spouses filed a complaint13 for damages against petitioner, Dr.
Abad, and the hospital. Finding in favor of respondent spouses, the trial court decreed:

In view of the foregoing consideration, judgment is hereby rendered in favor of the plaintiffs and
against the defendants, directing the latters, (sic) jointly and severally –

(a) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in moral damages;

(b) to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00) exemplary
damages;

(c) to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal damages;

(d) to pay Fifty Thousand Pesos (P50,000.00) for and as attorney’s fees; and

(e) to pay Six Thousand Pesos (P6,000.00) litigation expenses.

SO ORDERED.14

Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals, which affirmed with
modification the trial court decision, thus:

WHEREFORE, in view of all the foregoing, and finding no reversible error in the appealed Decision
dated March 3, 1997 of Branch 98 of the Regional Trial Court of Quezon City in Civil Case No. Q-93-
16562, the same is hereby AFFIRMED, with the following MODIFICATIONS:

1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay plaintiffs-appellees

John David Go and Nora S. Go the sum of P200,000.00 as moral damages;

2. Deleting the award [of] exemplary damages, attorney’s fees and expenses of litigation; 1awphi1.nét

3. Dismissing the complaint with respect to defendants-appellants Dr. Rainerio S. Abad and
Delgado Clinic, Inc.;

4. Dismissing the counterclaims of defendants-appellants for lack of merit; and

5. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay the costs.

SO ORDERED.15

Petitioner’s motion for reconsideration was denied by the Court of Appeals. Hence, the instant
petition assigning the following as errors and issues:
 I.

WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF THEIR DISCRETION WHEN, NOTWITHSTANDING THAT BOTH PARTIES
HAVE RESTED THEIR RESPECTIVE CASES, THE LOWER COURT ADMITTED THE
ADDITIONAL EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO BY ANY
WITNESS AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF
APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;

II.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION
WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER,
IT RULED THAT THE PETITIONER HAS NOT AMPLY SHOWED THAT THE DROPLIGHT DID
NOT TOUCH THE BODY OF MRS. NORA GO, AND THIS DECISION OF THE LOWER COURT
WAS UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF
DISCRETION;

III.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION
WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER,
IT RULED THAT PETITIONER DRA. CANTRE WAS NOT ABLE TO AMPLY EXPLAIN HOW THE
INJURY (BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT MRS. GO CAME ABOUT;

IV.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF ITS

DISCRETION WHEN IT MADE A RULING ON THE RESPONDENT’S INJURY QUOTING THE
TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND HAS NOT SEEN THE ORIGINAL,
FRESH INJURY OF RESPONDENT MRS. NORA GO;

V.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS DISCRETION RULED
THAT PETITIONER DRA. CANTRE SHOULD HAVE INTENDED TO INFLICT THE INJURY TO
SAVE THE LIFE OF RESPONDENT MRS. GO;

VI.

WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE DETAILED PROCEDURES DONE
BY PETITIONER, BOTH RULED THAT THE RESPONDENT WAS LEFT TO THE CARE OF THE
NURSING STAFF;

VII.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION

WHEN, CONTRARY TO THE MEDICAL PURPOSES OF COSMETIC SURGERY, IT RULED THAT
THE COSMETIC SURGERY MADE THE SCARS EVEN MORE UGLY AND DECLARED THE
COSMETIC SURGERY A FAILURE;
 VIII.

WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC) DISCRETION WHEN,
CONTRARY TO RESPONDENTS’ CONTRARY TESTIMONIES AND THE ABSENCE OF ANY
TESTIMONY, IT RULED THAT THEY ARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD,
ALTHOUGH MODIFIED, BY THE COURT OF APPEALS LIKEWISE ABUSING ITS DISCRETION.16

Petitioner contends that additional documentary exhibits not testified to by any witness are
inadmissible in evidence because they deprived her of her constitutional right to confront the
witnesses against her. Petitioner insists the droplight could not have touched Nora’s body. She
maintains the injury was due to the constant taking of Nora’s blood pressure. Petitioner also
insinuates the Court of Appeals was misled by the testimony of the medico-legal officer who never
saw the original injury before plastic surgery was performed. Finally, petitioner stresses that plastic
surgery was not intended to restore respondent’s injury to its original state but rather to prevent
further complication.

Respondents, however, counter that the genuineness and due execution of the additional
documentary exhibits were duly admitted by petitioner’s counsel. Respondents point out that
petitioner’s blood pressure cuff theory is highly improbable, being unprecedented in medical history
and that the injury was definitely caused by the droplight. At any rate, they argue, even if the injury
was brought about by the blood pressure cuff, petitioner was still negligent in her duties as Nora’s
attending physician.

Simply put, the threshold issues for resolution are: (1) Are the questioned additional exhibits
admissible in evidence? (2) Is petitioner liable for the injury suffered by respondent Nora Go?
Thereafter, the inquiry is whether the appellate court committed grave abuse of discretion in its
assailed issuances.

As to the first issue, we agree with the Court of Appeals that said exhibits are admissible in
evidence. We note that the questioned exhibits consist mostly of Nora’s medical records, which were
produced by the hospital during trial pursuant to a subpoena duces tecum. Petitioner’s counsel
admitted the existence of the same when they were formally offered for admission by the trial court.
In any case, given the particular circumstances of this case, a ruling on the negligence of petitioner
may be made based on the res ipsa loquitur doctrine even in the absence of such additional
exhibits.

Petitioner’s contention that the medico-legal officer who conducted Nora’s physical examination
never saw her original injury before plastic surgery was performed is without basis and contradicted
by the records. Records show that the medico-legal officer conducted the physical examination on
May 7, 1992, while the skin grafting and the scar revision were performed on Nora on May 22, 1992
and April 30, 1993, respectively.

Coming now to the substantive matter, is petitioner liable for the injury suffered by respondent Nora
Go?

The Hippocratic Oath mandates physicians to give primordial consideration to the well-being of their
patients. If a doctor fails to live up to this precept, he is accountable for his acts. This
notwithstanding, courts face a unique restraint in adjudicating medical negligence cases because
physicians are not guarantors of care and, they never set out to intentionally cause injury to their
patients. However, intent is immaterial in negligence cases because where negligence exists and is
proven, it automatically gives the injured a right to reparation for the damage caused.17
In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of
an injury to justify a presumption of negligence on the part of the person who controls the instrument
causing the injury, provided that the following requisites concur:

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.18

As to the first requirement, the gaping wound on Nora’s arm is certainly not an ordinary occurrence
in the act of delivering a baby, far removed as the arm is from the organs involved in the process of
giving birth. Such injury could not have happened unless negligence had set in somewhere.

Second, whether the injury was caused by the droplight or by the blood pressure cuff is of no
moment. Both instruments are deemed within the exclusive control of the physician in charge under
the "captain of the ship" doctrine. This doctrine holds the surgeon in charge of an operation liable for
the negligence of his assistants during the time when those assistants are under the surgeon’s
control.19 In this particular case, it can be logically inferred that petitioner, the senior consultant in
charge during the delivery of Nora’s baby, exercised control over the assistants assigned to both the
use of the droplight and the taking of Nora’s blood pressure. Hence, the use of the droplight and the
blood pressure cuff is also within petitioner’s exclusive control.

Third, the gaping wound on Nora’s left arm, by its very nature and considering her condition, could
only be caused by something external to her and outside her control as she was unconscious while
in hypovolemic shock. Hence, Nora could not, by any stretch of the imagination, have contributed to
her own injury.

Petitioner’s defense that Nora’s wound was caused not by the droplight but by the constant taking of
her blood pressure, even if the latter was necessary given her condition, does not absolve her from
liability. As testified to by the medico-legal officer, Dr. Arizala, Jr., the medical practice is to deflate
the blood pressure cuff immediately after each use. Otherwise, the inflated band can cause injury to
the patient similar to what could have happened in this case. Thus, if Nora’s wound was caused by
the blood pressure cuff, then the taking of Nora’s blood pressure must have been done so
negligently as to have inflicted a gaping wound on her arm,20 for which petitioner cannot escape
liability under the "captain of the ship" doctrine.

Further, petitioner’s argument that the failed plastic surgery was not intended as a cosmetic
procedure, but rather as a measure to prevent complication does not help her case. It does not
negate negligence on her part.

Based on the foregoing, the presumption that petitioner was negligent in the exercise of her
profession stands unrebutted. In this connection, the Civil Code 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.…
ART. 2217. 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 the defendant’s wrongful act or omission.

Clearly, under the law, petitioner is obliged to pay Nora for moral damages suffered by the latter as a
proximate result of petitioner’s negligence.

We note, however, that petitioner has served well as Nora’s obstetrician for her past three
successful deliveries. This is the first time petitioner is being held liable for damages due to
negligence in the practice of her profession. The fact that petitioner promptly took care of Nora’s
wound before infection and other complications set in is also indicative of petitioner’s good
intentions. We also take note of the fact that Nora was suffering from a critical condition when the
injury happened, such that saving her life became petitioner’s elemental concern. Nonetheless, it
should be stressed that all these could not justify negligence on the part of petitioner.

Hence, considering the specific circumstances in the instant case, we find no grave abuse of
discretion in the assailed decision and resolution of the Court of Appeals. Further, we rule that the
Court of Appeals’ award of Two Hundred Thousand Pesos (₱200,000) as moral damages in favor of
respondents and against petitioner is just and equitable.21

WHEREFORE, the petition is DENIED. The Decision dated October 3, 2002 and Resolution dated
November 19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice
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
3

overturned the decision   of the Regional Trial Court, dated 30 January 1992, finding private
4

respondents liable for damages 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).

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).

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
6

Quezon 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 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.

x x x           x x x          x x x

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 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, Atty. Sillano, to replace
9

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:

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
12

motion for 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 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 loquitur to the instant case. Thereafter, the first two assigned errors shall be
tackled in relation to the res ipsa loquitur doctrine.

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 the thing which caused the injury complained of is shown to be
13

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
15

the superior logic of ordinary human experience 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 common knowledge.
16

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
17

considered as merely evidentiary or in the nature of a procedural rule.   It is regarded as a mode of
18

proof, or a mere procedural of convenience since it furnishes a substitute for, and relieves a plaintiff
of, the burden of producing specific proof of negligence.   In other words, mere invocation and
19

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
20

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.  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
22

order to have 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
24

loquitur has been 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
25

of res ipsa loquitur in medical negligence 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
27

general rule on the necessity of expert testimony 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 physicians and
28

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
29

loquitur is applicable, the court is 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
30

teach that a resulting injury would not have occurred to the 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
32

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

when another part was intended,   knocking out a tooth while a patient's jaw was under anesthetic
34

for the removal of his tonsils,   and loss of an eye while the patient plaintiff was under the influence
35

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
37

something 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 treatment.   The physician or surgeon is not required at his
38

peril to explain why any particular diagnosis was not correct, or why any particular scientific
treatment did not produce the desired result.   Thus, res ipsa loquitur is not available in a
39

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 extraneous interventions, the doctrine of res ipsa loquitur may be
41

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
43

Court in 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.

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
45

negligence with falsehood. 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.

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.

x x x           x x x          x x x

ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

 x x x           x x x          x x x

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.

x x x           x x x          x x x

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

x x x           x x x          x x x

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 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
48

ipsa loquitur where the testimony of 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 take judicial notice of the fact
49

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,
50

we find that the same were delivered in a straightforward 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

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
52

and, since Erlinda is obese and has a 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
53

history, review of current drug therapy, physical examination and interpretation of laboratory
data.   The physical examination performed by the anesthesiologist is directed primarily toward the
54

central nervous system, cardiovascular system, lungs and upper airway.   A thorough analysis of the
55

patient's airway normally involves investigating the following: cervical 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
57

assessment 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 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
59

Sodium, introduced into her 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 the short-acting barbiturate. We find
60

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.

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
63

above standard since he 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 damage is proximately caused by an act or a failure to act, whenever it
64

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
65

producing cause.

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 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 of Dr. Hosaka, the lack of oxygen became apparent
66

only after he noticed that the nailbeds of Erlinda were already blue.   However, private respondents
67

contend that a second intubation was executed on Erlinda and this 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 (98%) or the vast majority of difficult intubations
69

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 the proper pre-
70

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
71

experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would

have had little difficulty going around the short neck and protruding teeth.   Having failed to observe
72

common medical standards in pre-operative management and intubation, 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
73

under him perform their 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
74

are allegedly not hospital 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 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 when the persons or entity concerned prove that they have
77

observed the diligence of a good father of the family to prevent damage.   In other words, while the
78

burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to
the respondents (parent, guardian, teacher or employer) who should prove that they observed the
diligence of a good father of a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over
respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good
father of a family in the hiring and supervision of the latter. 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.

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
80

damages can and should be awarded on top of 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
82

suffered by the 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:

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.

x x x           x x x          x x x

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
84

this case, will have to live with the day to day 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.

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.
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’
Decision2 dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming
with modification the Decision3 dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96,
Quezon City in Civil Case No. 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 staff4 of the Medical City Hospital, performed
an anterior 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

"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;

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 Resolution5 dated October 29, 1993 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 Decision6 in
Administrative Case No. 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 Resolution7 dated December
19, 1996.

Hence, the instant consolidated petitions.

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.8 To put it simply, such act is 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

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. Zeagler10 is explicit, thus:

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.11 Simply put, the elements 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 cause12 of Natividad’s injury could be traced from his act of closing the
incision 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.13 Stated differently, where the thing which caused the
injury, without the fault of the injured, is 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

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.16 As
stated before, Dr. 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.17 In other
words, mere invocation 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.18 Those who
could afford medical treatment were usually treated at home by their doctors.19 However, the days of
house calls and philanthropic 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:

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.22 It has been said that medical practice strictly
involves highly developed and specialized knowledge,23 such that physicians are generally free to
exercise their own skill and judgment in rendering medical services sans interference.24 Hence, when
a doctor practices medicine in a hospital setting, the 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 Hospital26 was then considered an authority for this
view. The "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,27 the New York 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.

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 Appeals28 that for
purposes of apportioning 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,29 has its origin from the law of
agency. It 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.30 The concept is essentially one of estoppel and has been
explained in this manner:

"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

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.32 There, it was explicitly stated that "there does not
appear to be any 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."34 Premised on the 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

The doctrine has its genesis in Darling v. Charleston Community Hospital.36 There, the Supreme
Court of 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.37 With the
passage of time, more duties were expected from hospitals, 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.38 Thus, in Tucson Medical Center, Inc. v.
Misevich,39 it was held 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,40 the court concluded
that a patient who enters a hospital does so with the 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,41 it 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 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.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

RENATO C. CORONA ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

(No Part)
CANCIO C. GARCIA
Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice