G.R. No.

115024
February 7, 1996
MA. LOURDES VALENZUELA, petitioner,
vs.
COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL, INC., respondents.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x
G.R. No. 117944
February 7, 1996
RICHARD LI, petitioner,
vs.
COURT OF APPEALS and LOURDES VALENZUELA, respondents.
DECISION
KAPUNAN, J.:
These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court stem from an action to
recover damages by petitioner Lourdes Valenzuela in the Regional Trial Court of Quezon City for injuries
sustained by her in a vehicular accident in the early morning of June 24, 1990. The facts found by the trial court
are succinctly summarized by the Court of Appeals below:
This is an action to recover damages based on quasi-delict, for serious physical injuries sustained in a
vehicular accident.
Plaintiff's version of the accident is as follows: At around 2:00 in the morning of June 24, 1990, plaintiff
Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No. FFU 542 from her
restaurant at Marcos highway to her home at Palanza Street, Araneta Avenue. She was travelling along
Aurora Blvd. with a companion, Cecilia Ramon, heading towards the direction of Manila. Before
reaching A. Lake Street, she noticed something wrong with her tires; she stopped at a lighted place
where there were people, to verify whether she had a flat tire and to solicit help if needed. Having been
told by the people present that her rear right tire was flat and that she cannot reach her home in that car's
condition, she parked along the sidewalk, about 1-1/2 feet away, put on her emergency lights, alighted
from the car, and went to the rear to open the trunk. She was standing at the left side of the rear of her
car pointing to the tools to a man who will help her fix the tire when she was suddenly bumped by a
1987 Mitsubishi Lancer driven by defendant Richard Li and registered in the name of defendant
Alexander Commercial, Inc. Because of the impact plaintiff was thrown against the windshield of the
car of the defendant, which was destroyed, and then fell to the ground. She was pulled out from under
defendant's car. Plaintiff's left leg was severed up to the middle of her thigh, with only some skin and
sucle connected to the rest of the body. She was brought to the UERM Medical Memorial Center where
she was found to have a "traumatic amputation, leg, left up to distal thigh (above knee)". She was
confined in the hospital for twenty (20) days and was eventually fitted with an artificial leg. The
expenses for the hospital confinement (P120,000.00) and the cost of the artificial leg (P27,000.00) were
paid by defendants from the car insurance.
In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary damages in
the amount of P100,000.00 and other medical and related expenses amounting to a total of P180,000.00,
including loss of expected earnings.
Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55 kph;
considering that it was raining, visibility was affected and the road was wet. Traffic was light. He
testified that he was driving along the inner portion of the right lane of Aurora Blvd. towards the
direction of Araneta Avenue, when he was suddenly confronted, in the vicinity of A. Lake Street, San
Juan, with a car coming from the opposite direction, travelling at 80 kph, with "full bright lights".
Temporarily blinded, he instinctively swerved to the right to avoid colliding with the oncoming vehicle,
and bumped plaintiff's car, which he did not see because it was midnight blue in color, with no parking
lights or early warning device, and the area was poorly lighted. He alleged in his defense that the left
rear portion of plaintiff's car was protruding as it was then "at a standstill diagonally" on the outer
portion of the right lane towards Araneta Avenue (par. 18, Answer). He confirmed the testimony of
plaintiff's witness that after being bumped the car of the plaintiff swerved to the right and hit another car
parked on the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was reckless or
negligent, as she was not a licensed driver.

The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the sketch of
the three cars involved in the accident, testified that the plaintiff's car was "near the sidewalk"; this
witness did not remember whether the hazard lights of plaintiff's car were on, and did not notice if there
was an early warning device; there was a street light at the corner of Aurora Blvd. and F. Roman, about
100 meters away. It was not mostly dark, i.e. "things can be seen" (p. 16, tsn, Oct. 28, 1991).
A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her car and
opened the trunk compartment, defendant's car came approaching very fast ten meters from the scene;
the car was "zigzagging". The rear left side of plaintiff's car was bumped by the front right portion of
defendant's car; as a consequence, the plaintiff's car swerved to the right and hit the parked car on the
sidewalk. Plaintiff was thrown to the windshield of defendant's car, which was destroyed, and landed
under the car. He stated that defendant was under the influence of liquor as he could "smell it very well"
(pp. 43, 79, tsn, June 17, 1991).
After trial, the lower court sustained the plaintiff's submissions and found defendant Richard Li guilty of gross
negligence and liable for damages under Article 2176 of the Civil Code. The trial court likewise held Alexander
Commercial, Inc., Li's employer, jointly and severally liable for damages pursuant to Article 2180. It ordered the
defendants to jointly and severally pay the following amounts:
1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff as a result of
her severed left leg;
2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of plaintiff's Bistro La
Conga restaurant three (3) weeks after the accident on June 24, 1990; (b) P20,000.00, a month, as
unrealized profits of the plaintiff in her Bistro La Conga restaurant, from August, 1990 until the date of
this judgment and (c) P30,000.00, a month for unrealized profits in plaintiff's two (2) beauty salons from
July, 1990 until the date of this decision;
3. P1,000,000.00, in moral damages;
4. P50,000.00, as exemplary damages;
5. P60,000.00, as reasonable attorney's fees; and
6. Costs.
As a result of the trial court's decision, defendants filed an Omnibus Motion for New Trial and for
Reconsideration, citing testimony in Criminal Case O.C. No. 804367 (People vs. Richard Li), tending to show that
the point of impact, as depicted by the pieces of glass/debris from the parties' cars, appeared to be at the center of
the right lane of Aurora Blvd. The trial court denied the motion. Defendants forthwith filed an appeal with the
respondent Court of Appeals. In a Decision rendered March 30, 1994, the Court of Appeals found that there was
"ample basis from the evidence of record for the trial court's finding that the plaintiff's car was properly parked at
the right, beside the sidewalk when it was bumped by defendant's car."1 Dismissing the defendants' argument that
the plaintiff's car was improperly parked, almost at the center of the road, the respondent court noted that evidence
which was supposed to prove that the car was at or near center of the right lane was never presented during the
trial of the case.2 The respondent court furthermore observed that:
Defendant Li's testimony that he was driving at a safe speed of 55 km./hour is self serving; it was not
corroborated. It was in fact contradicted by eyewitness Rodriguez who stated that he was outside his
beerhouse located at Aurora Boulevard after A. Lake Street, at or about 2:00 a.m. of June 24, 1990 when
his attention was caught by a beautiful lady (referring to the plaintiff) alighting from her car and opening
the trunk compartment; he noticed the car of Richard Li "approaching very fast ten (10) meters away
from the scene"; defendant's car was zigzagging", although there were no holes and hazards on the
street, and "bumped the leg of the plaintiff" who was thrown against the windshield of defendant's care,
causing its destruction. He came to the rescue of the plaintiff, who was pulled out from under
defendant's car and was able to say "hurting words" to Richard Li because he noticed that the latter was
under the influence of liquor, because he "could smell it very well" (p. 36, et. seq., tsn, June 17, 1991).
He knew that plaintiff owned a beerhouse in Sta. Mesa in the 1970's, but did not know either plaintiff or
defendant Li before the accident.
In agreeing with the trial court that the defendant Li was liable for the injuries sustained by the plaintiff, the Court
of Appeals, in its decision, however, absolved the Li's employer, Alexander Commercial, Inc. from any liability
towards petitioner Lourdes Valenzuela and reduced the amount of moral damages to P500,000.00. Finding

justification for exemplary damages, the respondent court allowed an award of P50,000.00 for the same, in
addition to costs, attorney's fees and the other damages. The Court of Appeals, likewise, dismissed the defendants'
counterclaims.3
Consequently, both parties assail the respondent court's decision by filing two separate petitions before this Court.
Richard Li, in G.R. No. 117944, contends that he should not be held liable for damages because the proximate
cause of the accident was Ma. Lourdes Valenzuela's own negligence. Alternatively, he argues that in the event that
this Court finds him negligent, such negligence ought to be mitigated by the contributory negligence of
Valenzuela.
On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent court's decision insofar as
it absolves Alexander Commercial, Inc. from liability as the owner of the car driven by Richard Li and insofar as it
reduces the amount of the actual and moral damages awarded by the trial court. 4
As the issues are intimately related, both petitions are hereby consolidated.
It is plainly evident that the petition for review in G.R. No. 117944 raises no substantial questions of law. What it,
in effect, attempts to have this Court review are factual findings of the trial court, as sustained by the Court of
Appeals finding Richard Li grossly negligent in driving the Mitsubishi Lancer provided by his company in the
early morning hours of June 24, 1990. This we will not do. As a general rule, findings of fact of the Court of
Appeals are binding and conclusive upon us, and this Court will not normally disturb such factual findings unless
the findings of fact of the said court are palpably unsupported by the evidence on record or unless the judgment
itself is based on a misapprehension of facts.5
In the first place, Valenzuela's version of the incident was fully corroborated by an uninterested witness, Rogelio
Rodriguez, the owner-operator of an establishment located just across the scene of the accident. On trial, he
testified that he observed a car being driven at a "very fast" speed, racing towards the general direction of Araneta
Avenue.6 Rodriguez further added that he was standing in front of his establishment, just ten to twenty feet away
from the scene of the accident, when he saw the car hit Valenzuela, hurtling her against the windshield of the
defendant's Mitsubishi Lancer, from where she eventually fell under the defendant's car. Spontaneously reacting to
the incident, he crossed the street, noting that a man reeking with the smell of liquor had alighted from the
offending vehicle in order to survey the incident.7 Equally important, Rodriguez declared that he observed
Valenzuela's car parked parallel and very near the sidewalk,8 contrary to Li's allegation that Valenzuela's car was
close to the center of the right lane. We agree that as between Li's "self-serving" asseverations and the
observations of a witness who did not even know the accident victim personally and who immediately gave a
statement of the incident similar to his testimony to the investigator immediately after the incident, the latter's
testimony deserves greater weight. As the court emphasized:
The issue is one of credibility and from Our own examination of the transcript, We are not prepared to
set aside the trial court's reliance on the testimony of Rodriguez negating defendant's assertion that he
was driving at a safe speed. While Rodriguez drives only a motorcycle, his perception of speed is not
necessarily impaired. He was subjected to cross-examination and no attempt was made to question .his
competence or the accuracy of his statement that defendant was driving "very fast". This was the same
statement he gave to the police investigator after the incident, as told to a newspaper report (Exh. "P").
We see no compelling basis for disregarding his testimony.
The alleged inconsistencies in Rodriguez' testimony are not borne out by an examination of the
testimony. Rodriguez testified that the scene of the accident was across the street where his beerhouse is
located about ten to twenty feet away (pp. 35-36, tsn, June 17, 1991). He did not state that the accident
transpired immediately in front of his establishment. The ownership of the Lambingan se Kambingan is
not material; the business is registered in the name of his mother, but he explained that he owns the
establishment (p. 5, tsn, June 20, 1991). Moreover, the testimony that the streetlights on his side of
Aurora Boulevard were on the night the accident transpired (p. 8) is not necessarily contradictory to the
testimony of Pfc. Ramos that there was a streetlight at the corner of Aurora Boulevard and F. Roman
Street (p. 45, tsn, Oct. 20, 1991).
With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a heavy rain
and the rain has stopped and he was outside his establishment at the time the accident transpired (pp. 6465, tsn, June 17, 1991). This was consistent with plaintiff's testimony that it was no longer raining when
she left Bistro La Conga (pp. 10-11, tsn, April 29, 1991). It was defendant Li who stated that it was

raining all the way in an attempt to explain why he was travelling at only 50-55 kph. (p. 11, tsn, Oct. 14,
1991). As to the testimony of Pfc. Ramos that it was raining, he arrived at the scene only in response to a
telephone call after the accident had transpired (pp. 9-10, tsn, Oct. 28, 1991). We find no substantial
inconsistencies in Rodriguez's testimony that would impair the essential integrity of his testimony or
reflect on his honesty. We are compelled to affirm the trial court's acceptance of the testimony of said
eyewitness.
Against the unassailable testimony of witness Rodriguez we note that Li's testimony was peppered with so many
inconsistencies leading us to conclude that his version of the accident was merely adroitly crafted to provide a
version, obviously self-serving, which would exculpate him from any and all liability in the incident. Against
Valenzuela's corroborated claims, his allegations were neither backed up by other witnesses nor by the
circumstances proven in the course of trial. He claimed that he was driving merely at a speed of 55 kph. when "out
of nowhere he saw a dark maroon lancer right in front of him, which was (the) plaintiff's car". He alleged that
upon seeing this sudden "apparition" he put on his brakes to no avail as the road was slippery.9
One will have to suspend disbelief in order to give credence to Li's disingenuous and patently self-serving
asseverations. The average motorist alert to road conditions will have no difficulty applying the brakes to a car
traveling at the speed claimed by Li. Given a light rainfall, the visibility of the street, and the road conditions on a
principal metropolitan thoroughfare like Aurora Boulevard, Li would have had ample time to react to the changing
conditions of the road if he were alert - as every driver should be - to those conditions. Driving exacts a more than
usual toll on the senses. Physiological "fight or flight" 10 mechanisms are at work, provided such mechanisms
were not dulled by drugs, alcohol, exhaustion, drowsiness, etc. 11 Li's failure to react in a manner which would
have avoided the accident could therefore have been only due to either or both of the two factors: 1) that he was
driving at a "very fast" speed as testified by Rodriguez; and 2) that he was under the influence of alcohol.12 Either
factor working independently would have diminished his responsiveness to road conditions, since normally he
would have slowed down prior to reaching Valenzuela's car, rather than be in a situation forcing him to suddenly
apply his brakes. As the trial court noted (quoted with approval by respondent court):
Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the incident, he
said that while driving along Aurora Blvd., out of nowhere he saw a dark maroon lancer right in front of
him which was plaintiff's car, indicating, again, thereby that, indeed, he was driving very fast, oblivious
of his surroundings and the road ahead of him, because if he was not, then he could not have missed
noticing at a still far distance the parked car of the plaintiff at the right side near the sidewalk which had
its emergency lights on, thereby avoiding forcefully bumping at the plaintiff who was then standing at
the left rear edge of her car.
Since, according to him, in his narration to the San Juan Police, he put on his brakes when he saw the
plaintiff's car in front of him, but that it failed as the road was wet and slippery, this goes to show again,
that, contrary to his claim, he was, indeed, running very fast. For, were it otherwise, he could have easily
completely stopped his car, thereby avoiding the bumping of the plaintiff, notwithstanding that the road
was wet and slippery. Verily, since, if, indeed, he was running slow, as he claimed, at only about 55
kilometers per hour, then, inspite of the wet and slippery road, he could have avoided hitting the plaintiff
by the mere expedient or applying his brakes at the proper time and distance.
It could not be true, therefore, as he now claims during his testimony, which is contrary to what he told
the police immediately after the accident and is, therefore, more believable, that he did not actually step
on his brakes but simply swerved a little to the right when he saw the on-coming car with glaring
headlights, from the opposite direction, in order to avoid it.
For, had this been what he did, he would not have bumped the car of the plaintiff which was properly
parked at the right beside the sidewalk. And, it was not even necessary for him to swerve a little to the
right in order to safely avoid a collision with the on-coming car, considering that Aurora Blvd. is a
double lane avenue separated at the center by a dotted white paint, and there is plenty of space for both
cars, since her car was running at the right lane going towards Manila on the on-coming car was also on
its right lane going to Cubao.13
Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi Lancer, the next
question for us to determine is whether or not Valenzuela was likewise guilty of contributory negligence in
parking her car alongside Aurora Boulevard, which entire area Li points out, is a no parking zone.

We agree with the respondent court that Valenzuela was not guilty of contributory negligence.
Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has
suffered, which falls below the standard to which he is required to conform for his own protection. 14 Based on the
foregoing definition, the standard or act to which, according to petitioner Li, Valenzuela ought to have conformed
for her own protection was not to park at all at any point of Aurora Boulevard, a no parking zone. We cannot
agree.
Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is not to
be held up to the standard of conduct normally applied to an individual who is in no such situation. The law takes
stock of impulses of humanity when placed in threatening or dangerous situations and does not require the same
standard of thoughtful and reflective care from persons confronted by unusual and oftentimes threatening
conditions.15
Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,16 an individual who suddenly
finds himself in a situation of danger and is required to act without much time to consider the best means that may
be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently
and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence. 17
Applying this principle to a case in which the victims in a vehicular accident swerved to the wrong lane to avoid
hitting two children suddenly darting into the street, we held, in Mc Kee vs. Intermediate Appellate Court,18 that
the driver therein, Jose Koh, "adopted the best means possible in the given situation" to avoid hitting the children.
Using the "emergency rule" the Court concluded that Koh, in spite of the fact that he was in the wrong lane when
the collision with an oncoming truck occurred, was not guilty of negligence.19
While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately
weigh a threatening situation is absent, the conduct which is required of an individual in such cases is dictated not
exclusively by the suddenness of the event which absolutely negates thoroughful care, but by the over-all nature of
the circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not be faulted
for stopping at a point which is both convenient for her to do so and which is not a hazard to other motorists. She
is not expected to run the entire boulevard in search for a parking zone or turn on a dark street or alley where she
would likely find no one to help her. It would be hazardous for her not to stop and assess the emergency (simply
because the entire length of Aurora Boulevard is a no-parking zone) because the hobbling vehicle would be both a
threat to her safety and to other motorists. In the instant case, Valenzuela, upon reaching that portion of Aurora
Boulevard close to A. Lake St., noticed that she had a flat tire. To avoid putting herself and other motorists in
danger, she did what was best under the situation. As narrated by respondent court: "She stopped at a lighted place
where there were people, to verify whether she had a flat tire and to solicit help if needed. Having been told by the
people present that her rear right tire was flat and that she cannot reach her home she parked along the sidewalk,
about 1 1/2 feet away, behind a Toyota Corona Car."20 In fact, respondent court noted, Pfc. Felix Ramos, the
investigator on the scene of the accident confirmed that Valenzuela's car was parked very close to the
sidewalk.21 The sketch which he prepared after the incident showed Valenzuela's car partly straddling the
sidewalk, clear and at a convenient distance from motorists passing the right lane of Aurora Boulevard. This fact
was itself corroborated by the testimony of witness Rodriguez.22
Under the circumstances described, Valenzuela did exercise the standard reasonably dictated by the emergency
and could not be considered to have contributed to the unfortunate circumstances which eventually led to the
amputation of one of her lower extremities. The emergency which led her to park her car on a sidewalk in Aurora
Boulevard was not of her own making, and it was evident that she had taken all reasonable precautions.
Obviously in the case at bench, the only negligence ascribable was the negligence of Li on the night of the
accident. "Negligence, as it is commonly understood is conduct which creates an undue risk of harm to others."23It
is the failure to observe that degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury.24 We stressed, in Corliss vs. Manila Railroad Company,25 that
negligence is the want of care required by the circumstances.
The circumstances established by the evidence adduced in the court below plainly demonstrate that Li was grossly
negligent in driving his Mitsubishi Lancer. It bears emphasis that he was driving at a fast speed at about 2:00 A.M.
after a heavy downpour had settled into a drizzle rendering the street slippery. There is ample testimonial evidence
on record to show that he was under the influence of liquor. Under these conditions, his chances of effectively
dealing with changing conditions on the road were significantly lessened. As Presser and Keaton emphasize:

[U]nder present day traffic conditions, any driver of an automobile must be prepared for the sudden
appearance of obstacles and persons on the highway, and of other vehicles at intersections, such as one
who sees a child on the curb may be required to anticipate its sudden dash into the street, and his failure
to act properly when they appear may be found to amount to negligence. 26
Li's obvious unpreparedness to cope with the situation confronting him on the night of the accident was clearly of
his own making.
We now come to the question of the liability of Alexander Commercial, Inc. Li's employer. In denying liability on
the part of Alexander Commercial, the respondent court held that:
There is no evidence, not even defendant Li's testimony, that the visit was in connection with official
matters. His functions as assistant manager sometimes required him to perform work outside the office
as he has to visit buyers and company clients, but he admitted that on the night of the accident he came
from BF Homes Paranaque he did not have "business from the company" (pp. 25-26, ten, Sept. 23,
1991). The use of the company car was partly required by the nature of his work, but the privilege of
using it for non-official business is a "benefit", apparently referring to the fringe benefits attaching to his
position.
Under the civil law, an employer is liable for the negligence of his employees in the discharge of their
respective duties, the basis of which liability is not respondeat superior, but the relationship of pater
familias, which theory bases the liability of the master ultimately on his own negligence and not on that
of his servant (Cuison v. Norton and Harrison Co., 55 Phil. 18). Before an employer may be held liable
for the negligence of his employee, the act or omission which caused damage must have occurred while
an employee was in the actual performance of his assigned tasks or duties (Francis High School vs.
Court of Appeals, 194 SCRA 341). In defining an employer's liability for the acts done within the scope
of the employee's assigned tasks, the Supreme Court has held that this includes any act done by an
employee, in furtherance of the interests of the employer or for the account of the employer at the time
of the infliction of the injury or damage (Filamer Christian Institute vs. Intermediate Appellate Court,
212 SCRA 637). An employer is expected to impose upon its employees the necessary discipline called
for in the performance of any act "indispensable to the business and beneficial to their employer" (at p.
645).
In light of the foregoing, We are unable to sustain the trial court's finding that since defendant Li was
authorized by the company to use the company car "either officially or socially or even bring it home",
he can be considered as using the company car in the service of his employer or on the occasion of his
functions. Driving the company car was not among his functions as assistant manager; using it for nonofficial purposes would appear to be a fringe benefit, one of the perks attached to his position. But to
impose liability upon the employer under Article 2180 of the Civil Code, earlier quoted, there must be a
showing that the damage was caused by their employees in the service of the employer or on the
occasion of their functions. There is no evidence that Richard Li was at the time of the accident
performing any act in furtherance of the company's business or its interests, or at least for its benefit.
The imposition of solidary liability against defendant Alexander Commercial Corporation must
therefore fail.27
We agree with the respondent court that the relationship in question is not based on the principle of respondeat
superior, which holds the master liable for acts of the servant, but that of pater familias, in which the liability
ultimately falls upon the employer, for his failure to exercise the diligence of a good father of the family in the
selection and supervision of his employees. It is up to this point, however, that our agreement with the respondent
court ends. Utilizing the bonus pater familias standard expressed in Article 2180 of the Civil Code, 28 we are of
the opinion that Li's employer, Alexander Commercial, Inc. is jointly and solidarily liable for the damage caused
by the accident of June 24, 1990.
First, the case of St. Francis High School vs. Court of Appeals29 upon which respondent court has placed undue
reliance, dealt with the subject of a school and its teacher's supervision of students during an extracurricular
activity. These cases now fall under the provision on special parental authority found in Art. 218 of the Family
Code which generally encompasses all authorized school activities, whether inside or outside school premises.
Second, the employer's primary liability under the concept of pater familias embodied by Art 2180 (in relation to
Art. 2176) of the Civil Code is quasi-delictual or tortious in character. His liability is relieved on a showing that he

exercised the diligence of a good father of the family in the selection and supervision of its employees. Once
evidence is introduced showing that the employer exercised the required amount of care in selecting its
employees, half of the employer's burden is overcome. The question of diligent supervision, however, depends on
the circumstances of employment.
Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its employee during the
performance of the latter's assigned tasks would be enough to relieve him of the liability imposed by Article 2180
in relation to Article 2176 of the Civil Code. The employer is not expected to exercise supervision over either the
employee's private activities or during the performance of tasks either unsanctioned by the former or unrelated to
the employee's tasks. The case at bench presents a situation of a different character, involving a practice utilized
by large companies with either their employees of managerial rank or their representatives.
It is customary for large companies to provide certain classes of their employees with courtesy vehicles. These
company cars are either wholly owned and maintained by the company itself or are subject to various plans
through which employees eventually acquire their vehicles after a given period of service, or after paying a token
amount. Many companies provide liberal "car plans" to enable their managerial or other employees of rank to
purchase cars, which, given the cost of vehicles these days, they would not otherwise be able to purchase on their
own.
Under the first example, the company actually owns and maintains the car up to the point of turnover of ownership
to the employee; in the second example, the car is really owned and maintained by the employee himself. In
furnishing vehicles to such employees, are companies totally absolved of responsibility when an accident
involving a company-issued car occurs during private use after normal office hours?
Most pharmaceutical companies, for instance, which provide cars under the first plan, require rigorous tests of
road worthiness from their agents prior to turning over the car (subject of company maintenance) to their
representatives. In other words, like a good father of a family, they entrust the company vehicle only after they are
satisfied that the employee to whom the car has been given full use of the said company car for company or
private purposes will not be a threat or menace to himself, the company or to others. When a company gives full
use and enjoyment of a company car to its employee, it in effect guarantees that it is, like every good father,
satisfied that its employee will use the privilege reasonably and responsively.
In the ordinary course of business, not all company employees are given the privilege of using a company-issued
car. For large companies other than those cited in the example of the preceding paragraph, the privilege serves
important business purposes either related to the image of success an entity intends to present to its clients and to
the public in general, or - for practical and utilitarian reasons - to enable its managerial and other employees of
rank or its sales agents to reach clients conveniently. In most cases, providing a company car serves both purposes.
Since important business transactions and decisions may occur at all hours in all sorts of situations and under all
kinds of guises, the provision for the unlimited use of a company car therefore principally serves the business and
goodwill of a company and only incidentally the private purposes of the individual who actually uses the car, the
managerial employee or company sales agent. As such, in providing for a company car for business use and/or for
the purpose of furthering the company's image, a company owes a responsibility to the public to see to it that the
managerial or other employees to whom it entrusts virtually unlimited use of a company issued car are able to use
the company issue capably and responsibly.
In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his testimony before the trial
court, he admitted that his functions as Assistant Manager did not require him to scrupulously keep normal office
hours as he was required quite often to perform work outside the office, visiting prospective buyers and contacting
and meeting with company clients. 30 These meetings, clearly, were not strictly confined to routine hours because,
as a managerial employee tasked with the job of representing his company with its clients, meetings with clients
were both social as well as work-related functions. The service car assigned to Li by Alexander Commercial, Inc.
therefore enabled both Li - as well as the corporation - to put up the front of a highly successful entity, increasing
the latter's goodwill before its clientele. It also facilitated meeting between Li and its clients by providing the
former with a convenient mode of travel.
Moreover, Li's claim that he happened to be on the road on the night of the accident because he was coming from
a social visit with an officemate in Paranaque was a bare allegation which was never corroborated in the court
below. It was obviously self-serving. Assuming he really came from his officemate's place, the same could give

rise to speculation that he and his officemate had just been from a work-related function, or they were together to
discuss sales and other work related strategies.
In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it exercised the care and
diligence of a good father of the family in entrusting its company car to Li. No allegations were made as to
whether or not the company took the steps necessary to determine or ascertain the driving proficiency and history
of Li, to whom it gave full and unlimited use of a company car.31 Not having been able to overcome the burden of
demonstrating that it should be absolved of liability for entrusting its company car to Li, said company, based on
the principle of bonus pater familias, ought to be jointly and severally liable with the former for the injuries
sustained by Ma. Lourdes Valenzuela during the accident.
Finally, we find no reason to overturn the amount of damages awarded by the respondent court, except as to the
amount of moral damages. In the case of moral damages, while the said damages are not intended to enrich the
plaintiff at the expense of a defendant, the award should nonetheless be commensurate to the suffering inflicted. In
the instant case we are of the opinion that the reduction in moral damages from an amount of P1,000,000.00 to
P800,000,00 by the Court of Appeals was not justified considering the nature of the resulting damage and the
predictable sequelae of the injury.
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 her lifetime, the prosthetic devise will have to be replaced and re-adjusted 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.
The foregoing discussion does not even scratch the surface of the nature of the resulting damage because it would
be highly speculative to estimate the amount of psychological pain, damage and injury which goes with the sudden
severing of a vital portion of the human body. A prosthetic device, 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.
As the amount of moral damages are subject to this Court's discretion, we are of the opinion that the amount of
P1,000,000.00 granted by the trial court is in greater accord with the extent and nature of the injury - physical and
psychological - suffered by Valenzuela as a result of Li's grossly negligent driving of his Mitsubishi Lancer in the
early morning hours of the accident.
WHEREFORE, PREMISES CONSIDERED, the decision of the Court of Appeals is modified with the effect of
REINSTATING the judgment of the Regional Trial Court.
SO ORDERED.
Padilla, Bellosillo and Hermosisima, Jr., JJ., concur.

Separate Opinions
VITUG, J., concurring:
Pursuant to Article 21801 of the Civil Code that acknowledges responsibility under a relationship of patria
potestas, a person may be held accountable not only for his own direct culpable act or negligence but also for
those of others albeit predicated on his own supposed failure to exercise due care in his supervisory authority and
functions. In the case of an employer, that vicarious liability attaches only when the tortious conduct of the
employee relates to, or is in the course of, his employment. The question to ask should be whether, at the time of

the damage or injury, the employee is engaged in the affairs or concerns of the employer or, independently, in that
of his own. While an employer incurs no liability when an employee's conduct, act or omission is beyond the
range of employment,2 a minor deviation from the assigned task of an employee, however, does not affect the
liability of an employer.3

[G.R. No. 156034. October 1, 2003]

DELSAN TRANSPORT LINES, INC., petitioner, vs. C & A CONSTRUCTION, INC., respondent.
DECISION
YNARES-SANTIAGO, J.:
Assailed in this petition for review under Rule 45 of the Revised Rules of Court are the June 14, 2002
decision[1] of the Court of Appeals in CA-G.R. CV No. 59034, which reversed the decision[2] of the Regional Trial
Court of Manila, Branch 46, in Civil Case No. 95-75565, and its November 7, 2002 resolution[3] denying
petitioners motion for reconsideration.
The undisputed facts reveal that respondent C & A Construction, Inc. was engaged by the National Housing
Authority (NHA) to construct a deflector wall at the Vitas Reclamation Area in Vitas, Tondo, Manila. [4] The
project was completed in 1994 but it was not formally turned over to NHA.
On October 9, 1994, M/V Delsan Express, a ship owned and operated by petitioner Delsan Transport Lines,
Inc., anchored at the Navotas Fish Port for the purpose of installing a cargo pump and clearing the cargo oil
tank. At around 12:00 midnight of October 20, 1994, Captain Demetrio T. Jusep of M/V Delsan Express received
a report from his radio head operator in Japan[5] that a typhoon was going to hit Manila[6] in about eight (8)
hours.[7] At approximately 8:35 in the morning of October 21, 1994, Capt. Jusep tried to seek shelter at the North
Harbor but could not enter the area because it was already congested.[8] At 10:00 a.m., Capt. Jusep decided to drop
anchor at the vicinity of Vitas mouth, 4 miles away from a Napocor power barge. At that time, the waves were
already reaching 8 to 10 feet high. Capt. Jusep ordered his crew to go full ahead to counter the wind which was
dragging the ship towards the Napocor power barge. To avoid collision, Capt. Jusep ordered a full stop of the
vessel.[9] He succeeded in avoiding the power barge, but when the engine was re-started and the ship was
maneuvered full astern, it hit the deflector wall constructed by respondent.[10] The damage caused by the incident
amounted to P456,198.24.[11]
Respondent demanded payment of the damage from petitioner but the latter refused to pay. Consequently,
respondent filed a complaint for damages with the Regional Trial Court of Manila, Branch 46, which was
docketed as Civil Case No. 95-75565. In its answer, petitioner claimed that the damage was caused by a fortuitous
event.[12]
On February 13, 1998, the complaint filed by respondent was dismissed. The trial court ruled that petitioner
was not guilty of negligence because it had taken all the necessary precautions to avoid the accident. Applying the

emergency rule, it absolved petitioner of liability because the latter had no opportunity to adequately weigh the
best solution to a threatening situation. It further held that even if the maneuver chosen by petitioner was a wrong
move, it cannot be held liable as the cause of the damage sustained by respondent was typhoon Katring, which
is an act of God.[13]
On appeal to the Court of Appeals, the decision of the trial court was reversed and set aside. [14] It found
Capt. Jusep guilty of negligence in deciding to transfer the vessel to the North Harbor only at 8:35 a.m. of October
21, 1994 and thus held petitioner liable for damages.
Hence, petitioner filed the instant petition contending that Capt. Jusep was not negligent in waiting until
8:35 in the morning of October 21, 1994 before transferring the vessel to the North Harbor inasmuch as it was not
shown that had the transfer been made earlier, the vessel could have sought shelter. [15] It further claimed that it
cannot be held vicariously liable under Article 2180 of the Civil Code because respondent failed to allege in the
complaint that petitioner was negligent in the selection and supervision of its employees. [16] Granting that Capt.
Jusep was indeed guilty of negligence, petitioner is not liable because it exercised due diligence in the selection of
Capt. Jusep who is a duly licensed and competent Master Mariner.[17]
The issues to be resolved in this petition are as follows (1) Whether or not Capt. Jusep was negligent; (2)
If yes, whether or not petitioner is solidarily liable under Article 2180 of the Civil Code for the quasidelict committed by Capt. Jusep?
Article 2176 of the Civil Code provides that whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasi-delict. The test for determining the existence of
negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use
the reasonable care and caution which an ordinary prudent person would have used in the same situation? If not,
then he is guilty of negligence.[18]
In the case at bar, the Court of Appeals was correct in holding that Capt. Jusep was negligent in deciding to
transfer the vessel only at 8:35 in the morning of October 21, 1994. As early as 12:00 midnight of October 20,
1994, he received a report from his radio head operator in Japan[19] that a typhoon was going to hit Manila[20] after
8 hours.[21] This, notwithstanding, he did nothing, until 8:35 in the morning of October 21, 1994, when he decided
to seek shelter at the North Harbor, which unfortunately was already congested. The finding of negligence cannot
be rebutted upon proof that the ship could not have sought refuge at the North Harbor even if the transfer was
done earlier. It is not the speculative success or failure of a decision that determines the existence of negligence in
the present case, but the failure to take immediate and appropriate action under the circumstances. Capt. Jusep,
despite knowledge that the typhoon was to hit Manila in 8 hours, complacently waited for the lapse of more than 8
hours thinking that the typhoon might change direction. [22] He cannot claim that he waited for the sun to rise
instead of moving the vessel at midnight immediately after receiving the report because of the difficulty of
traveling at night. The hour of 8:35 a.m. is way past sunrise. Furthermore, he did not transfer as soon as the sun
rose because, according to him, it was not very cloudy[23] and there was no weather disturbance yet.[24]
When he ignored the weather report notwithstanding reasonable foresight of harm, Capt. Jusep showed an
inexcusable lack of care and caution which an ordinary prudent person would have observed in the same
situation.[25] Had he moved the vessel earlier, he could have had greater chances of finding a space at the North
Harbor considering that the Navotas Port where they docked was very near North Harbor. [26] Even if the latter was
already congested, he would still have time to seek refuge in other ports.
The trial court erred in applying the emergency rule. Under this rule, one who suddenly finds himself in a
place of danger, and is required to act without time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may
appear to have been a better method, unless the danger in which he finds himself is brought about by his own
negligence.[27] Clearly, the emergency rule is not applicable to the instant case because the danger where Capt.
Jusep found himself was caused by his own negligence.
Anent the second issue, we find petitioner vicariously liable for the negligent act of Capt. Jusep. Under
Article 2180 of the Civil Code an employer may be held solidarily liable for the negligent act of his employee.
Thus
Art. 2180. The obligation imposed in Article 2176 is demandable not only for ones own acts or omissions, but
also for those of persons for whom one is responsible.

xxx
xxx
xxx
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.
xxx
xxx
xxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed
all the diligence of a good father of a family to prevent damage.
Whenever an employees negligence causes damage or injury to another, there instantly arises a
presumption juris tantum that the employer failed to exercise diligentissimi patris families in the selection (culpa
in eligiendo) or supervision (culpa in vigilando) of its employees. To avoid liability for a quasi-delict committed
by his employee, an employer must overcome the presumption by presenting convincing proof that he exercised
the care and diligence of a good father of a family in the selection and supervision of his employee. [28]
There is no question that petitioner, who is the owner/operator of M/V Delsan Express, is also the employer
of Capt. Jusep who at the time of the incident acted within the scope of his duty. The defense raised by petitioner
was that it exercised due diligence in the selection of Capt. Jusep because the latter is a licensed and competent
Master Mariner. It should be stressed, however, that the required diligence of a good father of a family pertains
not only to the selection, but also to the supervision of employees. It is not enough that the employees chosen be
competent and qualified, inasmuch as the employer is still required to exercise due diligence in supervising its
employees.
In Fabre, Jr. v. Court of Appeals,[29] it was held that due diligence in supervision requires the formulation of
rules and regulations for the guidance of employees and the issuance of proper instructions as well as actual
implementation and monitoring of consistent compliance with the rules. Corollarily, in Ramos v. Court of
Appeals,[30] the Court stressed that once negligence on the part of the employees is shown, the burden of proving
that he observed the diligence in the selection and supervision of its employees shifts to the employer.
In the case at bar, however, petitioner presented no evidence that it formulated rules/guidelines for the
proper performance of functions of its employees and that it strictly implemented and monitored compliance
therewith. Failing to discharge the burden, petitioner should therefore be held liable for the negligent act of Capt.
Jusep.
So also, petitioner cannot disclaim liability on the basis of respondents failure to allege in its complaint that
the former did not exercise due diligence in the selection and supervision of its employees. In Viron
Transportation Co., Inc. v. Delos Santos,[31] it was held that it is not necessary to state that petitioner was negligent
in the supervision or selection of its employees, inasmuch as its negligence is presumed by operation of
law. Allegations of negligence against the employee and that of an employer-employee relation in the complaint
are enough to make out a case of quasi-delict under Article 2180 of the Civil Code.[32]
Considering that petitioner did not assail the damages awarded by the trial court, we find no reason to alter
the same. The interest imposed should, however, be modified. In Eastern Shipping Lines, Inc. v. Court of
Appeals,[33] it was held that the rate of interest on obligations not constituting a loan or forbearance of money is six
percent (6%) per annum. If the purchase price can be established with certainty at the time of the filing of the
complaint, the six percent (6%) interest should be computed from the date the complaint was filed until finality of
the decision. After the judgment becomes final and executory until the obligation is satisfied, the amount due
shall earn interest at 12% per year, the interim period being deemed equivalent to a forbearance of credit.[34]
Accordingly, the amount of P456,198.27 due the respondent shall earn 6% interest per annum from October
3, 1995 until the finality of this decision. If the adjudged principal and the interest (or any part thereof) remain
unpaid thereafter, the interest rate shall be twelve percent (12%) per annum computed from the time the judgment
becomes final and executory until it is fully satisfied.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED. The June 14, 2002 decision
of the Court of Appeals in CA-G.R. CV No. 59034 ordering petitioner Delsan Transport Lines, Inc., to pay
respondent C & A Construction, Inc., damages in the amount of P456,198.27, plus P30,000.00 as attorneys fees,
is AFFIRMED with the MODIFICATION that the award of P456,198.27 shall earn interest at the rate of 6% per
annum from October 3, 1995, until finality of this decision, and 12% per annum thereafter on the principal and
interest (or any part thereof) until full payment.
G.R. No. L-5691 December 27, 1910

S. D. MARTINEZ and his wife, CARMEN

vs.
WILLIAM VAN BUSKIRK, defendant-appellant.
Lionel
D.
Hargis
Sanz and Oppisso for appellee.

ONG

DE

MARTINEZ, plaintiffs-appellees,

for

appellant.

MORELAND, J.:
The facts found by the trial court are undisputed by either party in this case. They are
That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding in a
carromata on Calle Real, district of Ermita, city of Manila, P.I., along the left-hand side of the street as
she was going, when a delivery wagon belonging to the defendant used for the purpose of transportation
of fodder by the defendant, and to which was attached a pair of horses, came along the street in the
opposite direction to that the in which said plaintiff was proceeding, and that thereupon the driver of the
said plaintiff's carromata, observing that the delivery wagon of the defendant was coming at great speed,
crowded close to the sidewalk on the left-hand side of the street and stopped, in order to give defendant's
delivery wagon an opportunity to pass by, but that instead of passing by the defendant's wagon and
horses ran into the carromata occupied by said plaintiff with her child and overturned it, severely
wounding said plaintiff by making a serious cut upon her head, and also injuring the carromata itself and
the harness upon the horse which was drawing it.
xxx
xxx
xxx
These facts are not dispute, but the defendant presented evidence to the effect that the cochero, who was
driving his delivery wagon at the time the accident occurred, was a good servant and was considered a
safe and reliable cochero; that the delivery wagon had sent to deliver some forage at Paco Livery Stable
on Calle Herran, and that for the purpose of delivery thereof the cochero driving the team as defendant's
employee tied the driving lines of the horses to the front end of the delivery wagon and then went back
inside of the wagon for the purpose of unloading the forage to be delivered; that while unloading the
forage and in the act of carrying some of it out, another vehicle drove by, the driver of which cracked a
whip and made some other noises, which frightened the horses attached to the delivery wagon and they
ran away, and the driver was thrown from the inside of the wagon out through the rear upon the ground
and was unable to stop the horses; that the horses then ran up and on which street they came into
collision with the carromata in which the plaintiff, Carmen Ong de Martinez, was riding.
The defendant himself was not with the vehicle on the day in question.
Upon these facts the court below found the defendant guilty of negligence and gave judgment against him for
P442.50, with interest thereon at the rate of 6 per cent per annum from the 17th day of October, 1908, and for the
costs of the action. The case is before us on an appeal from that judgment.
There is no general law of negligence in the Philippine Islands except that embodied in the Civil Code. The
provisions of that code pertinent to this case are
Art. 1902. A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.
Art. 1903. The obligation imposed by preceding article is demandable, not only for personal acts and
omissions, but also for those of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the damages caused by the minors
who live with them.
Guardians are liable for the damages caused by minors or incapacitated persons who are under their
authority and live with them.
Owners of directors of an establishment or enterprise are equally liable for the damages caused by the
employees in the service of the branches in which the latter may be employed or on account of their
duties.
The State is liable in this sense when it acts through a special agent, but not when the damages should
have been caused by the official to whom properly it pertained to do the act performed, in which case
the provisions of the preceding article shall be applicable.

Finally, masters or directors of arts and trades are liable for the damages caused by their pupils or
apprentices while they are under their custody.
The liability referred to in this article shall cease when the persons mentioned therein prove that they
employed all the diligence of a good father of a family to avoid the damage.
Passing the question whether or not an employer who has furnished a gentle and tractable team and a trusty and
capable driver is, under the last paragraph of the above provisions, liable for the negligence of such driver in
handling the team, we are of the opinion that the judgment must be reversed upon the ground that the evidence
does not disclose that the cochero was negligent.
While the law relating to negligence in this jurisdiction may possibly be some what different from that in AngloSaxon countries, a question we do not now discuss, the rules under which the fact of negligence is determined are,
nevertheless, generally the same. That is to say, while the law designating the person responsible for a negligent
act may not be the same here as in many jurisdictions, the law determining what is a negligent act is the same here,
generally speaking, as elsewhere. (Supreme court of Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9
April, 1896; 14 March, 1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7
March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)
It appears from the undisputed evidence that the horses which caused the damage were gentle and tractable; that
the cochero was experienced and capable; that he had driven one of the horses several years and the other five or
six months; that he had been in the habit, during all that time, of leaving them in the condition in which they were
left on the day of the accident; that they had never run away up to that time and there had been, therefore, no
accident due to such practice; that to leave the horses and assist in unloading the merchandise in the manner
described on the day of the accident was the custom of all cochero who delivered merchandise of the character of
that which was being delivered by the cochero of the defendant on the day in question, which custom was
sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in leaving the horses in the manner described by
the evidence in this case, either under Spanish or American jurisprudence. (Lynch vs. Nurdin, 1 Q. B., 422;
Rumsey vs. Nelson, 58 Vt., 590; Drake vs. Mount, 33 N. J. L., 442; Hoboken Land and Improvement
Co. vs. Lally, 48 N. J. L., 604; Wasmer vs. D. L. & W. R. R. Co., 80 N. Y., 212.) lawphi1.net
In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said:
He was performing his duty while removing the goods into the house, and, if every person who suffered
a cart to remain in the street while he took goods out of it was obliged to employ another to look after
the horses, it would be impossible for the business of the metropolis to go on.
In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:
The degree of care required of the plaintiff, or those in charged of his horse, at the time of the injury, is
that which would be exercised by a person of ordinary care and prudence under like circumstances. It
can not be said that the fact of leaving the horse unhitched is in itself negligence. Whether it is
negligence to leave a horse unhitched must be depend upon the disposition of the horse; whether he was
under the observation and control of some person all the time, and many other circumstances; and is a
question to be determined by the jury from the facts of each case.
In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the trial court to
refuse to charge that "it is not negligence for the driver of a quite, gentle horse to leave him unhitched and
otherwise unattended on the side of a public highways while the driver is upon the sidewalk loading goods on the
wagon." The said court closed its opinion with these words:
There was evidence which could have fully justified the jury in finding that the horse was quite and
gentle, and that the driver was upon the sidewalk loading goods on the wagon, at time of the alleged
injury, and that the horse had been used for years in that way without accident. The refusal of the trial
court to charge as requested left the jury free to find was verdict against the defendant, although the jury
was convinced that these facts were proven.lawphil.net
In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:
That evidence that a servant, whom traders employed to deliver goods, upon stopping with his horse and
wagon to deliver a parcel at a house from fifty to a hundred rods from a railroad crossing, left the horse
unfastened for four or five minutes while he was in the house, knowing that it was not afraid of cars, and

having used it for three or four months without ever hitching it or knowing it to start, is not conclusive,
as a matter of law, of a want of due care on his part.
The duty, a violation of which is claimed to be negligence in the respect in question, is to exercise reasonable care
and prudence. Where reasonable care is employed in doing an act not itself illegal or inherently likely to produce
damage to others, there will be no liability, although damage in fact ensues. (Milwaukee Ry. Co. vs.Arms, 91 U.
S., 489; Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6 Cushing, 292; Jackson Architectural Iron
Works vs. Hurlbut, 158 N. Y., 34 Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire Steam Laundry, 117
Cal., 257.)
The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or imprudent. Acts
the performance of which has not proved destructive or injurious and which have, therefore, been acquiesced in by
society for so long a time that they have ripened into custom, can not be held to be themselves unreasonable or
imprudent. Indeed the very reason why they have been permitted by society is that they beneficial rather than
prejudicial.itc-alf Accidents sometimes happen and injuries result from the most ordinary acts of life. But such are
not their natural or customary results. To hold that, because such an act once resulted in accident or injury, the
actor is necessarily negligent, is to go far. The fact that the doctrine of res ipsa loquitur is sometimes successfully
invoked in such a case, does not in any sense militate against the reasoning presented. That maxim at most only
creates a prima facie case, and that only in the absence of proof of the circumstances under which the act
complained of was performed. It is something invoked in favor of the plaintiff before defendant's case showing the
conditions and circumstances under which the injury occurred, the creative reason for the doctrine of res ipsa
loquitur disappears. This is demonstrated by the case of Inland and Seaboard Costing Co. vs. Tolson (139 U.S.,
551), where the court said (p. 554):
. . . The whole effect of the instruction in question, as applied to the case before the jury, was that if the
steamboat, on a calm day and in smooth water, was thrown with such force against a wharf properly
built, as to tear up some of the planks of the flooring, this would be prima facie evidence of negligence
on the part of the defendant's agent in making the landing, unless upon the whole evidence in the case
this prima facie evidence was rebutted. As such damage to a wharf is not ordinarily done by a steamboat
under control of her officers and carefully managed by them, evidence that such damage was done in
this case was prima facie, and, if unexplained, sufficient evidence of negligence on their part, and the
jury might properly be so instructed.
There was presented in this case, and by the plaintiffs themselves, not only the fact of the runway and the accident
resulting therefrom, but also the conditions under which the runaway occurred. Those conditions showing of
themselves that the defendant's cochero was not negligent in the management of the horse, the prima facie case in
plaintiffs' favor, if any, was destroyed as soon as made.
It is a matter of common knowledge as well as proof that it is the universal practice of merchants to deliver
merchandise of the kind of that being delivered at the time of the injury, in the manner in which that was then
being delivered; and that it is the universal practice to leave the horses in the manner in which they were left at the
time of the accident. This is the custom in all cities. It has not been productive of accidents or injuries. The public,
finding itself unprejudiced by such practice, has acquiesced for years without objection. Ought the public now,
through the courts, without prior objection or notice, to be permitted to reverse the practice of decades and thereby
make culpable and guilty one who had every reason and assurance to believe that he was acting under the sanction
of the strongest of all civil forces, the custom of a people? We think not.
The judgement is reversed, without special finding as to costs. So ordered.

ALBERT TISON and CLAUDIO L. JABON,

Petitioners,

G.R. No. 173180

-versusSPS. GREGORIO POMASIN and CONSORCIA PONCE

POMASIN, DIANNE POMASIN PAGUNSAN, CYNTHIA
POMASIN, SONIA PEROL, ANTONIO SESISTA, GINA
SESISTA, and REYNALDO SESISTA,
Respondents.

Promulgated:
August 24, 2011

x ----------------------------------------------------------------------------------------x
DECISION
PEREZ, J.:
Two vehicles, a tractor-trailer and a jitney,[1] figured in a vehicular mishap along Maharlika Highway
in Barangay Agos, Polangui, Albay last 12 August 1994. Laarni Pomasin (Laarni) was driving the jitney towards
the direction of Legaspi City while the tractor-trailer, driven by Claudio Jabon (Jabon), was traversing the opposite
lane going towards Naga City.[2]
The opposing parties gave two different versions of the incident.
Gregorio Pomasin (Gregorio), Laarnis father, was on board the jitney and seated on the passengers
side. He testified that while the jitney was passing through a curve going downward, he saw a tractor-trailer
coming from the opposite direction and encroaching on the jitneys lane. The jitney was hit by the tractor-trailer
and it was dragged further causing death and injuries to its passengers.[3]

On the other hand, Jabon recounted that while he was driving the tractor-trailer, he noticed a jitney on
the opposite lane falling off the shoulder of the road. Thereafter, it began running in a zigzag manner and heading
towards the direction of the truck. To avoid collision, Jabon immediately swerved the tractor-trailer to the right
where it hit a tree and sacks of palay. Unfortunately, the jitney still hit the left fender of the tractor-trailer before it
was thrown a few meters away. The tractor-trailer was likewise damaged.[4]
Multiple death and injuries to those in the jitney resulted.
Gregorio was injured and brought to the Albay Provincial Hospital in Legaspi City. His daughter,
Andrea Pomasin Pagunsan, sister Narcisa Pomasin Roncales and Abraham Dionisio Perol died on the spot. His
other daughter Laarni, the jitney driver, and granddaughter Annie Jane Pomasin Pagunsan expired at the
hospital. His wife, Consorcia Pomasin, another granddaughter Dianne Pomasin Pagunsan, Ricky Ponce, Vicente
Pomasin, Gina Sesista, Reynaldo Sesista, Antonio Sesista and Sonia Perol sustained injuries. [5] On the other hand,
Jabon and one of the passengers in the tractor-trailer were injured.[6]
Albert Tison (Tison), the owner of the truck, extended financial assistance to respondents by giving
them P1,000.00 each immediately after the accident and P200,000.00 to Cynthia Pomasin (Cynthia), one of
Gregorios daughters. Cynthia, in turn, executed an Affidavit of Desistance.
On 14 November 1994, respondents filed a complaint for damages against petitioners before the
Regional Trial Court (RTC) of Antipolo. They alleged that the proximate cause of the accident was the
negligence, imprudence and carelessness of petitioners. Respondents prayed for indemnification for the heirs of
those who perished in the accident at P50,000.00 each; P500,000.00 for hospitalization, medical and burial
expenses; P350,000.00 for continuous hospitalization and medical expenses of Spouses Pomasin;P1,000,000.00 as
moral damages; P250,000.00 as exemplary damages; P30,000.00 for loss of income of Cynthia; P100,000.00 as
attorneys fees plus P1,000.00 per court appearance; P50,000.00 for litigation expenses; and cost of suit. [7]
In their Answer, petitioners countered that it was Laarnis negligence which proximately caused the
accident. They further claimed that Cynthia was authorized by Spouses Pomasin to enter into an amicable
settlement by executing an Affidavit of Desistance. Notwithstanding the affidavit, petitioners complained that
respondents filed the instant complaint to harass them and profit from the recklessness of Laarni. Petitioners
counterclaimed for damages.

that Jabon was driving the tractor-trailer downward too fast and it encroached the lane of the jitney. Based on the
gravity of the impact and the damage caused to the jitney resulting in the death of some passengers, the Court of
Appeals inferred that Jabon must be speeding. The appellate court noted that the restriction in Jabons drivers
license was violated, thus, giving rise to the presumption that he was negligent at the time of the accident. Tison
was likewise held liable for damages for his failure to prove due diligence in supervising Jabon after he was hired
as driver of the truck. Finally, the appellate court disregarded the Affidavit of Desistance executed by Cynthia
because the latter had no written power of attorney from respondents and that she was so confused at the time
when she signed the affidavit that she did not read its content.
The dispositive portion of the assailed Decision states:
WHEREFORE, the present appeal is granted, and the trial courts Decision dated
February 7, 2003 is set aside. Defendants-appellees are ordered to pay plaintiffs-appellants or
their heirs the following:
a) Actual damages of P136,000.00 as above computed, to be offset with
the P200,000.00 received by plaintiff-appellant Cynthia Pomasin;
b) Civil indemnity of P50,000.00 for the death of each victim, to be offset with the
balance of P64,000.00 from the aforementioned P200,000.00 of civil indemnity received by
plaintiff-appellant Cynthia Pomasin. Hence, the net amount is computed at P37,200.00 each,
as follows:
Narcisa Pomasin
Laarni Pomasin
Andrea P. Pagunsan
Dionisio Perol
Annie Jane P. Pagunsan

P37,200.00
P37,200.00
P37,200.00
P37,200.00
P37,200.00

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

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

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

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

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

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

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

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

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

The trial court considered the testimony of Jabon regarding the incident more convincing and reliable
than that of Gregorios, a mere passenger, whose observation and attention to the road is not as focused as that of
the driver. The trial court concluded that Laarni caused the collision of the jitney and the tractor-trailer. The trial
court likewise upheld the Affidavit of Desistance as having been executed with the tacit consent of respondents.
The Court of Appeals disagreed with the trial court and ruled that the reckless driving of Jabon caused
the vehicular collision. In support of such finding, the Court of Appeals relied heavily on Gregorios testimony

The exceptions to the rule underscore the substance and weight of the findings of the trial court. They
render inconclusive contrary findings by the appellate court. The reason is now a fundamental principle:
[A]ppellate courts do not disturb the findings of the trial courts with regard to the assessment
of the credibility of witnesses. The reason for this is that trial courts have the unique
opportunity to observe the witneses first hand and note their demeanor, conduct and attitude
under grilling examination.
The exceptions to this rule are when the trial courts findings of facts and conclusions
are not supported by the evidence on record, or when certain facts of substance and value,
likely to change the outcome of the case, have been overlooked by the trial court, or when the
assailed decision is based on a misapprehension of facts.[14]
This interplay of rules and exceptions is more pronounced in this case of quasi-delict in which,
according to Article 2176 of the Civil Code, whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. To sustain a claim based on quasi-delict, the following
requisites must concur: (a) damage suffered by the plaintiff; (b) fault or negligence of defendant; and (c)
connection of cause and effect between the fault or negligence of defendant and the damage incurred by the
plaintiff.[15] These requisites must be proved by a preponderance of evidence. [16] The claimants, respondents in
this case, must, therefore, establish their claim or cause of action by preponderance of evidence, evidence which is
of greater weight, or more convincing than that which is offered in opposition to it. [17]
The trial court found that the jitney driver was negligent. We give weight to this finding greater than the
opposite conclusion reached by the appellate court that the driver of the tractor-trailer caused the vehicular
collision.
One reason why the trial court found credible the version of Jabon was because his concentration as
driver is more focused than that of a mere passenger. The trial court expounded, thus:
In the appreciation of the testimony of eye-witnesses, one overriding consideration is their
opportunity for observation in getting to know or actually seeing or observing the matter they testify
to. This most particularly holds true in vehicular collision or accident cases which oftentimes happen
merely momentarily or in the split of a second. In the case of a running or travelling vehicle, especially in
highway travel which doubtless involves faster speed than in ordinary roads, the driver is concentrated on
his driving continuously from moment to moment even in long trips. While in the case of a mere
passenger, he does not have to direct his attention to the safe conduct of the travelling vehicle, as in fact he
may converse with other passengers and pay no attention to the driving or safe conduct of the travelling
vehicle, as he may even doze off to sleep if he wants to, rendering his opportunity for observation on the
precise cause of the accident or collision or immediately preceding thereto not as much as that of the
driver whose attention is continuously focused on his driving. So that as between the respective versions
of the plaintiffs thru their passenger and that of the defendants thru their driver as to the cause or
antecedent causes that led to the vehicular collision in this case, the version of the driver of defendant
should ordinarily be more reliable than the version of a mere passenger of Plaintiffs vehicle, simply
because the attention of the passenger is not as much concentrated on the driving as that of the driver,
consequently the capacity for observation of the latter of the latter on the matter testified to which is the
precise point of inquiry --- the proximate cause of the accident --- is more reasonably reliable. Moreover,
the passengers vision is not as good as that of the driver from the vantage point of the drivers seat
especially in nighttime, thus rendering a passengers opportunity for observation on the antecedent causes
of the collision lesser than that of the driver. This being so, this Court is more inclined to believe the story
of defendants driver Claudio Jabon that the jitney driven by Laarni Pomasin fell off the shoulder of the
curved road causing it to run thereafter in a zigzag manner and in the process the two vehicles
approaching each other from opposite directions at highway speed came in contact with each other, the
zigzagging jeep hitting the left fender of the truck all the way to the fuel tank, the violent impact resulting
in the lighter vehicle, the jitney, being thrown away due to the disparate size of the truck.[18]

The appellate court labelled the trial courts rationalization as a sweeping conjecture [19] and countered
that Gregorio was actually occupying the front seat of the jitney and had actually a clear view of the incident
despite the fact that he was not driving. While it is logical that a drivers attention to the road travelled is keener
than that of a mere passenger, it should also be considered that the logic will hold only if the two are similarly
circumstanced, and only as a general rule, so that, it does not necessarily follow that between the opposing
testimonies of a driver and a passenger, the former is more credible. The factual setting of the event testified on
must certainly be considered.
The trial court did just that in the instant case. Contrary to the observation of the Court of Appeals, the
relative positions of a driver and a passenger in a vehicle was not the only basis of analysis of the trial
court. Notably, aside from Jabons alleged vantage point to clearly observe the incident, the trial court also took
into consideration Gregorios admission that prior to the accident, the jitney was running on the curving and
downward portion of the highway. The appellate court, however, took into account the other and opposite
testimony of Gregorio that it was their jitney that was going uphill and when it was about to reach a curve, he saw
the incoming truck running very fast and encroaching the jitneys lane.
We perused the transcript of stenographic notes and found that the truck was actually ascending the
highway when it collided with the descending jitney.
During the direct examination, Jabon narrated that the tractor-trailer was ascending at a speed of 35 to
40 kilometers per hour when he saw the jitney on the opposite lane running in a zigzag manner, thus:
Q:
Now, when you passed by the municipality of Polangui, Albay at about 5:00 of August 12, 1994, could you tell the Court
if there was any untoward incident that happened?
A:
There was sir.
Q:
Could you please tell the Court?
A:
While on my way to Liboro coming from Sorsogon, I met on my way a vehicle going on a zigzag direction and it even
fell on the shoulder and proceeded going on its way on a zigzag direction.
Q:
A:

Could you describe to the Court what was the kind of vehicle you saw running in zigzag direction?
A Toyota-jitney loaded with passengers with top-load.

Q:
A:

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

Yes, sir.

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

I was running 35 to 40 kilometers per hour because I was ascending plain. (Emphasis supplied).[20]
In that same direct examination, Jabon confirmed that he was ascending, viz:

Q:
A:

Could you please describe the condition in the area at the time of the incident, was it dark or day time?
It was still bright.

COURT: But it was not approaching sunset?

A:
Yes, sir.
Q:

Was there any rain at that time?

A:

None sir.

Q:
A:

So the road was dry?

Yes sir.

Q:
You said you were ascending towards the direction of Liboro, Camarines Sur, is that correct at the time the incident
happened?
A:
Yes sir.[21] (Emphasis supplied).
Upon the other hand, Gregorio, during his direct examination described the road condition where the collision took place as
curving and downward, thus:
Q:
A:

Could you please describe the place where the incident happened in so far as the road condition is concerned?
The road was curving and downward.

Q:
A:

And the road was of course clear from traffic, is that correct?
Yes sir.

Q:
A:

And practically, your jitney was the only car running at that time?
Yes sir.[22] (Emphasis supplied).

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

However, on rebuttal, Gregorio turned around and stated that the jitney was going uphill when he saw
the tractor-trailer running down very fact and encroaching on their lane, to wit:
Q:
Mr. Claudio Jabon, the driver of the trailer truck that collided with your owner jeepney that you were riding
testified in open Court on July 24, 1997 which I quote, while on my way to Liboro coming to Sorsogon I met a
vehicle going on a zig-zag direction and it even fell on the shoulder and proceeded going on its way on zig-zag
direction, what can you say about this statement of this witness?
A:
We were no[t] zigzagging but because we were going uphill and about to reach a curved (sic) we saw the oncoming vehicle going down very fast and encroaching on our lane so our driver swerved our vehicle to the right but
still we were hit by the on-coming vehicle.[23] (Emphasis supplied).

The declaration of Jabon with respect to the road condition was straightforward and consistent. The
recollection of Gregorio veered from curving and downward to uphill. [24] On this point, Jabon and his testimony
is more credible.
The fact that the jitney easily fell into the road shoulder, an undebated fact, supports the trial courts
conclusion that the jitney was indeed going downhill which, it may be repeated, was the original testimony of
Gregorio that the road was curving and downward.[25] It is this conclusion, prodded by the inconsistency of
Gregorios testimony, that gives credence to the further testimony of Jabon that the herein respondents jitney,
loaded with passengers with top-load was running in a zigzag manner.[26]
Going downward, the jitney had the tendency to accelerate. The fall into the shoulder of the road can
result in the loss of control of the jitney, which explains why it was running in a zigzag manner before it hit the
tractor-trailer.
There was no showing that the tractor-trailer was speeding. There is a preponderance of evidence that
the tractor-trailer was in fact ascending. Considering its size and the weight of the tractor-trailer, its speed could
not be more than that of a fully loaded jitney which was running downhill in a zigzagging manner.

Neither can it be inferred that Jabon was negligent. In hindsight, it can be argued that Jabon should have
swerved to the right upon seeing the jitney zigzagging before it collided with the tractor-trailer. Accidents,
though, happen in an instant, and, understandably in this case, leaving the driver without sufficient time and space
to maneuver a vehicle the size of a tractor-trailer uphill and away from collision with the jitney oncoming
downhill. Clearly, the negligence of Gregorios daughter, Laarni was the proximate cause of the accident.
We did not lose sight of the fact that at the time of the incident, Jabon was prohibited from driving the
truck due to the restriction imposed on his drivers license, i.e.,restriction code 2 and 3. As a matter of fact, Jabon
even asked the Land Transportation Office to reinstate his articulated license containing restriction code 8 which
would allow him to drive a tractor-trailer. The Court of Appeals concluded therefrom that Jabon was violating a
traffic regulation at the time of the collision.
Driving without a proper license is a violation of traffic regulation. Under Article 2185 of the Civil
Code, the legal presumption of negligence arises if at the time of the mishap, a person was violating any traffic
regulation. However, in Sanitary Steam Laundry, Inc. v. Court of Appeals,[27] we held that a causal connection
must exist between the injury received and the violation of the traffic regulation. It must be proven that the
violation of the traffic regulation was the proximate or legal cause of the injury or that it substantially contributed
thereto. Negligence, consisting in whole or in part, of violation of law, like any other negligence, is without legal
consequence unless it is a contributing cause of the injury.[28] Likewise controlling is our ruling in Aonuevo v.
Court of Appeals[29] where we reiterated that negligence per se, arising from the mere violation of a traffic statute,
need not be sufficient in itself in establishing liability for damages. In said case, Aonuevo, who was driving a
car, did not attempt to establish a causal connection between the safety violations imputed to the injured cyclist,
and the accident itself. Instead, he relied on a putative presumption that these violations in themselves sufficiently
established negligence appreciable against the cyclist. Since the onus on Aonuevo is to conclusively prove the
link between the violations and the accident, we can deem him as having failed to discharge his necessary burden
of proving the cyclists own liability.[30] We took the occasion to state that:
The rule on negligence per se must admit qualifications that may arise from the logical
consequences of the facts leading to the mishap. The doctrine (and Article 2185, for that matter) is
undeniably useful as a judicial guide in adjudging liability, for it seeks to impute culpability arising from
the failure of the actor to perform up to a standard established by a legal fiat. But the doctrine should not
be rendered inflexible so as to deny relief when in fact there is no causal relation between the statutory
violation and the injury sustained. Presumptions in law, while convenient, are not intractable so as to
forbid rebuttal rooted in fact. After all, tort law is remunerative in spirit, aiming to provide compensation
for the harm suffered by those whose interests have been invaded owing to the conduct of other. [31]

In the instant case, no causal connection was established between the tractor-trailer drivers restrictions
on his license to the vehicular collision. Furthermore, Jabon was able to sufficiently explain that the Land
Transportation Office merely erred in not including restriction code 8 in his license. Petitioners presented the
Affidavit of Desistance executed by Cynthia to exonerate them from any liability. An affidavit of desistance is
usually frowned upon by courts. Little or no persuasive value is often attached to a desistance.[32] The subject
affidavit does not deserve a second look more so that it appears that Cynthia was not armed with a special power
of attorney to enter into a settlement with petitioners. At any rate, it is an exercise of futility to delve into the
effects of the affidavit of desistance executed by one of the respondents since it has already been established that
petitioners are not negligent.
WHEREFORE, the petition is GRANTED. The challenged Decision and Resolution of the Court of
Appeals are REVERSED and SET ASIDE. Civil Case No. 94-3418 lodged before the Regional Trial Court of
Antipolo City, Branch 74, is DISMISSED for lack of merit.
G.R. No. 194320
Present:

MALAYAN INSURANCE CO., INC.,

Petitioner,
Promulgated:
- versus February 1, 2012
RODELIO ALBERTO and
ENRICO ALBERTO REYES,
Respondents.

In their Answer, respondents asserted that they cannot be held liable for the vehicular accident, since its
proximate cause was the reckless driving of the Nissan Bus driver. They alleged that the speeding bus, coming
from the service road of EDSA, maneuvered its way towards the middle lane without due regard to Reyes right of
way. When the Nissan Bus abruptly stopped, Reyes stepped hard on the brakes but the braking action could not
cope with the inertia and failed to gain sufficient traction. As a consequence, the Fuzo Cargo Truck hit the rear
end of the Mitsubishi Galant, which, in turn, hit the rear end of the vehicle in front of it. The Nissan Bus, on the
other hand, sideswiped the Fuzo Cargo Truck, causing damage to the latter in the amount of PhP
20,000. Respondents also controverted the results of the Police Report, asserting that it was based solely on the
biased narration of the Nissan Bus driver.[8]

x-----------------------------------------------------------------------------------------x
DECISION

After the termination of the pre-trial proceedings, trial ensued. Malayan Insurance presented the
testimony of its lone witness, a motor car claim adjuster, who attested that he processed the insurance claim of the
assured and verified the documents submitted to him. Respondents, on the other hand, failed to present any
evidence.

VELASCO, JR., J.:

The Case
Before Us is a Petition for Review on Certiorari under Rule 45, seeking to reverse and set aside the July
28, 2010 Decision[1] of the Court of Appeals (CA) and its October 29, 2010 Resolution [2] denying the motion for
reconsideration filed by petitioner Malayan Insurance Co., Inc. (Malayan Insurance). The July 28, 2010 CA
Decision reversed and set aside the Decision[3] dated February 2, 2009 of the Regional Trial Court, Branch 51
in Manila.

The Facts
At around 5 oclock in the morning of December 17, 1995, an accident occurred at the corner of EDSA
and Ayala Avenue, Makati City, involving four (4) vehicles, to wit: (1) a Nissan Bus operated by Aladdin Transit
with plate number NYS 381; (2) an Isuzu Tanker with plate number PLR 684; (3) a Fuzo Cargo Truck with plate
number PDL 297; and (4) a Mitsubishi Galant with plate number TLM 732.[4]
Based on the Police Report issued by the on-the-spot investigator, Senior Police Officer 1 Alfredo M.
Dungga (SPO1 Dungga), the Isuzu Tanker was in front of the Mitsubishi Galant with the Nissan Bus on their right
side shortly before the vehicular incident. All three (3) vehicles were at a halt along EDSA facing the south
direction when the Fuzo Cargo Truck simultaneously bumped the rear portion of the Mitsubishi Galant and the
rear left portion of the Nissan Bus. Due to the strong impact, these two vehicles were shoved forward and the
front left portion of the Mitsubishi Galant rammed into the rear right portion of the Isuzu Tanker. [5]
Previously, particularly on December 15, 1994, Malayan Insurance issued Car Insurance Policy No. PV025-00220 in favor of First Malayan Leasing and Finance Corporation (the assured), insuring the aforementioned
Mitsubishi Galant against third party liability, own damage and theft, among others. Having insured the vehicle
against such risks, Malayan Insurance claimed in its Complaint dated October 18, 1999 that it paid the damages
sustained by the assured amounting to PhP 700,000.[6]
Maintaining that it has been subrogated to the rights and interests of the assured by operation of law
upon its payment to the latter, Malayan Insurance sent several demand letters to respondents Rodelio Alberto
(Alberto) and Enrico Alberto Reyes (Reyes), the registered owner and the driver, respectively, of the Fuzo Cargo
Truck, requiring them to pay the amount it had paid to the assured. When respondents refused to settle their
liability, Malayan Insurance was constrained to file a complaint for damages for gross negligence against
respondents.[7]

In its Decision dated February 2, 2009, the trial court, in Civil Case No. 99-95885, ruled in favor of
Malayan Insurance and declared respondents liable for damages. The dispositive portion reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff against
defendants jointly and severally to pay plaintiff the following:
1. The amount of P700,000.00 with legal interest from the time of the
filing of the complaint;
2. Attorneys fees of P10,000.00 and;
3. Cost of suit.
SO ORDERED.[9]

Dissatisfied, respondents filed an appeal with the CA, docketed as CA-G.R. CV No. 93112. In its
Decision dated July 28, 2010, the CA reversed and set aside the Decision of the trial court and ruled in favor of
respondents, disposing:
WHEREFORE, the foregoing considered, the instant appeal is
hereby GRANTED and the assailed Decision dated 2 February 2009 REVERSED and SET
ASIDE. The Complaint dated 18 October 1999 is hereby DISMISSED for lack of merit. No
costs.
SO ORDERED.[10]

The CA held that the evidence on record has failed to establish not only negligence on the part of
respondents, but also compliance with the other requisites and the consequent right of Malayan Insurance to
subrogation.[11] It noted that the police report, which has been made part of the records of the trial court, was not
properly identified by the police officer who conducted the on-the-spot investigation of the subject collision. It,
thus, held that an appellate court, as a reviewing body, cannot rightly appreciate firsthand the genuineness of an
unverified and unidentified document, much less accord it evidentiary value.[12]
Subsequently, Malayan Insurance filed its Motion for Reconsideration, arguing that a police report is
a prima facie evidence of the facts stated in it. And inasmuch as they never questioned the presentation of the
report in evidence, respondents are deemed to have waived their right to question its authenticity and due
execution.[13]

In its Resolution dated October 29, 2010, the CA denied the motion for reconsideration. Hence,
Malayan Insurance filed the instant petition.

As discussed in D.M. Consunji, Inc. v. CA,[21] Hearsay is not limited to oral testimony or statements;
the general rule that excludes hearsay as evidence applies to written, as well as oral statements.

The Issues

There are several exceptions to the hearsay rule under the Rules of Court, among which are entries in
official records.[22] Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty by a public officer of
the Philippines, or by a person in the performance of a duty specially enjoined by law are
prima facie evidence of the facts therein stated.

In its Memorandum[14] dated June 27, 2011, Malayan Insurance raises the following issues for Our
consideration:
I
WHETHER THE CA ERRED IN REFUSING ADMISSIBILITY OF THE POLICE REPORT SINCE
THE POLICE INVESTIGATOR WHO PREPARED THE SAME DID NOT ACTUALLY TESTIFY IN
COURT THEREON.
II
WHETHER THE SUBROGATION OF MALAYAN INSURANCE IS IMPAIRED AND/OR
DEFICIENT.
On the other hand, respondents submit the following issues in its Memorandum[15] dated July 7, 2011:
I
WHETHER THE CA IS CORRECT IN DISMISSING THE COMPLAINT FOR FAILURE OF
MALAYAN INSURANCE TO OVERCOME THE BURDEN OF PROOF REQUIRED TO ESTABLISH
THE NEGLIGENCE OF RESPONDENTS.
II
WHETHER THE PIECES OF EVIDENCE PRESENTED BY MALAYAN INSURANCE ARE
SUFFICIENT TO CLAIM FOR THE AMOUNT OF DAMAGES.
III
WHETHER THE SUBROGATION OF MALAYAN INSURANCE HAS PASSED COMPLIANCE
AND REQUISITES AS PROVIDED UNDER PERTINENT LAWS.

In Alvarez v. PICOP Resources,[23] this Court reiterated the requisites for the admissibility in evidence,
as an exception to the hearsay rule of entries in official records, thus: (a) that the entry was made by a public
officer or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the
performance of his or her duties, or by such other person in the performance of a duty specially enjoined by law;
and (c) that the public officer or other person had sufficient knowledge of the facts by him or her stated, which
must have been acquired by the public officer or other person personally or through official information.
Notably, the presentation of the police report itself is admissible as an exception to the hearsay rule even
if the police investigator who prepared it was not presented in court, as long as the above requisites could be
adequately proved.[24]
Here, there is no dispute that SPO1 Dungga, the on-the-spot investigator, prepared the report, and he did
so in the performance of his duty. However, what is not clear is whether SPO1 Dungga had sufficient personal
knowledge of the facts contained in his report. Thus, the third requisite is lacking.
Respondents failed to make a timely objection to the police reports presentation in evidence; thus, they
are deemed to have waived their right to do so.[25] As a result, the police report is still admissible in evidence.

Sufficiency of Evidence
Essentially, the issues boil down to the following: (1) the admissibility of the police report; (2) the
sufficiency of the evidence to support a claim for gross negligence; and (3) the validity of subrogation in the
instant case.
Our Ruling
The petition has merit.
Admissibility of the Police Report
Malayan Insurance contends that, even without the presentation of the police investigator who prepared
the police report, said report is still admissible in evidence, especially since respondents failed to make a timely
objection to its presentation in evidence.[16] Respondents counter that since the police report was never confirmed
by the investigating police officer, it cannot be considered as part of the evidence on record. [17]
Indeed, under the rules of evidence, a witness can testify only to those facts which the witness knows of
his or her personal knowledge, that is, which are derived from the witness own perception. [18] Concomitantly, a
witness may not testify on matters which he or she merely learned from others either because said witness was
told or read or heard those matters.[19] Such testimony is considered hearsay and may not be received as proof of
the truth of what the witness has learned. This is known as the hearsay rule. [20]

Malayan Insurance contends that since Reyes, the driver of the Fuzo Cargo truck, bumped the rear of the
Mitsubishi Galant, he is presumed to be negligent unless proved otherwise. It further contends that respondents
failed to present any evidence to overturn the presumption of negligence. [26] Contrarily, respondents claim that
since Malayan Insurance did not present any witness who shall affirm any negligent act of Reyes in driving the
Fuzo Cargo truck before and after the incident, there is no evidence which would show negligence on the part of
respondents.[27]
We agree with Malayan Insurance. Even if We consider the inadmissibility of the police report in
evidence, still, respondents cannot evade liability by virtue of the res ipsa loquitur doctrine. The D.M. Consunji,
Inc. case is quite elucidating:
Petitioners contention, however, loses relevance in the face of the application of res ipsa loquitur by the CA.
The effect of the doctrine is to warrant a presumption or inference that the mere fall of the elevator was a result of
the person having charge of the instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa
loquitur is peculiar to the law of negligence which recognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of negligence.
The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or
injury will not generally give rise to an inference or presumption that it was due to negligence on
defendants part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction
speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or
circumstances accompanying an injury may be such as to raise a presumption, or at least permit an
inference of negligence on the part of the defendant, or some other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of was under
the control or management of the defendant, and that the occurrence resulting in the injury was such as in
the ordinary course of things would not happen if those who had its control or management used proper
care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the absence of
explanation by the defendant, that the injury arose from or was caused by the defendants want of care.
One of the theoretical bases for the doctrine is its necessity, i.e., that necessary evidence is absent or not
available.
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of
ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to allege negligence
in general terms and to rely upon the proof of the happening of the accident in order to establish negligence.
The inference which the doctrine permits is grounded upon the fact that the chief evidence of the true cause,
whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured
person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without
knowledge of the cause, reaches over to defendant who knows or should know the cause, for any
explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains.
The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in that it proceeds on the theory
that under the peculiar circumstances in which the doctrine is applicable, it is within the power of the
defendant to show that there was no negligence on his part, and direct proof of defendants negligence is
beyond plaintiffs power. Accordingly, some courts add to the three prerequisites for the application of
theres ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must
appear that the injured party had no knowledge or means of knowledge as to the cause of the accident, or
that the party to be charged with negligence has superior knowledge or opportunity for explanation of the
accident.
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
There is no dispute that appellees husband fell down from the 14th floor of a building to the basement
while he was working with appellants construction project, resulting to his death. The construction site is
within the exclusive control and management of appellant. It has a safety engineer, a project superintendent,
a carpenter leadman and others who are in complete control of the situation therein. The circumstances of
any accident that would occur therein are peculiarly within the knowledge of the appellant or its employees.
On the other hand, the appellee is not in a position to know what caused the accident. Res ipsa loquitur is a
rule of necessity and it applies where evidence is absent or not readily available, provided the following
requisites are present: (1) the accident was of a kind which does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the
person charged with negligence; and (3) the injury suffered must not have been due to any voluntary action
or contribution on the part of the person injured. x x x.
No worker is going to fall from the 14th floor of a building to the basement while performing work in a
construction site unless someone is negligent[;] thus, the first requisite for the application of the rule of res
ipsa loquitur is present. As explained earlier, the construction site with all its paraphernalia and human
resources that likely caused the injury is under the exclusive control and management of appellant[;] thus[,]
the second requisite is also present. No contributory negligence was attributed to the appellees deceased
husband[;] thus[,] the last requisite is also present. All the requisites for the application of the rule of res
ipsa loquitur are present, thus a reasonable presumption or inference of appellants negligence arises. x x x.

Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues that
the presumption or inference that it was negligent did not arise since it proved that it exercised due care to avoid
the accident which befell respondents husband.
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the defendants
negligence is presumed or inferred when the plaintiff establishes the requisites for the application of res ipsa
loquitur. Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant
to explain. The presumption or inference may be rebutted or overcome by other evidence and, under appropriate
circumstances a disputable presumption, such as that of due care or innocence, may outweigh the inference. It is
not for the defendant to explain or prove its defense to prevent the presumption or inference from arising.
Evidence by the defendant of say, due care, comes into play only after the circumstances for the application of
the doctrine has been established.[28]

In the case at bar, aside from the statement in the police report, none of the parties disputes the fact
that the Fuzo Cargo Truck hit the rear end of the Mitsubishi Galant, which, in turn, hit the rear end of the vehicle
in front of it. Respondents, however, point to the reckless driving of the Nissan Bus driver as the proximate cause
of the collision, which allegation is totally unsupported by any evidence on record. And assuming that this
allegation is, indeed, true, it is astonishing that respondents never even bothered to file a cross-claim against the
owner or driver of the Nissan Bus.
What is at once evident from the instant case, however, is the presence of all the requisites for the
application of the rule of res ipsa loquitur. To reiterate, res ipsa loquituris a rule of necessity which applies where
evidence is absent or not readily available. As explained in D.M. Consunji, Inc., it is partly based upon the theory
that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident
or has the best opportunity of ascertaining it and that the plaintiff has no such knowledge, and, therefore, is
compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in
order to establish negligence.
As mentioned above, the requisites for the application of the res ipsa loquitur rule are the following: (1)
the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or
agency which caused the injury was under the exclusive control of the person charged with negligence; and (3) the
injury suffered must not have been due to any voluntary action or contribution on the part of the person injured. [29]
In the instant case, the Fuzo Cargo Truck would not have had hit the rear end of the Mitsubishi Galant
unless someone is negligent. Also, the Fuzo Cargo Truck was under the exclusive control of its driver, Reyes.
Even if respondents avert liability by putting the blame on the Nissan Bus driver, still, this allegation was selfserving and totally unfounded. Finally, no contributory negligence was attributed to the driver of the Mitsubishi
Galant. Consequently, all the requisites for the application of the doctrine of res ipsa loquitur are present, thereby
creating a reasonable presumption of negligence on the part of respondents.
It is worth mentioning that just like any other disputable presumptions or inferences, the presumption of
negligence may be rebutted or overcome by other evidence to the contrary. It is unfortunate, however, that
respondents failed to present any evidence before the trial court. Thus, the presumption of negligence remains.
Consequently, the CA erred in dismissing the complaint for Malayan Insurances adverted failure to prove
negligence on the part of respondents.
Validity of Subrogation
Malayan Insurance contends that there was a valid subrogation in the instant case, as evidenced by the
claim check voucher[30] and the Release of Claim and Subrogation Receipt[31] presented by it before the trial court.
Respondents, however, claim that the documents presented by Malayan Insurance do not indicate certain
important details that would show proper subrogation.

As noted by Malayan Insurance, respondents had all the opportunity, but failed to object to the
presentation of its evidence. Thus, and as We have mentioned earlier, respondents are deemed to have waived
their right to make an objection. As this Court held in Asian Construction and Development Corporation v.
COMFAC Corporation:

No pronouncement as to cost.

The rule is that failure to object to the offered evidence renders it admissible,
and the court cannot, on its own, disregard such evidence. We note that
ASIAKONSTRUCTs counsel of record before the trial court, Atty. Bernard Dy, who actively
participated in the initial stages of the case stopped attending the hearings when COMFAC
was about to end its presentation. Thus, ASIAKONSTRUCT could not object to COMFACs
offer of evidence nor present evidence in its defense; ASIAKONSTRUCT was deemed by the
trial court to have waived its chance to do so.
Note also that when a party desires the court to reject the evidence offered, it
must so state in the form of a timely objection and it cannot raise the objection to the
evidence for the first time on appeal. Because of a partys failure to timely object, the
evidence becomes part of the evidence in the case. Thereafter, all the parties are
considered bound by any outcome arising from the offer of evidence properly
presented.[32] (Emphasis supplied.)

Bearing in mind that the claim check voucher and the Release of Claim and Subrogation Receipt
presented by Malayan Insurance are already part of the evidence on record, and since it is not disputed that the
insurance company, indeed, paid PhP 700,000 to the assured, then there is a valid subrogation in the case at bar.
As explained inKeppel Cebu Shipyard, Inc. v. Pioneer Insurance and Surety Corporation:

Subrogation is the substitution of one person by another with reference to a lawful

claim or right, so that he who is substituted succeeds to the rights of the other in relation to a
debt or claim, including its remedies or securities. The principle covers a situation wherein an
insurer has paid a loss under an insurance policy is entitled to all the rights and remedies
belonging to the insured against a third party with respect to any loss covered by the policy. It
contemplates full substitution such that it places the party subrogated in the shoes of the
creditor, and he may use all means that the creditor could employ to enforce payment.
We have held that payment by the insurer to the insured operates as an equitable
assignment to the insurer of all the remedies that the insured may have against the third party
whose negligence or wrongful act caused the loss. The right of subrogation is not dependent
upon, nor does it grow out of, any privity of contract. It accrues simply upon payment by the
insurance company of the insurance claim. The doctrine of subrogation has its roots in equity.
It is designed to promote and to accomplish justice; and is the mode that equity adopts to
compel the ultimate payment of a debt by one who, in justice, equity, and good conscience,
ought to pay.[33]
Considering the above ruling, it is only but proper that Malayan Insurance be subrogated to the rights of
the assured.
WHEREFORE, the petition is hereby GRANTED. The CAs July 28, 2010 Decision and October 29,
2010 Resolution in CA-G.R. CV No. 93112 are herebyREVERSED and SET ASIDE. The Decision dated
February 2, 2009 issued by the trial court in Civil Case No. 99-95885 is hereby REINSTATED.

G.R. No. 137873

April 20, 2001
D.
M.
CONSUNJI,
INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc., fell 14 floors
from the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report dated November
25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he was
pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m.
of the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together with
Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s] at the elevator core of the
14th floor of the Tower D, Renaissance Tower Building on board a [p]latform made of channel beam
(steel) measuring 4.8 meters by 2 meters wide with pinulid plywood flooring and cable wires attached to
its four corners and hooked at the 5 ton chain block, when suddenly, the bolt or pin which was merely
inserted to connect the chain block with the [p]latform, got loose xxx causing the whole [p]latform
assembly and the victim to fall down to the basement of the elevator core, Tower D of the building
under construction thereby crushing the victim of death, save his two (2) companions who luckily
jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on board and
performing work, fell. And the falling of the [p]latform was due to the removal or getting loose of the

pin which was merely inserted to the connecting points of the chain block and [p]latform but without a
safety lock.1
On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint for
damages against the deceaseds employer, D.M. Consunji, Inc. The employer raised, among other defenses, the
widows prior availment of the benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of the RTC
decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juegos earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS ADMISSIBLE
EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA
LOQUITOR[sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT
UNDER ARTICLE 2180 OF THE CIVIL CODE, AND
THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED
FROM RECOVERING DAMAGES UNDER THE CIVIL CODE.3

Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible. The CA ruled
otherwise. It held that said report, being an entry in official records, is an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of his personal
knowledge, that is, which are derived from his perception.4 A witness, therefore, may not testify as what he merely
learned from others either because he was told or read or heard the same. Such testimony is considered hearsay
and may not be received as proof of the truth of what he has learned.5 This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to
written, as well as oral statements.6
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and
untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and
exposed by the test of cross-examiantion.7 The hearsay rule, therefore, excludes evidence that cannot be tested by
cross-examination.8
The Rules of Court allow several exceptions to the rule,9 among which are entries in official records. Section 44,
Rule 130 provides:
Entries in official records made in the performance of his duty made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law
areprima facie evidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran, enumerated the
requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts by him stated, which
must have been acquired by him personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends that the last requisite is not
present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial court.
InRodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the officer who signed the fire

report also testified before the trial court. This Court held that the report was inadmissible for the purpose of
proving the truth of the statements contained in the report but admissible insofar as it constitutes part of the
testimony of the officer who executed the report.
x x x. Since Major Enriquez himself took the witness stand and was available for cross-examination, the
portions of the report which were of his personal knowledge or which consisted of his perceptions and
conclusions were not hearsay. The rest of the report, such as the summary of the statements of the
parties based on their sworn statements (which were annexed to the Report) as well as the latter, having
been included in the first purpose of the offer [as part of the testimony of Major Enriquez], may then be
considered as independently relevant statements which were gathered in the course of the investigation
and may thus be admitted as such, but not necessarily to prove the truth thereof. It has been said that:
"Where regardless of the truth or falsity of a statement, the fact that it has been made is
relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the
making of such statement is not secondary but primary, for the statement itself may constitute
a fact in issue, or be circumstantially relevant as to the existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself
available for cross-examination by the adverse party, the Report, insofar as it proved that certain
utterances were made (but not their truth), was effectively removed from the ambit of the
aforementioned Section 44 of Rule 130. Properly understood, this section does away with the testimony
in open court of the officer who made the official record, considers the matter as an exception to the
hearsay rule and makes the entries in said official record admissible in evidence as prima facie evidence
of the facts therein stated. The underlying reasons for this exceptionary rule are necessity and
trustworthiness, as explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily needed; the occasions in
which the officials would be summoned from his ordinary duties to declare as a witness are
numberless. The public officers are few in whose daily work something is not done in which
testimony is not needed from official sources. Were there no exception for official statements,
hosts of officials would be found devoting the greater part of their time to attending as
witnesses in court or delivering deposition before an officer. The work of administration of
government and the interest of the public having business with officials would alike suffer in
consequence. For these reasons, and for many others, a certain verity is accorded such
documents, which is not extended to private documents. (3 Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will discharge
their several trusts with accuracy and fidelity; and, therefore, whatever acts they do in
discharge of their duty may be given in evidence and shall be taken to be true under such a
degree of caution as to the nature and circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testify on his
report. In that case the applicability of Section 44 of Rule 143 would have been ripe for determination,
and this Court would have agreed with the Court of Appeals that said report was inadmissible since the
aforementioned third requisite was not satisfied. The statements given by the sources of information of
Major Enriquez failed to qualify as "official information," there being no showing that, at the very least,
they were under a duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the statements
contained therein but is admissible insofar as it constitutes part of the testimony of PO3 Villanueva.
In any case, the Court holds that portions of PO3 Villanuevas testimony which were of his personal knowledge
suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva had seen Juegos
remains at the morgue,12 making the latters death beyond dispute. PO3 Villanueva also conducted an ocular
inspection of the premises of the building the day after the incident 13 and saw the platform for himself.14 He
observed that the platform was crushed15 and that it was totally damaged.16 PO3 Villanueva also required Garcia
and Fabro to bring the chain block to the police headquarters. Upon inspection, he noticed that the chain was
detached from the lifting machine, without any pin or bolt.17

What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the fall of the
platform was the loosening of the bolt from the chain block. It is claimed that such portion of the testimony is
mere opinion. Subject to certain exceptions,18 the opinion of a witness is generally not admissible.19
Petitioners contention, however, loses relevance in the face of the application of res ipsa loquitur by the CA. The
effect of the doctrine is to warrant a presumption or inference that the mere fall of the elevator was a result of the
person having charge of the instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa
loquituris peculiar to the law of negligence which recognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of negligence. 20
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or
injury will not generally give rise to an inference or presumption that it was due to negligence on
defendants part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction
speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or
circumstances accompanying an injury may be such as to raise a presumption, or at least permit an
inference of negligence on the part of the defendant, or some other person who is charged with
negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of was
under the control or management of the defendant, and that the occurrence resulting in the injury was
such as in the ordinary course of things would not happen if those who had its control or management
used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the
absence of explanation by the defendant, that the injury arose from or was caused by the defendants
want of care.21
One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent or not
available.22
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to
allege negligence in general terms and to rely upon the proof of the happening of the accident in order to
establish negligence. The inference which the doctrine permits is grounded upon the fact that the chief
evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but
inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without
knowledge of the cause, reaches over to defendant who knows or should know the cause, for any
explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains.
The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in that it proceeds on the
theory that under the peculiar circumstances in which the doctrine is applicable, it is within the power of
the defendant to show that there was no negligence on his part, and direct proof of defendants
negligence is beyond plaintiffs power. Accordingly, some court add to the three prerequisites for the
application of the res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine
to apply, it must appear that the injured party had no knowledge or means of knowledge as to the cause
of the accident, or that the party to be charged with negligence has superior knowledge or opportunity
for explanation of the accident.23
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
There is no dispute that appellees husband fell down from the 14th floor of a building to the basement
while he was working with appellants construction project, resulting to his death. The construction site
is within the exclusive control and management of appellant. It has a safety engineer, a project
superintendent, a carpenter leadman and others who are in complete control of the situation therein. The
circumstances of any accident that would occur therein are peculiarly within the knowledge of the
appellant or its employees. On the other hand, the appellee is not in a position to know what caused the
accident. Res ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily
available, provided the following requisites are present: (1) the accident was of a kind which does not
ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury

was under the exclusive control of the person charged with negligence; and (3) the injury suffered must
not have been due to any voluntary action or contribution on the part of the person injured. x x x.
No worker is going to fall from the 14th floor of a building to the basement while performing work in a
construction site unless someone is negligent[;] thus, the first requisite for the application of the rule
of res ipsa loquitur is present. As explained earlier, the construction site with all its paraphernalia and
human resources that likely caused the injury is under the exclusive control and management of
appellant[;] thus[,] the second requisite is also present. No contributory negligence was attributed to the
appellees deceased husband[;] thus[,] the last requisite is also present. All the requisites for the
application of the rule of res ipsa loquitur are present, thus a reasonable presumption or inference of
appellants negligence arises. x x x.24
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues that
the presumption or inference that it was negligent did not arise since it "proved that it exercised due care to avoid
the accident which befell respondents husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the defendants
negligence is presumed or inferred25 when the plaintiff establishes the requisites for the application of res ipsa
loquitur. Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant to
explain.26 The presumption or inference may be rebutted or overcome by other evidence and, under appropriate
circumstances disputable presumption, such as that of due care or innocence, may outweigh the inference. 27 It is
not for the defendant to explain or prove its defense to prevent the presumption or inference from arising.
Evidence by the defendant of say, due care, comes into play only after the circumstances for the application of the
doctrine has been established.1wphi1.nt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the police
investigator as evidence of its due care. According to Fabros sworn statement, the company enacted rules and
regulations for the safety and security of its workers. Moreover, the leadman and the bodegero inspect the chain
block before allowing its use.
It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in arguing that private
respondent failed to prove negligence on the part of petitioners employees, also assails the same statement for
being hearsay.
Petitioner is correct. Fabros sworn statement is hearsay and inadmissible. Affidavits are inadmissible as evidence
under the hearsay rule, unless the affiant is placed on the witness stand to testify thereon. 28 The inadmissibility of
this sort of evidence is based not only on the lack of opportunity on the part of the adverse party to cross-examine
the affiant, but also on the commonly known fact that, generally, an affidavit is not prepared by the affiant himself
but by another who uses his own language in writing the affiants statements which may either be omitted or
misunderstood by the one writing them.29 Petitioner, therefore, cannot use said statement as proof of its due care
any more than private respondent can use it to prove the cause of her husbands death. Regrettably, petitioner does
not cite any other evidence to rebut the inference or presumption of negligence arising from the application of res
ipsa loquitur, or to establish any defense relating to the incident.
Next, petitioner argues that private respondent had previously availed of the death benefits provided under the
Labor Code and is, therefore, precluded from claiming from the deceaseds employer damages under the Civil
Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. Unless otherwise provided, the liability of the State Insurance Fund
under this Title shall be exclusive and in place of all other liabilities of the employer to the employee, his
dependents or anyone otherwise entitled to receive damages on behalf of the employee or his
dependents. The payment of compensation under this Title shall not bar the recovery of benefits as
provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven hundred
sixty-one, as amended, Republic Act Numbered Six hundred ten, as amended, Republic Act Numbered
Forty-eight hundred sixty-four as amended, and other laws whose benefits are administered by the
System or by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmens Compensation Act, provided that:
Section 5. Exclusive right to compensation. The rights and remedies granted by this Act to an
employee by reason of a personal injury entitling him to compensation shall exclude all other rights and

remedies accruing to the employee, his personal representatives, dependents or nearest of kin against
the employer under the Civil Code and other laws because of said injury x x x.
Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act as well as under the
Civil Code used to be the subject of conflicting decisions. The Court finally settled the matter in Floresca
vs.Philex Mining Corporation,30 which involved a cave-in resulting in the death of the employees of the Philex
Mining Corporation. Alleging that the mining corporation, in violation of government rules and regulations, failed
to take the required precautions for the protection of the employees, the heirs of the deceased employees filed a
complaint against Philex Mining in the Court of First Instance (CFI). Upon motion of Philex Mining, the CFI
dismissed the complaint for lack of jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En Banc,31 following the
rule in Pacaa vs. Cebu Autobus Company, held in the affirmative.
WE now come to the query as to whether or not the injured employee or his heirs in case of death have a
right of selection or choice of action between availing themselves of the workers right under the
Workmens Compensation Act and suing in the regular courts under the Civil Code for higher damages
(actual, moral and exemplary) from the employers by virtue of the negligence or fault of the employers
or whether they may avail themselves cumulatively of both actions, i.e., collect the limited
compensation under the Workmens Compensation Act and sue in addition for damages in the regular
courts.
In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA 442, ruled
thatan injured worker has a choice of either to recover from the employer the fixed amounts set by the
Workmens Compensation Act or to prosecute an ordinary civil action against the tortfeasor for higher
damages but he cannot pursue both courses of action simultaneously. [Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the Civil Code
despite having availed of the benefits provided under the Workmens Compensation Act. The Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14, 1968
before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr.,
Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for compensation to the
Regional Office No. 1 of the then Department of Labor and all of them have been paid in full as of
August 25, 1967, except Saturnino Martinez whose heirs decided that they be paid in installments x x x.
Such allegation was admitted by herein petitioners in their opposition to the motion to dismiss dated
may 27, 1968 x x x in the lower court, but they set up the defense that the claims were filed under the
Workmens Compensation Act before they learned of the official report of the committee created to
investigate the accident which established the criminal negligence and violation of law by Philex, and
which report was forwarded by the Director of Mines to then Executive Secretary Rafael Salas in a letter
dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits under the Workmens
Compensation Act, such my not preclude them from bringing an action before the regular court because
they became cognizant of the fact that Philex has been remiss in its contractual obligations with the
deceased miners only after receiving compensation under the Act. Had petitioners been aware of said
violation of government rules and regulations by Philex, and of its negligence, they would not have
sought redress under the Workmens Compensation Commission which awarded a lesser amount for
compensation. The choice of the first remedy was based on ignorance or a mistake of fact, which
nullifies the choice as it was not an intelligent choice. The case should therefore be remanded to the
lower court for further proceedings. However, should the petitioners be successful in their bid before the
lower court, the payments made under the Workmens Compensation Act should be deducted from the
damages that may be decreed in their favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs. Abeleda.34 In the
last case, the Court again recognized that a claimant who had been paid under the Act could still sue under the
Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the course of their
employment could be filed only under the Workmens Compensation Law, to the exclusion of all further

claims under other laws. In Floresca, this doctrine was abrogated in favor of the new rule that the
claimants may invoke either the Workmens Compensation Act or the provisions of the Civil Code,
subject to the consequence that the choice of one remedy will exclude the other and that the acceptance
of compensation under the remedy chosen will preclude a claim for additional benefits under the other
remedy. The exception is where a claimant who has already been paid under the Workmens
Compensation Act may still sue for damages under the Civil Code on the basis of supervening facts or
developments occurring after he opted for the first remedy. (Underscoring supplied.)
Here, the CA held that private respondents case came under the exception because private respondent was
unaware of petitioners negligence when she filed her claim for death benefits from the State Insurance Fund.
Private respondent filed the civil complaint for damages after she received a copy of the police investigation report
and the Prosecutors Memorandum dismissing the criminal complaint against petitioners personnel. While stating
that there was no negligence attributable to the respondents in the complaint, the prosecutor nevertheless noted in
the Memorandum that, "if at all," the "case is civil in nature." The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as early as
November 25, 1990, the date of the police investigators report. The appellee merely executed her sworn
statement before the police investigator concerning her personal circumstances, her relation to the
victim, and her knowledge of the accident. She did not file the complaint for "Simple Negligence
Resulting to Homicide" against appellants employees. It was the investigator who recommended the
filing of said case and his supervisor referred the same to the prosecutors office. This is a standard
operating procedure for police investigators which appellee may not have even known. This may explain
why no complainant is mentioned in the preliminary statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are being charged by
complainant of "Simple Negligence Resulting to Homicide." It is also possible that the appellee did not
have a chance to appear before the public prosecutor as can be inferred from the following statement in
said memorandum: "Respondents who were notified pursuant to Law waived their rights to present
controverting evidence," thus there was no reason for the public prosecutor to summon the appellee.
Hence, notice of appellants negligence cannot be imputed on appellee before she applied for death
benefits under ECC or before she received the first payment therefrom. Her using the police
investigation report to support her complaint filed on May 9, 1991 may just be an afterthought after
receiving a copy of the February 6, 1991 Memorandum of the Prosecutors Office dismissing the
criminal complaint for insufficiency of evidence, stating therein that: "The death of the victim is not
attributable to any negligence on the part of the respondents. If at all and as shown by the records this
case is civil in nature." (Underscoring supplied.) Considering the foregoing, We are more inclined to
believe appellees allegation that she learned about appellants negligence only after she applied for and
received the benefits under ECC. This is a mistake of fact that will make this case fall under the
exception held in the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts, but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her educational
attainment; that she did not know what damages could be recovered from the death of her husband; and
that she did not know that she may also recover more from the Civil Code than from the ECC. x x x.36
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her complaint that
her application and receipt of benefits from the ECC were attended by ignorance or mistake of fact. Not being an
issue submitted during the trial, the trial court had no authority to hear or adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts because as early as
November 28, 1990, private respondent was the complainant in a criminal complaint for "Simple Negligence
Resulting to Homicide" against petitioners employees. On February 6, 1991, two months before the filing of the
action in the lower court, Prosecutor Lorna Lee issued a resolution finding that, although there was insufficient
evidence against petitioners employees, the case was "civil in nature." These purportedly show that prior to her
receipt of death benefits from the ECC on January 2, 1991 and every month thereafter, private respondent also
knew of the two choices of remedies available to her and yet she chose to claim and receive the benefits from the
ECC.

When a party having knowledge of the facts makes an election between inconsistent remedies, the election is final
and bars any action, suit, or proceeding inconsistent with the elected remedy, in the absence of fraud by the other
party. The first act of election acts as a bar.37 Equitable in nature, the doctrine of election of remedies is designed
to mitigate possible unfairness to both parties. It rests on the moral premise that it is fair to hold people responsible
for their choices. The purpose of the doctrine is not to prevent any recourse to any remedy, but to prevent a double
redress for a single wrong.38
The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule
in Florescathat a claimant cannot simultaneously pursue recovery under the Labor Code and prosecute an ordinary
course of action under the Civil Code. The claimant, by his choice of one remedy, is deemed to have waived the
other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not
to assert them. It must be generally shown by the party claiming a waiver that the person against whom
the waiver is asserted had at the time knowledge, actual or constructive, of the existence of the partys
rights or of all material facts upon which they depended. Where one lacks knowledge of a right, there is
no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver cannot
be established by a consent given under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a right exists and has
adequate knowledge upon which to make an intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an awareness of
its consequences. That a waiver is made knowingly and intelligently must be illustrated on the record or
by the evidence.40
That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception in Floresca.
It is in light of the foregoing principles that we address petitioners contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her complaint that
she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden private respondent with
raising waiver as an issue. On the contrary, it is the defendant who ought to plead waiver, as petitioner did in
pages 2-3 of its Answer;41 otherwise, the defense is waived. It is, therefore, perplexing for petitioner to now
contend that the trial court had no jurisdiction over the issue when petitioner itself pleaded waiver in the
proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her husbands death and the rights
pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the "fact" that
served as a basis for nullifying the waiver is the negligence of petitioners employees, of which private respondent
purportedly learned only after the prosecutor issued a resolution stating that there may be civil liability.
InFloresca, it was the negligence of the mining corporation and its violation of government rules and regulations.
Negligence, or violation of government rules and regulations, for that matter, however, is not a fact, but
aconclusion of law, over which only the courts have the final say. Such a conclusion binds no one until the courts
have decreed so. It appears, therefore, that the principle that ignorance or mistake of fact nullifies a waiver has
been misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the elevator crash when on
November 15, 1990 she accomplished her application for benefits from the ECC. The police investigation report is
dated November 25, 1990, 10 days after the accomplishment of the form. Petitioner filed the application in her
behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies available to her when the claim before the
ECC was filed. On the contrary, private respondent testified that she was not aware of her rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one from
compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution form part of the
Philippine legal system (Article 8, Civil Code), private respondent cannot claim ignorance of this Courts ruling
inFloresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory laws. 42 This may
be deduced from the language of the provision, which, notwithstanding a persons ignorance, does not excuse his

or her compliance with the laws. The rule in Floresca allowing private respondent a choice of remedies is neither
mandatory nor prohibitory. Accordingly, her ignorance thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the total amount
private respondent ought to receive from the ECC, although it appears from Exhibit "K"43 that she received
P3,581.85 as initial payment representing the accrued pension from November 1990 to March 1991. Her initial
monthly pension, according to the same Exhibit "K," was P596.97 and present total monthly pension was P716.40.
Whether the total amount she will eventually receive from the ECC is less than the sum of P644,000.00 in total
damages awarded by the trial court is subject to speculation, and the case is remanded to the trial court for such
determination. Should the trial court find that its award is greater than that of the ECC, payments already received
by private respondent under the Labor Code shall be deducted from the trial court' award of damages. Consistent
with our ruling in Floresca, this adjudication aims to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether the
award decreed in its decision is more than that of the ECC. Should the award decreed by the trial court be greater
than that awarded by the ECC, payments already made to private respondent pursuant to the Labor Code shall be
deducted therefrom. In all other respects, the Decision of the Court of Appeals is AFFIRMED.

DR. EMMANUEL JARCIA, JR.and DR. MARILOU

BASTAN,
Petitioners,

G.R. No. 187926

Present:
CARPIO,* J.,
PERALTA,** Acting Chairperson,
ABAD,
PEREZ,*** and
MENDOZA, JJ.

- versus -

Promulgated:
PEOPLE OF THEPHILIPPINES,
Respondent.

February 15, 2012

x --------------------------------------------------------------------------------------- x
DECISION
MENDOZA, J.:

Even early on, patients have consigned their lives to the skill of their doctors. Time
and again, it can be said that the most important goal of the medical profession is the
preservation of life and health of the people. Corollarily, when a physician departs from his
sacred duty and endangers instead the life of his patient, he must be made liable for the
resulting injury. This Court, as this case would show, cannot and will not let the act go
unpunished.[1]
This is a petition for review under Rule 45 of the Rules of Court challenging the August 29, 2008
Decision[2] of the Court of Appeals (CA), and its May 19, 2009 Resolution[3] in CA-G.R. CR No. 29559,
dismissing the appeal and affirming in toto the June 14, 2005 Decision[4] of the Regional Trial Court, Branch 43,
Manila (RTC), finding the accused guilty beyond reasonable doubt of simple imprudence resulting to serious
physical injuries.

THE FACTS
Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of
Investigation (NBI) against the petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr.
Bastan), for their alleged neglect of professional duty which caused her son, Roy Alfonso Santiago (Roy Jr.), to
suffer serious physical injuries. Upon investigation, the NBI found that Roy Jr. was hit by a taxicab; that he was
rushed to the Manila Doctors Hospital for an emergency medical treatment; that an X-ray of the victims ankle
was ordered; that the X-ray result showed no fracture as read by Dr. Jarcia; that Dr. Bastan entered the emergency
room (ER) and, after conducting her own examination of the victim, informed Mrs. Santiago that since it was only
the ankle that was hit, there was no need to examine the upper leg; that eleven (11) days later, Roy Jr. developed
fever, swelling of the right leg and misalignment of the right foot; that Mrs. Santiago brought him back to the
hospital; and that the X-ray revealed a right mid-tibial fracture and a linear hairline fracture in the shaft of the
bone.
The NBI indorsed the matter to the Office of the City Prosecutor of Manila for preliminary
investigation. Probable cause was found and a criminal case for reckless imprudence resulting to serious physical
injuries, was filed against Dr. Jarcia, Dr. Bastan and Dr. Pamittan,[5] before the RTC, docketed as Criminal Case
No. 01-196646.
On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of the crime of Simple
Imprudence Resulting to Serious Physical Injuries. The decretal portion of the RTC decision reads:
WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL JARCIA, JR. and DR.
MARILOU BASTAN GUILTY beyond reasonable doubt of the crime of SIMPLE IMPRUDENCE
RESULTING TO SERIOUS PHYSICAL INJURIES and are hereby sentenced to suffer the penalty of ONE (1)
MONTH and ONE (1) DAY to TWO (2) MONTHS and to indemnify MRS. BELINDA SANTIAGO the
amount of 3,850.00 representing medical expenses without subsidiary imprisonment in case of insolvency and
to pay the costs.
It appearing that Dr. Pamittan has not been apprehended nor voluntarily surrendered despite warrant issued for
her arrest, let warrant be issued for her arrest and the case against her be ARCHIVED, to be reinstated upon her
apprehension.
SO ORDERED.[6]
The RTC explained:
After a thorough and in depth evaluation of the evidence adduced by the prosecution and the defense, this court
finds that the evidence of the prosecution is the more credible, concrete and sufficient to create that moral
certainty in the mind of the Court that accused herein [are] criminally responsible. The Court believes that
accused are negligent when both failed to exercise the necessary and reasonable prudence in ascertaining the
extent of injury of Alfonso Santiago, Jr.

However, the negligence exhibited by the two doctors does not approximate negligence of a reckless
nature but merely amounts to simple imprudence. Simple imprudence consists in the lack of precaution
displayed in those cases in which the damage impending to be caused is not the immediate nor the danger clearly
manifest. The elements of simple imprudence are as follows.
1.

that there is lack of precaution on the part of the offender; and

2.

that the damage impending to be caused is not immediate of the danger is not clearly manifest.

Considering all the evidence on record, The Court finds the accused guilty for simple imprudence resulting to
physical injuries. Under Article 365 of the Revised Penal Code, the penalty provided for is arresto mayor in its
minimum period.[7]

Dissatisfied, the petitioners appealed to the CA.

As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008 Decision of the CA pertinently reads:
This Court holds concurrently and finds the foregoing circumstances sufficient to sustain a judgment of
conviction against the accused-appellants for the crime of simple imprudence resulting in serious physical
injuries. The elements of imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the
failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the
imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into
consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances
regarding persons, time and place.
Whether or not Dr. Jarcia and Dr. Bastan had committed an inexcusable lack of precaution in the
treatment of their patient is to be determined according to the standard of care observed by other members of the
profession in good standing under similar circumstances, bearing in mind the advanced state of the profession at
the time of treatment or the present state of medical science. In the case of Leonila Garcia-Rueda v. Pascasio,
the Supreme Court stated that, in accepting a case, a doctor in effect represents that, having the needed training
and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care
and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any
other reasonably competent doctor would use to treat a condition under the same circumstances.
In litigations involving medical negligence, the plaintiff has the burden of establishing accusedappellants negligence, and for a reasonable conclusion of negligence, there must be proof of breach of duty on
the part of the physician as well as a causal connection of such breach and the resulting injury of his patient. The
connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by
intervening efficient causes. In other words, the negligence must be the proximate cause of the
injury. Negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause
of the injury complained of. The proximate cause of an injury is that cause which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would
not have occurred.
In the case at bench, the accused-appellants questioned the imputation against them and argued that there
is no causal connection between their failure to diagnose the fracture and the injury sustained by Roy.
We are not convinced.
The prosecution is however after the cause which prolonged the pain and suffering of Roy and not on the
failure of the accused-appellants to correctly diagnose the extent of the injury sustained by Roy.
For a more logical presentation of the discussion, we shall first consider the applicability of the doctrine
of res ipsa loquitur to the instant case. Res ipsa loquitur is a Latin phrase which literally means the thing or the
transaction speaks for itself. 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 accused-appellant who is charged with negligence. It is grounded in 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.
The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son during the
latters ordeal at the hospital. She testified as follows:
Fiscal Formoso:

Q:
Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra. Pamittan to confirm whether you should go
home or not?
A:
Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go home and you dont even clean the
wounds of my son.
Q:
A:

And what did she [tell] you?

They told me they will call a resident doctor, sir.
xxx

Q:
A:
Q:
A:

xxx

xxx

Was there a resident doctor [who] came?

Yes, Sir. Dra. Bastan arrived.
Did you tell her what you want on you to be done?
Yes, sir.

Q:
What did you [tell] her?
A:
I told her, sir, while she was cleaning the wounds of my son, are you not going to x-ray up to the knee because my
son was complaining pain from his ankle up to the middle part of the right leg.
Q:
A:

And what did she tell you?

According to Dra. Bastan, there is no need to x-ray because it was the ankle part that was run over.

Q:
A:

What did you do or tell her?

I told her, sir, why is it that they did not examine[x] the whole leg. They just lifted the pants of my son.

Q:
A:

So you mean to say there was no treatment made at all?

None, sir.
xxx

A:

xxx

xxx

I just listened to them, sir. And I just asked if I will still return my son.
xxx

xxx

xxx

Q:
A:

And you were present when they were called?

Yes, sir.

Q:
A:

And what was discussed then by Sis. Retoria?

When they were there they admitted that they have mistakes, sir.

Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown:
1.

The accident is of a kind which ordinarily does not occur in the absence of someones negligence;

2.

It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.
In the above requisites, the fundamental element is the control of the instrumentality which caused the
damage. Such element of control must be shown to be within the dominion of the accused-appellants. In 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. The early treatment
of the leg of Roy would have lessen his suffering if not entirely relieve him from the fracture. A boy of tender age
whose leg was hit by a vehicle would engender a well-founded belief that his condition may worsen without proper
medical attention. As junior residents who only practice general surgery and without specialization with the case
consulted before them, they should have referred the matter to a specialist. This omission alone constitutes simple
imprudence on their part. When Mrs. Santiago insisted on having another x-ray of her child on the upper part of his

leg, they refused to do so. The mother would not have asked them if they had no exclusive control or prerogative to
request an x-ray test. Such is a fact because a radiologist would only conduct the x-ray test upon request of a
physician.
The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata. He further testified based on
his personal knowledge, and not as an expert, as he examined himself the child Roy. He testified as follows:
Fiscal Macapagal:
Q:
And was that the correct respon[se] to the medical problem that was presented to Dr. Jarcia and Dra. Bastan?
A:
I would say at that stage, yes. Because they have presented the patient and the history. At sabi nila, nadaanan
lang po ito. And then, considering their year of residency they are still junior residents, and they are not also
orthopedic residents but general surgery residents, its entirely different thing. Because if you are an orthopedic
resident, I am not trying to saybut if I were an orthopedic resident, there would be more precise and accurate
decision compare to a general surgery resident in so far as involved.
Q:
You mean to say there is no supervisor attending the emergency room?
A:
At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that usually comes
from a family medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to
the consultant on duty. Now at that time, I dont [know] why they dont.Because at that time, I think, it is the
decision. Since the x-rays.

Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to
whether a patient has been treated or operated upon with a reasonable degree of skill and care. However,
testimony as to the statements and acts of physicians, external appearances, and manifest conditions
which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res
ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of
injury to the patient, without the aid of expert testimony, where the court from its fund of common
knowledge can determine the proper standard of care. Where common knowledge and experience teach
that a resulting injury would not have occurred to the 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. In the case at bench, we give credence to the testimony of Mrs. Santiago by applying the
doctrine of res ipsa loquitur.
Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not as such as would ordinarily have
followed if due care had been exercised. A distinction must be made between the failure to secure results
and the occurrence of something more unusual and not ordinarily found if the service or treatment
rendered followed the usual procedure of those skilled in that particular practice. The latter
circumstance is the primordial issue that confronted this Court and we find application of the doctrine
of res ipsa loquitur to be in order.
WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSED and the
assailed decision of the trial court finding accused-appellants guilty beyond reasonable doubt of simple
imprudence resulting in serious physical injuries is hereby AFFIRMED in toto.
SO ORDERED.[8]

The petitioners filed a motion for reconsideration, but it was denied by the CA in its May 19,
2009 Resolution.

As to the Application of
The Doctrine of Res Ipsa Loquitur

Hence, this petition.

The petitioners pray for the reversal of the decision of both the RTC and the CA anchored on the following
GROUNDS1.
IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE COURT OF APPEALS ERRED
IN NOT HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, AND PROXIMATE CAUSE OF THE
PHYSICAL INJURY OF THE PATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICH
REQUIRED MEDICAL ATTENDANCE FOR MORE THAN THIRTY (30) DAYS AND INCAPACITATED
HIM FROM PERFORMING HIS CUSTOMARY DUTY DURING THE SAME PERIOD OF TIME, WAS
THE VEHICULAR ACCIDENT WHERE THE PATIENTS RIGHT LEG WAS HIT BY A TAXI, NOT THE
FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN XRAY EXAMINATION.
2.
THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED FACTS CLEARLY
NEGATING PETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE
COURT OF APPEALS UNJUSTIFIABLY DISREGARDED THE OPINION OF THE PROSECUTIONS
EXPERT WITNESS, DR. CIRILO TACATA, THAT PETITIONERS WERE NOT GUILTY OF
NEGLIGENCE OR IMPRUDENCE COMPLAINED OF.
3.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF PETITIONERS TO
SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION PROLONGED THE PAIN
AND SUFFERING OF THE PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN
CONTRARY TO, THE EVIDENCE ON RECORD.
4.
ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED PROLONGED PAIN AND
SUFFERING, THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ALLEGED PAIN AND
SUFFERING WERE DUE TO THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A NURSE
HERSELF, TO IMMEDIATELY BRING THE PATIENT BACK TO THE HOSPITAL, AS ADVISED BY
THE PETITIONERS, AFTER HE COMPLAINED OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE
REACHED HOME AFTER HE WAS SEEN BY PETITIONERS AT THE HOSPITAL. THUS, THE
PATIENTS ALLEGED INJURY (PROLONGED PAIN AND SUFFERING) WAS DUE TO HIS OWN
MOTHERS ACT OR OMISSION.
5.
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO PHYSICIAN-PATIENT
RELATIONSHIP EXISTED BETWEEN PETITIONERS AND PATIENT ALFONSO SANTIAGO, JR.,
PETITIONERS NOT BEING THE LATTERS ATTENDING PHYSICIAN AS THEY WERE MERELY
REQUESTED BY THE EMERGENCY ROOM (ER) NURSE TO SEE THE PATIENT WHILE THEY WERE
PASSING BY THE ER FOR THEIR LUNCH.
6.
THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING ACCUSED-PETITIONERS
OF THE CRIME CHARGED.[9]

The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine of res ipsa loquitur is
applicable in this case; and [2] whether or not the petitioners are liable for criminal negligence.
THE COURTS RULING
The CA is correct in finding that there was negligence on the part of the petitioners. After a perusal of the
records, however, the Court is not convinced that the petitioners are guilty of criminal negligence complained
of. The Court is also of the view that the CA erred in applying the doctrine of res ipsa loquitur in this
particular case.

This doctrine of res ipsa loquitur means "Where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the ordinary course of things does not happen if
those who have the management use proper care, it affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose from want of care." The Black's Law Dictionary defines
the said doctrine. Thus:
The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent,
which arises upon proof that the instrumentality causing injury was in defendant's exclusive
control, and that the accident was one which ordinarily does not happen in absence of
negligence. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer
may be inferred from the mere fact that the accident happened provided the character of the
accident and circumstances attending it lead reasonably to belief that in the absence of negligence it
would not have occurred and that thing which caused injury is shown to have been under the
management and control of the alleged wrongdoer. Under this doctrine, the happening of an injury
permits an inference of negligence where plaintiff produces substantial evidence that the injury was
caused by an agency or instrumentality under the exclusive control and management of defendant,
and that the occurrence was such that in the ordinary course of things would not happen if
reasonable care had been used.[10]

The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of negligence which recognizes
that prima facie negligence may be established without direct proof and furnishes a substitute for specific
proof of negligence. The doctrine, however, is not a rule of substantive law, but merely a mode of proof or a
mere procedural convenience. The rule, when applicable to the facts and circumstances of a given case, is
not meant to and does not dispense with the requirement of proof of culpable negligence on the party
charged. It merely determines and regulates what shall be prima facie evidence thereof and helps the plaintiff
in proving a breach of the duty. The doctrine can be invoked when and only when, under the circumstances
involved, direct evidence is absent and not readily available.[11]
The requisites for the application of the doctrine of res ipsa loquitur are: (1) the accident was of a kind which
does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the
injury was under the exclusive control of the person in charge; and (3) the injury suffered must not have been
due to any voluntary action or contribution of the person injured. [12]
In this case, the circumstances that caused patient Roy Jr.s injury and the series of tests that were supposed
to be undergone by him to determine the extent of the injury suffered were not under the exclusive control of
Drs. Jarcia and Bastan. It was established that they are mere residents of the Manila Doctors Hospital at that
time who attended to the victim at the emergency room.[13] While it may be true that the circumstances
pointed out by the courts below seem doubtless to constitute reckless imprudence on the part of the
petitioners, this conclusion is still best achieved, not through the scholarly assumptions of a layman like the
patients mother, but by the unquestionable knowledge of expert witness/es. As to whether the petitioners
have exercised the requisite degree of skill and care in treating patient Roy, Jr. is generally a matter of expert
opinion.
As to Dr. Jarcia and
Dr. Bastans negligence

The totality of the evidence on record clearly points to the negligence of the petitioners. At the risk of being
repetitious, the Court, however, is not satisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this
case.
Negligence is defined as the failure to observe for the protection of the interests of another person that degree
of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers
injury.[14]
Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which
material damage results by reason of an inexcusable lack of precaution on the part of the person performing
or failing to perform such act.[15]
The elements of simple negligence are: (1) that there is lack of precaution on the part of the offender, and (2)
that the damage impending to be caused is not immediate or the danger is not clearly manifest.[16]
In this case, the Court is not convinced with moral certainty that the petitioners are guilty of reckless
imprudence or simple negligence. The elements thereof were not proved by the prosecution beyond
reasonable doubt.
The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric orthopedic, although pointing to
some medical procedures that could have been done by Dr. Jarcia and Dr. Bastan, as physicians on duty, was
not clear as to whether the injuries suffered by patient Roy Jr. were indeed aggravated by the petitioners
judgment call and their diagnosis or appreciation of the condition of the victim at the time they assessed him.
Thus:
Q: Will you please tell us, for the record, doctor, what is your specialization?
A: At present I am the chairman department of orthopedic in UP-PGH and I had special training in pediatric
orthopedic for two (2) years.
Q:
A:

A: Yes, actually, that was a routine part of our examination that once a patient comes in, before we actually
examine the patient, we request for a detailed history. If it is an accident, then, we request for the exact mechanism
of injuries.
Q:
A:

And as far as you can recall, Doctor, what was the history of that injury that was told to you?
The patient was sideswiped, I dont know if it is a car, but it is a vehicular accident.

Q:
A:

Who did you interview?

The mother.

Q: How about the child himself, Alfonso Santiago, Jr.?

A: Normally, we do not interview the child because, usually, at his age, the answers are not accurate. So, it was
the mother that I interviewed.
Q: And were you informed also of his early medication that was administered on Alfonso Santiago, Jr.?
A: No, not actually medication. I was informed that this patient was seen initially at the emergency room by the
two (2) physicians that you just mentioned, Dr. Jarcia and Dra. Bastan, that time who happened to be my residents
who were [on] duty at the emergency room.
xxxx
A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that usually
comes from a family medicine. They see where a certain patient have to go and then if they cannot manage it, they
refer it to the consultant on duty. Now at that time, I dont why they dont Because at that time, I think, it is the
decision. Since the x-rays
xxx
Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic specialist.
A: They are general surgeon residents. You have to man[x] the emergency room, including neurology,
orthopedic, general surgery, they see everything at the emergency room.
xxxx

In June 1998, doctor, what was your position and what was your specialization at that time?
Since 1980, I have been specialist in pediatric orthopedic.

Q: When Alfonso Santiago, Jr. was brought to you by his mother, what did you do by way of physicians as
first step?
A: As usual, I examined the patient physically and, at that time as I have said, the patient could not walk so I
[began] to suspect that probably he sustained a fracture as a result of a vehicular accident. So I examined the
patient at that time, the involved leg, I dont know if that is left or right, the involved leg then was swollen and
the patient could not walk, so I requested for the x-ray of [the] lower leg.
Q: What part of the leg, doctor, did you request to be examined?
A: If we refer for an x-ray, usually, we suspect a fracture whether in approximal, middle or lebistal
tinial, we usually x-ray the entire extremity.
Q:
A:

And what was the result?

Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone of the leg.

Q:
A:

And when you say spiral, doctor, how long was this fracture?
When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8) centimeters.

Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the emergency room, you
would have subjected the entire foot to x-ray even if the history that was given to Dr. Jarcia and Dra. Bastan
is the same?
A: I could not directly say yes, because it would still depend on my examination, we cannot subject the
whole body for x-ray if we think that the damaged was only the leg.
Q:
A:

Not the entire body but the entire leg?

I think, if my examination requires it, I would.

Q:
A:

So, you would conduct first an examination?

Yes, sir.
Q: And do you think that with that examination that you would have conducted you would discover the
necessity subjecting the entire foot for x-ray?
A: It is also possible but according to them, the foot and the ankle were swollen and not the leg, which
sometimes normally happens that the actual fractured bone do not get swollen.
xxxx

Q:

Mid-tibial, will you please point to us, doctor, where the tibial is?
(Witness pointing to his lower leg)
A: The tibial is here, there are two bones here, the bigger one is the tibial and the smaller one is the fibula.
The bigger one is the one that get fractured.
Q:

And in the course of your examination of Alfonso Santiago, Jr. did you ask for the history of such injury?

Q: Doctor, if you know that the patient sustained a fracture on the ankle and on the foot and the
history that was told to you is the region that was hit is the region of the foot, will the doctor subject the
entire leg for x-ray?
A: I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you have to consider
the kind of fracture that the patient sustained would you say the exact mechanism of injury. For example

spiral, paikot yung bale nya, so it was possible that the leg was run over, the patient fell, and it got
twisted. Thats why the leg seems to be fractured.[17] [Emphases supplied]

It can be gleaned from the testimony of Dr. Tacata that a thorough examination was not performed on Roy Jr.
As residents on duty at the emergency room, Dr. Jarcia and Dr. Bastan were expected to know the medical
protocol in treating leg fractures and in attending to victims of car accidents. There was, however, no precise
evidence and scientific explanation pointing to the fact that the delay in the application of the cast to the
patients fractured leg because of failure to immediately diagnose the specific injury of the patient, prolonged
the pain of the child or aggravated his condition or even caused further complications. Any person may opine
that had patient Roy Jr. been treated properly and given the extensive X-ray examination, the extent and
severity of the injury, spiral fracture of the mid-tibial part or the bigger bone of the leg, could have been
detected early on and the prolonged pain and suffering of Roy Jr. could have been prevented. But still, that
opinion, even how logical it may seem would not, and could not, be enough basis to hold one criminally
liable; thus, a reasonable doubt as to the petitioners guilt.
Although the Court sympathizes with the plight of the mother and the child in this case, the Court is bound by
the dictates of justice which hold inviolable the right of the accused to be presumed innocent until proven
guilty beyond reasonable doubt. The Court, nevertheless, finds the petitioners civilly liable for their failure to
sufficiently attend to Roy Jr.s medical needs when the latter was rushed to the ER, for while a criminal
conviction requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish
civil liability. Taken into account also was the fact that there was no bad faith on their part.Dr. Jarcia and Dr.
Bastan cannot pass on the liability to the taxi driver who hit the victim. It may be true that the actual, direct,
immediate, and proximate cause of the injury (fracture of the leg bone or tibia) of Roy Jr. was the vehicular
accident when he was hit by a taxi. The petitioners, however, cannot simply invoke such fact alone to excuse
themselves from any liability. If this would be so, doctors would have a ready defense should they fail to do
their job in attending to victims of hit-and-run, maltreatment, and other crimes of violence in which the
actual, direct, immediate, and proximate cause of the injury is indubitably the act of the perpetrator/s. In
failing to perform an extensive medical examination to determine the extent of Roy Jr.s injuries, Dr. Jarcia
and Dr. Bastan were remiss of their duties as members of the medical profession. Assuming for the sake of
argument that they did not have the capacity to make such thorough evaluation at that stage, they should have
referred the patient to another doctor with sufficient training and experience instead of assuring him and his
mother that everything was all right.
This Court cannot also stamp its imprimatur on the petitioners contention that no physician-patient
relationship existed between them and patient Roy Jr., since they were not his attending physicians at that
time. They claim that they were merely requested by the ER nurse to see the patient while they were passing
by the ER for their lunch. Firstly, this issue was never raised during the trial at the RTC or even before the
CA. The petitioners, therefore, raise the want of doctor-patient relationship for the first time on appeal with
this Court. It has been settled that issues raised for the first time on appeal cannot be considered because a
party is not permitted to change his theory on appeal. To allow him to do so is unfair to the other party and
offensive to the rules of fair play, justice and due process.[18] Stated differently, basic considerations of due
process dictate that theories, issues and arguments not brought to the attention of the trial court need not be,
and ordinarily will not be, considered by a reviewing court. [19]
Assuming again for the sake of argument that the petitioners may still raise this issue of no physicianpatient
relationship, the Court finds and so holds that there was a physicianpatient relationship in this case.
In the case of Lucas v. Tuao,[20] the Court wrote that [w]hen a patient engages the services of a physician, a
physician-patient relationship is generated. And in accepting a case, the physician, for all intents and purposes,
represents that he has the needed training and skill possessed by physicians and surgeons practicing in the same
field; and that he will employ such training, care, and skill in the treatment of the patient. Thus, in treating his
patient, a physician is under a duty to exercise that degree of care, skill and diligence which physicians in the same
general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Stated

otherwise, the physician has the obligation to use at least the same level of care that any other reasonably
competent physician would use to treat the condition under similar circumstances. Indubitably, a physicianpatient relationship exists between the petitioners and patient Roy Jr. Notably, the latter and his mother went to
the ER for an immediate medical attention. The petitioners allegedly passed by and were requested to attend to the
victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents on duty at the ER).[21] They
obliged and examined the victim, and later assured the mother that everything was fine and that they could go
home. Clearly, a physician-patient relationship was established between the petitioners and the patient Roy Jr.
To repeat for clarity and emphasis, if these doctors knew from the start that they were not in the position to attend
to Roy Jr., a vehicular accident victim, with the degree of diligence and commitment expected of every doctor in a
case like this, they should have not made a baseless assurance that everything was all right. By doing so, they
deprived Roy Jr. of adequate medical attention that placed him in a more dangerous situation than he was already
in. What petitioners should have done, and could have done, was to refer Roy Jr. to another doctor who could
competently and thoroughly examine his injuries.All told, the petitioners were, indeed, negligent but only civilly,
and not criminally, liable as the facts show.
Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the Philippines states:
A physician should attend to his patients faithfully and conscientiously. He should secure for them all possible
benefits that may depend upon his professional skill and care. As the sole tribunal to adjudge the physicians failure
to fulfill his obligation to his patients is, in most cases, his own conscience, violation of this rule on his part is
discreditable and inexcusable.[22]

Established medical procedures and practices, though in constant instability, are devised for the purpose of
preventing complications. In this case, the petitioners failed to observe the most prudent medical procedure under
the circumstances to prevent the complications suffered by a child of tender age.
As to the Award of
Damages
While no criminal negligence was found in the petitioners failure to administer the necessary medical attention
to Roy Jr., the Court holds them civilly liable for the resulting damages to their patient. While it was the taxi
driver who ran over the foot or leg of Roy Jr., their negligence was doubtless contributory.It appears undisputed
that the amount of 3,850.00, as expenses incurred by patient Roy Jr., was adequately supported by receipts. The
Court, therefore, finds the petitioners liable to pay this amount by way of actual damages.
The Court is aware that no amount of compassion can suffice to ease the sorrow felt by the family of the child at
that time. Certainly, the award of moral and exemplary damages in favor of Roy Jr. in the amount of 100,000.00
and 50,000.00, respectively, is proper in this case.It is settled that moral damages are not punitive in nature, but
are designed to compensate and alleviate in some way the physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury unjustly
inflicted on a person. Intended for the restoration of the psychological or emotional status quo ante, the award of
moral damages is designed to compensate emotional injury suffered, not to impose a penalty on the
wrongdoer.[23]The Court, likewise, finds the petitioners also liable for exemplary damages in the said amount.
Article 2229 of the Civil Code provides that exemplary damages may be imposed by way of example or
correction for the public good.
WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated August 29,
2008 is REVERSED and SET ASIDE. A new judgment is entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou
Bastan of the crime of reckless imprudence resulting to serious physical injuries but declaring them civilly liable in the amounts
of: