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CASEBOOK ON TORTS & DAMAGES

PEDRO JOSE F. BERNARDO

Second Edition (2010)

Published by
CENTRAL LAWBOOK PUBLISHING CO., INC.
927 Quezon Avenue, Quezon City
Philippines

Philippine Copyright 2009, 2010


Atty. Pedro Jose F. Bernardo

Subject to Section 176 of the Intellectual Property Code of the Philippines and A.M. No.
04-7-06-SC issued by the Supreme Court on 17 August 2007, no portion of this casebook
may be copied or reproduced in books, pamphlets, outlines or notes, whether printed,
mimeographed, typewritten, copied in different electronic devices or in any other form,
for distribution or sale, without the written permission of the author.
This casebook is for the limited and exclusive use of students taking the class of Torts &
Damages at the Ateneo Law School and the Joint J.D. MBA Program of the Far Eastern
University Institute of Law and the de la Salle University.

ii

TABLE OF CONTENTS
I.

INTRODUCTION

1.

SOURCES OF CIVIL LIABILITY...... 1


Articles 29 to 31; Articles 1159 to 1162 of the Civil Code
Article 100 of the Revised Penal Code
Sections 1 and 2, Rule 111 of the Revised Rules of Criminal Procedure
a.

Arising from Crime........... 2


People of the Philippines vs. Bayotas. 2
Elcano vs. Hill, e.................... 4
DMPI Employees Credit Cooperative, Inc. vs. Velez, et al. 8
Padilla, et al. vs. Court of Appeals..9
Philippine Rabbit Bus Lines, Inc. vs. People of the Philippines. 14
Manliclic, et al. vs. Calaunan... 17

b.

Arising from Contract.......22


Air France vs. Carascoso, et al. 22
Light Rail Transit Authority, et al. vs. Navidad... 24
Far East Bank and Trust Company vs. Court of Appeals... 26

c.

Arising from Tort.............. 30


Andamo, et al vs. Intermediate Appellate Court, et al 30
Castro vs. People of the Philippines... 32

2.

CULPA AQUILANA/CULPA CONTRACTUAL/CULPA CRIMINAL. 34


Article 2177 of the Civil Code
Fabre, et al. vs. Court of Appeals, et al. 34
Calalas vs. Court of Appeals, et al.
38
Padua, et al. vs. Robles.............
40
Atlantic Gulf and Pacific Company of Manila, Inc. vs. Court of Appeals, et al. 42

II. QUASI-DELICT
1.

ELEMENTS OF A QUASI-DELICT..43
Article 2176 of the Civil Code
Andamo vs. Intermediate Appellate Court.. 43
FGU Insurance Corporation vs. Court of Appeals, et al. ... 43
Cinco vs. Canonoy, et al.. 45

2.

NEGLIGENCE............................... 46
a.

Concept of Negligence......46
Article 1173 of the Civil Code
iii

Picart vs. Smith, Jr. ............... 46


Cusi, et al. vs. Philippine National Railways 48
Gan vs. Court of Appeals. 51
Valenzuela vs. Court of Appeals, et al... 52
Adzuara vs. Court of Appeals. 60
Prudential Bank vs. Court of Appeals, et al. ... 61
b.

Negligence as the Proximate Cause64


Vda. de Bataclan, et al. vs. Medina. 64
Umali vs. Bacani, et al. ..... 66
Bacarro, et al. vs. Castano, et al. . 67
Pheonix Construction, Inc., et al. vs. Intermediate Appellate Court. 70
Smith Bell and Company, et al. vs. Court of Appeals, et al. .. 74
Fernando vs. Court of Appeals, et al. 79
Ridjo Tape & Chemical Corporation, et al. vs. Court of Appeals, et al. ... 82
Benguet Electric Cooperative, Inc. vs. Court of Appeals, et al. . 85
Austria vs. Court of Appeals, et al. 87
Consolidated Bank and Trust Corporation vs. Court of Appeals, et al. ...89
Philippine National Railways vs. Court of Appeals, et al. . 94
Lucas, et al. vs. Tuao... 96

c.

Proof of Negligence...........104
Philippine Long Distance Telephone Company vs. Court of Appeals, et al. .. 104

d. Presumption of Negligence. 106


1.

Res ipsa loquitur........... 106


Africa, et al. vs. Caltex, Inc., et al. ... 106
F.F. Cruz and Co., Inc. vs. Court of Appeals, et al. ..... 111
Batiquin vs. Court of Appeals, et al. ... 112
Ramos, et al. vs. Court of Appeals, et al. ... 117
Ramos, et al. vs. Court of Appeals, et al. (Motion for Reconsideration) ... 131
Reyes, et al. vs. Sisters of Mercy, et al. ... 141
DM Consunji, Inc. vs. Court of Appeals, et al. .. 147
Perla Compania de Seguros, Inc., et al. vs. Sarangaya, et al. .. 150
Macalinao vs. Ong, et al. .. 153
Capili vs. Spouses Cadana, et al. . 157
Cantre vs. Spouses Go, et al. 160

2.

Respondeat superior...... 162


Castilex Industrial Corporation vs. Vasquez, Jr., et al. 162
Ramos, et al. vs. Court of Appeals, et al. ... 165
Ramos, et al. vs. Court of Appeals, et al. (Motion for Reconsideration) ... 165
Nograles, et al. vs. Capitol Medical Center, et al. . 165
Professional Services, Inc. vs. Court of Appeals, et al. .... 174

3.

Violation of Traffic Rules.. 179


Article 2184 of the Civil Code
United States vs. Crane. 179

iv

Caedo, et al. vs. Yu Khe Thai, et al. .... 182


BLT Bus co. vs. Intermediate Appellate Court, et al. ... 184
FGU Insurance Corporation vs. Court of Appeals, et al.. 187
Guillang, et al. vs. Bedania, et al.. 187
4.

Dangerous weapons and substances 191


Article 2188 of the Civil Code

3.

DEFENSES................................ 191
a.

Contributory negligence.... 191


Article 2179 of the Civil Code
Rakes vs. Atlantic Gulf and Pacific Company.. 191
Taylor vs. Manila Electric Railroad and Light Company 195
Gan vs. Court of Appeals, et al....202
Estacion vs. Bernardo, et al. ........ 202
Cadiente vs. Macas............ 207
National Power Corporation vs. Heirs of Casionan.... 209

b.

Assumption of Risk........... 213


Afiada vs. Hisole............... 213

c.

Last clear chance................ 214


Picart vs. Smith, Jr......... 214
Spouses Ong vs. Metropolitan Water District...214
Anuran, et al. vs. Buno, et al. .. 217
Pheonix Construction, Inc. vs. Intermediate Appellate Court... 219
Glan Peoples Lumber and Hardware, et al. vs. Intermediate Appellate Court.. 219
Pantranco North Express, Inc. vs. Baesa, et al...223
McKee, et al. vs. Court of Appeals, et al 225
LBC Air Cargo, Inc., et al. vs. Court of Appeals... 230
Raynera, et al. vs. Hicetas, et al... 233
Canles, et al. vs. Court of Appeals, et al.235
Ladeco, et al. vs. Angala... 238
Austria vs. Court of Appeals, et al.. 240
Consolidated Bank and Trust Corporation vs. Court of Appeals, et al 240

d. Prescription........................ 240
Article 1146 of the Civil Code
Article 169 of the Consumer Act of the Philippines
Ferrer, et al. vs. Ericta, et al.. 240
Kramer, et al. vs. Court of Appeals, et al. . 242
e.

Force majeure. 244


Article 1170 of the Civil Code
Gotesco vs. Chatto, et al... 244
National Power Corporation, et al. vs. Court of Appeals, et al.. 246
v

Cipriano, et al. vs. Court of Appeals, et al. 248


f.

Exercise of diligence..........250
Article 2180 of the Civil Code
Cases to be discussed below

g.

Mistake and waiver........... 251


Gatchalian vs. Court of Appeals, et al. .. 251

h. Damnum absque injuria...... 254


National Power Corporation vs. Court of Appeals, et al 254
III. VICARIOUS LIABILITY....... 254
Article 2180 to 2194 of the Civil Code
1.

PARENTS AND GUARDIANS........ 255


Article 2181 and 2182 of the Civil Code
Republic Act No. 6809
Exconde vs. Capuno, et al. ........ 255
Salen, et al. vs. Jose................... 256
Canlas vs. Chan Lin Po, et al. . 259
Elcano, et al. Vs. Hill, et al... 261
Tamargo, et al. vs. Court of Appeals, et al 261
Spouses Libi vs. Intermediate Appellate Court, et al.. 264

2.

TEACHERS AND HEADS OF ESTABLISHMENTS... 271


Mercado vs. Court of Appeals, et al. . 271
Cuadra, et al. vs. Monfort 273
Spouses Palisoc vs. Brillantes, et al. .. 275
Amadora, et al. vs. Court of Appeals, et al... 279
Ylarde, et al. vs. Aquino, et al. 286
Salvosa, et al. vs. Intermediate Appellate Court, et al.... 288
Philippine School of Business Administration, et al. vs. Court of Appeals. 290
Saludaga vs. Far Eastern University, et al.... 292

3.

OWNERS AND MANAGERS OF ESTABLISHMENTS ..... 297


St. Francis High School, et al. vs. Court of Appeals, et al... 297
Castillex Industrial Corporation vs. Vasquez, et al. 302

4.

EMPLOYERS................................. 302
Martin vs. Court of Appeals, et al. 302
Filamer Christian Institute vs. Court of Appeals, et al... 303
Filamer Christian Institute vs. Court of Appeals, et al. (Motion for Reconsideration).. 305
Metro Manila Transit Corporation vs. Court of Appeals, et al.. 308
Valenzuela vs. Court of Appeals, et al. .314

vi

Jose, et al. vs. Court of Appeals, et al. ... 314


Yambao vs. Zuiga, et al. ........... 318
Filipinas Broadcasting Network, Inc. vs. AGO Medical and Educational Center.. 320
Estacion vs. Bernardo, et al. ....... 324
Mercury Drug Corporation, et al. vs. Spouses Huang 324
5.

STATE .......................................... 328


Merritt vs. Government of the Philippine Islands... 328
Spouses Fontanilla, et al. vs. Maliaman, et al. . 333
Spouses Fontanilla, et al. vs. Maliaman, et al. (Motion for Reconsideration). 336

IV. PRIMARY LIABILITY............ 339


1.

POSSESSORS/USERS OF ANIMALS.. 339


Article 2183 of the Civil Code
Vestil, et al. vs. Intermediate Appellate Court, et al. .. 339

2.

OWNERS OF MOTOR VEHICLES.. 341


Article 2184 of the Civil Code
Caedo, et al. vs. Yu Khe Thai, et al. ... 341
Malayan Insurance Co., Inc. vs. Court of Appeals, et al. 341

3.

MANUFACTURERS AND PROCESSORS.... 343


Article 2189 of the Civil Code
See also, in general, Consumer Act of the Philippines

4.

MUNICIPAL CORPORATIONS...... 343


Article 2189 of the Civil Code
Section 24 of the Local Government Code
City of Manila vs. Teotico, et al. 343
Torio, et al. vs. Remedios, et al. . 346
Jimenez vs. City of Manila, et al. ... 351
Municipality of San Juan, et al. vs. Court of Appeals. 355

5.

BUILDING PROPRIETORS............. 358


Articles 2190, 2191, 2192 and 2193 of the Civil Code

6.

ENGINEERS/ARCHITECTS/CONTRACTORS... 358
Article 2192 and 1723 of the Civil Code
Nakpil & Sons, et al. vs. Court of Appeals, et al. 358
Nakpil & Sons, et al. vs. Court of Appeals, et al. (Motion for Reconsideration) 361

V. SPECIAL TORTS..................... 363


1.

ABUSE OF RIGHTS........................... 363


vii

Article 19 of the Civil Code


Velayo vs. Shell Company of the Philippines Islands, Ltd... 363
Llorente vs. Sandiganbayan 370
Heirs of Nala vs. Cabansag. 374
2.

ACTS OR OMISSIONS CONTRARY TO MORALS. 376


Articles 20 and 21 of the Civil Code
Hermosisima vs. Court of Appeals 376
Wassmer vs. Velez.................... 378
Baksh vs. Court of Appeals, et al. ..379

3.

UNJUST ENRICHMENT................ 386


Articles 22 and 23 of the Civil Code
Security Bank & Trust CO., et al. vs. Court of Appeals.. 386
H.L. Carlos Construction, Inc. vs. Marina Properties Corporation, et al. 387

4.

JUDICIAL VIGILANCE.................. 390


Article 24 of the Civil Code

5.

THOUGHTLESS EXTRAVAGANCE 390


Article 25 of the Civil Code

6.

RIGHT TO PRIVACY..................... 390


Article 26 of the Civil Code
St. Louis Realty Corporation vs. Court of Appeals. 391
Castro vs. People of the Philippines.. 392

7.

DERELICTION OF DUTY............... 392


Article 27 of the Civil Code
Philippine Matco Co., Ltd. vs. City of Cebu, et al392
Torio, et al. vs. Fontanilla, et al... 394

8.

UNFAIR COMPETITION................... 394


Article 28 of the Civil Code

9.

VIOLATION OF CONSTITUTIONAL RIGHTS. 394


Article 32 of the Civil Code
Lim vs. Ponce de Leon............. 395
MHP Garments, Inc., et al. vs. Court of Appeals, et al... 399
Vinzons-Chato vs. Fortune Tobacco Corporation... 402

viii

Vinzons-Chato vs. Fortune Tobacco Corporation (Motion for Reconsideration)... 407


10. INTERFERENCE IN CONTRACTUAL RELATIONS. 413
Article 1314 of the Civil Code
Daywalt vs. La Corporacion delos Padres Agustino Recoletos, et al... 413
So Ping Bun vs. Court of Appeals, et al... 417
Lagon vs. Court of Appeals, et al... 419
VI. DAMAGES............................... 421
1.

CONCEPT/KINDS........................ 421
Article 2195 to 2198 of the Civil Code
Filinvest Credit vs. Intermediate Appellate Court...... 421
Spouses Custodio, et al. vs. Court of Appeals, et al.... 423

2.

ACTUAL/COMPENSATORY DAMAGES...... 426


Article 2199 to 2215 of the Civil Code
a.

In General........................... 426
PNOC Shipping and Transport Corporation vs. Court of Appeals..... 427
Talisay-Silay Milling, Inc. vs. Associacion de Agricultures de Talisay-Silay, Inc434
G.A. Machineries, Inc. vs. Yaptinchay... 437
China Airlines Limited vs. Court of Appeals, et al.. 440
Consolidated Dairy Products, et al. vs. Court of Appeals.. 444

b.

Death and permanent incapacity 447


Manzanares vs. Moreta........ 447
Borromeo vs. Manila Electric Railroad & Light Co.. 451
Villa Rey Transit vs. Court of Appeals...451
Davila vs. Philippine Airlines..454
People of the Philippines vs. Quilaton... 456
Salvador vs. People of the Philippines... 458
Heirs of George Y. Poe vs. Malayan Insurance Company, Inc... 460

c.

Attorneys Fees.................. 464


Agustin vs. Court of Appeals.. 464

d. Interest.................................... 466
Eastern Shipping vs. Court of Appeals.. 466
Crismina Garments, Inc. vs. Court of Appeals. 471
3.

MORAL DAMAGES...................... 474


Article 2217 to 2220 of the Civil Code
Lopez vs. Pan American World Airways..... 474
Zalamea vs. Court of Appeals 479
ix

People of the Philippines vs. Prades.. 483


Expert Travel & Tours, Inc. vs. Court of Appeals484
4.

NOMINAL AND TEMPERATE DAMAGES. 485


Articles 2221 to 2225 of the Civil Code
Northwest Airlines, Inc. vs. Cuenca.. 486
Japan Airlines vs. Court of Appeals.. 487
Armovit vs. Court of Appeals 490
Cathay Pacific Airways, Ltd. vs. Spouses Vasquez. 492

5.

LIQUIDATED DAMAGES.............. 497


Articles 2226 to 2228 of the Civil Code
Country Bankers vs. Court of Appeals. 497
Spouses Suatengco vs. Reyes.. 500

6.

EXEMPLARY DAMAGES............... 502


Octot vs. Ybaez....................... 503
De Leon vs. Court of Appeals.504
People of the Philippines vs. Cristobal.. 507

I.

INTRODUCTION

1.

SOURCES OF CIVIL LIABILITY

CIVIL CODE OF THE PHILIPPINES


ARTICLE 29.
When the accused in a criminal
prosecution is acquitted on the ground that his guilt
has not been proved beyond reasonable doubt, a civil
action for damages for the same act or omission may
be instituted. Such action requires only a
preponderance of evidence. Upon motion of the
defendant, the court may require the plaintiff to file a
bond to answer for damages in case the complaint
should be found to be malicious.
If in a criminal case the judgment of acquittal is based
upon reasonable doubt, the court shall so declare. In
the absence of any declaration to that effect, it may be
inferred from the text of the decision whether or not
the acquittal is due to that ground.
ARTICLE 30.
When a separate civil action is
brought to demand civil liability arising from a
criminal offense, and no criminal proceedings are
instituted during the pendency of the civil case, a
preponderance of evidence shall likewise be
sufficient to prove the act complained of.
ARTICLE 31.
When the civil action is based on an
obligation not arising from the act or omission
complained of as a felony, such civil action may
proceed independently of the criminal proceedings
and regardless of the result of the latter.
xxx
ARTICLE 1157.
(1)
(2)
(3)
(4)
(5)

xxx

xxx

Obligations arise from:

Law;
Contracts;
Quasi-contracts;
Acts or omissions punished by law; and
Quasi-delicts. (1089a)

REVISED PENAL CODE


ARTICLE 100. Civil Liability of Person Guilty of
Felony. Every person criminally liable for a felony
is also civilly liable.
xxx

xxx

Innkeepers are also subsidiarily liable for the


restitution of goods taken by robbery or theft within
their houses from guests lodging therein, or for the
payment of the value thereof, provided that such
guests shall have notified in advance the innkeeper
himself, or the person representing him, of the
deposit of such goods within the inn; and shall
furthermore have followed the directions which such
innkeeper or his representative may have given them
with respect to the care of and vigilance over such
goods. No liability shall attach in case of robbery with
violence against or intimidation of persons unless
committed by the innkeeper's employees.
ARTICLE 103. Subsidiary Civil Liability of Other
Persons. The subsidiary liability established in the
next preceding article shall also apply to employers,
teachers, persons, and corporations engaged in any
kind of industry for felonies committed by their
servants, pupils, workmen, apprentices, or employees
in the discharge of their duties.
REVISED RULES OF CRIMINAL PROCEDURE
SECTION 1.
Institution of criminal and civil
actions. (a) When a criminal action is instituted, the
civil action for the recovery of civil liability arising
from the offense charged shall be deemed instituted
with the criminal action unless the offended party
waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the
criminal action.
The reservation of the right to institute separately the
civil action shall be made before the prosecution
starts
presenting
its
evidence
and
under
circumstances affording the offended party a
reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil
liability against the accused by way of moral,
nominal, temperate, or exemplary damages without
specifying the amount thereof in the complaint or
information, the filing fees therefor shall constitute a
first lien on the judgment awarding such damages.
Where the amount of damages, other than actual, is
specified in the complaint or information, the
corresponding filing fees shall be paid by the
offended party upon the filing thereof in court.

xxx

ARTICLE 102.
Subsidiary Civil Liability of
Innkeepers, Tavernkeepers and Proprietors of
Establishments. In default of the persons
criminally liable, innkeepers, tavernkeepers, and any
other persons or corporations shall be civilly liable for
crimes committed in their establishments, in all cases
where a violation of municipal ordinances or some
general or special police regulation shall have been
committed by them or their employees.

Except as otherwise provided in these Rules, no filing


fees shall be required for actual damages.
No counterclaim, cross-claim or third-party complaint
may be filed by the accused in the criminal case, but
any cause of action which could have been the subject
thereof may be litigated in a separate civil action. (1a)
(b)
The criminal action for violation of Batas
Pambansa Blg. 22 shall be deemed to include the
2

corresponding civil action. No reservation to file such


civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil
actions, the offended party shall pay in full the filing
fees based on the amount of the check involved,
which shall be considered as the actual damages
claimed. Where the complaint or information also
seeks to recover liquidated, moral, nominal,
temperate or exemplary damages, the offended party
shall pay additional filing fees based on the amounts
alleged therein. If the amounts are not so alleged but
any of these damages are subsequently awarded by
the court, the filing fees based on the amount
awarded shall constitute a first lien on the judgment.
Where the civil action has been filed separately and
trial thereof has not yet commenced, it may be
consolidated with the criminal action upon
application with the court trying the latter case. If the
application is granted, the trial of both actions shall
proceed in accordance with section 2 of this Rule
governing consolidation of the civil and criminal
actions. (Cir. 57-97)
SECTION 2.
When separate civil action is
suspended. After the criminal action has been
commenced, the separate civil action arising
therefrom cannot be instituted until final judgment
has been entered in the criminal action.
If the criminal action is filed after the said civil action
has already been instituted, the latter shall be
suspended in whatever stage it may be found before
judgment on the merits. The suspension shall last
until final judgment is rendered in the criminal
action. Nevertheless, before judgment on the merits is
rendered in the civil action, the same may, upon
motion of the offended party, be consolidated with
the criminal action in the court trying the criminal
action. In case of consolidation, the evidence already
adduced in the civil action shall be deemed
automatically reproduced in the criminal action
without prejudice to the right of the prosecution to
cross-examine the witnesses presented by the
offended party in the criminal case and of the parties
to present additional evidence. The consolidated
criminal and civil actions shall be tried and decided
jointly.
During the pendency of the criminal action, the
running of the period of prescription of the civil
action which cannot be instituted separately or whose
proceeding has been suspended shall be tolled. (n)
The extinction of the penal action does not carry with
it extinction of the civil action. However, the civil
action based on delict shall be deemed extinguished if
there is a finding in a final judgment in the criminal
action that the act or omission from which the civil
liability may arise did not exist. (2a)

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

Arising from Crime


PEOPLE OF THE PHILIPPINES vs.
ROGELIO BAYOTAS
G.R. No. 102007, 2 September 1994, 236 SCRA 239

ROMERO, J p:
In Criminal Case No. C-3217 filed before Branch 16,
RTC Roxas City, Rogelio Bayotas y Cordova was
charged with Rape and eventually convicted thereof on
June 19, 1991 in a decision penned by Judge Manuel E.
Autajay. Pending appeal of his conviction, Bayotas died
on February 4, 1992 at the National Bilibid Hospital due
to cardio respiratory arrest secondary to hepatic
encephalopathy secondary to hipato carcinoma gastric
malingering. Consequently, the Supreme Court in its
Resolution of May 20, 1992 dismissed the criminal
aspect of the appeal. However, it required the Solicitor
General to file its comment with regard to Bayotas' civil
liability arising from his commission of the offense
charged.
In his comment, the Solicitor General expressed his
view that the death of accused-appellant did not
extinguish his civil liability as a result of his
commission of the offense charged. The Solicitor
General, relying on the case of People v. Sendaydiego
insists that the appeal should still be resolved for the
purpose of reviewing his conviction by the lower court
on which the civil liability is based.
Counsel for the accused-appellant, on the other hand,
opposed the view of the Solicitor General arguing that
the death of the accused while judgment of conviction
is pending appeal extinguishes both his criminal and
civil penalties. In support of his position, said counsel
invoked the ruling of the Court of Appeals in People v.
Castillo and Ocfemia which held that the civil obligation
in a criminal case takes root in the criminal liability and,
therefore, civil liability is extinguished if accused
should die before final judgment is rendered.
We are thus confronted with a single issue: Does death
of the accused pending appeal of his conviction
extinguish his civil liability?
xxx

xxx

xxx

It is, thus, evident that as jurisprudence evolved from


Castillo to Torrijos, the rule established was that the

survival of the civil liability depends on whether the


same can be predicated on sources of obligations other
than delict. Stated differently, the claim for civil liability
is also extinguished together with the criminal action if
it were solely based thereon, i.e., civil liability ex delicto.
However, the Supreme Court in People v. Sendaydiego, et
al. departed from this long-established principle of law.
In this case, accused Sendaydiego was charged with
and convicted by the lower court of malversation thru
falsification of public documents. Sendaydiego's death
supervened during the pendency of the appeal of his
conviction.
This court in an unprecedented move resolved to
dismiss Sendaydiego's appeal but only to the extent of
his criminal liability. His civil liability was allowed to
survive although it was clear that such claim thereon
was exclusively dependent on the criminal action
already extinguished. The legal import of such decision
was for the court to continue exercising appellate
jurisdiction over the entire appeal, passing upon the
correctness of Sendaydiego's conviction despite
dismissal of the criminal action, for the purpose of
determining if he is civilly liable.
xxx

xxx

appellate jurisdiction over the accused's civil liability ex


delicto when his death supervenes during appeal. What
Article 30 recognizes is an alternative and separate civil
action which may be brought to demand civil liability
arising from a criminal offense independently of any
criminal action. In the event that no criminal
proceedings are instituted during the pendency of said
civil case, the quantum of evidence needed to prove the
criminal act will have to be that which is compatible
with civil liability and that is, preponderance of
evidence and not proof of guilt beyond reasonable
doubt. Citing or invoking Article 30 to justify the
survival of the civil action despite extinction of the
criminal would in effect merely beg the question of
whether civil liability ex delicto survives upon extinction
of the criminal action due to death of the accused
during appeal of his conviction. This is because
whether asserted in the criminal action or in a separate
civil action, civil liability ex delicto is extinguished by
the death of the accused while his conviction is on
appeal. Article 89 of the Revised Penal Code is clear on
this matter:
"Art. 89. How criminal liability is
totally extinguished. Criminal
liability is totally extinguished:

xxx

Succeeding cases raising the identical issue have


maintained adherence to our ruling in Sendaydiego; in
other words, they were a reaffirmance of our
abandonment of the settled rule that a civil liability
solely anchored on the criminal (civil liability ex delicto)
is extinguished upon dismissal of the entire appeal due
to the demise of the accused.
But was it judicious to have abandoned this old ruling?
A re-examination of our decision in Sendaydiego impels
us to revert to the old ruling.
To restate our resolution of July 8, 1977 in Sendaydiego:
The resolution of the civil action impliedly instituted in
the criminal action can proceed irrespective of the
latter's extinction due to death of the accused pending
appeal of his conviction, pursuant to Article 30 of the
Civil Code and Section 21, Rule 3 of the Revised Rules
of Court.
Article 30 of the Civil Code provides:
When a separate civil action is
brought to demand civil liability
arising from a criminal offense, and
no
criminal
proceedings
are
instituted during the pendency of the
civil case, a preponderance of
evidence shall likewise be sufficient
to prove the act complained of.
Clearly, the text of Article 30 could not possibly lend
support to the ruling in Sendaydiego. Nowhere in its text
is there a grant of authority to continue exercising

1.
By the death of the convict,
as to the personal penalties; and as to
pecuniary penalties, liability therefor
is extinguished only when the death
of the offender occurs before final
judgment;
xxx

xxx

xxx"

However, the ruling in Sendaydiego deviated from the


expressed intent of Article 89. It allowed claims for civil
liability ex delicto to survive by ipso facto treating the
civil action impliedly instituted with the criminal, as
one filed under Article 30, as though no criminal
proceedings had been filed but merely a separate civil
action. This had the effect of converting such claims
from one which is dependent on the outcome of the
criminal action to an entirely new and separate one, the
prosecution of which does not even necessitate the
filing of criminal proceedings. One would be hard put
to pinpoint the statutory authority for such a
transformation. It is to be borne in mind that in
recovering civil liability ex delicto, the same has perforce
to be determined in the criminal action, rooted as it is in
the court's pronouncement of the guilt or innocence of
the accused. This is but to render fealty to the
intendment of Article 100 of the Revised Penal Code
which provides that "every person criminally liable for
a felony is also civilly liable." In such cases, extinction of
the criminal action due to death of the accused pending
appeal inevitably signifies the concomitant extinction of
the civil liability. Mors Omnia Solvi. Death dissolves all
things.

In sum, in pursuing recovery of civil liability arising


from crime, the final determination of the criminal
liability is a condition precedent to the prosecution of
the civil action, such that when the criminal action is
extinguished by the demise of accused-appellant
pending appeal thereof, said civil action cannot survive.
The claim for civil liability springs out of and is
dependent upon facts which, if true, would constitute a
crime. Such civil liability is an inevitable consequence
of the criminal liability and is to be declared and
enforced in the criminal proceeding. This is to be
distinguished from that which is contemplated under
Article 30 of the Civil Code which refers to the
institution of a separate civil action that does not draw
its life from a criminal proceeding. The Sendaydiego
resolution of July 8, 1977, however, failed to take note
of this fundamental distinction when it allowed the
survival of the civil action for the recovery of civil
liability ex delicto by treating the same as a separate civil
action referred to under Article 30. Surely, it will take
more than just a summary judicial pronouncement to
authorize the conversion of said civil action to an
independent one such as that contemplated under
Article 30.
xxx

xxx

xxx

From this lengthy disquisition, we summarize our


ruling herein:
1. Death of the accused pending appeal of his
conviction extinguishes his criminal liability as well as
the civil liability based solely thereon. As opined by
Justice Regalado, in this regard, "the death of the
accused prior to final judgment terminates his criminal
liability and only the civil liability directly arising from
and based solely on the offense committed, i.e., civil
liability ex delicto in senso strictiore."
2. Corollarily, the claim for civil liability survives
notwithstanding the death of accused, if the same may
also be predicated on a source of obligation other than
delict. 19 Article 1157 of the Civil Code enumerates
these other sources of obligation from which the civil
liability may arise as a result of the same act or
omission:
a)
b)
c)
d)
e)

Law
Contracts
Quasi-contracts
...
Quasi-delicts

3. Where the civil liability survives, as explained in


Number 2 above, an action for recovery therefor may be
pursued but only by way of filing a separate civil action
and subject to Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate civil
action may be enforced either against the
executor/administrator or the estate of the accused,
depending on the source of obligation upon which the
same is based as explained above.
5

4. Finally, the private offended party need not fear a


forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of
the criminal action and prior to its extinction, the
private-offended party instituted together therewith the
civil action. In such case, the statute of limitations on
the civil liability is deemed interrupted during the
pendency of the criminal case, conformably with
provisions of Article 1155 of the Civil Code, that should
thereby avoid any apprehension on a possible privation
of right by prescription.
Applying this set of rules to the case at bench, we hold
that the death of appellant Bayotas extinguished his
criminal liability and the civil liability based solely on
the act complained of, i.e., rape. Consequently, the
appeal is hereby dismissed without qualification.
WHEREFORE, the appeal of the late Rogelio Bayotas is
DISMISSED with costs de oficio.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado,
Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug,
Kapunan and Mendoza, JJ., concur.
Cruz, J., is on leave.
ELCANO vs. HILL, ET AL.,
G.R. No. L-24803, 26 May 1977, 77 SCRA 98
BARREDO, J p:
Appeal from the order of the Court of First Instance of
Quezon City dated January 29, 1965 in Civil Case No.
Q-8102, Pedro Elcano et al. vs. Reginald Hill et al.
dismissing, upon motion to dismiss of defendants, the
complaint of plaintiffs for recovery of damages from
defendant Reginald Hill, a minor, married at the time of
the occurrence, and his father, the defendant Marvin
Hill, with whom he was living and getting subsistence,
for the killing by Reginald of the son of the plaintiffs,
named Agapito Elcano, of which, when criminally
prosecuted, the said accused was acquitted on the
ground that his act was not criminal, because of "lack of
intent to kill, coupled with mistake."
xxx

xxx

xxx

It appears that for the killing of the son, Agapito, of


plaintiffs-appellants, defendant-appellee Reginald Hill
was prosecuted criminally in Criminal Case No. 5102 of
the Court of First Instance of Quezon City. After due
trial, he was acquitted on the ground that his act was
not criminal because of "lack of intent to kill, coupled
with mistake." Parenthetically, none of the parties has
favored Us with a copy of the decision of acquittal,
presumably because appellants do not dispute that
such indeed was the basis stated in the court's decision.
And so, when appellants filed their complaint against
appellees Reginald and his father, Atty. Marvin Hill, on

account of the death of their son, the appellees filed the


motion to dismiss above-referred to.
As We view the foregoing background of this case, the
two decisive issues presented for Our resolution are:
1.

Is the present civil action for damages barred by


the acquittal of Reginald in the criminal case
wherein the action for civil liability was not
reversed?

2.

May Article 2180 (2nd and last paragraphs) of the


Civil Code be applied against Atty. Hill,
notwithstanding the undisputed fact that at the
time of the occurrence complained of, Reginald,
though a minor, living with and getting subsistence
from his father, was already legally married?

The first issue presents no more problem than the need


for a reiteration and further clarification of the dual
character, criminal and civil, of fault or negligence as a
source of obligation which was firmly established in
this jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that
case, this Court postulated, on the basis of a scholarly
dissertation by Justice Bocobo on the nature of culpa
aquiliana in relation to culpa criminal or delito and mere
culpa or fault, with pertinent citation of decisions of the
Supreme Court of Spain, the works of recognized
civilians, and earlier jurisprudence of our own, that the
same given act can result in civil liability not only
under the Penal Code but also under the Civil Code.
Thus, the opinion holds:
"The above case is pertinent because
it shows that the same act may come
under both the Penal Code and the
Civil Code. In that case, the action of
the agent was unjustified and
fraudulent and therefore could have
been the subject of a criminal action.
And yet, it was held to be also a
proper subject of a civil action under
article 1902 of the Civil Code. It is
also to be noted that it was the
employer and not the employee who
was being sued." (pp. 615-616, 73
Phil.)
"It will be noticed that the defendant
in the above case could have been
prosecuted in a criminal case because
his negligence causing the death of
the child was punishable by the Penal
Code. Here is therefore a clear
instance of the same act of negligence
being a proper subject matter either
of a criminal action with its
consequent civil liability arising from
a crime or of an entirely separate and
independent civil action for fault or
negligence under article 1902 of the
Civil Code. Thus, in this jurisdiction,

the separate individuality of a cuasidelito or culpa aquiliana under the


Civil Code has been fully and clearly
recognized, even with regard to a
negligent
act
for
which
the
wrongdoer
could
have
been
prosecuted and convicted in a
criminal case and for which, after
such a conviction, he could have been
sued for this civil liability arising
from his crime." (p. 617, 73 Phil.)
"It is most significant that in the case
just cited, this Court specifically
applied article 1902 of the Civil Code.
It is thus that although J. V. House
could
have
been
criminally
prosecuted for reckless or simple
negligence and not only punished but
also made civilly liable because of his
criminal negligence, nevertheless this
Court awarded damages in an
independent civil action for fault or
negligence under article 1902 of the
Civil Code." (p. 618, 73 Phil.)
"The legal provisions, authors, and
cases
already
invoked
should
ordinarily be sufficient to dispose of
this case. But inasmuch as we are
announcing doctrines that have been
little understood, in the past, it might
not be inappropriate to indicate their
foundations.
"Firstly, the Revised Penal Code in
articles 365 punishes not only
reckless but also simple negligence. If
we were to hold that articles 1902 to
1910 of the Civil Code refer only to
fault or negligence not punished by
law, accordingly to the literal import
of article 1093 of the Civil Code, the
legal institution of culpa aquilina
would have very little scope and
application in actual life. Death or
injury to persons and damage to
property through any degree of
negligence even the slightest
would have to be indemnified only
through the principle of civil liability
arising from a crime. In such a state
of affairs, what sphere would remain
for cuasi-delito or culpa aquiliana? We
are loath to impute to the lawmaker
any intention to bring about a
situation to absurd and anomalous.
Nor are we, in the interpretation of
the laws, disposed to uphold the
letter that killeth rather than the spirit
that giveth life. We will not use the
literal meaning of the law to smother
6

and render almost lifeless a principle


of such ancient origin and such fullgrown development as culpa aquiliana
or cuasi-delito, which is conserved
and made enduring in articles 1902 to
1910 of the Spanish Civil Code.
"Secondly, to find the accused guilty
in a criminal case, proof of guilt
beyond reasonable doubt is required,
while in a civil case, preponderance
of evidence is sufficient to make the
defendant pay in damages. There are
numerous
cases
of
criminal
negligence which can not be shown
beyond reasonable doubt, but can be
proved by a preponderance of
evidence. In such cases, the
defendant can and should be made
responsible in a civil action under
articles 1902 to 1910 of the Civil Code.
Otherwise, there would be many
instances of unvindicated civil
wrongs. Ubi jus ibi remedium." (p.
620, 73 Phil.)
"Fourthly, because of the broad
sweep of the provisions of both the
Penal Code and the Civil Code on
this subject, which has given rise to
the overlapping or concurrence of
spheres already discussed, and for
lack of understanding of the character
and efficacy of the action for culpa
aquiliana, there has grown up a
common practice to seek damages
only by virtue of the civil
responsibility arising from a crime,
forgetting that there is another
remedy, which is by invoking articles
1902-1910 of the Civil Code.
Although this habitual method is
allowed by our laws, it has
nevertheless rendered practically
useless and nugatory the more
expeditious and effective remedy
based on culpa aquiliana or culpa extra
contractual. In the present case, we are
asked to help perpetuate this usual
course. But we believe it is high time
we pointed out to the harms done by
such practice and to restore the
principle of responsibility for fault or
negligence under articles 1902 et seq.
of the Civil Code to its full rigor. It is
high time we caused the stream of
quasi-delict or culpa aquiliana to flow
on its own natural channel, so that its
waters may no longer be diverted
into that of a crime under the Penal
Code. This will, it is believed, make
for the better safeguarding or private
7

rights because it re-establishes an


ancient and additional remedy, and
for the further reason that an
independent
civil
action,
not
depending on the issues, limitations
and results of a criminal prosecution,
and entirely directed by the party
wronged or his counsel, is more
likely to secure adequate and
efficacious redress." (p. 621, 73 Phil.)
Contrary to an immediate impression one might get
upon a reading of the foregoing excerpts from the
opinion in Garcia - that the concurrence of the Penal
Code and the Civil Code therein referred to
contemplate only acts of negligence and not intentional
voluntary acts deeper reflection would reveal that
the thrust of the pronouncements therein is not so
limited, but that in fact it actually extends to fault or
culpa. This can be seen in the reference made therein to
the Sentence of the Supreme Court of Spain of February
14, 1919, supra, which involved a case of fraud or
estafa, not a negligent act. Indeed, Article 1093 of the
Civil Code of Spain, in force here at the time of Garcia,
provided textually that obligations "which are derived
from acts or omissions in which fault or negligence, not
punishable by law, intervene shall be the subject of
Chapter II, Title XV of this book (which refers to quasidelicts.)" And it is precisely the underline qualification,
"not punishable by law", that Justice Bocobo
emphasized could lead to an undesirable construction
or interpretation of the letter of the law that "killeth,
rather than the spirit that giveth life" hence, the ruling
that "(W)e will not use the literal meaning of the law to
smother and render almost lifeless a principle of such
ancient origin and such full-grown development as
culpa aquiliana or cuasi-delito, which is conserved and
made enduring in articles 1902 to 1910 of the Spanish
Civil Code." And so, because Justice Bacobo was
Chairman of the Code Commission that drafted the
original text of the new Civil Code, it is to be noted that
the said Code, which was enacted after the Garcia
doctrine, no longer uses the term, "not punishable by
law," thereby making it clear that the concept of culpa
aquiliana includes acts which are criminal in character
or in violation of the penal law, whether voluntary or
negligent. Thus, the corresponding provisions to said
Article 1093 in the new code, which is Article 1162,
simply says, "Obligations derived from quasi-delicts
shall be governed by the provisions of Chapter 2, Title
XVII of this Book, (on quasi-delicts) and by special laws."
More precisely, a new provision, Article 2177 of the
new code provides:
"ART. 2177.
Responsibility for
fault or negligence under the
preceding article is entirely separate
and distinct from the civil liability
arising from negligence under the
Penal Code. But the plaintiff cannot
recover damages twice for the same
act or omission of the defendant."

According to the Code Commission: "The foregoing


provision (Article 2177) through at first sight startling,
is not so novel or extraordinary when we consider the
exact nature of criminal and civil negligence. The
former is a violation of the criminal law, while the latter
is a 'culpa aquilian' or quasi-delict, of ancient origin,
having always had its own foundation and
individuality, separate from criminal negligence. Such
distinction between criminal negligence and 'culpa extra
contractual' or 'cuasi-delito' has been sustained by
decision of the Supreme Court of Spain and maintained
as clear, sound and perfectly tenable by Maura, an
outstanding Spanish jurist. Therefore, under the
proposed Article 2177, acquittal from an accusation of
criminal negligence, whether on reasonable doubt or
not, shall not be a bar to a subsequent civil action, not
for civil liability arising from criminal negligence, but
for damages due to a quasi-delict or 'culpa aquiliana'. But
said article forestalls a double recovery." (Report of the
Code) Commission, p. 162.)
Although, again, this Article 2177 does seem to literally
refer to only acts of negligence, the same argument of
Justice Bacobo about construction that upholds "the
spirit that giveth life" rather than that which is literal
that killeth the intent of the lawmaker should be
observed in applying the same. And considering that
the preliminary chapter on human relations of the new
Civil Code definitely establishes the separability and
independence of liability in a civil action for acts
criminal in character (under Articles 29 to 32) from the
civil responsibility arising from crime fixed by Article
100 of the Revised Penal Code, and, in a sense, the
Rules of Court, under Sections 2 and 3 (c), Rule 111,
contemplate also the same separability, it is "more
congruent with the spirit of law, equity and justice, and
more in harmony with modern progress", to borrow the
felicitous relevant language in Rakes vs. Atlantic. Gulf
and Pacific Co., 7 Phil. 359, to hold, as We do hold, that
Article 2176, where it refers to "fault or negligence,"
covers not only acts "not punishable by law" but also
acts criminal in character, whether intentional and
voluntary or negligent. Consequently, a separate civil
action lies against the offender in a criminal act,
whether or not he is criminally prosecuted and found
guilty or acquitted, provided that the offended party is
not allowed, if he is actually charged also criminally, to
recover damages on both scores, and would be entitled
in such eventuality only to the bigger award of the two,
assuming the awards made in the two cases vary. In
other words, the extinction of civil liability referred to
in Par. (e) of Section 3, Rule 111, refers exclusively to
civil liability founded on Article 100 of the Revised
Penal Code, whereas the civil liability for the same act
considered as a quasi-delict only and not as a crime is
not extinguished even by a declaration in the criminal
case that the criminal act charged has not happened or
has not been committed by the accused. Briefly stated,
We here hold, in reiteration of Garcia, that culpa
aquiliana includes voluntary and negligent acts which
may be punishable by law.

It results, therefore, that the acquittal of Reginal Hill in


the criminal case has not extinguished his liability for
quasi-delict, hence that acquittal is not a bar to the
instant action against him.
Coming now to the second issue about the effect of
Reginald's emancipation by marriage on the possible
civil liability of Atty. Hill, his father, it is also Our
considered opinion that the conclusion of appellees that
Atty. Hill is already free from responsibility cannot be
upheld.
While it is true that parental authority is terminated
upon emancipation of the child (Article 327, Civil
Code), and under Article 397, emancipation takes place
"by the marriage of the minor (child)", it is, however,
also clear that pursuant to Article 399, emancipation by
marriage of the minor is not really full or absolute. Thus
"(E)mancipation by marriage or by voluntary
concession shall terminate parental authority over the
child's person. It shall enable the minor to administer
his property as though he were of age, but he cannot
borrow money or alienate or encumber real property
without the consent of his father or mother, or
guardian. He can sue and be sued in court only with
the assistance of his father, mother or guardian."
Now under Article 2180, "(T)he obligation imposed by
article 2176 is demandable not only for one's own acts
or omissions, but also for those of persons for whom
one is responsible. The father and, in case of his death
or incapacity, the mother, are responsible. The father
and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor
children who live in their company." In the instant case,
it is not controverted that Reginald, although married,
was living with his father and getting subsistence from
him at the time of the occurrence in question. Factually,
therefore, Reginald was still subservient to and
dependent on his father, a situation which is not
unusual.
It must be borne in mind that, according to Manresa,
the reason behind the joint and solidary liability of
parents with their offending child under Article 2180 is
that is the obligation of the parent to supervise their
minor children in order to prevent them from causing
damage to third persons. 5 On the other hand, the clear
implication of Article 399, in providing that a minor
emancipated by marriage may not, nevertheless, sue or
be sued without the assistance of the parents, is that
such emancipation does not carry with it freedom to
enter into transactions or do any act that can give rise to
judicial litigation. (See Manresa, id., Vol. II, pp. 766-767,
776.) And surely, killing someone else invites judicial
action. Otherwise stated, the marriage of a minor child
does not relieve the parents of the duty to see to it that
the child, while still a minor, does not give answerable
for the borrowings of money and alienation or
encumbering of real property which cannot be done by

their minor married child without their consent. (Art.


399; Manresa, supra.)

1997, respondent filed a motion for reconsideration of


the order.

Accordingly, in Our considered view, Article 2180


applies to Atty. Hill notwithstanding the emancipation
by marriage of Reginald. However, inasmuch as it is
evident that Reginald is now of age, as a matter of
equity, the liability of Atty. Hill has become merely
subsidiary to that of his son.

On February 21, 1997, the trial court issued an order


granting respondent's motion for reconsideration,
thereby recalling the dismissal of the case.
Hence, this petition.
The Issues

WHEREFORE, the order appealed from is reversed and


the trial court is ordered to proceed in accordance with
the foregoing opinion. Costs against appellees.
Fernando (Chairman), Antonio and Martin, JJ., concur.

The issues raised are: xxx (2) whether the civil case
could proceed independently of the criminal case for
estafa without having reserved the filing of the civil
action.

Concepcion Jr., J., is on leave.


Martin, J., was designated to sit in the Second Division.
DMPI EMPLOYEES CREDIT COOPERATIVE, INC.,
(DMPI-ECCI) vs. VELEZ, ET AL.,
G.R. No. 129282, 29 November 2001,
PARDO, J p:
The Case
In this special civil action for certiorari, petitioner DMPI
Employees Credit Cooperative, Inc. (DMPI-ECCI) seeks
the annulment of the order 1 of the Regional Trial
Court, Misamis Oriental, Branch 20, granting the
motion for reconsideration of respondent Eriberta
Villegas, and thus reversing the previous dismissal of
Civil Case No. CV-94-214.

The Court's Ruling


xxx

xxx

xxx

On the second issue, as a general rule, an offense causes


two (2) classes of injuries. The first is the social injury
produced by the criminal act which is sought to be
repaired thru the imposition of the corresponding
penalty, and the second is the personal injury caused to
the victim of the crime which injury is sought to be
compensated through indemnity which is civil in
nature.
Thus, "every person criminally liable for a felony is also
civilly liable." This is the law governing the recovery of
civil liability arising from the commission of an offense.
Civil liability includes restitution, reparation for
damage caused, and indemnification of consequential
damages.

The Facts
On February 18, 1994, the prosecuting attorney filed
with the Regional Trial Court, Misamis Oriental, Branch
37, an information for estafa against Carmen Mandawe
for alleged failure to account to respondent Eriberta
Villegas the amount of P608,532.46. Respondent
Villegas entrusted this amount to Carmen Mandawe, an
employee of petitioner DMPI-ECCI, for deposit with
the teller of petitioner.
Subsequently, on March 29, 1994, respondent Eriberta
Villegas filed with the Regional Trial Court, Misamis
Oriental, Branch 20, a complaint against Carmen
Mandawe and petitioner DMPI-ECCI for a sum of
money and damages with preliminary attachment
arising out of the same transaction. In time, petitioner
sought the dismissal of the civil case on the following
grounds: (1) that there is a pending criminal case in
RTC Branch 37, arising from the same facts, and (2) that
the complaint failed to contain a certification against
forum shopping as required by Supreme Court Circular
No. 28-91.
On December 12, 1996, the trial court issued an order
dismissing Civil Case No. CV-94-214. On January 21,

The offended party may prove the civil liability of an


accused arising from the commission of the offense in
the criminal case since the civil action is either deemed
instituted with the criminal action or is separately
instituted.
Rule 111, Section 1 of the Revised Rules of Criminal
Procedure, which became effective on December 1,
2000, provides that:
"(a)
When a criminal action is
instituted, the civil action for the
recovery of civil liability arising from the
offense charged shall be deemed instituted
with the criminal action unless the
offended party waives the civil
action, reserves the right to institute it
separately or institutes the civil action
prior to the criminal action." [Italics
supplied]
Rule 111, Section 2 further provides that
"After the criminal action has been
commenced, the separate civil action
arising therefrom cannot be instituted

until final judgment has been entered in


the criminal action." [Italics supplied]

G.R. No. L-39999, 31 May 1984, 129 SCRA 558


GUTIERREZ, JR., J p:

However, with respect to civil actions for recovery of


civil liability under Articles 32, 33, 34 and 2176 of the
Civil Code arising from the same act or omission, the
rule has been changed.
Under the present rule, only the civil liability arising
from the offense charged is deemed instituted with the
criminal action unless the offended party waives the
civil action, reserves his right to institute it separately,
or institutes the civil action prior to the criminal action.
There is no more need for a reservation of the right to
file the independent civil actions under Articles 32, 33,
34 and 2176 of the Civil Code of the Philippines. "The
reservation and waiver referred to refers only to the
civil action for the recovery of the civil liability arising
from the offense charged. This does not include
recovery of civil liability under Articles 32, 33, 34 and
2176 of the Civil Code of the Philippines arising from
the same act or omission which may be prosecuted
separately even without a reservation."
Rule 111, Section 3 reads:
"Sec. 3. When civil action may
proceed independently. In the
cases provided in Articles 32, 33, 34
and 2176 of the Civil Code of the
Philippines, the independent civil
action may be brought by the
offended party. It shall proceed
independently of the criminal action
and
shall
require
only
a
preponderance of evidence. In no
case, however, may the offended
party recover damages twice for the
same act or omission charged in the
criminal action."
xxx

xxx

xxx

Thus, Civil Case No. CV-94-214, an independent civil


action for damages on account of the fraud committed
against respondent Villegas under Article 33 of the
Civil Code, may proceed independently even if there
was no reservation as to its filing.
The Fallo
WHEREFORE, the Court DENIES the petition. The
Court AFFIRMS the order dated February 21, 1997. 20
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago.,
JJ., concur.
PADILLA, ET AL. vs. COURT OF APPEALS

This is a petition for review on certiorari of a Court of


Appeals' decision which reversed the trial court's
judgment of conviction and acquitted the petitioners of
the crime of grave coercion on the ground of reasonable
doubt but inspite of the acquittal ordered them to pay
jointly and severally the amount of P9,000.00 to the
complainants as actual damages.
The petitioners were charged under the following
information:
"The undersigned Fiscal accused ROY
PADILLA, FILOMENO GALDONES,
PEPITO BEDEA, YOLLY RICO,
DAVID BERMUNDO, VILLANOAC,
ROBERTO ROSALES, VILLANIA,
ROMEO GARRIDO, JOSE ORTEGA,
JR.,
RICARDO
CELESTINO,
REALINGO alias "KAMLON", JOHN
DOE alias TATO, and FOURTEEN
(14) RICARDO DOES of the crime of
GRAVE COERCION, committed as
follows:
"That on or about February 8, 1964 at
around 9:00 o'clock in the morning, in
the municipality of Jose Panganiban,
province
of
Camarines
Norte,
Philippines,
and
within
the
jurisdiction of this Honorable Court,
the above-named accused, Roy
Padilla, Filomeno Galdones, Pepito
Bedea, Yolly Rico, David Bermundo,
Villanoac, Roberto Rosales, Villania,
Romeo Garrido, Jose Ortega, Jr.,
Ricardo Celestino, Realingo alias
Kamlon, John Doe alias Tato, and
Fourteen
Richard
Does,
by
confederating and mutually helping
one another, and acting without any
authority of law, did then and there
wilfully, unlawfully, and feloniously,
by means of threats, force and
violence prevent Antonio Vergara
and his family to close their stall
located at the Public Market, Building
No. 3, Jose Panganiban, Camarines
Norte, and by subsequently forcibly
opening the door of said stall and
thereafter brutally demolishing and
destroying said stall and the
furnitures therein by axes and other
massive instruments, and carrying
away the goods, wares and
merchandise, to the damage and
prejudice of the said Antonio Vergara
and his family in the amount of
P30,000.00 in concept of actual or
10

compensatory and moral damages


and further the sum of P20,000.00 as
exemplary damages.
"That in committing the offense, the
accused took advantage of their
public positions: Roy Padilla, being
the incumbent municipal mayor, and
the rest of the accused being
policemen, except Ricardo Celestino
who is a civilian, all of Jose
Panganiban, Camarines Norte, and
that it was committed with evident
premeditation."
The Court of First Instance of Camarines Norte, Tenth
Judicial District rendered a decision, the dispositive
portion of which states that:
IN VIEW OF THE FOREGOING, the
Court finds the accused Roy Padilla,
Filomeno Galdonez, Ismael Gonzalgo
and Jose Parley Bedea guilty beyond
reasonable doubt of the crime of
grave coercion, and hereby imposes
upon them to suffer an imprisonment
of FIVE (5) months and One (1) day;
to pay a fine of P500.00 each; to pay
actual and compensatory damages in
the amount of P10,000.00; moral
damages in the amount of P30,000.00;
and another P10,000.00 for exemplary
damages, jointly and severally, and
all the accessory penalties provided
for by law; and to pay the
proportionate
costs
of
this
proceedings.
"The accused Federico Realingo alias
'Kamlon',
David
Bermudo,
Christopher Villaoac, Godofredo
Villania, Romeo Garrido, Roberto
Rosales, Ricardo Celestino and Jose
Ortega, are hereby ordered acquitted
on grounds of reasonable doubt for
their criminal participation in the
crime charged.
xxx

xxx

xxx

The issue posed in the instant proceeding is whether or


not the respondent court committed a reversible error
in requiring the petitioners to pay civil indemnity to the
complainants after acquitting them from the criminal
charge.
Petitioners maintain the view that where the civil
liability which is included in the criminal action is that
arising from and as a consequence of the criminal act,
and the defendant was acquitted in the criminal case,
(no civil liability arising from the criminal case), no civil
liability arising from the criminal charge could be
11

imposed upon him. They cite precedents to the effect


that the liability of the defendant for the return of the
amount received by him may not be enforced in the
criminal case but must be raised in a separate civil
action for the recovery of the said amount (People v.
Pantig, 97 Phil. 748; following the doctrine laid down in
Manila Railroad Co. v. Honorable Rodolfo Baltazar, 49 O.G.
3874; Pueblo contra Abellera, 69 Phil. 623; People v.
Maago, 69 Phil. 496; People v. Miranda, 5 SCRA 1067;
Aldaba v. Elepao, 116 Phil. 457).
In the case before us, the petitioners were acquitted not
because they did not commit the acts stated in the
charge against them. There is no dispute over the
forcible opening of the market stall, its demolition with
axes and other instruments, and the carting away of the
merchandize. The petitioners were acquitted because
these acts were denominated coercion when they
properly constituted some other offense such as threat
or malicious mischief.
xxx

xxx

xxx

Section 1 of Rule 111 of the Rules of Court states the


fundamental proposition that when a criminal action is
instituted, the civil action for recovery of civil liability
arising from the offense charged is impliedly instituted
with it. There is no implied institution when the
offended party expressly waives the civil action or
reserves his right to institute it separately. (Morte Sr. v.
Alvizo, Jr., 101 SCRA 221).
The extinction of the civil action by reason of acquittal
in the criminal case refers exclusively to civil liability ex
delicto founded on Article 100 of the Revised Penal
Code. (Elcano v. Hill, 77 SCRA 98; Virata v. Ochoa, 81
SCRA 472). In other words, the civil liability which is
also extinguished upon acquittal of the accused is the
civil liability arising from the act as a crime.
As early as 1942, the Supreme Court speaking through
Justice Jorge Bocobo in Barredo v. Garcia et al., 73 Phil.
607, laid down the rule that the same punishable act or
omission can create two kinds of civil liabilities against
the accused and, where provided by law, his employer.
There is the civil liability arising from the act as a crime
and the liability arising from the same act as a quasidelict. Either one of these two types of civil liability may
be enforced against the accused. However, the offended
party cannot recover damages under both types of
liability. For instance, in cases of criminal negligence or
crimes due to reckless imprudence, Article 2177 of the
Civil Code provides:
"Responsibility for fault or negligence
under the preceding article is entirely
separate and distinct from the civil
liability arising from negligence
under the Penal Code. But the
plaintiff cannot recover damages
twice for the same act or omission of
the defendant"

Section 3 (c) of Rule 111 specifically provides that:


"Sec. 3. Other civil actions arising
from offenses. In all cases not
included in the preceding section the
following rules shall be observed:
xxx
xxx
xxx
(c)
Extinction of the penal
action does not carry with it
extinction of the civil, unless the
extinction
proceeds
from
a
declaration in a final judgment that
the fact from which the civil might
arise did not exist. In other cases, the
person entitled to the civil action may
institute it in the jurisdiction and in
the manner provided by law against
the person who may be liable for
restitution of the thing and reparation
or indemnity for the damage
suffered.
The judgment of acquittal extinguishes the liability of
the accused for damages only when it includes a
declaration that the facts from which the civil might
arise did not exist. Thus, the civil liability is not
extinguished by acquittal where the acquittal is based
on reasonable doubt (PNB v. Catipon, 98 Phil. 286) as
only preponderance of evidence is required in civil
cases; where the court expressly declares that the
liability of the accused is not criminal but only civil in
nature (De Guzman v. Alvia, 96 Phil. 558; People v. Pantig,
supra) as, for instance, in the felonies of estafa, theft,
and malicious mischief committed by certain relatives
who thereby incur only civil liability (See Art. 332,
Revised Penal Code); and, where the civil liability does
not arise from or is not based upon the criminal act of
which the accused was acquitted (Castro v. Collector of
Internal Revenue, 4 SCRA 1093; See Regalado, Remedial
Law Compendium, 1983 ed., p. 623).

the absence of any declaration to that


effect, it may be inferred from the text
of the decision whether or not the
acquittal is due to that ground."
More recently, we held that the acquittal of the
defendant in the criminal case would not constitute an
obstacle to the filing of a civil case based on the same
acts which led to the criminal prosecution:
". . . The finding by the respondent
court that he spent said sum for and
in the interest of the Capiz
Agricultural and Fishery School and
for his personal benefit is not a
declaration that the fact upon which
Civil Case No. V-3339 is based does
not exist. The civil action barred by
such a declaration is the civil liability
arising from the offense charged,
which is the one impliedly instituted
with the criminal action. (Section I,
Rule III, Rules of Court.) Such a
declaration would not bar a civil
action filed against an accused who
had been acquitted in the criminal
case if the criminal action is
predicated on factual or legal
considerations
other
than
the
commission of the offense charged. A
person may be acquitted of
malversation where, as in the case at
bar, he could show that he did not
misappropriate the public funds in
his possession, but he could be
rendered liable to restore said funds
or at least to make a proper
accounting thereof if he shall spend
the same for purposes which are not
authorized nor intended, and in a
manner not permitted by applicable
rules and regulations." (Republic v.
Bello, 120 SCRA 203).

Article 29 of the Civil Code also provides that:


"When the accused in a criminal
prosecution is acquitted on the
ground that his guilt has not been
proved beyond reasonable doubt, a
civil action for damages for the same
act or omission may be instituted.
Such action requires only a
preponderance of evidence. Upon
motion of the defendant, the court
may require the plaintiff to file a
bond to answer for damages in case
the complaint should be found to be
malicious.
"If in a criminal case the judgment of
acquittal is based upon reasonable
doubt, the court shall so declare. In

There appear to be no sound reasons to require a


separate civil action to still be filed considering that the
facts to be proved in the civil case have already been
established in the criminal proceedings where the
accused was acquitted. Due process has been accorded
the accused. He was, in fact, exonerated of the criminal
charged. The constitutional presumption of innocence
called for more vigilant efforts on the part of
prosecuting attorneys and defense counsel, a keener
awareness by all witnesses of the serious implications
of perjury, and a more studied consideration by the
judge of the entire records and of applicable statutes
and precedents. To require a separate civil action
simply because the accused was acquitted would mean
needless clogging of court dockets and unnecessary
duplication of litigation with all its attendant loss of
time, effort, and money on the part of all concerned.

12

xxx

xxx

xxx

The petitioners, themselves, do not deny the fact that


they caused the destruction of the complainant's market
stall and had its contents carted away. They state:
"On February 8, 1964, despite
personal pleas on Vergaras by the
Mayor to vacate the passageways of
Market Building No. 3, the Vergaras
were still in the premises, so the
petitioners Chief of Police and
members of the Police Force of Jose
Panganiban, pursuant to the Mayor's
directives, demolished the store of
the Vergaras, made an inventory of
the goods found in said store, and
brought these goods to the municipal
building under the custody of the
Municipal Treasurer, . . ."
The only supposed obstacle is the provision of Article
29 of the Civil Code, earlier cited, that "when the
accused in a criminal prosecution is acquitted on the
ground that his guilt has not been proved beyond
reasonable doubt, a civil action for damages for the
same act or omission may be instituted." According to
some scholars, this provision of substantive law calls
for a separate civil action and cannot be modified by a
rule of remedial law even in the interests of economy
and simplicity and following the dictates of logic and
common sense.
As stated by retired Judge J. Cezar Sangco:
". . . if the Court finds the evidence
sufficient to sustain the civil action
but inadequate to justify a conviction
in the criminal action, may it render
judgment acquitting the accused on
reasonable doubt, but hold him
civilly
liable
nonetheless?
An
affirmative answer to this question
would be consistent with the doctrine
that the two are distinct and separate
actions, and will (a) dispense with the
reinstituting of the same civil action,
or one based on quasi-delict or other
independent civil action, and of
presenting the same evidence; (b)
save the injured party unnecessary
expenses in the prosecution of the
civil action or enable him to take
advantage of the free services of the
fiscal; and (c) otherwise resolve the
unsettling implications of permitting
the reinstitution of a separate civil
action whether based on delict, or
quasi-delict, or other independent civil
actions.

13

". . . But for the court to be able to


adjudicate in the manner here
suggested, Art. 29 of the Civil Code
should be amended because it clearly
and expressly provides that the civil
action based on the same act or
omission may only be instituted in a
separate action, and therefore, may
not inferentially be resolved in the
same criminal action. To dismiss the
civil action upon acquittal of the
accused
and
disallow
the
reinstitution of any other civil action,
would likewise render, unjustifiably,
the acquittal on reasonable doubt
without any significance, and would
violate the doctrine that the two
actions are distinct and separate.
"In the light of the foregoing
exposition, it seems evident that there
is
much
sophistry
and
no
pragmatism in the doctrine that it is
inconsistent to award in the same
proceedings damages against the
accused after acquitting him on
reasonable doubt. Such doctrine must
recognize the distinct and separate
character of the two actions, the
nature of an acquittal on reasonable
doubt, the vexatious and oppressive
effects of a reservation or institution
of a separate civil action, and that the
injured party is entitled to damages
not because the act or omission is
punishable but because he was
damaged or injured thereby (Sangco,
Philippine Law on Torts and
Damages, pp. 288-289).
We see no need to amend Article 29 of the Civil Code in
order to allow a court to grant damages despite a
judgment of acquittal based on reasonable doubt. What
Article 29 clearly and expressly provides is a remedy
for the plaintiff in case the defendant has been
acquitted in a criminal prosecution on the ground that
his guilt has not been proved beyond reasonable doubt.
It merely emphasizes that a civil action for damages is
not precluded by an acquittal for the same criminal act
or omission. The Civil Code provision does not state
that the remedy can be availed of only in a separate
civil action. A separate civil case may be filed but there
is no statement that such separate filing is the only and
exclusive permissible mode of recovering damages.
There is nothing contrary to the Civil Code provision in
the rendition of a judgment of acquittal and a judgment
awarding damages in the same criminal action. The two
can stand side by side. A judgment of acquittal operates
to extinguish the criminal liability. It does not, however,
extinguish the civil liability unless there is clear

showing that the act from which civil liability might


arise did not exist.
A different conclusion would be attributing to the Civil
Code a trivial requirement, a provision which imposes
an uncalled for burden before one who has already
been the victim of a condemnable, yet non-criminal, act
may be accorded the justice which he seeks.
We further note the rationale behind Art. 29 of the Civil
Code in arriving at the intent of the legislator that they
could not possibly have intended to make it more
difficult for the aggrieved party to recover just
compensation by making a separate civil action
mandatory and exclusive:
"The old rule that the acquittal of the
accused in a criminal case also
releases him from civil liability is one
of the most serious flaws in the
Philippine legal system. It has given
rise to numberless instances of
miscarriage of justice, where the
acquittal was due to a reasonable
doubt in the mind of the court as to
the guilt of the accused. The
reasoning followed is that inasmuch
as the civil responsibility is derived
from the criminal offense, when the
latter is not proved, civil liability
cannot be demanded.
"This is one of those cases where
confused
thinking
leads
to
unfortunate
and
deplorable
consequences. Such reasoning fails to
draw a clear line of demarcation
between criminal liability and civil
responsibility, and to determine the
logical result of the distinction. The
two liabilities are separate and
distinct from each other, One affects
the social order and the other, private
rights. One is for the punishment or
correction of the offender while the
other is for reparation of damages
suffered by the aggrieved party. . . . It
is just and proper that, for the
purposes of the imprisonment of or
fine upon the accused, the offense
should be proved beyond reasonable
doubt. But for the purpose of
indemnifying the complaining party,
why should the offense also be
proved beyond reasonable doubt? Is
not the invasion or violation of every
private right to be proved only by
preponderance of evidence? Is the
right of the aggrieved person any less
private because the wrongful act is
also punishable by the criminal law?
(Code Commission, pp. 45-46).

A separate civil action may be warranted where


additional facts have to be established or more evidence
must be adduced or where the criminal case has been
fully terminated and a separate complaint would be
just as efficacious or even more expedient than a timely
remand to the trial court where the criminal action was
decided for further hearings on the civil aspects of the
case. The offended party may, of course, choose to file a
separate action. These do not exist in this case.
Considering moreover the delays suffered by the case
in the trial, appellate, and review stages, it would be
unjust to the complainants in this case to require at this
time a separate civil action to be filed.
With this in mind, we therefore hold that the
respondent Court of Appeals did not err in awarding
damages despite a judgment of acquittal.
WHEREFORE, we hereby AFFIRM the decision of the
respondent Court of Appeals and dismiss the petition
for lack of merit.
SO ORDERED.
Fernando, C .J ., Teehankee, Makasiar, Guerrero, Abad
Santos, Melencio-Herrera, Plana, Escolin, Relova and
De la Fuente, JJ ., concur.
Aquino, J ., concurs in the result.
Concepcion, Jr., J ., is on leave.
De Castro, J ., took no part.
PHILIPPINE RABBIT BUS LINES, INC. vs.
PEOPLE OF THE PHILIPPINES
G.R. No. 147703, 14 April 2004, 427 SCRA 456
PANGANIBAN, J p:
When the accused-employee absconds or jumps bail,
the judgment meted out becomes final and executory.
The employer cannot defeat the finality of the judgment
by filing a notice of appeal on its own behalf in the
guise of asking for a review of its subsidiary civil
liability. Both the primary civil liability of the accusedemployee and the subsidiary civil liability of the
employer are carried in one single decision that has
become final and executory.
xxx

xxx

xxx

The Facts
The facts of the case are summarized by the CA in this
wise:
"On July 27, 1994, accused [Napoleon Roman y
Macadangdang] was found guilty and convicted of the
crime of reckless imprudence resulting to triple
homicide, multiple physical injuries and damage to
property and was sentenced to suffer the penalty of

14

four (4) years, nine (9) months and eleven (11) days to
six (6) years, and to pay damages as follows:
xxx

xxx

xxx

"The court further ruled that [petitioner], in the event of


the insolvency of accused, shall be liable for the civil
liabilities of the accused. Evidently, the judgment
against accused had become final and executory.
"Admittedly, accused had jumped bail and remained
at-large. It is worth mention[ing] that Section 8, Rule
124 of the Rules of Court authorizes the dismissal of
appeal when appellant jumps bail. Counsel for accused,
also admittedly hired and provided by [petitioner],
filed a notice of appeal which was denied by the trial
court. We affirmed the denial of the notice of appeal
filed in behalf of accused.
"Simultaneously, on August 6, 1994, [petitioner] filed its
notice of appeal from the judgment of the trial court.
On April 29, 1997, the trial court gave due course to
[petitioner's] notice of appeal. On December 8, 1998,
[petitioner] filed its brief. On December 9, 1998, the
Office of the Solicitor General received [a] copy of
[petitioner's] brief. On January 8, 1999, the OSG moved
to be excused from filing [respondents'] brief on the
ground that the OSG's authority to represent People is
confined to criminal cases on appeal. The motion was
however denied per Our resolution of May 31, 1999. On
March 2, 1999, [respondent]/private prosecutor filed
the instant motion to dismiss." (Citations omitted)
xxx

xxx

"A.
Whether
or
not
an
employer, who dutifully participated
in the defense of its accusedemployee, may appeal the judgment
of conviction independently of the
accused.
"B.
Whether or not the doctrines
of Alvarez v. Court of Appeals (158
SCRA 57) and Yusay v. Adil (164
SCRA 494) apply to the instant case."
There is really only one issue. Item B above is merely an
adjunct to Item A.
The Court's Ruling
The Petition has no merit.

"The subsidiary liability established


in the next preceding article shall also
apply
to
employers,
teachers,
persons, and corporations engaged in
any kind of industry for felonies
committed by their servants, pupils,
workmen, apprentices, or employees
in the discharge of their duties."
Having laid all these basic rules and principles, we now
address the main issue raised by petitioner.
Civil Liability Deemed Instituted
in the Criminal Prosecution
At the outset, we must explain that the 2000 Rules of
Criminal Procedure has clarified what civil actions are
deemed instituted in a criminal prosecution.
Section 1 of Rule 111 of the current Rules of Criminal
Procedure provides:

xxx

Liability of an Employer in a Finding of Guilt

15

"Innkeepers are also subsidiary liable


for restitution of goods taken by
robbery or theft within their houses
from guests lodging therein, or for
payment of the value thereof,
provided that such guests shall have
notified in advance the innkeeper
himself, or the person representing
him, of the deposit of such goods
within the inn; and shall furthermore
have followed the directions which
such innkeeper or his representative
may have given them with respect to
the care and vigilance over such
goods. No liability shall attach in case
of robbery with violence against or
intimidation of persons unless
committed
by
the
innkeeper's
employees."
Moreover, the foregoing subsidiary liability applies to
employers, according to Article 103 which reads:

Petitioner states the issues of this case as follows:

xxx

"In default of the persons criminally


liable, innkeepers, tavernkeepers, and
any other persons or corporations
shall be civilly liable for crimes
committed in their establishments, in
all cases where a violation of
municipal ordinances or some
general or special police regulation
shall have been committed by them
or their employees.

xxx

The Issues

xxx

Article 102 of the Revised Penal Code states the


subsidiary civil liabilities of innkeepers, as follows:

"When a criminal action is instituted,


the civil action for the recovery of
civil liability arising from the offense

charged shall be deemed instituted


with the criminal action unless the
offended party waives the civil
action, reserves the right to institute it
separately or institutes the civil action
prior to the criminal action.
xxx
xxx
xxx"
Only the civil liability of the accused arising from the
crime charged is deemed impliedly instituted in a
criminal action; that is, unless the offended party
waives the civil action, reserves the right to institute it
separately, or institutes it prior to the criminal action.
Hence, the subsidiary civil liability of the employer
under Article 103 of the Revised Penal Code may be
enforced by execution on the basis of the judgment of
conviction meted out to the employee.
It is clear that the 2000 Rules deleted the requirement of
reserving independent civil actions and allowed these
to proceed separately from criminal actions. Thus, the
civil actions referred to in Articles 32, 20 33, 21 34 22
and 2176 23 of the Civil Code shall remain "separate,
distinct and independent" of any criminal prosecution
based on the same act. Here are some direct
consequences of such revision and omission:
1.

The right to bring the foregoing actions based on


the Civil Code need not be reserved in the criminal
prosecution, since they are not deemed included
therein.

2.

The institution or the waiver of the right to file a


separate civil action arising from the crime charged
does not extinguish the right to bring such action.

3.

The only limitation is that the offended party


cannot recover more than once for the same act or
omission.

What is deemed instituted in every criminal


prosecution is the civil liability arising from the crime
or delict per se (civil liability ex delicto), but not those
liabilities arising from quasi-delicts, contracts or quasicontracts. In fact, even if a civil action is filed
separately, the ex delicto civil liability in the criminal
prosecution remains, and the offended party may
subject to the control of the prosecutor still intervene
in the criminal action, in order to protect the remaining
civil interest therein.
This discussion is completely in accord with the
Revised Penal Code, which states that "[e]very person
criminally liable for a felony is also civilly liable."
Petitioner argues that, as an employer, it is considered a
party to the criminal case and is conclusively bound by
the outcome thereof. Consequently, petitioner must be
accorded the right to pursue the case to its logical
conclusion including the appeal.

The argument has no merit. Undisputedly, petitioner is


not a direct party to the criminal case, which was filed
solely against Napoleon M. Roman, its employee.
In its Memorandum, petitioner cited a comprehensive
list of cases dealing with the subsidiary liability of
employers. Thereafter, it noted that none can be applied
to it, because "in all th[o]se cases, the accused's
employer did not interpose an appeal." Indeed,
petitioner cannot cite any single case in which the
employer appealed, precisely because an appeal in such
circumstances is not possible.
The cases dealing with the subsidiary liability of
employers uniformly declare that, strictly speaking,
they are not parties to the criminal cases instituted
against their employees. Although in substance and in
effect, they have an interest therein, this fact should be
viewed in the light of their subsidiary liability. While
they may assist their employees to the extent of
supplying the latter's lawyers, as in the present case, the
former cannot act independently on their own behalf,
but can only defend the accused.
xxx

xxx

xxx

Subsidiary Liability
Upon Finality of Judgment
As a matter of law, the subsidiary liability of petitioner
now accrues. Petitioner argues that the rulings of this
Court in Miranda v. Malate Garage & Taxicab, Inc.,
Alvarez v. CA and Yusay v. Adil do not apply to the
present case, because it has followed the Court's
directive to the employers in these cases to take part in
the criminal cases against their employees. By
participating in the defense of its employee, herein
petitioner tries to shield itself from the undisputed
rulings laid down in these leading cases.
Such posturing is untenable. In dissecting these cases
on subsidiary liability, petitioner lost track of the most
basic tenet they have laid down that an employer's
liability in a finding of guilt against its accusedemployee is subsidiary.
Under Article 103 of the Revised Penal Code,
employers are subsidiarily liable for the adjudicated
civil liabilities of their employees in the event of the
latter's insolvency. 44 The provisions of the Revised
Penal Code on subsidiary liability Articles 102 and
103 are deemed written into the judgments in the
cases to which they are applicable. Thus, in the
dispositive portion of its decision, the trial court need
not expressly pronounce the subsidiary liability of the
employer.
In the absence of any collusion between the accusedemployee and the offended party, the judgment of
conviction should bind the person who is subsidiarily
liable. In effect and implication, the stigma of a criminal
conviction surpasses mere civil liability.
16

To allow employers to dispute the civil liability fixed in


a criminal case would enable them to amend, nullify or
defeat a final judgment rendered by a competent court.
By the same token, to allow them to appeal the final
criminal conviction of their employees without the
latter's consent would also result in improperly
amending, nullifying or defeating the judgment.
The decision convicting an employee in a criminal case
is binding and conclusive upon the employer not only
with regard to the former's civil liability, but also with
regard to its amount. The liability of an employer
cannot be separated from that of the employee.
Before the employers' subsidiary liability is exacted,
however, there must be adequate evidence establishing
that (1) they are indeed the employers of the convicted
employees; (2) that the former are engaged in some
kind of industry; (3) that the crime was committed by
the employees in the discharge of their duties; and (4)
that the execution against the latter has not been
satisfied due to insolvency.
The resolution of these issues need not be done in a
separate civil action. But the determination must be
based on the evidence that the offended party and the
employer may fully and freely present. Such
determination may be done in the same criminal action
in which the employee's liability, criminal and civil, has
been pronounced; and in a hearing set for that precise
purpose, with due notice to the employer, as part of the
proceedings for the execution of the judgment.
Just because the present petitioner participated in the
defense of its accused-employee does not mean that its
liability has transformed its nature; its liability remains
subsidiary. Neither will its participation erase its
subsidiary liability. The fact remains that since the
accused-employee's conviction has attained finality,
then the subsidiary liability of the employer ipso facto
attaches.
According to the argument of petitioner, fairness
dictates that while the finality of conviction could be
the proper sanction to be imposed upon the accused for
jumping bail, the same sanction should not affect it. In
effect, petitioner-employer splits this case into two:
first, for itself; and second, for its accused-employee.
The untenability of this argument is clearly evident.
There is only one criminal case against the accusedemployee. A finding of guilt has both criminal and civil
aspects. It is the height of absurdity for this single case
to be final as to the accused who jumped bail, but not as
to an entity whose liability is dependent upon the
conviction of the former.
The subsidiary liability of petitioner is incidental to and
dependent on the pecuniary civil liability of the
accused-employee. Since the civil liability of the latter
has become final and enforceable by reason of his flight,
17

then the former's subsidiary civil liability has also


become immediately enforceable. Respondent is correct
in arguing that the concept of subsidiary liability is
highly contingent on the imposition of the primary civil
liability.
No Deprivation of Due Process
As to the argument that petitioner was deprived of due
process, we reiterate that what is sought to be enforced
is the subsidiary civil liability incident to and
dependent upon the employee's criminal negligence. In
other words, the employer becomes ipso facto
subsidiarily liable upon the conviction of the employee
and upon proof of the latter's insolvency, in the same
way that acquittal wipes out not only his primary civil
liability, but also his employer's subsidiary liability for
his criminal negligence.
It should be stressed that the right to appeal is neither a
natural right nor a part of due process. It is merely a
procedural remedy of statutory origin, a remedy that
may be exercised only in the manner prescribed by the
provisions of law authorizing such exercise. 54 Hence,
the legal requirements must be strictly complied with.
It would be incorrect to consider the requirements of
the rules on appeal as merely harmless and trivial
technicalities that can be discarded. Indeed, deviations
from the rules cannot be tolerated. In these times when
court dockets are clogged with numerous litigations,
such rules have to be followed by parties with greater
fidelity, so as to facilitate the orderly disposition of
those cases.
After a judgment has become final, vested rights are
acquired by the winning party. If the proper losing
party has the right to file an appeal within the
prescribed period, then the former has the correlative
right to enjoy the finality of the resolution of the case.
In fact, petitioner admits that by helping the accusedemployee, it participated in the proceedings before the
RTC; thus, it cannot be said that the employer was
deprived of due process. It might have lost its right to
appeal, but it was not denied its day in court. In fact, it
can be said that by jumping bail, the accused-employee,
not the court, deprived petitioner of the right to appeal.
All told, what is left to be done is to execute the RTC
Decision against the accused. It should be clear that
only after proof of his insolvency may the subsidiary
liability of petitioner be enforced. It has been
sufficiently proven that there exists an employeremployee relationship; that the employer is engaged in
some kind of industry; and that the employee has been
adjudged guilty of the wrongful act and found to have
committed the offense in the discharge of his duties.
The proof is clear from the admissions of petitioner that
"[o]n 26 August 1990, while on its regular trip from
Laoag to Manila, a passenger bus owned by petitioner,
being then operated by petitioner's driver, Napoleon

Roman, figured in an accident in San Juan, La Union . .


." Neither does petitioner dispute that there was
already a finding of guilt against the accused while he
was in the discharge of his duties.
WHEREFORE, the Petition is hereby DENIED, and the
assailed Resolutions AFFIRMED. Costs against
petitioner.
SO ORDERED.
Davide, Jr., C .J ., Ynares-Santiago, Carpio and Azcuna,
JJ ., concur.

Crim. Case No. 684-M-89. Subsequently on 2 December


1991, respondent filed a complaint for damages against
petitioners Manliclic and PRBLI before the RTC of
Dagupan City, docketed as Civil Case No. D-10086. The
criminal case was tried ahead of the civil case. Among
those who testified in the criminal case were
respondent Calaunan, Marcelo Mendoza and Fernando
Ramos.
In the civil case (now before this Court), the parties
admitted the following:
1.

The parties agreed on the capacity of the parties to


sue and be sued as well as the venue and the
identities of the vehicles involved;

2.

The identity of the drivers and the fact that they are
duly licensed;

Assailed before Us is the decision 1 of the Court of


Appeals in CA-G.R. CV No. 55909 which affirmed in
toto the decision 2 of the Regional Trial Court (RTC) of
Dagupan City, Branch 42, in Civil Case No. D-10086,
finding petitioners Mauricio Manliclic and Philippine
Rabbit Bus Lines, Inc. (PRBLI) solidarily liable to pay
damages and attorney's fees to respondent Modesto
Calaunan.

3.

The date and place of the vehicular collision;

4.

The extent of the injuries suffered by plaintiff


Modesto Calaunan and the existence of the medical
certificate;

5.

That both vehicles were going towards the south;


the private jeep being ahead of the bus;

The factual antecedents are as follows:

6.

That the weather was fair and the road was well
paved and straight, although there was a ditch on
the right side where the jeep fell into.

MANLICLIC, ET AL. vs. CALAUNAN


G.R. No. 150157, 25 January 25, 2007, 512 SCRA 642
CHICO-NAZARIO, J p:

The vehicles involved in this case are: (1) Philippine


Rabbit Bus No. 353 with plate number CVD-478, owned
by petitioner PRBLI and driven by petitioner Mauricio
Manliclic; and (2) owner-type jeep with plate number
PER-290, owned by respondent Modesto Calaunan and
driven by Marcelo Mendoza.
At around 6:00 to 7:00 o'clock in the morning of 12 July
1988, respondent Calaunan, together with Marcelo
Mendoza, was on his way to Manila from Pangasinan
on board his owner-type jeep. The Philippine Rabbit
Bus was likewise bound for Manila from Concepcion,
Tarlac. At approximately Kilometer 40 of the North
Luzon Expressway in Barangay Lalangan, Plaridel,
Bulacan, the two vehicles collided. The front right side
of the Philippine Rabbit Bus hit the rear left side of the
jeep causing the latter to move to the shoulder on the
right and then fall on a ditch with water resulting to
further extensive damage. The bus veered to the left
and stopped 7 to 8 meters from point of collision.
Respondent suffered minor injuries while his driver
was unhurt. He was first brought for treatment to the
Manila Central University Hospital in Kalookan City by
Oscar Buan, the conductor of the Philippine Rabbit Bus,
and was later transferred to the Veterans Memorial
Medical Center.
By reason of such collision, a criminal case was filed
before the RTC of Malolos, Bulacan, charging petitioner
Manliclic with Reckless Imprudence Resulting in
Damage to Property with Physical Injuries, docketed as

When the civil case was heard, counsel for respondent


prayed that the transcripts of stenographic notes (TSNs)
of the testimonies of respondent Calaunan, Marcelo
Mendoza and Fernando Ramos in the criminal case be
received in evidence in the civil case in as much as
these witnesses are not available to testify in the civil
case.
Francisco Tuliao testified that his brother-in-law,
respondent Calaunan, left for abroad sometime in
November, 1989 and has not returned since then.
Rogelio Ramos took the stand and said that his brother,
Fernando Ramos, left for Amman, Jordan, to work.
Rosalia Mendoza testified that her husband, Marcelo
Mendoza, left their residence to look for a job. She
narrated that she thought her husband went to his
hometown in Panique, Tarlac, when he did not return
after one month. She went to her husband's hometown
to look for him but she was informed that he did not go
there.
The trial court subpoenaed the Clerk of Court of Branch
8, RTC, Malolos, Bulacan, the court where Criminal
Case No. 684-M-89 was tried, to bring the TSNs of the
testimonies of respondent Calaunan, Marcelo Mendoza
6 and Fernando Ramos in said case, together with other
documentary evidence marked therein. Instead of the
Branch Clerk of Court, it was Enrique Santos Guevara,
Court Interpreter, who appeared before the court and
identified the TSNs of the three afore-named witnesses
18

and other pertinent documents he had brought. 8


Counsel for respondent wanted to mark other TSNs
and documents from the said criminal case to be
adopted in the instant case, but since the same were not
brought to the trial court, counsel for petitioners
compromised that said TSNs and documents could be
offered by counsel for respondent as rebuttal evidence.

left because it was to overtake another jeep in front of it.


Such was their testimony before the RTC in Malolos in
the criminal case and before this Court in the instant
case. [Thus, which of the two versions of the manner
how the collision took place was correct, would be
determinative of who between the two drivers was
negligent in the operation of their respective vehicles.]

For the defendants, petitioner Manliclic and bus


conductor Oscar Buan testified. The TSN of the
testimony of Donato Ganiban, investigator of the
PRBLI, in Criminal Case No. 684-M-89 was marked and
allowed to be adopted in the civil case on the ground
that he was already dead.

Petitioner PRBLI maintained that it observed and


exercised the diligence of a good father of a family in
the selection and supervision of its employee,
specifically petitioner Manliclic.

Respondent further marked, among other documents,


as rebuttal evidence, the TSNs of the testimonies of
Donato Ganiban, Oscar Buan and petitioner Manliclic
in Criminal Case No. 684-M-89.
The disagreement arises from the question: Who is to be
held liable for the collision?
Respondent insists it was petitioner Manliclic who
should be liable while the latter is resolute in saying it
was the former who caused the smash up.
The versions of the parties are summarized by the trial
court as follows:
The parties differed only on the manner the collision
between the two (2) vehicles took place. According to
the plaintiff and his driver, the jeep was cruising at the
speed of 60 to 70 kilometers per hour on the slow lane
of the expressway when the Philippine Rabbit Bus
overtook the jeep and in the process of overtaking the
jeep, the Philippine Rabbit Bus hit the rear of the jeep
on the left side. At the time the Philippine Rabbit Bus
hit the jeep, it was about to overtake the jeep. In other
words, the Philippine Rabbit Bus was still at the back of
the jeep when the jeep was hit. Fernando Ramos
corroborated the testimony of the plaintiff and Marcelo
Mendoza. He said that he was on another jeep
following the Philippine Rabbit Bus and the jeep of
plaintiff when the incident took place. He said, the jeep
of the plaintiff overtook them and the said jeep of the
plaintiff was followed by the Philippine Rabbit Bus
which was running very fast. The bus also overtook the
jeep in which he was riding. After that, he heard a loud
sound. He saw the jeep of the plaintiff swerved to the
right on a grassy portion of the road. The Philippine
Rabbit Bus stopped and they overtook the Philippine
Rabbit Bus so that it could not moved (sic), meaning
they stopped in front of the Philippine Rabbit Bus. He
testified that the jeep of plaintiff swerved to the right
because it was bumped by the Philippine Rabbit bus
from behind.
Both Mauricio Manliclic and his driver, Oscar Buan
admitted that the Philippine Rabbit Bus bumped the
jeep in question. However, they explained that when
the Philippine Rabbit bus was about to go to the left
lane to overtake the jeep, the latter jeep swerved to the
19

On 22 July 1996, the trial court rendered its decision in


favor of respondent Calaunan and against petitioners
Manliclic and PRBLI. The dispositive portion of its
decision reads:
WHEREFORE, judgment is rendered in favor of the
plaintiff and against the defendants ordering the said
defendants to pay plaintiff jointly and solidarily the
amount of P40,838.00 as actual damages for the towing
as well as the repair and the materials used for the
repair of the jeep in question; P100,000.00 as moral
damages and another P100,000.00 as exemplary
damages and P15,000.00 as attorney's fees, including
appearance fees of the lawyer. In addition, the
defendants are also to pay costs.
Petitioners appealed the decision via Notice of Appeal
to the Court of Appeals.
In a decision dated 28 September 2001, the Court of
Appeals, finding no reversible error in the decision of
the trial court, affirmed it in all respects.
Petitioners are now before us by way of petition for
review assailing the decision of the Court of Appeals.
They assign as errors the following:
xxx

xxx

xxx

With the passing away of respondent Calaunan during


the pendency of this appeal with this Court, we granted
the Motion for the Substitution of Respondent filed by
his wife, Mrs. Precila Zarate Vda. de Calaunan, and
children, Virgilio Calaunan, Carmelita Honeycomb,
Evelyn Calaunan, Marko Calaunan and Liwayway
Calaunan.
In their Reply to respondent's Comment, petitioners
informed this Court of a Decision of the Court of
Appeals acquitting petitioner Manliclic of the charge of
Reckless Imprudence Resulting in Damage to Property
with Physical Injuries attaching thereto a photocopy
thereof.
xxx

xxx

xxx

On the second assigned error, petitioners contend that


the version of petitioner Manliclic as to how the
accident occurred is more credible than respondent's

version. They anchor their contention on the fact that


petitioner Manliclic was acquitted by the Court of
Appeals of the charge of Reckless Imprudence
Resulting in Damage to Property with Physical Injuries.
To be resolved by the Court is the effect of petitioner
Manliclic's acquittal in the civil case.
From the complaint, it can be gathered that the civil
case for damages was one arising from, or based on,
quasi-delict. Petitioner Manliclic was sued for his
negligence or reckless imprudence in causing the
collision, while petitioner PRBLI was sued for its failure
to exercise the diligence of a good father in the selection
and supervision of its employees, particularly
petitioner Manliclic. The allegations read:
"4. That sometime on July 12, 1988
at around 6:20 A.M. plaintiff was on
board the above-described motor
vehicle travelling at a moderate speed
along the North Luzon Expressway
heading South towards Manila
together
with
MARCELO
MENDOZA, who was then driving
the same;
"5. That approximately at kilometer
40 of the North Luzon Express Way,
the above-described motor vehicle
was suddenly bumped from behind
by a Philippine Rabbit Bus with Body
No. 353 and with plate No. CVD 478
then being driven by one Mauricio
Manliclic of San Jose, Concepcion,
Tarlac, who was then travelling
recklessly at a very fast speed and
had apparently lost control of his
vehicle;
"6. That as a result of the impact of
the collision the above-described
motor vehicle was forced off the
North Luzon Express Way towards
the rightside where it fell on its
driver's side on a ditch, and that as a
consequence, the above-described
motor vehicle which may be valued
at EIGHTY THOUSAND PESOS
(P80,000) was rendered a total wreck
as shown by pictures to be presented
during the pre-trial and trial of this
case;
"7. That also as a result of said
incident, plaintiff sustained bodily
injuries
which
compounded
plaintiff's frail physical condition and
required his hospitalization from July
12, 1988 up to and until July 22, 1988,
copy of the medical certificate is

hereto attached as Annex "A" and


made an integral part hereof;
"8. That the vehicular collision
resulting in the total wreckage of the
above-described motor vehicle as
well as bodily (sic) sustained by
plaintiff, was solely due to the
reckless imprudence of the defendant
driver Mauricio Manliclic who drove
his Philippine Rabbit Bus No. 353 at a
fast speed without due regard or
observance of existing traffic rules
and regulations;
"9. That defendant Philippine Rabbit
Bus Line Corporation failed to
exercise the diligence of a good father
of (sic) family in the selection and
supervision of its drivers; . . ."
Can Manliclic still be held liable for the collision and be
found negligent notwithstanding the declaration of the
Court of Appeals that there was an absence of
negligence on his part?
In exonerating petitioner Manliclic in the criminal case,
the Court of Appeals said:
To the following findings of the
court a quo, to wit: that accusedappellant was negligent "when the
bus he was driving bumped the jeep
from behind"; that "the proximate
cause of the accident was his having
driven the bus at a great speed while
closely following the jeep"; . . .
We do not agree.
The swerving of Calaunan's jeep
when it tried to overtake the vehicle
in front of it was beyond the control
of accused-appellant. ECDaAc
xxx

xxx

xxx

Absent evidence of negligence,


therefore, accused-appellant cannot
be
held
liable
for
Reckless
Imprudence Resulting in Damage to
Property with Physical Injuries as
defined in Article 365 of the Revised
Penal Code.
From the foregoing declaration of the Court of Appeals,
it appears that petitioner Manliclic was acquitted not on
reasonable doubt, but on the ground that he is not the
author of the act complained of which is based on
Section 2 (b) of Rule 111 of the Rules of Criminal
Procedure which reads:

20

(b)
Extinction of the penal
action does not carry with it
extinction of the civil, unless the
extinction
proceeds
from
a
declaration in a final judgment that
the fact from which the civil might
arise did not exist.
In spite of said ruling, petitioner Manliclic can still be
held liable for the mishap. The afore-quoted section
applies only to a civil action arising from crime or ex
delicto and not to a civil action arising from quasi-delict
or culpa aquiliana. The extinction of civil liability
referred to in Par. (e) of Section 3, Rule 111 [now
Section 2 (b) of Rule 111], refers exclusively to civil
liability founded on Article 100 of the Revised Penal
Code, whereas the civil liability for the same act
considered as a quasi-delict only and not as a crime is
not extinguished even by a declaration in the criminal
case that the criminal act charged has not happened or
has not been committed by the accused.
A quasi-delict or culpa aquiliana is a separate legal
institution under the Civil Code with a substantivity all
its own, and individuality that is entirely apart and
independent from a delict or crime a distinction
exists between the civil liability arising from a crime
and the responsibility for quasi-delicts or culpa extra
contractual. The same negligence causing damages may
produce civil liability arising from a crime under the
Penal Code, or create an action for quasi-delicts or culpa
extra contractual under the Civil Code. It is now settled
that acquittal of the accused, even if based on a finding
that he is not guilty, does not carry with it the
extinction of the civil liability based on quasi delict.
In other words, if an accused is acquitted based on
reasonable doubt on his guilt, his civil liability arising
from the crime may be proved by preponderance of
evidence only. However, if an accused is acquitted on
the basis that he was not the author of the act or
omission complained of (or that there is declaration in a
final judgment that the fact from which the civil might
arise did not exist), said acquittal closes the door to civil
liability based on the crime or ex delicto. In this second
instance, there being no crime or delict to speak of, civil
liability based thereon or ex delicto is not possible. In
this case, a civil action, if any, may be instituted on
grounds other than the delict complained of.
As regards civil liability arising from quasi-delict or
culpa aquiliana, same will not be extinguished by an
acquittal, whether it be on ground of reasonable doubt
or that accused was not the author of the act or
omission complained of (or that there is declaration in a
final judgment that the fact from which the civil liability
might arise did not exist). The responsibility arising
from fault or negligence in a quasi-delict is entirely
separate and distinct from the civil liability arising from
negligence under the Penal Code. An acquittal or
conviction in the criminal case is entirely irrelevant in
the civil case based on quasi-delict or culpa aquiliana.
21

Petitioners ask us to give credence to their version of


how the collision occurred and to disregard that of
respondent's. Petitioners insist that while the PRBLI bus
was in the process of overtaking respondent's jeep, the
latter, without warning, suddenly swerved to the left
(fast) lane in order to overtake another jeep ahead of it,
thus causing the collision.
xxx

xxx

xxx

After going over the evidence on record, we do not find


any of the exceptions that would warrant our departure
from the general rule. We fully agree in the finding of
the trial court, as affirmed by the Court of Appeals, that
it was petitioner Manliclic who was negligent in driving
the PRBLI bus which was the cause of the collision. In
giving credence to the version of the respondent, the
trial court has this say:
. . . Thus, which of the two versions
of the manner how the collision took
place was correct, would be
determinative of who between the
two drivers was negligent in the
operation of their respective vehicle.
xxx

xxx

xxx

Having ruled that it was petitioner Manliclic's


negligence that caused the smash up, there arises the
juris tantum presumption that the employer is
negligent, rebuttable only by proof of observance of the
diligence of a good father of a family. Under Article
2180 42 of the New Civil Code, when an injury is
caused by the negligence of the employee, there
instantly arises a presumption of law that there was
negligence on the part of the master or employer either
in the selection of the servant or employee, or in
supervision over him after selection or both. The
liability of the employer under Article 2180 is direct and
immediate; it is not conditioned upon prior recourse
against the negligent employee and a prior showing of
the insolvency of such employee. Therefore, it is
incumbent upon the private respondents to prove that
they exercised the diligence of a good father of a family
in the selection and supervision of their employee.
In the case at bar, petitioner PRBLI maintains that it had
shown that it exercised the required diligence in the
selection and supervision of its employees, particularly
petitioner Manliclic. In the matter of selection, it
showed the screening process that petitioner Manliclic
underwent before he became a regular driver. As to the
exercise of due diligence in the supervision of its
employees, it argues that presence of ready
investigators (Ganiban and Cabading) is sufficient
proof that it exercised the required due diligence in the
supervision of its employees.
In the selection of prospective employees, employers
are required to examine them as to their qualifications,

experience and service records. In the supervision of


employees, the employer must formulate standard
operating procedures, monitor their implementation
and impose disciplinary measures for the breach
thereof. To fend off vicarious liability, employers must
submit concrete proof, including documentary
evidence, that they complied with everything that was
incumbent on them.

to exempt petitioner from liability


arising from negligence of its
employees. It is incumbent upon
petitioner to show that in recruiting
and employing the erring driver the
recruitment procedures and company
policies on efficiency and safety were
followed. . . . .

In Metro Manila Transit Corporation v. Court of Appeals, it


was explained that:

The trial court found that petitioner PRBLI exercised


the diligence of a good father of a family in the selection
but not in the supervision of its employees. It
expounded as follows:

Due diligence in the supervision of


employees on the other hand,
includes the formulation of suitable
rules and regulations for the
guidance of employees and the
issuance of proper instructions
intended for the protection of the
public and persons with whom the
employer has relations through his or
its employees and the imposition of
necessary
disciplinary
measures
upon employees in case of breach or
as may be warranted to ensure the
performance of acts indispensable to
the business of and beneficial to their
employer. To this, we add that actual
implementation and monitoring of
consistent compliance with said rules
should be the constant concern of the
employer, acting through dependable
supervisors who should regularly
report on their supervisory functions.
In order that the defense of due
diligence in the selection and
supervision of employees may be
deemed sufficient and plausible, it is
not enough to emptily invoke the
existence of said company guidelines
and
policies
on
hiring
and
supervision. As the negligence of the
employee
gives
rise
to
the
presumption of negligence on the
part of the employer, the latter has
the burden of proving that it has been
diligent not only in the selection of
employees but also in the actual
supervision of their work. The mere
allegation of the existence of hiring
procedures and supervisory policies,
without anything more, is decidedly
not sufficient to overcome such
presumption.
We emphatically reiterate our
holding, as a warning to all
employers, that "the formulation of
various company policies on safety
without showing that they were
being complied with is not sufficient

From
the
evidence
of
the
defendants, it seems that the
Philippine Rabbit Bus Lines has a
very good procedure of recruiting its
driver as well as in the maintenance
of its vehicles. There is no evidence
though that it is as good in the
supervision of its personnel. There
has been no iota of evidence
introduced by it that there are rules
promulgated by the bus company
regarding the safe operation of its
vehicle and in the way its driver
should manage and operate the
vehicles assigned to them. There is no
showing that somebody in the bus
company has been employed to
oversee how its driver should behave
while operating
their vehicles
without courting incidents similar to
the herein case. In regard to
supervision, it is not difficult to
observe that the Philippine Rabbit
Bus Lines, Inc. has been negligent as
an employer and it should be made
responsible for the acts of its
employees, particularly the driver
involved in this case.
We agree. The presence of ready investigators after the
occurrence of the accident is not enough to exempt
petitioner PRBLI from liability arising from the
negligence of petitioner Manliclic. Same does not
comply with the guidelines set forth in the cases abovementioned. The presence of the investigators after the
accident is not enough supervision. Regular
supervision of employees, that is, prior to any accident,
should have been shown and established. This,
petitioner failed to do. The lack of supervision can
further be seen by the fact that there is only one set of
manual containing the rules and regulations for all the
drivers of PRBLI. How then can all the drivers of
petitioner PRBLI know and be continually informed of
the rules and regulations when only one manual is
being lent to all the drivers?
For failure to adduce proof that it exercised the
diligence of a good father of a family in the selection
22

and supervision of its employees, petitioner PRBLI is


held solidarily responsible for the damages caused by
petitioner Manliclic's negligence.
We now go to the award of damages. The trial court
correctly awarded the amount of P40,838.00 as actual
damages representing the amount paid by respondent
for the towing and repair of his jeep. As regards the
awards for moral and exemplary damages, same, under
the circumstances, must be modified. The P100,000.00
awarded by the trial court as moral damages must be
reduced to P50,000.00. Exemplary damages are
imposed by way of example or correction for the public
good. The amount awarded by the trial court must,
likewise, be lowered to P50,000.00. The award of
P15,000.00 for attorney's fees and expenses of litigation
is in order and authorized by law.
WHEREFORE, premises considered, the instant petition
for review is DENIED. The decision of the Court of
Appeals in CA-G.R. CV No. 55909 is AFFIRMED with
the MODIFICATION that (1) the award of moral
damages shall be reduced to P50,000.00; and (2) the
award of exemplary damages shall be lowered to
P50,000.00. Costs against petitioners.
SO ORDERED.
Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ.,
concur.
b.

Arising from Contract


AIR FRANCE vs. CARRASCOSO, ET AL.
G.R. No. L-21438, 28 September 1966, 18 SCRA 155

SANCHEZ, J p:
The Court of First Instance of Manila sentenced
petitioner to pay respondent Rafael Carrascoso
P25,000.00 by way of moral damages; P10,000.00 as
exemplary damages; P393.20 representing the
difference in fare between first class and tourist class
for the portion of the trip Bangkok-Rome, these various
amounts with interest at the legal rate, from the date of
the filing of the complaint until paid; plus P3,000.00 for
attorneys' fees; and the costs of suit.
On appeal, the Court of Appeals slightly reduced the
amount of refund on Carrascoso's plane ticket from
P393.20 to P383.10, and voted to affirm the appealed
decision "in all other respects", with costs against
petitioner.

pilgrims that left Manila for Lourdes


on March 30, 1958.
On March 28, 1958, the defendant,
Air France, through its authorized
agent, Philippine Air Lines, Inc.,
issued to plaintiff a 'first class' round
trip airplane ticket from Manila to
Rome. From Manila to Bangkok,
plaintiff traveled in 'first class', but at
Bangkok, the Manager of the
defendant airline forced plaintiff to
vacate the 'first class' seat that he was
occupying because, in the words of
the witness Ernesto G. Cuento, there
was a 'white man', who, the Manager
alleged, had a 'better right to the seat.
When asked to vacate his 'first class'
seat, the plaintiff, as was to be
expected,
refused,
and
told
defendant's Manager that his seat
would be taken over his dead body; a
commotion ensued, and, according to
said Ernesto G. Cuento, many of the
Filipino passengers got nervous in
the tourist class; when they found out
that Mr. Carrascoso was having a hot
discussion with the white man
[manager], they came all across to
Mr. Carrascoso and pacified Mr.
Carrascoso to give his seat to the
'white man' (Transcript, p. 12,
Hearing of May 26, 1959); and
plaintiff reluctantly gave his 'first
class' seat in the plane."
xxx

xxx

xxx

3. Was Carrascoso entitled to the first class seat he


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

xxx

xxx

The case is now before us for review on certiorari.


The facts declared by the Court of Appeals as "fully
supported by the evidence of record", are:
"Plaintiff, a civil engineer, was a
member of a group of 48 Filipino

23

If, as petitioner underscores, a first-class-ticket holder is


not entitled to a first class seat, notwithstanding the fact
that seat availability in specific flights is therein
confirmed, then an air passenger is placed in the hollow
of the hands of an airline. What security then can a
passenger have? It will always be an easy matter for an
airline aided by its employees, to strike out the very

stipulations in the ticket, and say that there was a


verbal agreement to the contrary. What if the passenger
had a schedule to fulfill? We have long learned that, as
a rule, a written document speaks a uniform language;
that spoken word could be notoriously unreliable. If
only to achieve stability in the relations between
passenger and air carrier, adherence to the ticket so
issued is desirable. Such is the case here. The lower
courts refused to believe the oral evidence intended to
defeat the covenants in the ticket.

"Where a passenger on a railroad train, when the


conductor came to collect his fare, tendered him the
cash fare to a point where the train was scheduled not
to stop, and told him that as soon as the train reached
such point he would pay the cash fare from that point
to destination, there was nothing in the conduct of the
passenger which justified the conductor in using
insulting language to him, as by calling him a lunatic,"
and the Supreme Court of South Carolina there held the
carrier liable for the mental suffering of said passenger.

The foregoing are the considerations which point to the


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

Petitioner's contract with Carrascoso is one attended


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

xxx

xxx

xxx

6. A contract to transport passengers is quite different


in kind and degree from any other contractual relation.
And this, because of the relation which an air-carrier
sustains with the public. Its business is mainly with the
travelling public. It invites people to avail of the
comforts and advantages it offers. The contract of air
carriage, therefore, generates a relation attended with a
public duty. Neglect or malfeasance of the carrier's
employees, naturally, could give ground for an action
for damages.
Passengers do not contract merely for transportation.
They have a light to be treated by the carrier's
employees with kindness, respect, courtesy and due
consideration. They are entitled to be protected against
personal misconduct, injurious language, indignities
and abuses from such employees. So it is, that any rude
or discourteous conduct on the part of employees
towards a passenger gives the latter an action for
damages against the carrier.
Thus, "Where a steamship company had accepted a
passenger's check, it was a breach of contract and a tort,
giving a right of action for its agent in the presence of
third persons to falsely notify her that the check was
worthless and demand payment under threat of
ejection, though the language used was not insulting
and she was not ejected. And this, because, altho the
relation of passenger and carrier is "contractual both in
origin and nature" nevertheless "the act that breaks the
contract may be also a tort". And in another case,

xxx

xxx

xxx

8. Exemplary damages are well awarded. The Civil


Code gives the Court ample power to grant exemplary
damages in contracts and quasi-contracts. The only
condition is that defendant should have "acted in a
wanton, fraudulent, reckless, oppressive, or malevolent
manner". The manner of ejectment of respondent
Carrascoso from his first class seat fits into this legal
precept. And this, in addition to moral damages.
9.
The right to attorneys' fees is fully established.
The grant of exemplary damages justifies a similar
judgment for attorneys' fees. The least that can be said
is that the courts below felt that it is but just and
equitable that attorneys' fees be given. We do not
intend to break faith with the tradition that discretion
well exercised as it was here should not be
disturbed.
10.
Questioned as excessive are the amounts
decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages;
P10,000.00, by way of exemplary damages, and
P3,000.00 as attorney's fees. The task of fixing these
amounts is primarily with the trial-court. The Court of
Appeals did not interfere with the same. The dictates of
good sense suggest that we give our imprimatur
thereto. Because, the facts and circumstances point to
the reasonableness thereof.
On balance, we say that the judgment of the Court of
Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against
petitioner. So ordered.
Concepcion, C.J., Reyes J.B.L., Barrera, Dizon, Regala,
Makalintal, Zaldivar and Castro, JJ., concur.
Bengzon, J.P., J., did not take part.
LIGHT RAIL TRANSIT AUTHORITY, ET AL.
vs. NAVIDAD
G.R. No. 145804, 6 February 2003, 397 SCRA 75
VITUG, J p:
24

The case before the Court is an appeal from the decision


and resolution of the Court of Appeals, promulgated on
27 April 2000 and 10 October 2000, respectively, in CAG.R. CV No. 60720, entitled "Marjorie Navidad and
Heirs of the Late Nicanor Navidad vs. Rodolfo Roman,
et al.," which has modified the decision of 11 August
1998 of the Regional Trial Court, Branch 266, Pasig City,
exonerating Prudent Security Agency (Prudent) from
liability and finding Light Rail Transit Authority
(LRTA) and Rodolfo Roman liable for damages on
account of the death of Nicanor Navidad.
On 14 October 1993, about half an hour past seven
o'clock in the evening, Nicanor Navidad, then drunk,
entered the EDSA LRT station after purchasing a
"token" (representing payment of the fare). While
Navidad was standing on the platform near the LRT
tracks, Junelito Escartin, the security guard assigned to
the area approached Navidad. A misunderstanding or
an altercation between the two apparently ensued that
led to a fist fight. No evidence, however, was adduced
to indicate how the fight started or who, between the
two, delivered the first blow or how Navidad later fell
on the LRT tracks. At the exact moment that Navidad
fell, an LRT train, operated by petitioner Rodolfo
Roman, was coming in. Navidad was struck by the
moving train, and he was killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein
respondent Marjorie Navidad, along with her children,
filed a complaint for damages against Junelito Escartin,
Rodolfo Roman, the LRTA, the Metro Transit
Organization, Inc. (Metro Transit), and Prudent for the
death of her husband. LRTA and Roman filed a
counterclaim against Navidad and a cross-claim against
Escartin and Prudent. Prudent, in its answer, denied
liability and averred that it had exercised due diligence
in the selection and supervision of its security guards.
The LRTA and Roman presented their evidence while
Prudent and Escartin, instead of presenting evidence,
filed a demurrer contending that Navidad had failed to
prove that Escartin was negligent in his assigned task.
On 11 August 1998, the trial court rendered its decision;
it adjudged:
"WHEREFORE, judgment is hereby
rendered in favor of the plaintiffs and
against the defendants Prudent
Security
and
Junelito
Escartin
ordering the latter to pay jointly and
severally the plaintiffs the following:
xxx

xxx

xxx

"The complaint against defendants


LRTA and Rodolfo Roman are
dismissed for lack of merit.

25

"The compulsory counterclaim of


LRTA and Roman are likewise
dismissed."
Prudent appealed to the Court of Appeals. On 27
August 2000, the appellate court promulgated its now
assailed decision exonerating Prudent from any liability
for the death of Nicanor Navidad and, instead, holding
the LRTA and Roman jointly and severally liable
thusly:
xxx

xxx

xxx

The appellate court ratiocinated that while the deceased


might not have then as yet boarded the train, a contract
of carriage theretofore had already existed when the
victim entered the place where passengers were
supposed to be after paying the fare and getting the
corresponding token therefor. In exempting Prudent
from liability, the court stressed that there was nothing
to link the security agency to the death of Navidad. It
said that Navidad failed to show that Escartin inflicted
fist blows upon the victim and the evidence merely
established the fact of death of Navidad by reason of
his having been hit by the train owned and managed by
the LRTA and operated at the time by Roman. The
appellate court faulted petitioners for their failure to
present expert evidence to establish the fact that the
application of emergency brakes could not have
stopped the train.
xxx

xxx

xxx

Petitioners would contend that the appellate court


ignored the evidence and the factual findings of the
trial court by holding them liable on the basis of a
sweeping conclusion that the presumption of
negligence on the part of a common carrier was not
overcome. Petitioners would insist that Escartin's
assault upon Navidad, which caused the latter to fall on
the tracks, was an act of a stranger that could not have
been foreseen or prevented. The LRTA would add that
the appellate court's conclusion on the existence of an
employer-employee relationship between Roman and
LRTA lacked basis because Roman himself had testified
being an employee of Metro Transit and not of the
LRTA.
Respondents, supporting the decision of the appellate
court, contended that a contract of carriage was deemed
created from the moment Navidad paid the fare at the
LRT station and entered the premises of the latter,
entitling Navidad to all the rights and protection under
a contractual relation, and that the appellate court had
correctly held LRTA and Roman liable for the death of
Navidad in failing to exercise extraordinary diligence
imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier,
both from the nature of its business and for reasons of
public policy, is burdened with the duty of exercising
utmost diligence in ensuring the safety of passengers.

The Civil Code, governing the liability of a common


carrier for death of or injury to its passengers, provides:
"Article 1755.
A common carrier
is bound to carry the passengers
safely as far as human care and
foresight can provide, using the
utmost diligence of very cautious
persons, with a due regard for all the
circumstances.
"Article 1756.
In case of death of
or injuries to passengers, common
carriers are presumed to have been at
fault or to have acted negligently,
unless they prove that they observed
extraordinary diligence as prescribed
in Articles 1733 and 1755."
"Article 1759.
Common carriers
are liable for the death of or injuries
to passengers through the negligence
or willful acts of the former's
employees, although such employees
may have acted beyond the scope of
their authority or in violation of the
orders of the common carriers.
"This liability of the common carriers
does not cease upon proof that they
exercised all the diligence of a good
father of a family in the selection and
supervision of their employees."
"Article 1763.
A common carrier
is responsible for injuries suffered by
a passenger on account of the willful
acts or negligence of other passengers
or of strangers, if the common
carrier's employees through the
exercise of the diligence of a good
father of a family could have
prevented or stopped the act or
omission."
The law requires common carriers to carry passengers
safely using the utmost diligence of very cautious
persons with due regard for all circumstances. Such
duty of a common carrier to provide safety to its
passengers so obligates it not only during the course of
the trip but for so long as the passengers are within its
premises and where they ought to be in pursuance to
the contract of carriage. The statutory provisions render
a common carrier liable for death of or injury to
passengers (a) through the negligence or willful acts of
its employees or b) on account of willful acts or
negligence of other passengers or of strangers if the
common carrier's employees through the exercise of
due diligence could have prevented or stopped the act
or omission. In case of such death or injury, a carrier is
presumed to have been at fault or been negligent, and
by simple proof of injury, the passenger is relieved of

the duty to still establish the fault or negligence of the


carrier or of its employees and the burden shifts upon
the carrier to prove that the injury is due to an
unforeseen event or to force majeure. In the absence of
satisfactory explanation by the carrier on how the
accident occurred, which petitioners, according to the
appellate court, have failed to show, the presumption
would be that it has been at fault, an exception from the
general rule that negligence must be proved.
The foundation of LRTA's liability is the contract of
carriage and its obligation to indemnify the victim
arises from the breach of that contract by reason of its
failure to exercise the high diligence required of the
common carrier. In the discharge of its commitment to
ensure the safety of passengers, a carrier may choose to
hire its own employees or avail itself of the services of
an outsider or an independent firm to undertake the
task. In either case, the common carrier is not relieved
of its responsibilities under the contract of carriage.
Should Prudent be made likewise liable? If at all, that
liability could only be for tort under the provisions of
Article 2176 and related provisions, in conjunction with
Article 2180, of the Civil Code. The premise, however,
for the employer's liability is negligence or fault on the
part of the employee. Once such fault is established, the
employer can then be made liable on the basis of the
presumption juris tantum that the employer failed to
exercise diligentissimi patris families in the selection and
supervision of its employees. The liability is primary
and can only be negated by showing due diligence in
the selection and supervision of the employee, a factual
matter that has not been shown. Absent such a
showing, one might ask further, how then must the
liability of the common carrier, on the one hand, and an
independent contractor, on the other hand, be
described? It would be solidary. A contractual
obligation can be breached by tort and when the same
act or omission causes the injury, one resulting in culpa
contractual and the other in culpa aquiliana, Article 2194
of the Civil Code can well apply. In fine, a liability for
tort may arise even under a contract, where tort is that
which breaches the contract. Stated differently, when
an act which constitutes a breach of contract would
have itself constituted the source of a quasi-delictual
liability had no contract existed between the parties, the
contract can be said to have been breached by tort,
thereby allowing the rules on tort to apply.
Regrettably for LRT, as well as perhaps the surviving
spouse and heirs of the late Nicanor Navidad, this
Court is concluded by the factual finding of the Court
of Appeals that "there is nothing to link (Prudent) to the
death of Nicanor (Navidad), for the reason that the
negligence of its employee, Escartin, has not been duly
proven . . . ." This finding of the appellate court is not
without substantial justification in our own review of
the records of the case.
There being, similarly, no showing that petitioner
Rodolfo Roman himself is guilty of any culpable act or
26

omission, he must also be absolved from liability.


Needless to say, the contractual tie between the LRT
and Navidad is not itself a juridical relation between
the latter and Roman; thus, Roman can be made liable
only for his own fault or negligence.
The award of nominal damages in addition to actual
damages is untenable. Nominal damages are
adjudicated in order that a right of the plaintiff, which
has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him.
It is an established rule that nominal damages cannot
co-exist with compensatory damages.
WHEREFORE, the assailed decision of the appellate
court is AFFIRMED with MODIFICATION but only in
that (a) the award of nominal damages is DELETED
and (b) petitioner Rodolfo Roman is absolved from
liability. No costs.
SO ORDERED.
Davide, Jr., C.J., Ynares-Santiago, Carpio and Azcuna,
JJ., concur.
FAR EAST BANK AND TRUST COMPANY vs.
COURT OF APPEALS, ET AL.
G.R. No. 108164, 23 February 1995, 241 SCRA 671
VITUG, J p:
Some time in October 1986, private respondent Luis A.
Luna applied for, and was accorded, a FAREASTCARD
issued by petitioner Far East Bank and Trust Company
("FEBTC") at its Pasig Branch. Upon his request, the
bank also issued a supplemental card to private
respondent Clarita S. Luna.
In August 1988, Clarita lost her credit card. FEBTC was
forthwith informed. In order to replace the lost card,
Clarita submitted an affidavit of loss. In cases of this
nature, the banks internal security procedures and
policy would appear to be to meanwhile so record the
lost card, along with the principal card, as a "Hot Card"
or "Cancelled Card" in its master file.
On 06 October 1988, Luis tendered a despedida lunch
for a close friend, a Filipino-American, and another
guest at the Bahia Rooftop Restaurant of the Hotel
Intercontinental Manila. To pay for the lunch, Luis
presented his FAREASTCARD to the attending waiter
who promptly had it verified through a telephone call
to the bank's Credit Card Department. Since the card
was not honored, Luis was forced to pay in cash the bill
amounting to P588.13. Naturally, Luis felt embarrassed
by this incident.
In a letter, dated 11 October 1988, private respondent
Luis Luna, through counsel, demanded from FEBTC
the payment of damages. Adrian V. Festejo, a vicepresident of the bank, expressed the bank's apologies to
27

Luis. In his letter, dated 03 November 1988, Festejo, in


part, said:
"In cases when a card is reported to
our office as lost, FAREASTCARD
undertakes the necessary action to
avert its unauthorized use (such as
tagging the card as hotlisted), as it is
always our intention to protect our
cardholders.
"An investigation of your case
however,
revealed
that
FAREASTCARD failed to inform you
about
its
security
policy.
Furthermore,
an
overzealous
employee of the Bank's Credit Card
Department did not consider the
possibility that it may have been you
who was presenting the card at that
time
(for
which
reason,
the
unfortunate incident occurred)."
Festejo also sent a letter to the Manager of the Bahia
Rooftop Restaurant to assure the latter that private
respondents were "very valued clients" of FEBTC.
William Anthony King, Food and Beverage Manager of
the Intercontinental Hotel, wrote back to say that the
credibility of private respondent had never been "in
question." A copy of this reply was sent to Luis by
Festejo.
Still evidently feeling aggrieved, private respondents,
on 05 December 1988, filed a complaint for damages
with the Regional Trial Court ("RTC") of Pasig against
FEBTC.
On 30 March 1990, the RTC of Pasig, given the
foregoing factual settings, rendered a decision ordering
FEBTC to pay private respondents (a) P300,000.00
moral damages; (b) P50,000.00 exemplary damages; and
(c) P20,000.00 attorney's fees.
On appeal to the Court of Appeals, the appellate court
affirmed the decision of the trial court.
Its motion for reconsideration having been denied by
the appellate court, FEBTC has come to this Court with
this petition for review.
There is merit in this appeal.
In culpa contractual, moral damages may be recovered
where the defendant is shown to have acted in bad faith
or with malice in the breach of the contract. The Civil
Code provides:
"Art. 2220.
Willful injury to
property may be a legal ground for
awarding moral damages if the court
should
find
that, under the
circumstances, such damages are

justly due. The same rule applies to


breaches of contract where the defendant
acted fraudulently or in bad faith."
(Emphasis supplied)
Bad faith, in this context, includes gross, but not simple,
negligence. Exceptionally, in a contract of carriage,
moral damages are also allowed in case of death of a
passenger attributable to the fault (which is presumed 4
) of the common carrier.
Concededly, the bank was remiss in indeed neglecting
to personally inform Luis of his own cards
cancellation. Nothing in the findings of the trial court
and the appellate court, however, can sufficiently
indicate any deliberate intent on the part of FEBTC to
cause harm to private respondents. Neither could
FEBTC's negligence in failing to give personal notice to
Luis be considered so gross as to amount to malice or
bad faith.
Malice or bad faith implies a conscious and intentional
design to do a wrongful act for a dishonest purpose or
moral obliquity; it is different from the negative idea of
negligence in that malice or bad faith contemplates a
state of mind affirmatively operating with furtive
design or ill will.
We are not unaware of the previous rulings of this
Court, such as in American Express International, Inc.
vs. Intermediate Appellate Court (167 SCRA 209) and
Bank of Philippine Islands vs. Intermediate Appellate
Court (206 SCRA 408), sanctioning the application of
Article 21, in relation to Article 2217 and Article 2219 of
the Civil Code to a contractual breach similar to the
case at bench. Article 21 states:
"Art. 21. Any person who willfully
causes loss or injury to another in a
manner that is contrary to morals,
good customs or public policy shall
compensate the latter for the
damage."
Article 21 of the Code, it should be observed,
contemplates a conscious act to cause harm. Thus, even
if we are to assume that the provision could properly
relate to a breach of contract, its application can be
warranted only when the defendant's disregard of his
contractual obligation is so deliberate as to approximate
a degree of misconduct certainly no less worse than
fraud or bad faith. Most importantly, Article 21 is a
mere declaration of a general principle in human
relations that clearly must, in any case, give way to the
specific provision of Article 2220 of the Civil Code
authorizing the grant of moral damages in culpa
contractual solely when the breach is due to fraud or
bad faith.
Mr. Justice Jose B.L. Reyes, in his ponencia in Fores vs.
Miranda explained with great clarity the predominance

that we should give to Article 2220 in contractual


relations; we quote:
"Anent the moral damages ordered to
be paid to the respondent, the same
must be discarded. We have
repeatedly ruled (Cachero vs. Manila
Yellow Taxicab Co. Inc., 101 Phil. 523;
54 Off. Gaz., [26], 6599; Necesito, et al.
vs. Paras, 104 Phil., 75; 56 Off. Gaz.,
[23] 4023, that moral damages are not
recoverable in damage actions
predicated on a breach of the contract
of transportation, in view of Articles
2219 and 2220 of the new Civil Code,
which provide as follows:
"'ART. 2219. Moral damages
may be recovered in the
following and analogous cases:
'(1)
A
criminal
offense
resulting in physical injuries;
'(2)
Quasi-delicts
causing
physical injuries;
xxx

xxx

xxx

'ART. 2220.
Willful injury
to property may be a legal
ground for awarding moral
damages if the court should
find
that,
under
the
circumstances, such damages
are justly due. The same rule
applies to breaches of contract
where the defendant acted
fraudulently or in bad faith.'
"By contrasting the provisions of
these two articles it immediately
becomes apparent that:
"(a)
In case of breach of contract
(including one of transportation)
proof of bad faith or fraud (dolus),
i.e., wanton or deliberately injurious
conduct, is essential to justify an
award of moral damages; and
"(b)
That a breach of contract can
not be considered included in the
descriptive term 'analogous cases'
used in Art. 2219; not only because
Art. 2220 specifically provides for the
damages that are caused contractual
breach, but because the definition of
quasi-delict in Art. 2176 of the Code
expressly excludes the cases where
there is a 'pre-exisiting contractual
relations between the parties.'

28

"'Art. 2176.
Whoever by act
or omission causes damage to
another, there being fault or
negligence, is obliged to pay
for the damage done. Such
fault or negligence, if there is
no pre-existing contractual
relation between the parties, is
called a quasi-delict and is
governed by the provisions of
this Chapter.'
"The exception to the basic rule of
damages now under consideration is
a mishap resulting in the death of a
passenger, in which case Article 1764
makes the common carrier expressly
subject to the rule of Art. 2206, that
entitles the spouse, descendants and
ascendants of the deceased passenger
to 'demand moral damages for
mental anguish by reason of the
death of the deceased' (Necesito vs.
Paras, 104 Phil. 84, Resolution on
Motion to Reconsider, September 11,
1958). But the exceptional rule of Art.
1764 makes it all the more evident
that where the injured passenger
does not die, moral damages are not
recoverable unless it is proved that
the carrier was guilty of malice or bad
faith. We think it is clear that the
mere carelessness of the carrier's
driver does not per se constitute or
justify an inference of malice or bad
faith on the part of the carrier; and in
the case at bar there is no other
evidence of such malice to support
the award of moral damages by the
Court of Appeals. To award moral
damages for breach of contract,
therefore, without proof of bad faith
or malice on the part of the
defendant, as required by Art. 2220,
would be to violate the clear
provisions of the law, and constitute
unwarranted judicial legislation.
"xxx

xxx

xxx.

"The distinction between fraud, bad


faith or malice in the sense of
deliberate or wanton wrong doing
and negligence (as mere carelessness)
is too fundamental in our law to be
ignored (Arts. 1170-1172); their
consequences
being
clearly
differentiated by the Code. cdasia
"'ART. 2201. In contracts and
quasi-contracts, the damages
for which the obligor who
29

acted in good faith is liable


shall be those that are the
natural
and
probable
consequences of the breach of
the obligation, and which the
parties have foreseen or could
have reasonably foreseen at the
time the obligation was
constituted.
'In case of fraud, bad faith,
malice or wanton attitude, the
obligor shall be responsible for
all damages which may be
reasonably attributed to the
non-performance
of
the
obligation."
"It is to be presumed, in the absence
of statutory provision to the contrary,
that this difference was in the mind of
the lawmakers when in Art. 2220 they
limited recovery of moral damages to
breaches of contract in bad faith. It is
true that negligence may be
occasionally so gross as to amount to
malice; but the fact must be shown in
evidence, and a carrier's bad faith is
not to be lightly inferred from a mere
finding that the contract was
breached through negligence of the
carriers employees."
The Court has not in the process overlooked another
rule that a quasi-delict can be the cause for breaching a
contract that might thereby permit the application of
applicable principles on tort even where there is a preexisting contract between the plaintiff and the
defendant (Phil. Airlines vs. Court of Appeals, 106 SCRA
143; Singson vs. Bank of Phil. Islands, 23 SCRA 1117; and
Air France vs. Carrascoso, 18 SCRA 155). This doctrine,
unfortunately, cannot improve private respondents'
case for it can aptly govern only where the act or
omission complained of would constitute an actionable
tort independently of the contract. The test (whether a
quasi-delict can be deemed to underlie the breach of a
contract) can be stated thusly: Where, without a preexisting contract between two parties, an act or
omission can nonetheless amount to an actionable tort
by itself, the fact that the parties are contractually
bound is no bar to the application of quasi-delict
provisions to the case. Here, private respondents'
damage claim is predicated solely on their contractual
relationship; without such agreement, the act or
omission complained of cannot by itself be held to
stand as a separate cause of action or as an independent
actionable tort.
The Court finds, therefore, the award of moral damages
made by the court a quo, affirmed by the appellate
court, to be inordinate and substantially devoid of legal
basis.

xxx

xxx

xxx

WHEREFORE, the petition for review is given due


course. The appealed decision is MODIFIED by
deleting the award of moral and exemplary damages to
private respondents; in its stead, petitioner is ordered to
pay private respondent Luis A. Luna an amount of
P5,000.00 by way of nominal damages. In all other
respects, the appealed decision is AFFIRMED. No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado,
Davide, Jr ., Romero, Bellosillo, Melo, Quiason, Puno,
Kapunan, Mendoza and Francisco, JJ., concur.

c.

Arising from Tort


ANDAMO, ET AL. vs.
INTERMEDIATE APPELLATE COURT, ET AL.
G.R. No. 74761, 6 November 1990, 191 SCRA 195

FERNAN, C.J p:
The pivotal issue in this petition for certiorari,
prohibition and mandamus is whether a corporation,
which has built through its agents, waterpaths, water
conductors and contrivances within its land, thereby
causing inundation and damage to an adjacent land,
can be held civilly liable for damages under Articles
2176 and 2177 of the Civil Code on quasi-delicts such
that the resulting civil case can proceed independently
of the criminal case.
The antecedent facts are as follows:
Petitioner spouses Emmanuel and Natividad Andamo
are the owners of a parcel of land situated in Biga
(Biluso) Silang, Cavite which is adjacent to that of
private respondent, Missionaries of Our Lady of La
Salette, Inc., a religious corporation.
Within the land of respondent corporation, waterpaths
and contrivances, including an artificial lake, were
constructed, which allegedly inundated and eroded
petitioners' land, caused a young man to drown,
damaged petitioners' crops and plants, washed away
costly fences, endangered the lives of petitioners and
their laborers during rainy and stormy seasons, and
exposed plants and other improvements to destruction.
In July 1982, petitioners instituted a criminal action,
docketed as Criminal Case No. TG 907-82, before the
Regional Trial Court of Cavite, Branch 4 (Tagaytay
City), against Efren Musngi, Orlando Sapuay and
Rutillo Mallillin, officers and directors of herein
respondent corporation, for destruction by means of
injunction under Article 324 of the Revised Penal Code.

Subsequently, on February 22, 1983, petitioners filed


another action against respondent corporation, this
time a civil case, docketed as Civil Case No. TG-748, for
damages with prayer for the issuance of a writ of
preliminary injunction before the same court.
xxx

xxx

xxx

Directly at issue is the propriety of the dismissal of


Civil Case: No. TG-748 in accordance with Section 3 (a)
of Rule 111 of the Rules of Court. Petitioners contend
that the trial court and the Appellate Court erred in
dismissing Civil Case No. TG-748 since it is predicated
on a quasi-delict. Petitioners have raised a valid point.
It is axiomatic that the nature of an action filed in court
is determined by the facts alleged in the complaint as
constituting the cause of action. 7 The purpose of an
action or suit and the law to govern it, including the
period of prescription, is to be determined not by the
claim of the party filing the action, made in his
argument or brief, but rather by the complaint itself, its
allegations and prayer for relief. 8 The nature of an
action is not necessarily determined or controlled by its
title or heading but by the body of the pleading or
complaint itself. To avoid possible denial of substantial
justice due to legal technicalities, pleadings as well as
remedial laws should be liberally construed so that the
litigants may have ample opportunity to prove their
respective claims.
Quoted hereunder are the pertinent portions of
petitioners' complaint in Civil Case No. TG-748:
4) That within defendant's land,
likewise located at Biga (Biluso),
Silang, Cavite, adjacent on the right
side of the aforesaid land of plaintiffs,
defendant constructed waterpaths
starting from the middle-right
portion thereof leading to a big hole
or opening, also constructed by
defendant, thru the lower portion of
its concrete hollow-blocks fence
situated on the right side of its
cemented gate fronting the provincial
highway,
and
connected
by
defendant to a man-height interconnected cement culverts which
were also constructed and lain by
defendant cross-wise beneath the tip
of the said cemented gate, the leftend of the said inter-connected
culverts
again
connected
by
defendant to a big hole or opening
thru the lower portion of the same
concrete hollow-blocks fence on the
left side of the said cemented gate,
which hole or opening is likewise
connected by defendant to the
cemented mouth of a big canal, also
constructed by defendant, which runs
30

northward towards a big hole or


opening which was also built by
defendant thru the lower portion of
its concrete hollow-blocks fence
which separates the land of plaintiffs
from that of defendant (and which
serves as the exit-point of the
floodwater coming from the land of
defendant, and at the same time, the
entrance-point
of
the
same
floodwater to the land of plaintiffs,
year after year, during rainy or
stormy seasons.
"5) That moreover, on the middleleft portion of its land just beside the
land of plaintiffs, defendant also
constructed an artificial lake, the base
of which is soil, which utilizes the
water being channeled thereto from
its water system thru inter-connected
galvanized iron pipes (No. 2) and
complimented by rain water during
rainy or stormy seasons, so much so
that the water below it seeps into,
and the excess water above it
inundates, portions of the adjoining
land of plaintiffs.
"6) That as a result of the inundation
brought
about
by
defendant's
aforementioned water conductors,
contrivances and manipulators, a
young man was drowned to death,
while herein plaintiffs suffered and
will continue to suffer, as follows:
"a)

Portions of the land of


plaintiffs were eroded
and converted to deep,
wide and long canals,
such that the same can no
longer be planted to any
crop or plant.

"b) Costly fences constructed


by plaintiffs were, on
several occasions, washed
away.
"c)

during rainy and stormy


seasons the lives of
plaintiffs
and
their
laborers are always in
danger.

"d) Plants
and
other
improvements on other
portions of the land of
plaintiffs are exposed to
destruction. . . ."

31

A careful examination of the aforequoted complaint


shows that the civil action is one under Articles 2176
and 2177 of the Civil Code on quasi-delicts. All the
elements of a quasi-delict are present, to wit: (a)
damages suffered by the plaintiff; (b) fault or
negligence of the defendant, or some other person for
whose acts he must respond; and (c) the connection of
cause and effect between the fault or negligence of the
defendant and the damages incurred by the plaintiff.
Clearly, from petitioners' complaint, the waterpaths
and contrivances built by respondent corporation are
alleged to have inundated the land of petitioners. There
is therefore, an assertion of a causal connection between
the act of building these waterpaths and the damage
sustained by petitioners. Such action if proven
constitutes fault or negligence which may be the basis
for the recovery of damages.
In the case of Samson vs. Dionisio, the Court applied
Article 1902, now Article 2176 of the Civil Code and
held that "any person who without due authority
constructs a bank or dike, stopping the flow or
communication between a creek or a lake and a river,
thereby causing loss and damages to a third party who,
like the rest of the residents, is entitled to the use and
enjoyment of the stream or lake, shall be liable to the
payment of an indemnity for loss and damages to the
injured party."
While the property involved in the cited case belonged
to the public domain and the property subject of the
instant case is privately owned, the fact remains that
petitioners' complaint sufficiently alleges that
petitioners have sustained and will continue to sustain
damage due to the waterpaths and contrivances built
by respondent corporation. Indeed, the recitals of the
complaint, the alleged presence of damage to the
petitioners, the act or omission of respondent
corporation
supposedly
constituting
fault
or
negligence, and the causal connection between the act
and the damage, with no pre-existing contractual
obligation between the parties make a clear case of a
quasi-delict or culpa aquiliana.
It must be stressed that the use of one's property is not
without limitations. Article 431 of the Civil Code
provides that "the owner of a thing cannot make use
thereof in such a manner as to injure the rights of a
third person." SIC UTERE TUO UT ALIENUM NON
LAEDAS. Moreover, adjoining landowners have
mutual and reciprocal duties which require that each
must use his own land in a reasonable manner so as not
to infringe upon the rights and interests of others.
Although we recognize the right of an owner to build
structures on his land, such structures must be so
constructed and maintained using all reasonable care so
that they cannot be dangerous to adjoining landowners
and can withstand the usual and expected forces of
nature. If the structures cause injury or damage to an
adjoining landowner or a third person, the latter can

claim indemnification for the injury or damage


suffered.
Article 2176 of the Civil Code imposes a civil liability
on a person for damage caused by his act or omission
constituting fault or negligence, thus:
"Article 2176.
Whoever by act or
omission causes damage to another,
there being fault or negligence, is
obliged to pay for the damage done.
Such fault or negligence, if there is no
pre-existing
contractual
relation
between the parties, is called a quasidelict is governed by the provisions of
this chapter."
Article 2176, whenever it refers to "fault or negligence",
covers not only acts "not punishable by law" but also
acts criminal in character, whether intentional and
voluntary or negligent. Consequently, a separate civil
action lies against the offender in a criminal act,
whether or not he is criminally prosecuted and found
guilty or acquitted, provided that the offended party is
not allowed, (if the tortfeasor is actually charged also
criminally), to recover damages on both scores, and
would be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in the
two cases vary.
The distinctness of quasi-delicts is shown in Article 2177
of the Civil Code, which states:
"Article 2177.
Responsibility for
fault or negligence under the
preceding article is entirely separate
and distinct from the civil liability
arising from negligence under the
Penal Code. But the plaintiff cannot
recover damages twice for the same
act or omission of the defendant."
According to the Report of the Code Commission "the
foregoing provision though at first sight startling, is not
so novel or extraordinary when we consider the exact
nature of criminal and civil negligence. The former is a
violation of the criminal law, while the latter is a
distinct and independent negligence, which is a "culpa
aquiliana" or quasi-delict, of ancient origin, having
always had its own foundation and individuality,
separate from criminal negligence. Such distinction
between criminal negligence and "culpa extra
contractual" or "cuasi-delito" has been sustained by
decisions of the Supreme Court of Spain . . ."
In the case of Castillo vs. Court of Appeals, this Court held
that a quasi-delict or culpa aquiliana is a separate legal
institution under the Civil Code with a substantivity all
its own, and individuality that is entirely apart and
independent from a delict or crime a distinction
exists between the civil liability arising from a crime
and the responsibility for quasi-delicts or culpa extra

contractual. The same negligence causing damages may


produce civil liability arising from a crime under the
Penal Code, or create an action for quasi-delicts or culpa
extra contractual under the Civil Code. Therefore, the
acquittal or conviction in the criminal case is entirely
irrelevant in the civil case, unless, of course, in the
event of an acquittal where the court has declared that
the fact from which the civil action arose did not exist,
in which case the extinction of the criminal liability
would carry with it the extinction of the civil liability.
In Azucena vs. Potenciano, the Court declared that in
quasi-delicts, "(t)he civil action is entirely independent of
the criminal case according to Articles 33 and 2177 of
the Civil Code. There can be no logical conclusion than
this, for to subordinate the civil action contemplated in
the said articles to the result of the criminal prosecution
whether it be conviction or acquittal would
render meaningless the independent character of the
civil action and the clear injunction in Article 31, that
his action may proceed independently of the criminal
proceedings and regardless of the result of the latter."
WHEREFORE, the assailed decision dated February 17,
1986 of the then Intermediate Appellate Court affirming
the order of dismissal of the Regional Trial Court of
Cavite, Branch 18 (Tagaytay City) dated August 17,
1984 is hereby REVERSED and SET ASIDE. The trial
court is ordered to reinstate Civil Case No. TG-748
entitled "Natividad V. Andamo and Emmanuel R.
Andamo vs. Missionaries of Our Lady of La Salette,
Inc." and to proceed with the hearing of the case with
dispatch. This decision is immediately executory. Costs
against respondent corporation.
SO ORDERED.
Gutierrez, Jr. and Bidin, JJ., concur.
Feliciano, J., is on leave.
CASTRO vs. PEOPLE OF THE PHILIPPINES
G.R. No. 180832, 23 July 2008, 559 SCRA 676
CORONA, J p:
This petition for review on certiorari emanated from the
complaint for grave oral defamation 2 filed by Albert P.
Tan against petitioner Jerome Castro.
The facts follow.
On November 11, 2002, Reedley International School
(RIS) dismissed Tan's son, Justin Albert (then a Grade
12 student), for violating the terms of his disciplinary
probation. Upon Tan's request, RIS reconsidered its
decision but imposed "non-appealable" conditions such
as excluding Justin Albert from participating in the
graduation ceremonies.
Aggrieved, Tan filed a complaint in the Department of
Education (Dep-Ed) for violation of the Manual of
32

Regulation of Private Schools, Education Act of 1982


and Article 19 of the Civil Code against RIS. He alleged
that the dismissal of his son was undertaken with
malice, bad faith and evident premeditation. After
investigation, the Dep-Ed found that RIS' code violation
point system allowed the summary imposition of
unreasonable sanctions (which had no basis in fact and
in law). The system therefore violated due process.
Hence, the Dep-Ed nullified it.
Meanwhile, on November 20, 2002, the Dep-Ed ordered
RIS to readmit Justin Albert without any condition.
Thus, he was able to graduate from RIS and participate
in the commencement ceremonies held on March 30,
2003.
After the graduation ceremonies, Tan met Bernice C.
Ching, a fellow parent at RIS. In the course of their
conversation, Tan intimated that he was contemplating
a suit against the officers of RIS in their personal
capacities, including petitioner who was the assistant
headmaster.
Ching telephoned petitioner sometime the first week of
April and told him that Tan was planning to sue the
officers of RIS in their personal capacities. Before they
hung up, petitioner told Ching:
Okay, you too, take care and be
careful talking to [Tan], that's
dangerous.
Ching then called Tan and informed him that petitioner
said "talking to him was dangerous".
Insulted, Tan filed a complaint for grave oral
defamation in the Office of the City Prosecutor of
Mandaluyong City against petitioner on August 21,
2003.
On November 3, 2003, petitioner was charged with
grave oral defamation in the Metropolitan Trial Court
(MeTC) of Mandaluyong City, Branch 60 7 under the
following Information:
That on or about the 13th day of
March, 2003 in the City of
Mandaluyong, Philippines, a place
within the jurisdiction of this
Honorable Court, the above-named
[petitioner], with deliberate intent of
bringing ATTY. ALBERT P. TAN,
into discredit, dishonor, disrepute
and contempt, did then and there,
willfully, unlawfully and feloniously
speak and utter the following words
to Ms. Bernice C. Ching:
"OK, YOU TOO, YOU TAKE CARE
AND BE CAREFUL TALKING TO
[TAN], THAT'S DANGEROUS".

33

and other words of similar import of


a serious and insulting nature.
CONTRARY TO LAW.
Petitioner pleaded not guilty during arraignment.
xxx

xxx

xxx

The MeTC found that Ching's statements in her


affidavit and in open court were consistent and that she
did not have any motive to fabricate a false statement.
Petitioner, on the other hand, harbored personal
resentment, aversion and ill-will against Tan since the
Dep-Ed compelled RIS to readmit his son. Thus, the
MeTC was convinced that petitioner told Ching talking
to Tan was dangerous and that he uttered the statement
with the intention to insult Tan and tarnish his social
and professional reputation.
In a decision dated December 27, 2005, the MeTC found
petitioner guilty beyond reasonable doubt of grave oral
defamation:
WHEREFORE, judgment is hereby
rendered finding accused, Jerome
Castro GUILTY beyond reasonable
doubt of the crime of Grave Oral
Defamation,
sentencing
him
therefore, in accordance to Article 358
(1) of the Revised Penal Code and
applying the Indeterminate Sentence
Law to suffer the penalty of
imprisonment of 1 month and 1 day
of arresto mayor as minimum to 4
months and 1 day of arresto mayor as
maximum.
xxx

xxx

xxx

Petitioner basically contends that the CA erred in


taking cognizance of the petition for certiorari inasmuch
as the OSG raised errors of judgment (i.e., that the RTC
misappreciated the evidence presented by the parties)
but failed to prove that the RTC committed grave abuse
of discretion. Thus, double jeopardy attached when the
RTC acquitted him.
We grant the petition.
No person shall be twice put in jeopardy of punishment
for the same offense. This constitutional mandate is
echoed in Section 7 of Rule 117 of the Rules of Court
which provides:
Section 7.
Former conviction
or acquittal; double jeopardy.
When an accused has been convicted
or acquitted or the case against him
dismissed or otherwise terminated
without his express consent by a
court of competent jurisdiction, upon

a valid complaint or in information or


other formal charge sufficient in form
and substance to sustain a conviction
and after the accused had pleaded to
the charge, the conviction or acquittal
of the accused or the dismissal of the
case shall be a bar to another
prosecution for the offense charged
or for any attempt to commit the
same or frustration thereof, or for any
offense which necessarily includes or
is necessarily included in the offense
charged in the former complaint or
information.
xxx
xxx
xxx
Under this provision, double jeopardy occurs upon (1)
a valid indictment (2) before a competent court (3) after
arraignment (4) when a valid plea has been entered and
(5) when the accused was acquitted or convicted or the
case was dismissed or otherwise terminated without
the express consent of the accused. Thus, an acquittal,
whether ordered by the trial or appellate court, is final
and unappealable on the ground of double jeopardy.
The only exception is when the trial court acted with
grave abuse of discretion or, as we held in Galman v.
Sandiganbayan, when there was mistrial. In such
instances, the OSG can assail the said judgment in a
petition for certiorari establishing that the State was
deprived of a fair opportunity to prosecute and prove
its case.
The rationale behind this exception is that a judgment
rendered by the trial court with grave abuse of
discretion was issued without jurisdiction. It is, for this
reason, void. Consequently, there is no double
jeopardy.
In this case, the OSG merely assailed the RTC's finding
on the nature of petitioner's statement, that is, whether
it constituted grave or slight oral defamation. The OSG
premised its allegation of grave abuse of discretion on
the RTC's "erroneous" evaluation and assessment of the
evidence presented by the parties.
What the OSG therefore questioned were errors of
judgment (or those involving misappreciation of
evidence or errors of law). However, a court, in a
petition for certiorari, cannot review the public
respondent's evaluation of the evidence and factual
findings. Errors of judgment cannot be raised in a Rule
65 petition as a writ of certiorari can only correct errors
of jurisdiction (or those involving the commission of
grave abuse of discretion).
Because the OSG did not raise errors of jurisdiction, the
CA erred in taking cognizance of its petition and,
worse, in reviewing the factual findings of the RTC. We
therefore reinstate the RTC decision so as not to offend
the constitutional prohibition against double jeopardy.

At most, petitioner could have been liable for damages


under Article 26 of the Civil Code:
Article 26.
Every person shall
respect the dignity, personality,
privacy and peace of mind of his
neighbors and other persons. The
following and similar acts, though
they may not constitute a criminal
offense, shall produce a cause of
action for damages, prevention and
other relief:
xxx
xxx
xxx
(3)
Intriguing to cause another
to be alienated from his friends;
xxx

xxx

xxx

Petitioner is reminded that, as an educator, he is


supposed to be a role model for the youth. As such, he
should always act with justice, give everyone his due
and observe honesty and good faith.
WHEREFORE, the petition is hereby GRANTED. The
August 29, 2007 decision and December 5, 2007
resolution of the Court of Appeals in CA-G.R. SP No.
98649 are REVERSED and SET ASIDE. The November
20, 2006 decision of the Regional Trial Court of
Mandaluyong City, Branch 212 is REINSTATED.
Petitioner Jerome Castro is ACQUITTED of slight oral
defamation as defined and penalized in Article 358 of
the Revised Penal Code.
No pronouncement as to costs.
SO ORDERED.
Puno, C.J., Carpio, Azcuna and Leonardo-de Castro, JJ.,
concur.
2.

CULPA AQUILANA/CULPA CONTRACTUAL/


CULPA CRIMINAL

ARTICLE 2177. Responsibility


for
fault
or
negligence under the preceding article is entirely
separate and distinct from the civil liability arising
from negligence under the Penal Code. But the
plaintiff cannot recover damages twice for the same
act or omission of the defendant. (n)
FABRE, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 111127, 26 July 1996, 259 SCRA 426
MENDOZA, J p:
This is a petition for review on certiorari of the decision
of the Court of Appeals 1 in CA-GR No. 28245, dated
September 30, 1992, which affirmed with modification
the decision of the Regional Trial Court of Makati,
Branch 58, ordering petitioners jointly and severally to
pay damages to private respondent Amyline Antonio,
34

and its resolution which denied petitioners' motion for


reconsideration for lack of merit.
Petitioners Engracio Fabre, Jr. and his wife were owners
of a 1982 model Mazda minibus. They used the bus
principally in connection with a bus service for school
children which they operated in Manila. The couple
had a driver, Porfirio J. Cabil, whom they hired in 1981,
after trying him out for two weeks. His job was to take
school children to and from the St. Scholastica's College
in Malate, Manila.
On November 2, 1984 private respondent Word for the
World Christian Fellowship Inc. (WWCF) arranged
with petitioners for the transportation of 33 members of
its Young Adults Ministry from Manila to La Union
and back in consideration of which private respondent
paid petitioners the amount of P3,000.00.
The group was scheduled to leave on November 2,
1984, at 5:00 o'clock in the afternoon. However, as
several members of the party were late, the bus did not
leave the Tropical Hut at the corner of Ortigas Avenue
and EDSA until 8:00 o'clock in the evening. Petitioner
Porfirio Cabil drove the minibus.
The usual route to Caba, La Union was through
Carmen, Pangasinan. However, the bridge at Carmen
was under repair, so that petitioner Cabil, who was
unfamiliar with the area (it being his first trip to La
Union), was forced to take a detour through the town of
Ba-ay in Lingayen, Pangasinan. At 11:30 that night,
petitioner Cabil came upon a sharp curve on the
highway, running on a south to east direction, which he
described as "siete." The road was slippery because it
was raining, causing the bus, which was running at the
speed of 50 kilometers per hour, to skid to the left road
shoulder. The bus hit the left traffic steel brace and sign
along the road and rammed the fence of one Jesus
Escano, then turned over and landed on its left side,
coming to a full stop only after a series of impacts. The
bus came to rest off the road. A coconut tree which it
had hit fell on it and smashed its front portion.
Several passengers were injured. Private respondent
Amyline Antonio was thrown on the floor of the bus
and pinned down by a wooden seat which came off
after being unscrewed. It took three persons to safely
remove her from this position. She was in great pain
and could not move.
The driver, petitioner Cabil, claimed he did not see the
curve until it was too late. He said he was not familiar
with the area and he could not have seen the curve
despite the care he took in driving the bus, because it
was dark and there was no sign on the road. He said
that he saw the curve when he was already within 15 to
30 meters of it. He allegedly slowed down to 30
kilometers per hour, but it was too late.
The Lingayen police investigated the incident the next
day, November 3, 1984. On the basis of their finding
35

they filed a criminal complaint against the driver,


Porfirio Cabil. The case was later filed with the
Lingayen Regional Trial Court. Petitioners Fabre paid
Jesus Escano P1,500.00 for the damage to the latter's
fence. On the basis of Escano's affidavit of desistance
the case against petitioners Fabre was dismissed.
Amyline Antonio, who was seriously injured, brought
this case in the RTC of Makati, Metro Manila. As a
result of the accident, she is now suffering from
paraplegia and is permanently paralyzed from the
waist down. During the trial she described the
operations she underwent and adduced evidence
regarding the cost of her treatment and therapy.
Immediately after the accident, she was taken to the
Nazareth Hospital in Ba-ay, Lingayen. As this hospital
was not adequately equipped, she was transferred to
the Sto. Nio Hospital, also in the town of Ba-ay, where
she was given sedatives. An x-ray was taken and the
damage to her spine was determined to be too severe to
be treated there. She was therefore brought to Manila,
first to the Philippine General Hospital and later to the
Makati Medical Center where she underwent an
operation to correct the dislocation of her spine.
In its decision dated April 17, 1989, the trial court found
that:
xxx

xxx

xxx

WHEREFORE, premises considered, the Court hereby


renders judgment against defendants Mr. & Mrs.
Engracio Fabre, Jr. and Porfirio Cabil y Jamil pursuant
to articles 2176 and 2180 of the Civil Code of the
Philippines and said defendants are ordered to pay
jointly and severally to the plaintiffs the following
amount:
xxx
xxx
xxx
The Court of Appeals affirmed the decision of the trial
court with respect to Amyline Antonio but dismissed it
with respect to the other plaintiffs on the ground that
they failed to prove their respective claims. The Court
of Appeals modified the award of damages as follows:
xxx

xxx

xxx

With the exception of the award of damages, the


petition is devoid of merit.
First, it is unnecessary for our purpose to determine
whether to decide this case on the theory that
petitioners are liable for breach of contract of carriage
or culpa contractual or on the theory of quasi delict or
culpa aquiliana as both the Regional Trial Court and the
Court of Appeals held, for although the relation of
passenger and carrier is "contractual both in origin and
nature," nevertheless "the act that breaks the contract
may be also a tort." In either case, the question is
whether the bus driver, petitioner Porfirio Cabil, was
negligent.

The finding that Cabil drove his bus negligently, while


his employer, the Fabres, who owned the bus, failed to
exercise the diligence of a good father of the family in
the selection and supervision of their employee is fully
supported by the evidence on record. These factual
findings of the two courts we regard as final and
conclusive, supported as they are by the evidence.
Indeed, it was admitted by Cabil that on the night in
question, it was raining, and, as a consequence, the
road was slippery, and it was dark. He averred these
facts to justify his failure to see that there lay a sharp
curve ahead. However, it is undisputed that Cabil
drove his bus at the speed of 50 kilometers per hour
and only slowed down when he noticed the curve some
15 to 30 meters ahead. By then it was too late for him to
avoid falling off the road. Given the conditions of the
road and considering that the trip was Cabil's first one
outside of Manila, Cabil should have driven his vehicle
at a moderate speed. There is testimony that the
vehicles passing on that portion of the road should only
be running 20 kilometers per hour, so that at 50
kilometers per hour, Cabil was running at a very high
speed.
Considering the foregoing the fact that it was raining
and the road was slippery, that it was dark, that he
drove his bus at 50 kilometers an hour when even on a
good day the normal speed was only 20 kilometers an
hour, and that he was unfamiliar with the terrain, Cabil
was grossly negligent and should be held liable for the
injuries suffered by private respondent Amyline
Antonio.
Pursuant to Arts. 2176 and 2180 of the Civil Code his
negligence gave rise to the presumption that his
employers, the Fabres, were themselves negligent in the
selection and supervision of their employee.
Due diligence in selection of employees is not satisfied
by finding that the applicant possessed a professional
driver's license. The employer should also examine the
applicant for his qualifications, experience and record
of service. Due diligence in supervision, on the other
hand, 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.
In the case at bar, the Fabres, in allowing Cabil to drive
the bus to La Union, apparently did not consider the
fact that Cabil had been driving for school children
only, from their homes to the St. Scholastica's College in
Metro Manila. They had hired him only after a twoweek apprenticeship. They had tested him for certain
matters, such as whether he could remember the names
of the children he would be taking to school, which
were irrelevant to his qualification to drive on a long
distance travel, especially considering that the trip to La
Union was his first. The existence of hiring procedures
and supervisory policies cannot be casually invoked to
overturn the presumption of negligence on the part of
an employer.

Petitioners argue that they are not liable because (1) an


earlier
departure
(made
impossible
by
the
congregation's delayed meeting) could have averted the
mishap and (2) under the contract, the WWCF was
directly responsible for the conduct of the trip. Neither
of these contentions hold water. The hour of departure
had not been fixed. Even if it had been, the delay did
not bear directly on the cause of the accident. With
respect to the second contention, it was held in an early
case that:
[A] person who hires a public
automobile and gives the driver
directions as to the place to which he
wishes to be conveyed, but exercises
no other control over the conduct of
the driver, is not responsible for acts
of negligence of the latter or
prevented from recovering for
injuries suffered from a collision
between the automobile and a train,
caused by the negligence either of the
locomotive
engineer
or
the
automobile driver.
As already stated, this case actually involves a contract
of carriage. Petitioners, the Fabres, did not have to be
engaged in the business of public transportation for the
provisions of the Civil Code on common carriers to
apply to them. As this Court has held:
Art. 1732.
Common carriers
are persons, corporations, firms or
associations engaged in the business
of
carrying
or
transporting
passengers or goods or both, by land,
water, or air for compensation,
offering their services to the public.
The above article makes no distinction between one
whose principal business activity is the carrying of
persons or goods or both, and one who does such
carrying only as an ancillary activity (in local idiom, as
"a sideline"). Article 1732 also carefully avoids making
any distinction between a person or enterprise offering
transportation service on a regular or scheduled basis
and one offering such service on an occasional, episodic
or unscheduled basis. Neither does Article 1732
distinguish between a carrier offering its services to the
"general public," i.e., the general community or
population, and one who offers services or solicits
business only from a narrow segment of the general
population. We think that Article 1732 deliberately
refrained from making such distinctions.
As common carriers, the Fabres were bound to exercise
"extraordinary diligence" for the safe transportation of
the passengers to their destination. This duty of care is
not excused by proof that they exercised the diligence
of a good father of the family in the selection and

36

supervision of their employee. As Art. 1759 of the Code


provides:

private respondents, in whose favor the awards were


made, have not appealed.

Common carriers are liable for the


death of or injuries to passengers
through the negligence or wilful acts
of the former's employees, although
such employees may have acted
beyond the scope of their authority or
in violation of the orders of the
common carriers.

As above stated, the decision of the Court of Appeals


can be sustained either on the theory of quasi delict or
on that of breach of contract. The question is whether,
as the two courts below held, petitioners, who are the
owners and driver of the bus, may be made to respond
jointly and severally to private respondent. We hold
that they may be. In Dangwa Trans. Co. Inc. v. Court of
Appeals, on facts similar to those in this case, this Court
held the bus company and the driver jointly and
severally liable for damages for injuries suffered by a
passenger. Again, in Bachelor Express, Inc. v. Court of
Appeals a driver found negligent in failing to stop the
bus in order to let off passengers when a fellow
passenger ran amuck, as a result of which the
passengers jumped out of the speeding bus and
suffered injuries, was held also jointly and severally
liable with the bus company to the injured passengers.
The same rule of liability was applied in situations
where the negligence of the driver of the bus on which
plaintiff was riding concurred with the negligence of a
third party who was the driver of another vehicle, thus
causing an accident. In Anuran v. Buo, Batangas Laguna
Tayabas Bus Co. v. Intermediate Appellate Court, and Metro
Manila Transit Corporation v. Court of Appeals, the bus
company, its driver, the operator of the other vehicle
and the driver of the vehicle were jointly and severally
held liable to the injured passenger or the latter's heirs.
The basis of this allocation of liability was explained in
Viluan v. Court of Appeals, thus:

This liability of the common carriers does not cease


upon proof that they exercised all the diligence of a
good father of a family in the selection and supervision
of their employees.
The same circumstances detailed above, supporting the
finding of the trial court and of the appellate court that
petitioners are liable under Arts. 2176 and 2180 for quasi
delict, fully justify finding them guilty of breach of
contract of carriage under Arts. 1733, 1755 and 1759 of
the Civil Code.
Secondly, we sustain the award of damages in favor of
Amyline Antonio. However, we think the Court of
Appeals erred in increasing the amount of
compensatory damages because private respondents
did not question this award as inadequate. To the
contrary, the award of P500,000.00 for compensatory
damages which the Regional Trial Court made is
reasonable considering the contingent nature of her
income as a casual employee of a company and as
distributor of beauty products and the fact that the
possibility that she might be able to work again has not
been foreclosed. In fact she testified that one of her
previous employers had expressed willingness to
employ her again.
With respect to the other awards, while the decisions of
the trial court and the Court of Appeals do not
sufficiently indicate the factual and legal basis for them,
we find that they are nevertheless supported by
evidence in the records of this case. Viewed as an action
for quasi delict, this case falls squarely within the
purview of Art. 2219(2) providing for the payment of
moral damages in cases of quasi delict. On the theory
that petitioners are liable for breach of contract of
carriage, the award of moral damages is authorized by
Art. 1764, in relation to Art. 2220, since Cabil's gross
negligence amounted to bad faith. Amyline Antonio's
testimony as well as the testimonies of her father and
co-passengers, fully establish the physical suffering and
mental anguish she endured as a result of the injuries
caused by petitioners' negligence.
The award of exemplary damages and attorney's fees
was also properly made. However, for the same reason
that it was error for the appellate court to increase the
award of compensatory damages, we hold that it was
also error for it to increase the award of moral damages
and reduce the award of attorney's fees, inasmuch as
37

Nor should it make any difference


that the liability of petitioner [bus
owner] springs from contract while
that of respondents [owner and
driver of other vehicle] arises from
quasi-delict. As early as 1913, we
already ruled in Gutierrez vs.
Gutierrez, 56 Phil. 177, that in case of
injury to a passenger due to the
negligence of the driver of the bus on
which he was riding and of the driver
of another vehicle, the drivers as well
as the owners of the two vehicles are
jointly and severally liable for
damages. Some members of the
Court, though, are of the view that
under the circumstances they are
liable on quasi-delict.
It is true that in Philippine Rabbit Bus Lines, Inc. v. Court
of Appeals this Court exonerated the jeepney driver from
liability to the injured passengers and their families
while holding the owners of the jeepney jointly and
severally liable, but that is because that case was
expressly tried and decided exclusively on the theory of
culpa contractual. As this Court there explained:
The trial court was therefore right in
finding that Manalo [the driver] and

spouses Mangune and Carreon [the


jeepney owners] were negligent.
However, its ruling that spouses
Mangune and Carreon are jointly and
severally liable with Manalo is
erroneous. The driver cannot be held
jointly and severally liable with the
carrier in case of breach of the
contract of carriage. The rationale
behind this is readily discernible.
Firstly, the contract of carriage is
between the carrier and the
passenger, and in the event of
contractual liability, the carrier is
exclusively responsible therefore to
the passenger, even if such breach be
due to the negligence of his driver
(see Viluan v. The Court of Appeals,
et al., G.R. Nos. L-21477-81, April 29,
1966, 16 SCRA 742) . . .
As in the case of BLTB, private respondents in this case
and her co-plaintiffs did not stake out their claim
against the carrier and the driver exclusively on one
theory, much less on that of breach of contract alone.
After all, it was permitted for them to allege alternative
causes of action and join as many parties as may be
liable on such causes of action so long as private
respondent and her co-plaintiffs do not recover twice
for the same injury. What is clear from the cases is the
intent of the plaintiff there to recover from both the
carrier and the driver, thus justifying the holding that
the carrier and the driver were jointly and severally
liable because their separate and distinct acts concurred
to produce the same injury.
WHEREFORE, the decision of the Court of Appeals is
AFFIRMED with MODIFICATION as to the award of
damages. Petitioners are ORDERED to PAY jointly and
severally the private respondent Amyline Antonio the
following amounts:
xxx
SO ORDERED.

xxx

xxx

Regalado, Romero, Puno, and Torres, Jr., JJ ., concur.


CALALAS vs. COURT OF APPEALS, ET AL.
G.R. No. 122039, 31 May 2000, 332 SCRA 356
MENDOZA, J P:
This is a petition for review on certiorari of the decision
of the Court of Appeals, dated March 31, 1991,
reversing the contrary decision of the Regional Trial
Court, Branch 36, Dumaguete City, and awarding
damages instead to private respondent Eliza Jujeurche
Sunga as plaintiff in an action for breach of contract of
carriage.

At 10 o'clock in the morning of August 23, 1989, private


respondent Eliza Jujeurche G. Sunga, then a college
freshman majoring in Physical Education at the Siliman
University, took a passenger jeepney owned and
operated by petitioner Vicente Calalas. As the jeepney
was filled to capacity of about 24 passengers, Sunga
was given by the conductor an "extension seat," a
wooden stool at the back of the door at the rear end of
the vehicle.
On the way to Poblacion Sibulan, Negros Occidental,
the jeepney stopped to let a passenger off. As she was
seated at the rear of the vehicle, Sunga gave way to the
outgoing passenger. Just as she was doing so, an Isuzu
truck driven by Iglecerio Verena and owned by
Francisco Salva bumped the left rear portion of the
jeepney. As a result, Sunga was injured. She sustained a
fracture of the "distal third of the left tibia-fibula with
severe necrosis of the underlying skin." Closed
reduction of the fracture, long leg circular casting, and
case wedging were done under sedation. Her
confinement in the hospital lasted from August 23 to
September 7, 1989. Her attending physician, Dr. Danilo
V. Oligario, an orthopedic surgeon, certified she would
remain on a cast for a period of three months and
would have to ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for
damages against Calalas, alleging violation of the
contract of carriage by the former in failing to exercise
the diligence required of him as a common carrier.
Calalas, on the other hand, filed a third-party complaint
against Francisco Salva, the owner of the Isuzu truck.
The lower court rendered judgment, against Salva as
third-party defendant and absolved Calalas of liability,
holding that it was the driver of the Isuzu truck who
was responsible for the accident. It took cognizance of
another case (Civil Case No. 3490), filed by Calalas
against Salva and Verena, for quasi-delict, in which
Branch 37 of the same court held Salva and his driver
Verena jointly liable to Calalas for the damage to his
jeepney.
On appeal to the Court of Appeals, the ruling of the
lower court was reversed on the ground that Sunga's
cause of action was based on a contract of carriage, not
quasi-delict, and that the common carrier failed to
exercise the diligence required under the Civil Code.
The appellate court dismissed the third-party complaint
against Salva and adjudged Calalas liable for damages
to Sunga. The dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby
REVERSED and SET ASIDE, and another one is entered
ordering defendant-appellee Vicente Calalas to pay
plaintiff-appellant:
xxx

The facts, as found by the Court of Appeals, are as


follows:

xxx

xxx

SO ORDERED.
38

Hence, this petition. Petitioner contends that the ruling


in Civil Case No. 3490 that the negligence of Verena
was the proximate cause of the accident negates his
liability and that to rule otherwise would be to make
the common carrier an insurer of the safety of its
passengers. He contends that the bumping of the
jeepney by the truck owned by Salva was a caso fortuito.
Petitioner further assails the award of moral damages
to Sunga on the ground that it is not supported by
evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in
Civil Case No. 3490 finding the driver and the owner of
the truck liable for quasi-delict ignores the fact that she
was never a party to that case and, therefore, the
principle of res judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the
present case the same. The issue in Civil Case No. 3490
was whether Salva and his driver Verena were liable
for quasi-delict for the damage caused to petitioner's
jeepney. On the other hand, the issue in this case is
whether petitioner is liable on his contract of carriage.
The first, quasi-delict, also known as culpa aquiliana or
culpa extra contractual, has as its source the negligence of
the tortfeasor. The second, breach of contract or culpa
contractual, is premised upon the negligence in the
performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault
should be clearly established because it is the basis of
the action, whereas in breach of contract, the action can
be prosecuted merely by proving the existence of the
contract and the fact that the obligor, in this case the
common carrier, failed to transport his passenger safely
to his destination. In case of death or injuries to
passengers, Art. 1756 of the Civil Code provides that
common carriers are presumed to have been at fault or
to have acted negligently unless they prove that they
observed extraordinary diligence as defined in Arts.
1733 and 1755 of the Code. This provision necessarily
shifts to the common carrier the burden of proof.
There is, thus, no basis for the contention that the ruling
in Civil Case No. 3490, finding Salva and his driver
Verena liable for the damage to petitioner's jeepney,
should be binding on Sunga. It is immaterial that the
proximate cause of the collision between the jeepney
and the truck was the negligence of the truck driver.
The doctrine of proximate cause is applicable only in
actions for quasi-delict, not in actions involving breach
of contract. The doctrine is a device for imputing
liability to a person where there is no relation between
him and another party. In such a case, the obligation is
created by law itself. But, where there is a pre-existing
contractual relation between the parties, it is the parties
themselves who create the obligation, and the function
of the law is merely to regulate the relation thus
created. Insofar as contracts of carriage are concerned,
39

some aspects regulated by the Civil Code are those


respecting the diligence required of common carriers
with regard to the safety of passengers as well as the
presumption of negligence in cases of death or injury to
passengers. It provides:
ARTICLE 1733. Common carriers,
from the nature of their business and
for reasons of public policy, are
bound to observe extraordinary
diligence in the vigilance over the
goods and for the safety of the
passengers transported by them,
according to all the circumstances of
each case.
Such extraordinary diligence in the
vigilance over the goods is further
expressed in Articles 1734, 1735, and
1746, Nos. 5, 6, and 7, while the
extraordinary diligence for the safety
of the passengers is further set forth
in Articles 1755 and 1756.
ARTICLE 1755. A common carrier
is bound to carry the passengers
safely as far as human care and
foresight can provide, using the
utmost diligence of very cautious
persons, with due regard for all the
circumstances.
ARTICLE 1756. In case of death of
or injuries to passengers, common
carriers are presumed to have been at
fault or to have acted negligently,
unless they prove that they observed
extraordinary diligence as prescribed
by Articles 1733 and 1755.
In the case at bar, upon the happening of the accident,
the presumption of negligence at once arose, and it
became the duty of petitioner to prove that he had to
observe extraordinary diligence in the care of his
passengers.
Now, did the driver of jeepney carry Sunga "safely as
far as human care and foresight could provide, using
the utmost diligence of very cautious persons, with due
regard for all the circumstances" as required by Art.
1755? We do not think so. Several factors militate
against petitioner's contention.
First, as found by the Court of Appeals, the jeepney was
not properly parked, its rear portion being exposed
about two meters from the broad shoulders of the
highway, and facing the middle of the highway in a
diagonal angle. This is a violation of the R.A. No. 4136,
as amended, or the Land Transportation and Traffic
Code, which provides:

SECTION 54.
Obstruction
of
Traffic. No person shall drive his
motor vehicle in such a manner as to
obstruct or impede the passage of any
vehicle, nor, while discharging or
taking on passengers or loading or
unloading freight, obstruct the free
passage of other vehicles on the
highway.
Second, it is undisputed that petitioner's driver took in
more passengers than the allowed seating capacity of
the jeepney, a violation of 32(a) of the same law. It
provides:
Exceeding registered capacity. No
person operating any motor vehicle
shall allow more passengers or more
freight or cargo in his vehicle than its
registered capacity.
The fact that Sunga was seated in an "extension seat"
placed her in a peril greater than that to which the other
passengers were exposed. Therefore, not only was
petitioner unable to overcome the presumption of
negligence imposed on him for the injury sustained by
Sunga, but also, the evidence shows he was actually
negligent in transporting passengers.
We find it hard to give serious thought to petitioner's
contention that Sunga's taking an "extension seat"
amounted to an implied assumption of risk. It is akin to
arguing that the injuries to the many victims of the
tragedies in our seas should not be compensated
merely because those passengers assumed a greater risk
of drowning by boarding an overloaded ferry. This is
also true of petitioner's contention that the jeepney
being bumped while it was improperly parked
constitutes caso fortuito. A caso fortuito is an event
which could not be foreseen, or which, though foreseen,
was inevitable. 3 This requires that the following
requirements be present: (a) the cause of the breach is
independent of the debtor's will; (b) the event is
unforeseeable or unavoidable; (c) the event is such as to
render it impossible for the debtor to fulfill his
obligation in a normal manner, and (d) the debtor did
not take part in causing the injury to the creditor. 4
Petitioner should have foreseen the danger of parking
his jeepney with its body protruding two meters into
the highway.
xxx

xxx

xxx

WHEREFORE, the decision of the Court of Appeals,


dated March 31, 1995, and its resolution, dated
September 11, 1995, are AFFIRMED, with the
MODIFICATION that the award of moral damages is
DELETED.
SO ORDERED.
Bellosillo and Buena, JJ., concur.

Quisumbing and De Leon, Jr., JJ., are on leave.


PADUA, ET AL. vs. ROBLES
G.R. No. L-40486, 29 August 1975, 66 SCRA 485
CASTRO, J p:
Resolving this appeal by the spouses Paulino and
Lucena Bebin Padua, we set aside the order dated
October 25, 1972 of the Court of First Instance of
Zambales dismissing their complaint in civil case 10790, and remand this case for further proceedings.
In the early morning of New Year's Day of 1969 a
taxicab (bearing 1968 plate no. TX-9395 and driven by
Romeo N. Punzalan but operated by the Bay Taxi Cab
owned by Gregorio N. Robles) struck ten-year old
Normandy Padua on the national road in barrio
Barretto, Olongapo City. The impact hurled Normandy
about forty meters away from the point where the
taxicab struck him, as a result of which he died.
Subsequently, Normandy's parents (Paulino and
Lucena Bebin Padua), by complaint filed with the Court
of First Instance of Zambales (civil case 427-0), sought
damages from Punzalan and the Bay Taxi Cab;
likewise, the city Fiscal of Olongapo, by information
filed with the same court (criminal case 1158-0),
charged Punzalan with homicide through reckless
imprudence.
On October 27, 1969 the court a quo, in civil case 427-0,
adjudged for the Paduas as follows:
"WHEREFORE judgment is hereby
rendered ordering the defendant
Romeo Punzalan to pay the plaintiffs
the sums of P12,000.00 as actual
damages, P5,000.00 as moral and
exemplary damages, and P10,000.00
as attorney's fees; and dismissing the
complaint insofar as the Bay Taxicab
Company is concerned. With costs
against
the
defendant
Romeo
Punzalan." (emphasis supplied)
Almost a year later, on October 5, 1970, the court a quo,
in criminal case 1158-0, convicted Punzalan, as follows:
"WHEREFORE, the Court finds the accused Romeo
Punzalan y Narciso guilty beyond reasonable doubt of
the crime of homicide through reckless imprudence, as
defined and penalized under Article 365 of the Revised
Penal Code, attended by the mitigating circumstance of
voluntary surrender, and hereby sentences him to
suffer the indeterminate penalty of TWO (2) YEARS,
FOUR (4) MONTHS and ONE (1) DAY of prision
correccional, as minimum, to SIX (6) YEARS and ONE
(1) DAY of prision mayor, as maximum, and to pay the
cost. The civil liability of the accused has already been
determined and assessed in Civil Case No. 427-0,
40

entitled 'Paulino Padua, et al. vs. Romeo Punzalan, et


al.'" (emphasis supplied)
After the judgment in civil case 427-0 became final, the
Paduas sought execution thereof. This proved futile; the
corresponding court officer returned the writ of
execution unsatisfied.
Unable to collect the amount of P27,000 awarded in
their favor, the Paduas instituted action in the same
court against Gregorio N. Robles to enforce the latter's
subsidiary responsibility under the provisions of article
103 of the Revised Penal Code. Robles filed a motion to
dismiss based on (1) bar of the cause of action by a prior
judgment and (2) failure of the complaint to state a
cause of action.
Thereafter, the court a quo, in an order dated October
25, 1972, granted Robles' motion to dismiss on the
ground that the Paduas' complaint states no cause of
action. This order the Paduas questioned in the Court of
Appeals which, by resolution dated March 5, 1975,
certified the case to this Court for the reason that the
appeal involves only questions of law.
The Paduas predicate their appeal on eighteen errors
allegedly committed by the court a quo. These assigned
errors, however, raise only one substantial issue:
whether the judgment dated October 5, 1970 in criminal
case 1158-0 includes a determination and adjudication
of Punzalan's civil liability arising from his criminal act
upon which Robles' subsidiary civil responsibility may
be based.
The sufficiency and efficacy of a judgment must be
tested by its substance rather than its form. In
construing a judgment, its legal effects including such
effects that necessarily follow because of legal
implications, rather than the language used, govern.
Also, its meaning, operation, and consequences must be
ascertained like any other written instrument. Thus, a
judgment rests on the intention of the court as gathered
from every part thereof, including the situation to
which it applies and the attendant circumstances.
It would appear that a plain reading, on its face, of the
judgment in criminal case 1158-0, particularly its
decretal portion, easily results in the same conclusion
reached by the court a quo: that the said judgment
assessed no civil liability arising from the offense
charged against Punzalan. However, a careful study of
the judgment in question, the situation to which it
applies, and the attendant circumstances, would yield
the conclusion that the court a quo, on the contrary,
recognized the enforceable right of the Paduas to the
civil liability arising from the offense committed by
Punzalan and awarded the corresponding indemnity
therefor.
Civil liability coexists with criminal responsibility. In
negligence cases, the offended party (or his heirs) has
the option between an action for enforcement of civil
41

liability based on culpa criminal under article 100 of the


Revised Penal Code and an action for recovery of
damages based on culpa aquiliana under article 2177 of
the Civil Code. The action for enforcement of civil
liability based on culpa criminal section 1 of Rule 111 of
the Rules of Court deems simultaneously instituted
with the criminal action, unless expressly waived or
reserved for a separate application by the offended
party. Article 2177 of the Civil Code, however,
precludes recovery of damages twice for the same
negligent act or omission.
In the case at bar, the Court finds it immaterial that the
Paduas chose, in the first instance, an action for
recovery of damages based on culpa aquiliana under
articles 2176, 2177, and 2180 of the Civil Code, which
action proved ineffectual. The Court also takes note of
the absence of any inconsistency between the
aforementioned action priorly availed of by the Paduas
and their subsequent application for enforcement of
civil liability arising from the offense committed by
Punzalan and, consequently, for exaction of Robles'
subsidiary responsibility. Allowance of the latter
application involves no violation of the proscription
against double recovery of damages for the same
negligent act or omission. For, as hereinbefore stated,
the corresponding officer of the court a quo returned
unsatisfied the writ of execution issued against
Punzalan to satisfy the amount of indemnity awarded
to the Paduas in civil case 427-0. Article 2177 of the
Civil Code forbids actual double recovery of damages
for the same negligent act or omission. Finally, the
Court notes that the same judge * tried, heard, and
determined both civil case 427-0 and criminal case 11580. Knowledge of an familiarity with all the facts and
circumstances relevant and relative to the civil liability
of Punzalan may thus be readily attributed to the judge
when he rendered judgment in the criminal action.
In view of the above considerations, it cannot
reasonably be contended that the court a quo intended,
in its judgment in criminal case 1158-0, to omit
recognition of the right of the Paduas to the civil
liability arising from the offense of which Punzalan was
adjudged guilty and the corollary award of the
corresponding indemnity therefor. Surely, it cannot be
said that the court intended the statement in the
decretal portion of the judgment in criminal case 1158-0
referring to the determination and assessment of
Punzalan's civil liability in civil case 427-0 to be pure
jargon or "gobbledygook" and to be absolutely of no
meaning and effect whatsoever. The substance of such
statement, taken in the light of the situation to which it
applies and the attendant circumstances, makes
unmistakably clear the intention of the court to accord
affirmation to the Paduas' right to the civil liability
arising from the judgment against Punzalan in criminal
case 1158-0. Indeed, by including such statement in the
decretal portion of the said judgment, the court
intended to adopt the same adjudication and award it
made in civil case 427-0 as Punzalan's civil liability in
criminal case 1158-0.

There is indeed much to be desired in the formulation


by Judge Amores of that part of the decretal portion of
the judgment in criminal case 1158-0 referring to the
civil liability of Punzalan resulting from his criminal
conviction. The judge could have been forthright and
direct instead of circuitous and ambiguous. But, as we
have above explained, the statement on the civil
liability of Punzalan must surely have a meaning; and
even if the statement were reasonably susceptible of
two or more interpretations, that which achieves moral
justice should be adopted, eschewing the other
interpretations which in effect would negate moral
justice.
It is not amiss at this juncture to emphasize to all
magistrates in all levels of the judicial hierarchy that
extreme degree of care should be exercised in the
formulation of the dispositive portion of a decision,
because it is this portion that is to be executed once the
decision becomes final. The adjudication of the rights
and obligations of the parties, and the dispositions
made as well as the directions and instructions given by
the court in the premises in conformity with the body of
the decision, must all be spelled out clearly, distinctly
and unequivocally, leaving absolutely no room for
dispute, debate or interpretation.
We therefore hold that the Paduas' complaint in civil
case 1079-0 states a cause of action against Robles
whose concomitant subsidiary responsibility, per the
judgment in criminal case 1158-0, subsists.
ACCORDINGLY, the order a quo dated October 25,
1972 dismissing the complaint in civil case 1079-0 is set
aside, and this case is hereby remanded to the court a
quo for further proceedings conformably with this
decision and with law. No pronouncement as to costs.
Makalintal, C.J., Teehankee, Makasiar, Esguerra,
Aquino, Concepcion, Jr. and Martin, JJ., concur.
Muoz Palma J., did not take part.
Antonio, J., is on leave.
ATLANTIC GULF AND PACIFIC COMPANY OF
MANILA, INC., vs. COURT OF APPEALS, ET AL.
G.R. Nos. 114841-42, 20 October 1995, 247 SCRA 606
REGALADO, J p:
Petitioner moves for the reconsideration of our
judgment promulgated in this case on August 23, 1995
contending that (1) private respondents are permitted
thereunder to recover damages twice for the same act
or omission, and (2) the interests adjudged on the
awarded damages should be reckoned from the date of
finality of our aforesaid judgment rendered herein.
We reject the first submission. It is theorized by
petitioner that our affirmance of the judgment of the
trial court, which granted damages for both the

"damage proper to the land" and "rentals for the same


property," runs afoul of the proscription in Article 2177
of the Civil Code against double recovery of damages
for the same act.
Petitioner overlooks the fact that private respondents,
as plaintiffs in the actions filed in the court below,
specifically alleged that as a result of petitioner's
dredging operations the soil of the former's property
"became infertile, salty, unproductive and unsuitable
for agriculture." They further averred that petitioner's
heavy equipment "used to utilize (private respondents')
land as a depot or parking lot of these equipment(t)
without paying any rent therefor."
Respondent Court of Appeals affirmed the factual
findings and conclusions of the trial court on the nature
and cause of the twin items of damages sustained by
private respondents, thus:
The main reason why (private respondents') properties
were damaged, as found by the trial court, was due to
the dredging operations undertaken by (petitioner) on
the area, which findings are supported by the testimony
of Carlito Castillo, testifying in Civil Case No. 10276,
and Teodora Dimaculangan, in Civil Case No. 10696. . .
. Neither has (petitioner) asseverated against (private
respondents') submission that their properties were
used by (petitioner) as a dump site for its equipment
and trucks, and proof are the photographs of their
properties showing tracks left by truck tires on their
properties. (Parenthetical indication of the parties
concerned are made for easy reference.)
It is, therefore, clearly apparent that petitioner was
guilty of two culpable transgressions on the property
rights of private respondents, that is, for the ruination
of the agricultural fertility or utility of the soil of their
property and, further, for the unauthorized use of said
property as a dump site or depot for petitioner's heavy
equipment and trucks. Consequently, albeit with
differing amounts, both courts correctly awarded
damages both for the destruction of the land and for the
unpaid rentals, or more correctly denominated, for the
reasonable value of its use and occupation of the
premises. There is consequently no merit in said
objection of petitioner.
The second proposition of petitioner is better taken, in
light of the reconciliation and clarification undertaken
by the Court of the heretofore imprecise and varying
pronouncements on the imposition of interest in
judgments for a sum of money.
In the recent case of Eastern Shipping Lines, Inc. vs. Court
of Appeals, et al., the Court adopted interpretative rules
on the matter of the imposable interest and the accrual
thereof. The rules pertinent to the interest involved in
the case at bar are hereunder briefed as applied to the
controversy on the computation and the reckoning date
thereof.

42

When an obligation not constituting a loan or


forbearance of money is breached, interest on the
amount of the damages awarded may be imposed at
the rate of six percent (6%) per annum. No interest shall
be adjudged on unliquidated claims unless the same
can be established with reasonable certainty. Since the
pleadings of herein private respondents in the trial
court did not spell out said amounts with certitude, the
legal interest thereon shall run only from the
promulgation of judgment of said court, it being at that
stage that the quantification of damages may be
deemed to have been reasonably ascertained.
The actual base for the computation of such legal
interest, however, shall be the amount as finally
adjudged by this Court. Furthermore, when our
judgment herein becomes final and executory, the rate
of legal interest shall be twelve percent (12%) from such
finality until the satisfaction of the total judgment
account, the interim period being effectively equivalent
to a forbearance of credit.
ACCORDINGLY, and by way of clarification, the
judgment rendered by this Court in the instant case
shall be understood to mean that the legal interest to be
paid by petitioner is six percent (6%) of the amount due
computed from September 6, 1990 when judgment was
rendered by the trial court. Additionally, interest of
twelve percent (12%) shall be imposed on such total
amount due upon the finality of the judgment of the
Court herein until the full satisfaction thereof.
SO ORDERED.
Narvasa, C.J., Puno, Mendoza and Francisco, JJ.,
concur.
II. QUASI-DELICT
1.

For damages suffered by a third party, may an action


based on quasi-delict prosper against a rent-a-car
company and, consequently, its insurer for fault or
negligence of the car lessee in driving the rented
vehicle?
This was a two-car collision at dawn. At around 3
o'clock of 21 April 1987, two (2) vehicles, both
Mitsubishi Colt Lancers, cruising northward along
Epifanio de los Santos Avenue, Mandaluyong City,
figured in a traffic accident. The car bearing Plate No.
PDG 435 owned by Lydia F. Soriano was being driven
at the outer lane of the highway by Benjamin Jacildone,
while the other car, with Plate No. PCT 792, owned by
respondent FILCAR Transport, Inc. (FILCAR), and
driven by Peter Dahl-Jensen as lessee, was at the center
lane, left of the other vehicle. Upon approaching the
corner of Pioneer Street, the car owned by FILCAR
swerved to the right hitting the left side of the car of
Soriano. At that time Dahl-Jensen, a Danish tourist, did
not possess a Philippine driver's license.
As a consequence, petitioner FGU Insurance
Corporation, in view of its insurance contract with
Soriano, paid the latter P25,382.20. By way of
subrogation, 2 it sued Dahl-Jensen and respondent
FILCAR as well as respondent Fortune Insurance
Corporation (FORTUNE) as insurer of FILCAR for
quasi-delict before the Regional Trial Court of Makati
City.
Unfortunately, summons was not served on DahlJensen since he was no longer staying at his given
address; in fact, upon motion of petitioner, he was
dropped from the complaint.
On 30 July 1991 the trial court dismissed the case for
failure of petitioner to substantiate its claim of
subrogation.

ELEMENTS OF A QUASI-DELICT

ARTICLE 2176. Whoever by act or omission causes


damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
(1902a)
ANDAMO, ET AL. vs.
INTERMEDIATE APPELLATE COURT, ET AL.
G.R. No. 74761, 6 November 1990, 191 SCRA 195

On 31 January 1995 respondent Court of Appeals


affirmed the ruling of the trial court although based on
another ground, i.e., only the fault or negligence of
Dahl-Jensen was sufficiently proved but not that of
respondent FILCAR. 4 In other words, petitioner failed
to establish its cause of action for sum of money based
on quasi-delict.
In this appeal, petitioner insists that respondents are
liable on the strength of the ruling in MYC-AgroIndustrial Corporation v. Vda. de Caldo that the registered
owner of a vehicle is liable for damages suffered by
third persons although the vehicle is leased to another.

See supra.
FGU INSURANCE CORPORATION vs.
COURT OF APPEALS, ET AL.
G.R. No. 118889, 23 March 1998, 287 SCRA 718
BELLOSILLO, J p:

43

We find no reversible error committed by respondent


court in upholding the dismissal of petitioner's
complaint. The pertinent provision is Art. 2176 of the
Civil Code which states: "Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing

contractual relation between the parties, is called a


quasi-delict . . ."
To sustain a claim based thereon, the following
requisites must concur: (a) damage suffered by the
plaintiff; (b) fault or negligence of the defendant; and,
(c) connection of cause and effect between the fault or
negligence of the defendant and the damage incurred
by the plaintiff.
We agree with respondent court that petitioner failed to
prove the existence of the second requisite, i.e., fault or
negligence of defendant FILCAR, because only the fault
or negligence of Dahl-Jensen was sufficiently
established, not that of FILCAR. It should be noted that
the damage caused on the vehicle of Soriano was
brought about by the circumstance that Dahl-Jensen
swerved to the right while the vehicle that he was
driving was at the center lane. It is plain that the
negligence was solely attributable to Dahl-Jensen thus
making the damage suffered by the other vehicle his
personal liability. Respondent FILCAR did not have
any participation therein.
Article 2180 of the same Code which deals also with
quasi-delict provides:
The obligation imposed by article
2176 is demandable not only for one's
own acts or omissions, but also for
those of persons for whom one is
responsible.
The father and, in case of his death or
incapacity,
the
mother,
are
responsible for the damages caused
by the minor children who live in
their company.
Guardians are liable for damages
caused by the minors or incapacitated
persons who are under their
authority and live in their company.
The owners and managers of an
establishment or enterprise are
likewise responsible for damages
caused by their employees in the
service of the branches in which the
latter are employed or on the
occasion of their functions.
Employers shall be liable for the
damages caused by their employees
and household helpers acting within
the scope of their assigned tasks, even
though the former are not engaged in
any business or industry.
The State is responsible in like
manner when it acts through a
special agent; but not when the

damage has been caused by the


official to whom the task done
properly pertains, in which case what
is provided in article 2176 shall be
applicable.
Lastly, teachers or heads of
establishments of arts and trades
shall be liable for damages caused by
their pupils and students or
apprentices, so long as they remain in
their custody.
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.
The liability imposed by Art. 2180 arises by virtue of a
presumption juris tantum of negligence on the part of
the persons made responsible thereunder, derived from
their failure to exercise due care and vigilance over the
acts of subordinates to prevent them from causing
damage. Yet, as correctly observed by respondent
court, Art. 2180 is hardly applicable because none of the
circumstances mentioned therein obtains in the case
under consideration. Respondent FILCAR being
engaged in a rent-a-car business was only the owner of
the car leased to Dahl-Jensen. As such, there was no
vinculum juris between them as employer and
employee. Respondent FILCAR cannot in any way be
responsible for the negligent act of Dahl-Jensen, the
former not being an employer of the latter.
We now correlate par. 5 of Art. 2180 with Art. 2184 of
the same Code which provides: "In motor vehicle
mishap, the owner is solidarily liable with his driver, if
the former, who was in the vehicle, could have by the
use of due diligence, prevented the misfortune . . . If the
owner was not in the motor vehicle, the provisions of
article 2180 are applicable." Obviously, this provision of
Art. 2184 is neither applicable because of the absence of
master-driver relationship between respondent FILCAR
and Dahl-Jensen. Clearly, petitioner has no cause of
action against respondent FILCAR on the basis of quasidelict; logically, its claim against respondent FORTUNE
can neither prosper.
Petitioner's
insistence
on
MYC-Agro-Industrial
Corporation is rooted in a misapprehension of our
ruling therein. In that case, the negligent and reckless
operation of the truck owned by petitioner corporation
caused injuries to several persons and damage to
property. Intending to exculpate itself from liability, the
corporation raised the defense that at the time of the
collision it had no more control over the vehicle as it
was leased to another; and, that the driver was not its
employee but of the lessee. The trial court was not
persuaded as it found that the true nature of the alleged
lease contract was nothing more than a disguise
44

effected by the corporation to relieve itself of the


burdens and responsibilities of an employer. We
upheld this finding and affirmed the declaration of joint
and several liability of the corporation with its driver.
WHEREFORE, the petition is DENIED. The decision of
respondent Court of Appeals dated 31 January 1995
sustaining the dismissal of petitioner's complaint by the
trial court is AFFIRMED. Costs against petitioner.
SO ORDERED.
Davide, Jr., Vitug, Panganiban and Quisumbing, JJ .,
concur.
CINCO vs. CANONOY, ET AL.
G.R. No. L-33171, 31 May 1979
MELENCIO-HERRERA, J p:
This is a Petition for Review on Certiorari of the
Decision of the Court of First Instance of Cebu rendered
on November 5, 1970.
The background facts to the controversy may be set
forth as follows:
Petitioner herein filed, on February 25, 1970, a
Complaint in the City Court of Mandaue City, Cebu,
Branch II, for the recovery of damages on account of a
vehicular accident involving his automobile and a
jeepney driven by Romeo Hilot and operated by
Valeriana Pepito and Carlos Pepito, the last three being
the private respondents in this suit. Subsequent thereto,
a criminal case was filed against the driver, Romeo
Hilot, arising from the same accident. At the pre-trial in
the civil case, counsel for private respondents moved to
suspend the civil action pending the final
determination of the criminal suit, invoking Rule 111,
Section 3 (b) of the Rules of Court, which provides:
"(b)
After a criminal action has
been commenced, no civil action
arising from the same offense can be
prosecuted, and the same shall be
suspended, in whatever stage it may
be found, until final judgment in the
criminal
proceeding
has
been
rendered;"
The City Court of Mandaue City in an Order dated
August 11, 1970, ordered the suspension of the civil
case. Petitioner's Motion for Reconsideration thereof,
having been denied on August 25, 1970, petitioner
elevated the matter on Certiorari to the Court of First
Instance of Cebu, respondent Judge presiding, on
September 11, 1970, alleging that the City Judge had
acted with grave abuse of discretion in suspending the
civil action for being contrary to law and jurisprudence.
On November 5, 1970, respondent Judge dismissed the
Petition for Certiorari on the ground that there was no
45

grave abuse of discretion on the part of the City Court


in suspending the civil action inasmuch as damage to
property is not one of the instances when an
independent civil action is proper; that petitioner has
another plain, speedy, and adequate remedy under the
law, which is to submit his claim for damages in the
criminal case; that the resolution of the City Court is
interlocutory and, therefore, Certiorari is improper; and
that the Petition is defective inasmuch as what
petitioner actually desires is a Writ of Mandamus
(Annex "R"). Petitioner's Motion for Reconsideration
was denied by respondent Judge in an Order dated
November 14, 1970 (Annex "S" and Annex "U").
Hence, this Petition for Review before this Tribunal, to
which we gave due course on February 25, 1971.
Petitioner makes these: x x x all of which can be
synthesized into one decisive issue: whether or not
there can be an independent civil action for damage to
property during the pendency of the criminal action.
xxx

xxx

xxx

It bears emphasizing that petitioner's cause of action is


based on quasi-delict. The concept of quasi-delict, as
enunciated in Article 2176 of the Civil Code (supra), is
so broad that it includes not only injuries to persons but
also damage to property. It makes no distinction
between "damage to persons" on the one hand and
"damage to property" on the other. Indeed, the word
"damage" is used in two concepts: the "harm" done and
"reparation" for the harm done. And with respect to
"harm" it is plain that it includes both injuries to person
and property since "harm" is not limited to personal but
also to property injuries. In fact, examples of quasi-delict
in the law itself include damage to property. An
instance is Article 2191(2) of the Civil Code which holds
proprietors responsible for damages caused by
excessive smoke which may be harmful "to persons or
property."
In the light of the foregoing disquisition, we are
constrained to hold that respondent Judge gravely
abused his discretion in upholding the Decision of the
City Court of Mandaue City, Cebu, suspending the civil
action based on a quasi-delict until after the criminal
case is finally terminated. Having arrived at this
conclusion, a discussion of the other errors assigned
becomes unnecessary.
WHEREFORE, granting the Writ of Certiorari prayed
for, the Decision of the Court of First Instance of Cebu
sought to be reviewed is hereby set aside, and the City
Court of Mandaue City, Cebu, Branch II, is hereby
ordered to proceed with the hearing of Civil Case No.
189 of that Court.
Without pronouncement as to costs.
SO ORDERED.

Teehankee (Chairman), Makasiar, Fernandez, Guerrero


and De Castro, JJ., concur.
2.

NEGLIGENCE

a.

Concept of Negligence

ARTICLE 1173. The fault or negligence of the


obligor consists in the omission of that diligence
which is required by the nature of the obligation and
corresponds with the circumstances of the persons, of
the time and of the place. When negligence shows bad
faith, the provisions of articles 1171 and 2201,
paragraph 2, shall apply.
PICART vs. SMITH, Jr.,
G.R. No. L-12219, 15 March 1918, 37 Phil. 809
STREET, J p:
In this action the plaintiff, Amado Picart, seeks to
recover of the defendant, Frank Smith, jr., the sum of
P31,100, as damages alleged to have been caused by an
automobile driven by the defendant. From a judgment
of the Court of First Instance of the Province of La
Union absolving the defendant from liability the
plaintiff has appealed.
The occurrence which gave rise to the institution of this
action took place on December 12, 1912, on the Carlatan
Bridge, at San Fernando, La Union. It appears that upon
the occasion in question the plaintiff was riding on his
pony over said bridge. Before he had gotten half way
across, the defendant approached from the opposite
direction in an automobile, going at the rate of about
ten or twelve miles per hour. As the defendant neared
the bridge he saw a horseman on it and blew his horn
to give warning of his approach. He continued his
course and after he had taken the bridge he gave two
more successive blasts, as it appeared to him that the
man on horseback before him was not observing the
rule of the road.
The plaintiff, it appears, saw the automobile coming
and heard the warning signals. However, being
perturbed by the novelty of the apparition or the
rapidity of the approach, he pulled the pony closely up
against the railing on the right side of the bridge
instead of going to the left. He says that the reason he
did this was that he thought he did not have sufficient
time to get over to the other side. The bridge is shown
to have a length of about 75 meters and a width of 4.08
meters. As the automobile approached, the defendant
guided it toward his left, that being the proper side of
the road for the machine. In so doing the defendant
assumed that the horseman would move to the other
side. The pony had not as yet exhibited fright, and the
rider had made no sign for the automobile to stop.
Seeing that the pony was apparently quiet, the
defendant, instead of veering to the right while yet
some distance away or slowing down, continued to
approach directly toward the horse without diminution

of speed. When he had gotten quite near, there being


then no possibility of the horse getting across to the
other side, the defendant quickly turned his car
sufficiently to the right to escape hitting the horse
alongside of the railing where it was then standing; but
in so doing the automobile passed in such close
proximity to the animal that it became frightened and
turned its body across the bridge with its head toward
the railing. In so doing, it was struck on the hock of the
left hind leg by the flange of the car and the limb was
broken. The horse fell and its rider was thrown off with
some violence. From the evidence adduced in the case
we believe that when the accident occurred the free
space where the pony stood between the automobile
and the railing of the bridge was probably less than one
and one half meters. As a result of its injuries the horse
died. The plaintiff received contusions which caused
temporary unconsciousness and required medical
attention for several days.
The question presented for decision is whether or not
the defendant in maneuvering his car in the manner
above described was guilty of negligence such as gives
rise to a civil obligation to repair the damage done; and
we are of the opinion that he is so liable. As the
defendant started across the bridge, he had the right to
assume that the horse and rider would pass over to the
proper side; but as he moved toward the center of the
bridge it was demonstrated to his eyes that this would
not be done; and he must in a moment have perceived
that it was too late for the horse to cross with safety in
front of the moving vehicle. In the nature of things this
change of situation occurred while the automobile was
yet some distance away; and from this moment it was
not longer within the power of the plaintiff to escape
being run down by going to a place of greater safety.
The control of the situation had then passed entirely to
the defendant; and it was his duty either to bring his car
to an immediate stop or, seeing that there were no other
persons on the bridge, to take the other side and pass
sufficiently far away from the horse to avoid the danger
of collision. Instead of doing this, the defendant ran
straight on until he was almost upon the horse. He was,
we think, deceived into doing this by the fact that the
horse had not yet exhibited fright. But in view of the
known nature of horses, there was an appreciable risk
that, if the animal in question was unacquainted with
automobiles, he might get excited and jump under the
conditions which here confronted him. When the
defendant exposed the horse and rider to this danger he
was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of
negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act use
that reasonable care and caution which an ordinarily
prudent person would have used in the same situation?
If not, then he is guilty of negligence. The law here in
effect adopts the standard supposed to be supplied by
the imaginary conduct of the discreet paterfamilias of
the Roman law. The existence of negligence in a given
case is not determined by reference to the personal
46

judgment of the actor in the situation before him. The


law considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and
prudence and determines liability by that.
The question as to what would constitute the conduct
of a prudent man in a given situation must of course be
always determined in the light of human experience
and in view of the facts involved in the particular case.
Abstract speculation cannot here be of much value but
his much can be profitably said: Reasonable men
govern their conduct by the circumstances which are
before them or known to them. They are not, and are
not supposed to be, omniscient of the future. Hence
they can be expected to take care only when there is
something before them to suggest or warn of danger.
Could a prudent man, in the case under consideration,
foresee harm as a result of the course actually pursued?
If so, it was the duty of the actor to take precautions to
guard against that harm. Reasonable foresight of harm,
followed by the ignoring of the suggestion born of this
prevision, is always necessary before negligence can be
held to exist. Stated in these terms, the proper criterion
for determining the existence of negligence in a given
case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would
have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing the
conduct or guarding against its consequences.
Applying this test to the conduct of the defendant in the
present case we think that negligence is clearly
established. A prudent man, placed in the position of
the defendant, would, in our opinion, have recognized
that the course which he was pursuing was fraught
with risk, and would therefore have foreseen harm to
the horse and rider as a reasonable consequence of that
course. Under these circumstances the law imposed on
the defendant the duty to guard against the threatened
harm.
It goes without saying that the plaintiff himself was not
free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the
road. But as we have already stated, the defendant was
also negligent; and in such case the problem always is
to discover which agent is immediately and directly
responsible. It will be noted that the negligent acts of
the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence
of the plaintiff by an appreciable interval. Under these
circumstances the law is that the person who has the
last fair chance to avoid the impending harm and fails
to do so is chargeable with the consequences, without
reference to the prior negligence of the other party.
The decision in the case of Rakes vs. Atlantic, Gulf and
Pacific Co.(7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held that
while contributory negligence on the part of the person
injured did not constitute a bar to recover, it could be
received in evidence to reduce the damages which
47

would otherwise have been assessed wholly against the


other party. The defendant company had there
employed the plaintiff, a laborer, to assist in
transporting iron rails from a barge in Manila harbor to
the company's yards located not far away. The rails
were conveyed upon cars which were hauled along a
narrow track. At a certain spot near the water's edge the
track gave way by reason of the combined effect of the
weight of the car and the insecurity of the road bed. The
car was in consequence upset; the rails slid off; and the
plaintiff's leg was caught and broken. It appeared in
evidence that the accident was due to the effects of a
typhoon which had dislodged one of the supports of
the track. The court found that the defendant company
was negligent in having failed to repair the bed of the
track and also that the plaintiff was, at the moment of
the accident, guilty of contributory negligence in
walking at the side of the car instead of being in front or
behind. It was held that while the defendant was liable
to the plaintiff by reason of its negligence in having
failed to keep the track in proper repair, nevertheless
the amount of the damages should be reduced on
account of the contributory negligence of the plaintiff.
As will be seen the defendant's negligence in that case
consisted in an omission only. The liability of the
company arose from its responsibility for the
dangerous condition of its track. In a case like the one
now before us, where the defendant was actually
present and operating the automobile which caused the
damage, we do not feel constrained to attempt to weigh
the negligence of the respective parties in order to
apportion the damage according to the degree of their
relative fault. It is enough to say that the negligence of
the defendant was in this case the immediate and
determining cause of the accident and that the
antecedent negligence of the plaintiff was a more
remote factor in the case.
A point of minor importance in the case is indicated in
the special defense pleaded in the defendant's answer,
to the effect that the subject matter of the action had
been previously adjudicated in the court of a justice of
the peace. In this connection it appears that soon after
the accident in question occurred, the plaintiff caused
criminal proceedings to be instituted before a justice of
the peace charging the defendant with the infliction of
serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the
magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at a trial
upon the merits in a criminal prosecution for the
offense mentioned would be res adjudicata upon the
question of his civil liability arising from negligence
a point upon which it is unnecessary to express an
opinion the action of the justice of the peace in
dismissing the criminal proceeding upon the
preliminary hearing can have no such effect. (See U.S.
vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of
the lower court must be reversed, and judgment is here
rendered that the plaintiff recover of the defendant the

sum of two hundred pesos (P200), with costs of both


instances. The sum here awarded is estimated to
include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of his
apparel, and lawful interest on the whole to the date of
this recovery. The other damages claimed by the
plaintiff are remote or otherwise of such characters as
not to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avancea, and
Fisher, JJ., concur.
Johnson, J., reserves his vote.
MALCOLM, J., concurring:
After mature deliberation, I have finally decided to
concur with the judgment in this case. I do so because
of my understanding of the "last clear chance" rule of
the law of negligence as particularly applied to
automobile accidents. This rule cannot be invoked
where the negligence of the plaintiff is concurrent with
that of the defendant. Again, if a traveller when he
reaches the point of collision is in a situation to extricate
himself and avoid injury, his negligence at that point
will prevent a recovery. But Justice Street finds as a fact
that the negligent act of the defendant succeeded that of
the plaintiff by an appreciable interval of time, and that
at that moment the plaintiff had no opportunity to
avoid the accident. consequently, the "last clear chance"
rule is applicable. In other words, when a traveller has
reached a point where he cannot extricate himself and
vigilance on his part will not avert the injury, his
negligence in reaching that position becomes the
condition and not the proximate cause of the injury and
will not preclude a recovery. (Note especially Aiken vs.
Metcalf [1917], 102 Atl., 330.)
CUSI, ET AL. vs.
PHILIPPINE NATIONAL RAILWAYS
G.R. No. L-29889, 31 May 1979, 90 SCRA 357

party inside the United Housing Subdivision in


Paraaque, Rizal. After the party which broke up at
about 11 o'clock that evening, the plaintiffs-appellees
proceeded home in their Vauxhall car with Victorino
Cusi at the wheel. Upon reaching the railroad tracks,
finding that the level crossing bar was raised and seeing
that there was no flashing red light, and hearing no
whistle from any coming train, Cusi merely slackened
his speed and proceeded to cross the tracks. At the
same time, a train bound for Lucena traversed the
crossing, resulting in a collision between the two. The
impact threw the plaintiffs-appellees out of their car
which was smashed. One Benjamin Franco, who came
from the same party and was driving a vehicle right
behind them, rushed to their aid and brought them to
San Juan de Dios Hospital for emergency treatment.
Later, the plaintiffs-appellees were transferred to the
Philippine General Hospital. A week later, Mrs. Cusi
transferred to the Manila Doctors Hospital where Dr.
Manuel Rivera, head of the Orthopedic and Fracture
Service of the Philippine General Hospital, performed
on her a second operation and continued to treat her
until her discharge from the hospital on November 2,
1963. Thereafter, Dr. Rivera treated her as an outpatient until the end of February, 1964 although by that
time the fractured bones had not yet healed. Mrs. Cusi
was also operated on by Dr. Francisco Aguilar, Director
of the National Orthopedic Hospital, in May, 1964 and
in August, 1965, after another operation in her upper
body from the chest to the abdomen, she was placed in
cast for some three (3) months and her right arm
immobilized by reason of the cast.
xxx

xxx

xxx

The defense is centered on the proposition that the


gross negligence of Victorino Cusi was the proximate
cause of the collision; that had he made a full stop
before traversing the crossing as required by section
56(a) of Act 3992 (Motor Vehicle Law), he could have
seen and heard the approach of the train, and thus,
there would have been no collision.

GUERRERO, J p:
Direct appeal from the decision of the Court of First
Instance of Rizal ordering defendant-appellant to
indemnify the plaintiffs-appellees in the total amount of
Two Hundred Thirty-Nine Thousand and Six Hundred
Forty-Eight Pesos, and Seventy-Two Centavos
(P239,648.72) for injuries received in a collision caused
by the gross negligence of defendant-appellant, plus
Ten Thousand Pesos (P10,000.00) as attorney's fees and
expenses of litigation.
Upon the amended and supplemental complaints for
damages filed by plaintiffs-appellees, the spouses
Victorino Cusi and Pilar Pobre before the Court of First
Instance of Rizal against the Manila Railroad Company,
now the Philippine National Railways and duly
answered by the latter and after due hearing, the
following facts appear as undisputed: On the night of
October 5, 1963, plaintiffs-appellees attended a birthday

After a protracted trial, the lower court rendered the


decision now subject of the appeal. Defendantappellant seeks the reversal of said decision; but should
we affirm the same, that the award be reduced to a
reasonable amount.
As the action is predicated on negligence, the New Civil
Code making clear that "whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage done," the
crucial question posed in the petition at bar is the
existence of negligence on the part of defendantappellant as found by the lower court.
xxx

xxx

xxx

2. Nor is the result different even if no such


presumption were indulged in, that is, even if We were

48

to resolve whether or not there exist compelling reasons


for an ultimate reversal.
The judicial pronouncement below that the gross
negligence of defendant-appellant was the proximate
cause of the collision has been thoroughly reviewed by
this Court and we fully affirm the same.
Negligence has been defined by Judge Cooley in his
work on Torts (3d. ed.), sec. 1324 3 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." By such a test, it can
readily be seen that there is no hard and fast rule
whereby such degree of care and vigilance is measured,
it is dependent upon the circumstances in which a
person finds himself so situated. All that the law
requires is that it is always incumbent upon a person to
use that care and diligence expected of reasonable men
under similar circumstances.
These are the circumstances attendant to the collision.
Undisputably, the warning devices installed at the
railroad crossing were manually operated; there were
only 2 shifts of guards provided for the operation
thereof one, the 7:00 A.M. to 3:00 P.M. shift, and the
other, the 3:00 P.M. to 11:00 P.M. shift. On the night of
the accident, the train for Lucena was on an
unscheduled trip after 11:00 P.M. During that precise
hour, the warning devices were not operating for no
one attended to them. Also, as observed by the lower
court, the locomotive driver did not blow his whistle,
thus: ". . . he simply sped on without taking an extra
precaution of blowing his whistle from a distance of 50
to 10 meters from the crossing. That the train was
running at full speed is attested to by the fact that
notwithstanding the application of the emergency
brakes, the train did not stop until it reached a distance
of around 100 meters."
These facts assessed together show the inadequacy,
nay, the absence, of precautions taken by the
defendant-appellant to warn the travelling public of the
impending danger. It is clear to Us that as the signal
devices were wholly manually-operated, there was an
urgent need for a flagman or guard to man the crossing
at all times. As it was, the crossing was left unattended
to after eleven o'clock every night and on the night of
the accident. We cannot in all reason justify or condone
the act of the defendant-appellant allowing the subject
locomotive to travel through the unattended crossing
with inoperative signal devices, but without sending
any of its employees to operate said signal devices so as
to warn oncoming motorists of the approach of one of
its locomotives. It is not surprising therefore that the
inoperation of the warning devices created a situation
which was misunderstood by the riding public to mean
safe passage. Jurisprudence recognizes that if warning
devices are installed in railroad crossings, the travelling
public has the right to rely on such warning devices to
put them on their guard and take the necessary
49

precautions before crossing the tracks. A need,


therefore, exists for the railroad company to use
reasonable care to keep such devices in good condition
and in working order, or to give notice that they are not
operating, since if such a signal is misunderstood it is a
menace. 4 Thus, it has been held that if a railroad
company maintains a signalling device at a crossing to
give warning of the approach of a train, the failure of
the device to operate is generally held to be evidence of
negligence, which maybe considered with all the
circumstances of the case in determining whether the
railroad company was negligent as a matter of fact.
The set of circumstances surrounding the collision
subject of this case is very much similar to that of Lilius
v. Manila Railroad Company, 59 Phil. 758 (1934), where
this Court upheld the lower court's finding of
negligence on the part of defendant locomotive
company upon the following facts
". . . on the part of the defendant
company, for not having had on that
occasion any semaphore at the
crossing at Dayap, to serve as a
warning to passersby of its existence
in order that they might take the
necessary precautions before crossing
the railroad; and, on the part of its
employees the flagman and
switchman, for not having remained
at his post at the crossing in question
to warn passersby of the approaching
train; the station master, for failure to
send the said flagman and switchman
to his post on time; and the engineer,
for not having taken the necessary
precautions to avoid an accident, in
view of the absence of said flagman
and switchman, by slackening his
speed and continuously ringing the
bell and blowing the whistle before
arriving at the crossing."
Defendant-appellant rests its defense mainly on Section
56(a) of the Motor Vehicle Law. Thus:
"Section 56(a) Traversing through
streets and railroad crossing, etc.
All vehicles moving on the public
highways shall be brought to a full
stop before traversing any `through
street' or railroad crossing. Whenever
any such `through street' or crossing
is so designated and signposted, it
shall be unlawful for the driver of
any vehicle to fail to stop within
twenty meters but not less than two
and one-half meters from such
`through street' or railroad crossing."
The defense presupposes that the failure of plaintiffsappellees to stop before proceeding to traverse the

crossing constitutes contributory negligence, thereby


precluding them from recovering indemnity for their
injuries and damages.
The candor of defendant-appellant in interposing such
a defense is doubtful. As seemingly observed by the
lower court, the defense, through inadvertence or
deliberateness, did not pursue further the excepting
clause of the same section, thus to go on:
"Provided, however, that the driver
of a passenger automobile or
motorcycle may instead of coming to
a full stop, slow down to not more
than ten kilometers per hour
whenever it is apparent that no
hazard exists."
After a thorough perusal of the facts attendant to the
case, this Court is in full accord with the lower court.
Plaintiff-appellee Victorino Cusi had exercised all the
necessary precautions required of him as to avoid
injury to himself and to others. We find no need for him
to have made a full stop; relying on his faculties of sight
and hearing, Victorino Cusi had no reason to anticipate
the impending danger. The record shows that the
spouses Cusi previously knew of the existence of the
railroad crossing, having stopped at the guardhouse to
ask for directions before proceeding to the party. At the
crossing, they found the level bar raised, no warning
lights flashing nor warning bells ringing, nor whistle
from an oncoming train. They safely traversed the
crossing. On their return home, the situation at the
crossing did not in the least change, except for the
absence of the guard or flagman. Hence, on the same
impression that the crossing was safe for passage as
before, plaintiff-appellee Victorino Cusi merely
slackened his speed and proceeded to cross the tracks,
driving at the proper rate of speed for going over
railroad crossings. Had defendant-appellant been
successful in establishing that its locomotive driver
blew his whistle to warn motorists of his approach to
compensate for the absence of the warning signals, and
that Victorino Cusi, instead of stopping or slackening
his speed, proceeded with reckless speed and
regardless of possible or threatened danger, then We
would have been put in doubt as to the degree of
prudence exercised by him and would have, in all
probability, declared him negligent. 6 But as the
contrary was established, we remain convinced that
Victorino Cusi had not, through his own negligence,
contributed to the accident so as to deny him damages
from the defendant-appellant.
xxx

xxx

xxx

WHEREFORE, the judgment of the lower court is


hereby AFFIRMED with the modification that the total
amount of damages shall bear legal interest at six per
cent (6%) from the rendition of the decision dated
March 26, 1968.

SO ORDERED.
Teehankee, (Chairman), Makasiar, Fernandez, De
Castro and Melencio-Herrera, JJ., concur.
GAN vs. COURT OF APPEALS
G.R. No. L-44264, 19 September 1988, 165 SCRA 378
FERNAN C.J. p:
Petitioner Hedy Gan was convicted of the crime of
Homicide thru Reckless Imprudence in Criminal Case
No. 10201 of the then Court of First Instance of Manila,
Branch XXII, presided by Judge Federico C. Alikpala.
She was sentenced to an indeterminate penalty of four
(4) months and one (1) day of arresto mayor as
minimum and two (2) years, four (4) months and one
(1) day of prision correccional as maximum and was
made to indemnify the heirs of the victim the sum of
P12,000.00 without any subsidiary imprisonment in
case of insolvency and to pay the costs. On appeal, the
trial court's decision was modified and petitioner was
convicted only of Homicide thru Simple Imprudence.
Still unsatisfied with the decision of the Court of
Appeals, 1 petitioner has come to this Court for a
complete reversal of the judgment below.
The facts of the case as found by the appellate court are
as follows:
"In the morning of July 4, 1972 at
about 8:00 o'clock, the accused Hedy
Gan was driving a Toyota car along
North Bay Boulevard, Tondo, Manila.
While in front of house no. 694 of
North Bay Boulevard, there were two
vehicles, a truck and a jeepney parked
on one side of the road, one following
the other about two to three meters
from each other. As the car driven by
the accused approached the place
where the two vehicles were parked,
there was a vehicle coming from the
opposite direction, followed by
another which tried to overtake and
bypass the one in front of it and
thereby encroached the lane of the car
driven by the accused. To avoid a
head-on collision with the oncoming
vehicle, the defendant swerved to the
right and as a consequence, the front
bumper of the Toyota Crown Sedan
hit an old man who was about to cross
the boulevard from south to north,
pinning him against the rear of the
parked jeepney. The force of the
impact caused the parked jeepney to
move forward hitting the rear of the
parked truck ahead of it. The
pedestrian was injured, the Toyota
Sedan was damaged on its front, the
jeep suffered damages on its rear and
50

front parts, and the truck sustained


scratches at the wooden portion of its
rear. The body of the old man who
was later identified as Isidoro Casino
was immediately brought to the Jose
Reyes Memorial Hospital but was
(pronounced) dead on arrival."

method, unless the emergency in which he finds


himself is brought about by his own negligence."
Applying the above test to the case at bar, we find the
petitioner not guilty of the crime of Simple Imprudence
resulting in Homicide.
The appellate court in finding the petitioner guilty said:

An information for Homicide thru Reckless


Imprudence was filed against petitioner in view of the
above incident. She entered a plea of not guilty upon
arraignment and the case was set for trial.
xxx

xxx

xxx

On December 22, 1972, the trial court rendered


judgment finding petitioner guilty beyond reasonable
doubt of the offense charged.
Petitioner appealed to the Court of Appeals in CA-G.R.
No. 14472-CR. On May 3, 1976, the Court of Appeals
rendered a decision, the dispositive portion of which
reads as follows:
"Wherefore, as modified, the accused
Hedy Gan is guilty beyond
reasonable doubt of the crime of
homicide thru simple imprudence
and, pursuant to paragraph 2, Article
365 of the Revised Penal Code she is
hereby
sentenced
to
the
indeterminate penalty of three (3)
months and eleven (11 ) days of
arresto mayor and to indemnify the
heirs of Isidoro Casino in the sum of
Twelve Thousand Pesos (P12,000.00)
without, however, any subsidiary
imprisonment in case of insolvency,
and to pay the costs."
xxx

xxx

xxx

We reverse.
The test for determining whether or not a person is
negligent in doing an act whereby injury or damage
results to the person or property of another is this:
Would a prudent man in the position of the person to
whom negligence is attributed foresee harm to the
person injured as a reasonable consequence of the
course about to be pursued? If so, the law imposes the
duty on the doer to take precaution against its
mischievous results and the failure to do so constitutes
negligence.
A corollary rule is what is known in the law as the
emergency rule. "Under that 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
51

"The accused should have stepped on


the brakes when she saw the car
going in the opposite direction
followed by another which overtook
the first by passing towards its left.
She should not only have swerved
the car she was driving to the right
but should have also tried to stop or
lessen her speed so that she would
not bump into the pedestrian who
was crossing at the time but also the
jeepney which was then parked along
the street."
The course of action suggested by the appellate court
would seem reasonable were it not for the fact that such
suggestion did not take into account the amount of time
afforded petitioner to react to the situation she was in.
For it is undeniable that the suggested course of action
presupposes sufficient time for appellant to analyze the
situation confronting her and to ponder on which of the
different courses of action would result in the least
possible harm to herself and to others.
Due to the lack of eyewitnesses, no evidence was
presented by the prosecution with respect to the
relative distances of petitioner to the parked jeepney
and the oncoming overtaking vehicle that would tend
to prove that petitioner did have sufficient time to
reflect on the consequences of her instant decision to
swerve her car to the right without stepping on her
brakes. In fact, the evidence presented by the
prosecution on this point is the petitioner's statement to
the police stating:
"Ang masasabi ko lang ho umiwas ho
ako sa isang sasakyan na biglang
nagovertake sa sasakyan na aking
kasalubong kung kaya ay aking
kinabig sa kanan ang aking kotse
subalit siya naman biglang pagtawid
ng tao o victim at hindi ko na ho
naiiwasan at ako ay wala ng magawa.
Iyan ho ang buong pangyayari nang
nasabing
aksidente."
(emphasis
supplied)
The prosecution having presented this exhibit as its
own evidence, we cannot but deem its veracity to have
been admitted by it. Thus, under the circumstances
narrated by petitioner, we find that the appellate court
is asking too much from a mere mortal like the
petitioner who in the blink of an eye had to exercise her

best judgment to extricate herself from a difficult and


dangerous situation caused by the driver of the
overtaking vehicle. Petitioner certainly could not be
expected to act with all the coolness of a person under
normal conditions." The danger confronting petitioner
was real and imminent, threatening her very existence.
She had no opportunity for rational thinking but only
enough time to heed the very powerful instinct of selfpreservation.
Also, the respondent court itself pronounced that the
petitioner was driving her car within the legal limits.
We therefore rule that the "emergency rule" enunciated
above applies with full force to the case at bar and
consequently absolve petitioner from any criminal
negligence in connection with the incident under
consideration.
We further set aside the award of damages to the heirs
of the victim, who by executing a release of the claim
due them, had effectively and clearly waived their right
thereto.
WHEREFORE, judgment is hereby rendered acquitting
petitioner HEDY GAN y YU of the crime of Homicide
thru Simple Imprudence. She is no longer liable for the
P12,000.00 civil indemnity awarded by the appellate
court to the heirs of the victim.
SO ORDERED.
Feliciano, Bidin and Cortes, JJ ., concur.
Gutierrez, Jr., J ., on leave.
VALENZUELA vs. COURT OF APPEALS, ET AL.
G.R. Nos. 115024 and 117944, 7 February 1996.
KAPUNAN, J p:
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:

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 11/2 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.

This is an action to recover damages


based on quasi-delict, for serious
physical injuries sustained in a
vehicular accident.

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.

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

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
52

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
53

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:
xxx

xxx

xxx

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.
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.
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. 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. Equally important, Rodriguez
declared that he observed Valenzuela's car parked
parallel and very near the sidewalk, 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 "selfserving" 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. 3536, tsn, June 17, 1991). He did
not state that the accident transpired
immediately
in
front
of
his
establishment. The ownership of the
Lambingan sa 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. 64
65, tsn, June 17, 1991). This was
consistent with plaintiff's testimony
that it was no longer raining when
she left Bistro La Conga (pp. 1011,
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. 910,
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.
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" mechanisms are
at work, provided such mechanisms were not dulled by
drugs, alcohol, exhaustion, drowsiness, etc. 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
54

fast" speed as testified by Rodriguez; and 2) that he was


under the influence of alcohol. 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.

55

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 and the
on-coming car was also on its right
lane going to Cubao."
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.
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.
Under
the
"emergency rule" adopted by this court in Gan vs. Court
of Appeals, 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.
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, 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.
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 thoughtful 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 are 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.
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."
It is the failure to observe that degree of care,
precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers
injury. We stressed, in Corliss vs. Manila Railroad

Company, 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 Prosser 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.
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 Paraaque he did not have
'business from the company' (pp. 25
26, tsn, 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
56

(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 (St.
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 non-official
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.
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, 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
Appeals 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.
57

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 companyissued 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 Paraaque 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. 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 P500,000.00 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 postmenopausal 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
58

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.
VITUG, J., concurring:
Pursuant to Article 2180 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, a minor deviation from the assigned task
of an employee, however, does not affect the liability of
an employer.
ADZUARA vs. COURT OF APPEALS, ET AL.
G.R. No. 125134, 22 January 1999, 361 SCRA 585
BELLOSILLO, J p:
XERXES ADZUARA Y DOTIMAS was found guilty by
the trial court of reckless imprudence resulting in
damage to property with less serious physical injuries.
His conviction was affirmed by the Court of Appeals.
Through this petition for review on certiorari he seeks
the reversal of his conviction.
On 17 December 1990, at half past 1:00 o'clock in the
morning, petitioner Xerxes Adzuara y Dotimas, then a
law student, and his friends Rene Gonzalo and Richard
Jose were cruising in a 4-door Colt Galant sedan with
plate number NMT 718 along the stretch of Quezon
59

Avenue coming from the direction of EDSA towards


Delta Circle at approximately 40 kilometers per hour. 1
Upon reaching the intersection of 4th West Street their
car collided with a 1975 4-door Toyota Corona sedan
with plate number PMD 711 owned and driven by
Gregorio Martinez. Martinez had just attended a Loved
Flock meeting with his daughter Sahlee 2 and was
coming from the eastern portion of Quezon Avenue
near Delta Circle. He was then executing a U-turn at the
speed of 5 kph at the north-west portion of Quezon
Avenue going to Manila when the accident occurred.
The collision flung the Corona twenty (20) meters
southward from the point of impact causing it to land
atop the center island of Quezon Avenue. The Galant
skittered southward on Quezon Avenue's western half
leaving its left rear about four (4) meters past the
Corona's right front side. The principal points of contact
between the two (2) cars were the Galant's left front
side and the Corona's right front door including its
right front fender.
Both petitioner and Martinez claimed that their lanes
had green traffic lights although the investigating
policeman Marcelo Sabido declared that the traffic light
was blinking red and orange when he arrived at the
scene of the accident an hour later.
Sahlee Martinez, who was seated on the Corona's right
front seat, sustained physical injuries which required
confinement and medical attendance at the National
Orthopaedic Hospital for five (5) days. As a result she
missed classes at St. Paul's College for two (2) weeks.
Petitioner and his friends were treated at the Capitol
Medical Center for their injuries.
On 12 July 1991 petitioner was charged before the
Regional Trial Court of Quezon city with reckless
imprudence resulting in damage to property with less
serious physical injuries under Art. 365 of the Revised
Penal Code. He pleaded not guilty to the charge.
On 11 December 1991, before the presentation of
evidence, private complainant Martinez manifested his
intention to institute a separate civil action for damages
against petitioner.
The Regional Trial Court of Quezon City, Branch 95,
convicted petitioner Xerxes Adzuara after trial and
sentenced him to suffer imprisonment of two (2)
months and fifteen (15) days of arresto mayor and to
pay a fine of P50,000.00, with subsidiary imprisonment
in case of insolvency.
The Court of Appeals affirmed the decision of the trial
court but deleted the fine of P50,000.00. On 23 May 1996
11 the appellate court denied petitioner's motion for
reconsideration hence, this petition for review on
certiorari under Rule 45 of the Rules of Court charging
that (a) petitioner's post-collision conduct does not
constitute sufficient basis to convict where there are no
factual circumstances warranting a finding of

negligence, and (b) the medical certificate by itself and


unsubstantiated by the doctor's testimony creates doubt
as to the existence of the injuries complained of.
We find no merit in the petition. A perusal of the
decision of the trial court shows that there are factual
circumstances warranting a finding of negligence on
the part of petitioner. xxx
xxx

xxx

xxx

In the instant case, nothing on record shows that the


facts were not properly evaluated by the court a quo. As
such, we find no reason to disturb their findings. It
bears to stress that the appreciation of petitioner's postcollision behavior serves only as a means to emphasize
the finding of negligence which is readily established
by the admission of petitioner and his friend Renato
that they saw the car of Martinez making a U-turn but
could not avoid the collision by the mere application of
the brakes. Negligence is the want of care required by
the circumstances. It is a relative or comparative, not an
absolute, term and its application depends upon the
situation of the parties and the degree of care and
vigilance which the circumstances reasonably require.
What degree of care and vigilance then did the
circumstances require? At half past 1:00 o'clock in the
morning along an almost deserted avenue, ordinary
care and vigilance would suffice. This may consist of
keeping a watchful eye on the road ahead and
observing the traffic rules on speed, right of way and
traffic light. The claim of petitioner that Martinez made
a swift U-turn which caused the collision is not credible
since a U-turn is done at a much slower speed to avoid
skidding and overturning, compared to running
straight ahead. Nonetheless, no evidence was presented
showing skid marks caused by the car driven by
Martinez if only to demonstrate that he was driving at a
fast clip in negotiating the U-turn. On the other hand,
the speed at which petitioner drove his car appears to
be the prime cause for his inability to stop his car and
avoid the collision. His assertion that he drove at the
speed of 40 kph. is belied by Martinez who testified that
when he looked at the opposite lane for any oncoming
cars, he saw none; then a few seconds later, he was hit
by Adzuara's car. The extent of the damage on the car
of Martinez and the position of the cars after the impact
further confirm the finding that petitioner went beyond
the speed limit required by law and by the
circumstances.

stopped. Rather, he claimed that on the assumption that


he was negligent, the other party was also guilty of
contributory negligence since his car had no lights on.
The negligence of Martinez however has not been
satisfactorily shown.
Petitioner insists that the traffic light facing him at the
intersection was green which only indicated that he had
the right of way. But the findings of the court a quo on
the matter countervail this stance, hence, we see no
reason to disturb them.
To weaken the evidence of the prosecution, petitioner
assails the testimony of Martinez as being replete with
inconsistencies. The records however reveal that these
inconsistencies refer only to minor points which
indicate veracity rather than prevarication by the
witness. They tend to bolster the probative value of the
testimony in question as they erase any suspicion of
being rehearsed.
Finally, petitioner claims that the medical certificate
presented by the prosecution was uncorroborated by
actual testimony of the physician who accomplished
the same and as such has no probative value insofar as
the physical injuries suffered by Sahlee are concerned.
Regretfully, we cannot agree. The fact of the injury
resulting from the collision may be proved in other
ways such as the testimony of the injured person. In the
case at bar, Sahlee Martinez testified that her injuries as
described in the medical certificate were caused by the
vehicular accident of 17 December 1990. This
declaration was corroborated by Gregorio. This, no less,
is convincing proof.
WHEREFORE, the petition is DENIED. The decision of
the Court of Appeals of 22 November 1995 finding
petitioner XERXES ADZUARA Y DOTIMAS guilty
beyond reasonable doubt of the crime charged and
sentencing him to suffer an imprisonment of two (2)
months and fifteen (15) days of arresto mayor medium
is AFFIRMED. Costs against petitioner.
SO ORDERED.
Puno, Mendoza, Quisumbing and Buena, JJ., concur.
PRUDENTIAL BANK vs.
COURT OF APPEALS, ET AL.
G.R. No. 125536, 16 March 2000, 328 SCRA 264
QUISUMBING, J p:

It is a rule that a motorist crossing a thru-stop street has


the right of way over the one making a U-turn. But if
the person making a U-turn has already negotiated half
of the turn and is almost on the other side so that he is
already visible to the person on the thru-street, the
latter must give way to the former. Petitioner was on
the thru-street and had already seen the Martinez car.
He should have stopped to allow Martinez to complete
the U-turn having, as it were, the last clear chance to
avoid the accident which he ignored. In fact, he never

This appeal by certiorari under Rule 45 of the Rules of


Court seeks to annul and set aside the Decision dated
January 31, 1996, and the Resolution dated July 2, 1997,
of the Court of Appeals in CA G.R. CV No. 35532,
which reversed the judgment of the Regional Trial
Court of Valenzuela, Metro Manila, Branch 171, in Civil
Case No. 2913-V-88, dismissing the private
respondent's complaint for damages.

60

xxx

xxx

xxx

The facts of the case on record are as follows:


Private respondent Leticia Tupasi-Valenzuela opened
Savings Account No. 5744 and Current Account No.
01016-3 in the Valenzuela Branch of petitioner
Prudential Bank, with automatic transfer of funds from
the savings account to the current account.

with the bank, private respondent was unmoved by the


bank's apologies and she commenced the present suit
for damages before the RTC of Valenzuela.
After trial, the court rendered a decision on August 30,
1991, dismissing the complaint of private respondent,
as well as the counterclaim filed by the defendant, now
petitioner.
xxx

On June 1, 1988, herein private respondent deposited in


her savings account Check No. 666B (104561 of even
date) the amount of P35,271.60, drawn against the
Philippine Commercial International Bank (PCIB).
Taking into account that deposit and a series of
withdrawals, private respondent as of June 21, 1988 had
a balance of P35,993.48 in her savings account and
P776.93 in her current account, or total deposits of
P36,770.41, with petitioner.
Thereafter, private respondent issued Prudential Bank
Check No. 983395 in the amount of P11,500.00 postdated June 20, 1988, in favor of one Belen Legaspi. It
was issued to Legaspi as payment for jewelry which
private respondent had purchased. Legaspi, who was
in jewelry trade, endorsed the check to one Philip
Lhuillier, a businessman also in the jewelry business.
When Lhuillier deposited the check in his account with
the PCIB, Pasay Branch, it was dishonored for being
drawn against insufficient funds. Lhuillier's secretary
informed the secretary of Legaspi of the dishonor. The
latter told the former to redeposit the check. Legaspi's
secretary tried to contact private respondent but to no
avail.
Upon her return from the province, private respondent
was surprised to learn of the dishonor of the check. She
went to the Valenzuela Branch of Prudential Bank on
July 4, 1988, to inquire why her check was dishonored.
She approached one Albert Angeles Reyes, the officer in
charge of current account, and requested him for the
ledger of her current account. Private respondent
discovered a debit of P300.00 penalty for the dishonor
of her Prudential Check No. 983395. She asked why her
check was dishonored when there were sufficient funds
in her account as reflected in her passbook. Reyes told
her that there was no need to review the passbook
because the bank ledger was the best proof that she did
not have sufficient funds. Then, he abruptly faced his
typewriter and started typing.
Later, it was found out that the check in the amount of
P35,271.60 deposited by private respondent on June 1,
1988, was credited in her savings account only on June
24, 1988, or after a period of 23 days. Thus the
P11,500.00 check was redeposited by Lhuillier on June
24, 1988, and properly cleared on June 27, 1988.
Because of this incident, the bank tried to mollify
private respondent by explaining to Legaspi and
Lhuillier that the bank was at fault. Since this was not
the first incident private respondent had experienced
61

xxx

xxx

Simply stated, the issue is whether the respondent court


erred and gravely abused its discretion in awarding
moral and exemplary damages and attorney's fees to be
paid by petitioner to private respondent.
Petitioner claims that generally the factual findings of
the lower courts are final and binding upon this Court.
However, there are exceptions to this rule. One is where
the trial court and the Court of Appeals had arrived at
diverse factual findings. Petitioner faults the
respondent court from deviating from the basic rule
that finding of facts by the trial court is entitled to great
weight, because the trial court had the opportunity to
observe the deportment of witness and the evaluation
of evidence presented during the trial. Petitioner
contends that the appellate court gravely abused its
discretion when it awarded damages to the plaintiff,
even in the face of lack of evidence to prove such
damages, as found by the trial court.
Firstly, petitioner questions the award of moral
damages. It claims that private respondent did not
suffer any damage upon the dishonor of the check.
Petitioner avers it acted in good faith. It was an honest
mistake on its part, according to petitioner, when
misposting of private respondent's deposit on June 1,
1988, happened. Further, petitioner contends that
private respondent may not "claim" damages because
the petitioner's manager and other employees had
profusely apologized to private respondent for the
error. They offered to make restitution and apology to
the payee of the check, Legaspi, as well as the alleged
endorsee, Lhuillier. Regrettably, it was private
respondent who declined the offer and allegedly said,
that there was nothing more to it, and that the matter
had been put to rest.
Admittedly, as found by both the respondent appellate
court and the trial court, petitioner bank had committed
a mistake. It misposted private respondent's check
deposit to another account and delayed the posting of
the same to the proper account of the private
respondent. The mistake resulted to the dishonor of the
private respondent's check. The trial court found "that
the misposting of plaintiff's check deposit to another
account and the delayed posting of the same to the
account of the plaintiff is a clear proof of lack of
supervision on the part of the defendant bank."
Similarly, the appellate court also found that "while it
may be true that the bank's negligence in dishonoring
the properly funded check of appellant might not have

been attended with malice and bad faith, as appellee


[bank] submits, nevertheless, it is the result of lack of
due care and caution expected of an employee of a firm
engaged in so sensitive and accurately demanding task
as banking.

caution required of managers and employees of a firm


engaged in so sensitive and demanding business as
banking. Accordingly, the award of moral damages by
the respondent Court of Appeals could not be said to be
in error nor in grave abuse of its discretion.

In Simex International (Manila), Inc. vs. Court of Appeals,


183 SCRA 360, 367 (1990), and Bank of Philippine Islands
vs. IAC, et al., 206 SCRA 408, 412-413 (1992), this Court
had occasion to stress the fiduciary nature of the
relationship between a bank and its depositors and the
extent of diligence expected of the former in handling
the accounts entrusted to its care, thus:

There is no hard-and-fast rule in the determination of


what would be a fair amount of moral damages since
each case must be governed by its own peculiar facts.
The yardstick should be that it is not palpably and
scandalously excessive. In our view, the award of
P100,000.00 is reasonable, considering the reputation
and social standing of private respondent Leticia T.
Valenzuela.

"In every case, the depositor expects


the bank to treat his account with the
utmost fidelity, whether such account
consists only of a few hundred pesos
or of millions. The bank must record
every single transaction accurately,
down to the last centavo, and as
promptly as possible. This has to be
done if the account is to reflect at any
given time the amount of money the
depositor can dispose of as he sees fit,
confident that the bank will deliver it
as and to whomever he directs. A
blunder on the part of bank, such as
the dishonor of a check without good
reason, can cause the depositor not a
little embarrassment if not also
financial loss and perhaps even civil
and criminal litigation.
The point is that as a business
affected with public interest and
because of the nature of its functions,
the bank is under obligation to treat
the accounts of its depositors with
meticulous care, always having in
mind the fiduciary nature of their
relationship. . . ."
In the recent case of Philippine National Bank vs. Court of
Appeals, we held that "a bank is under obligation to
treat the accounts of its depositors with meticulous care
whether such account consists only of a few hundred
pesos or of millions of pesos. Responsibility arising
from negligence in the performance of every kind of
obligation is demandable. While petitioner's negligence
in this case may not have been attended with malice
and bad faith, nevertheless, it caused serious anxiety,
embarrassment and humiliation." Hence we ruled that
the offended party in said case was entitled to recover
reasonable moral damages.
Even if malice or bad faith was not sufficiently proved
in the instant case, the fact remains that petitioner has
committed a serious mistake. It dishonored the check
issued by the private respondent who turned out to
have sufficient funds with petitioner. The bank's
negligence was the result of lack of due care and

The law allows the grant of exemplary damages by way


of example for the public good. The public relies on the
banks'
sworn
profession
of
diligence
and
meticulousness in giving irreproachable service. The
level of meticulousness must be maintained at all times
by the banking sector. Hence, the Court of Appeals did
not err in awarding exemplary damages. In our view,
however, the reduced amount of P20,000.00 is more
appropriate.
The award of attorney's fees is also proper when
exemplary damages are awarded and since private
respondent was compelled to engage the services of a
lawyer and incurred expenses to protect her interest. 11
The standards in fixing attorney's fees are: (1) the
amount and the character of the services rendered; (2)
labor, time and trouble involved; (3) the nature and
importance of the litigation and business in which the
services were rendered; (4) the responsibility imposed;
(5) the amount of money and the value of the property
affected by the controversy or involved in the
employment; (6) the skill and the experience called for
in the performance of the services; (7) the professional
character and the social standing of the attorney; (8) the
results secured, it being a recognized rule that an
attorney may properly charge a much larger fee when it
is contingent than when it is not. 12 In this case, all the
aforementioned weighed, and considering that the
amount involved in the controversy is only P36,770.41,
the total deposit of private respondent which was
misposted by the bank, we find the award of
respondent court of P50,000.00 for attorney's fees,
excessive and reduce the same to P30,000.00.
WHEREFORE, the assailed DECISION of the Court of
Appeals is hereby AFFIRMED, with MODIFICATION.
The petitioner is ordered to pay P100,000.00 by way of
moral damages in favor of private respondent Leticia T.
Valenzuela. It is further ordered to pay her exemplary
damages in the amount of P20,000.00 and P30,000.00,
attorney's fees.
Costs against petitioner.
SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.
62

b.

Negligence as proximate cause


VDA. DE BATACLAN, ET AL. vs. MEDINA
G.R. No. L-10126, 22 October 1957, 102 Phil. 181

MONTEMAYOR, J p:
Shortly after midnight, on September 13, 1952, bus No.
30 of the Medina Transportation, operated by its owner,
defendant Mariano Medina, under a certificate of
public convenience, left the town of Amadeo, Cavite, on
its way to Pasay City, driven by its regular chauffeur,
Conrado Saylon. There were about eighteen passengers,
including the driver and conductor. Among the
passengers were Juan Bataclan, seated beside and to the
right of the driver, Felipe Lara, seated to the right of
Bataclan, another passenger apparently from the
Visayan Islands whom the witnesses just called Visaya,
apparently not knowing his name, seated on the left
side of the driver, and a woman named Natalia
Villanueva, seated just behind the four last mentioned.
At about 2 :00 o'clock that same morning, while the bus
was running within the jurisdiction of Imus, Cavite, one
of the front tires burst and the vehicle began to zig-zag
until it fell into a canal or ditch on the right side of the
road and turned turtle. Some of the passengers
managed to leave the bus the best way they could,
others had to be helped or pulled out, while the three
passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them
named Natalia Villanueva, could not get out of the
overturned bus. Some of the passengers, after they had
clambered up to the road, heard groans and moans
from inside the bus, particularly, shouts for help from
Bataclan and Lara, who said that they could not get out
of the bus. There, is nothing in the evidence to show
whether or not the passengers already free from the
wreck, including the driver and the conductor, made
any attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or
shouts for help were made to the houses in the
neighborhood. After half an hour, came about ten men,
one of them carrying a lighted torch made of bamboo
with a wick on one end, evidently fueled with
petroleum. These men presumably approached the
overturned bus, and almost immediately, a fierce fire
started, burning and all but consuming the bus,
including the four passengers trapped inside it. It
would appear that as the bus overturned, gasoline
began to leak and escape from the gasoline tank on the
side of the chassis, spreading over and permeating the
body of the bus and the ground under and around it,
and that the lighted torch brought by one of the men
who answered the call for help set it on fire.
That same day, the charred bodies of the four doomed
passengers inside the bus were removed and duly
identified, specially that of Juan Bataclan. By reason of
63

his death, his widow, Salud Villanueva, in her name


and in behalf of her five minor children, brought the
present suit to recover from Mariano Medina
compensatory, moral, and exemplary damages and
attorney's fees in the total amount of P87,150. After
trial, the Court of First Instance of Cavite awarded
P1,000 to the plaintiffs, plus P600 as attorney's fee, plus
P100, the value of the merchandise being carried by
Bataclan to Pasay City for sale and which was lost in
the fire. The plaintiffs and the defendants appealed the
decision to the Court of Appeals, but the latter court
endorsed the appeal to us because of the value involved
in the claim in the complaint.
Our New Civil Code amply provides for the
responsibility of a common carrier to its passengers and
their goods. For purposes of reference, we are
reproducing the pertinent codal provisions:
ART. 1733.
Common carriers,
from the nature of their business and
for reasons of public policy, are
bound to observe extraordinary
diligence in the vigilance over the
goods and for the safety of the
passengers transported by them,
according to all the circumstances of
each case.
Such extraordinary diligence in the
vigilance over the goods is further
expressed in articles 1734, 1735, and
1745, Nos. 5, 6, and 7 while the
extraordinary diligence for the safety
of the passengers is further set forth
in articles 1755 and 1756."
"ART. 1755.
A common carrier
is bound to carry the passengers
safely as far as human care and
foresight can provide, using the
utmost diligence of very cautious
persons, with a due regard for all the
circumstances."
"ART. 1756.
In case of death of
or injuries to passengers, common
carriers are presumed to have been at
fault or to have acted negligently,
unless they prove that they observed
extraordinary diligence as prescribed
in articles 1733 and 1755."
"ART. 1759.
Common carriers
are liable for the death of or injuries
to passengers through the negligence
or wilful acts of the former's
employees, although such employees
may have acted beyond the scope of
their authority or in violation of the
orders of the common carriers.

This liability of the common carriers


does not cease upon proof that they
exercised all the diligence of a good
father of a family in the selection and
supervision of their employees."
"ART. 1763.
A common carrier
is responsible for injuries suffered by
a passenger on account of the wilful
acts or negligence of other passengers
or of strangers, if the common
carrier's employees through the
exercise of the diligence of a good
father of a family could have
prevented or stopped the act or
omission."
We agree with the trial court that the case involves a
breach of contract of transportation for hire, the Medina
Transportation having undertaken to carry Bataclan
safely to his destination, Pasay City. We also agree with
the trial court that there was negligence on the part of
the defendant, through his agent, the driver Saylon.
There is evidence to show that at the time of the blow
out, the bus was speeding, as testified to by one of the
passengers, and as shown by the fact that according to
the testimony of the witnesses, including that of the
defense, from the point where one of the front tires
burst up to the canal where the bus overturned after
zig-zagging, there was a distance of about 150 meters.
The chauffeur, after the blow-out, must have applied
the brakes in order to stop the bus, but because of the
velocity at which the bus must have been running, its
momentum carried it over a distance of 150 meters
before it fell into the canal and turned turtle.
There is no question that under the circumstances, the
defendant carrier is liable. The only question is to what
degree. The trial court was of the opinion that the
proximate cause of the death of Bataclan was not the
overturning of the bus, but rather, the fire that burned
the bus, including himself and his co-passengers who
were unable to leave it; that at the time the fire started,
Bataclan, though he must have suffered physical
injuries, perhaps serious, was still alive, and so
damages were awarded, not for his death, but for the
physical injuries suffered by him. We disagree. A
satisfactory definition of proximate cause is found in
Volume 38, pages 695-696 of American Jurisprudence,
cited by plaintiffs-appellants in their brief. It is as
follows:
". . . 'that cause, which, in natural and
continuous sequence, unbroken by
any efficient intervening cause,
produces the injury, and without
which the result would not have
occurred.'
And
more
comprehensively, 'the proximate
legal cause is that acting first and
producing
the
injury,
either
immediately or by setting other

events in motion, all constituting a


natural and continuous chain of
events, each having a close causal
connection with its immediate
predecessor, the final event in the
chain immediately effecting the
injury as a natural and probable
result of the cause which first acted,
under such circumstances that the
person responsible for the first event
should, as an ordinarily prudent and
intelligent person, have reasonable
ground to expect at the moment of
his act or default that an injury to
some person might probably result
therefrom."
It may be that ordinarily, when a passenger bus
overturns, and pins down a passenger, merely causing
him physical injuries, if through some event,
unexpected and extraordinary, the overturned bus is set
on fire, say, by lightning, or if some highwaymen after
looting the vehicle sets it on fire, and the passenger is
burned to death, one might still contend that the
proximate cause of his death was the fire and not the
overturning of the vehicle. But in the present case and
under the circumstances obtaining in the same, we do
not hesitate to hold that the proximate cause of the
death of Bataclan was the overturning of the bus, this
for the reason that when the vehicle turned not only on
its side but completely on its back, the leaking of the
gasoline from the tank was not unnatural or
unexpected; that the coming of the men with a lighted
torch was in response to the call for help, made not only
by the passengers, but most probably, by the driver and
the conductor themselves, and that because it was very
dark (about 2:30 in the morning), the rescuers had to
carry a light with them; and coming as they did from a
rural area where lanterns and flashlights were not
available, they had to use a torch, the most handy and
available; and what was more natural than that said
rescuers should innocently approach the overturned
vehicle to extend the aid and effect the rescue requested
from them. In other words, the coming of the men with
the torch was to be expected and was a natural
sequence of the overturning of the bus, the trapping of
some of its passengers and the call for outside help.
What is more, the burning of the bus can also in part be
attributed to the negligence of the carrier, through its
driver and its conductor. According to the witnesses,
the driver and the conductor were on the road walking
back and forth. They, or at least, the driver should and
must have known that in the position in which the
overturned bus was, gasoline could and must have
leaked from the gasoline tank and soaked the area in
and around the bus, this aside from the fact that
gasoline when spilled, specially over a large area, can
be smelt and detected even from a distance, and yet
neither the driver nor the conductor would appear to
have cautioned or taken steps to warn the rescuers not
to bring the lighted torch too near the bus. Said
negligence on the part of the agents of the carrier come
64

under the codal provisions aboveparticularly, Articles 1733, 1759 and 1763.
xxx

xxx

reproduced,
xxx

In view of the foregoing, with the modification that the


damages awarded by the trial court are increased from
ONE THOUSAND (P1,000) PESOS to SIX THOUSAND
(P6,000) PESOS, and from SIX HUNDRED PESOS TO
EIGHT HUNDRED (P800) PESOS, for the death of
Bataclan and for attorney's fees, respectively, the
decision appealed from is hereby affirmed, with costs.
Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista
Angelo, Labrador, Concepcion., Reyes, J. B. L.,
Endencia and Felix, JJ., concur.
UMALI vs. BACANI, ET AL.
G.R. No. L-40570, 30 January 1976.
ESGUERRA, J p:
Petition for certiorari to review the decision of the Court
of First Instance of Pangasinan, Branch IX, in Civil Case
No. U-2412, entitled, "Fidel H. Saynes, plaintiff-appellee
versus Teodoro C. Umali, defendant-appellant", which
found the death by electrocution of Manuel Saynes, a
boy of 3 years and 8 months, as "due to the fault or
negligence of the defendant (Umali) as owner and
manager of the Alcala Electric Plant; although the
liability of defendant is mitigated by contributory
negligence of the parents of the boy "in not providing
for the proper and adequate supervision and control
over their son." The dispositive part of the decision
reads as follows:
xxx

xxx

xxx

Undisputed facts appearing of record are:


"On May 14, 1972, a storm with
strong rain hit the Municipality of
Alcala, Pangasinan, which started
from 2:00 o'clock in the afternoon and
lasted up to about midnight of the
same day. During the storm, the
banana plants standing on an
elevated ground along the barrio
road in San Pedro Ili of said
municipality
and
near
the
transmission line of the Alcala
Electric Plant were blown down and
fell on the electric wire. As a result,
the live electric wire was cut, one end
of which was left hanging on the
electric post and the other fell to the
ground under the fallen banana
plants.
"On the following morning, at about
9:00 o'clock barrio captain Luciano
Bueno of San Pedro Ili who was
65

passing by saw the broken electric


wire and so he warned the people in
the place not to go near the wire for
they might get hurt. He also saw
Cipriano Baldomero, a laborer of the
Alcala Electric Plant near the place
and notified him right then and there
of the broken line and asked him to
fix it, but the latter told the barrio
captain that he could not do it but
that he was going to look for the
lineman to fix it.
"Sometime after the barrio captain
and Cipriano Baldomero had left the
place, a small boy of 3 years and 8
months old by the name of Manuel P.
Saynes, whose house is just on the
opposite side of the road, went to the
place where the broken line wire was
and got in contact with it. The boy
was
electrocuted
and
he
subsequently died. It was only after
the electrocution of Manuel Saynes
that the broken wire was fixed at
about 10:00 o'clock on the same
morning by the lineman of the
electric plant."
Petitioner claims that he could not be liable under the
concept of quasi-delict or tort as owner and manager of
the Alcala Electric Plant because the proximate cause of
the boy's death by electrocution could not be due to any
negligence on his part, but rather to a fortuitous event
the storm that caused the banana plants to fall and
cut the electric line pointing out the absence of
negligence on the part of his employee Cipriano
Baldomero who tried to have the line repaired and the
presence of negligence of the parents of the child in
allowing him to leave his house during that time.
A careful examination of the record convinces Us that a
series of negligence on the part of defendant's
employees in the Alcala Electric Plant resulted in the
death of the victim by electrocution. First, by the very
evidence of the defendant, there were big and tall
banana plants at the place of the incident standing on
an elevated ground which were about 30 feet high and
which were higher than the electric post supporting the
electric line, and yet the employees of the defendant
who, with ordinary foresight, could have easily seen
that even in case of moderate winds the electric line
would be endangered by banana plants being blown
down, did not even take the necessary precaution to
eliminate that source of danger to the electric line.
Second, even after the employees of the Alcala Electric
Plant were already aware of the possible damage the
storm of May 14, 1972, could have caused their electric
lines, thus becoming a possible threat to life and
property, they did not cut off from the plant the flow of
electricity along the lines, an act they could have easily
done pending inspection of the wires to see if they had

been cut. Third, employee Cipriano Baldomero was


negligent on the morning of the incident because even
if he was already made aware of the live cut wire, he
did not have the foresight to realize that the same posed
a danger to life and property, and that he should have
taken the necessary precaution to prevent anybody
from approaching the live wire; instead Baldomero left
the premises because what was foremost in his mind
was the repair of the line, obviously forgetting that if
left unattended to it could endanger life and property.
On defendant's argument that the proximate cause of
the victim's death could be attributed to the parents'
negligence in allowing a child of tender age to go out of
the house alone, We could readily see that because of
the aforementioned series of negligence on the part of
defendants' employees resulting in a live wire lying on
the premises without any visible warning of its lethal
character, anybody, even a responsible grown up or not
necessarily an innocent child, could have met the same
fate that befell the victim. It may be true, as the lower
Court found out, that the contributory negligence of the
victim's parents in not properly taking care of the child,
which enabled him to leave the house alone on the
morning of the incident and go to a nearby place (cut
wire was very near the house where victim was living)
where the fatal fallen wire electrocuted him, might
mitigate respondent's liability, but We cannot agree
with petitioner's theory that the parents' negligence
constituted the proximate cause of the victim's death
because the real proximate cause was the fallen live
wire which posed a threat to life and property on that
morning due to the series of negligence adverted to
above committed by defendants' employees and which
could have killed any other person who might by
accident get into contact with it. Stated otherwise, even
if the child was allowed to leave the house unattended
due to the parents' negligence, he would not have died
that morning where it not for the cut live wire he
accidentally touched.
Art. 2179 of the Civil Code provides that if the
negligence of the plaintiff (parents of the victim in this
case) was only contributory, the immediate and
proximate cause of the injury being the defendants' lack
of due care, the plaintiff may recover damages, but the
courts shall mitigate the damages to be awarded. This
law may be availed of by the petitioner but does not
exempt him from liability.
Petitioner's liability for injury caused by his employees'
negligence is well defined in par. 4, of Article 2180 of
the Civil Code, which states:
"The owner and manager of the
establishment or enterprise are
likewise responsible for damages
caused by their employees in the
service of the branches in which the
latter are employed or on the
occasion of their functions."

The negligence of the employee is presumed to be the


negligence of the employer because the employer is
supposed to exercise supervision over the work of the
employees. This liability of the employer is primary
and direct (Standard Vacuum Oil Co. vs. Tan and Court of
Appeals, 107 Phil. 109). In fact the proper defense for the
employer to raise so that he may escape liability is to
prove that he exercised the diligence of the good father
of the family to prevent damage not only in the
selection of his employees but also in adequately
supervising them over their work. This defense was not
adequately proven as found by the trial Court, and We
do not find any sufficient reason to deviate from its
finding.
Notwithstanding diligent efforts, We fail to find any
reversible error committed by the trial Court in this
case, either in its appreciation of the evidence on
questions of facts or on the interpretation and
application of laws governing quasi-delicts and liabilities
emanating therefrom. The inevitable conclusion is that
no error amounting to grave abuse of discretion was
committed and the decision must be left untouched.
WHEREFORE, the decision of respondent Court dated
June 27, 1974 is affirmed.
Costs against petitioner.
SO ORDERED.
Teehankee (Chairman), Makasiar, Muoz Palma and
Martin, JJ., concur.
BACARRO, ET AL. vs. CASTAO, ET AL.
G.R. No. L-34597, 5 November 1982.
RELOVA, J p:
Appeal taken by petitioners from a decision of the
Court of Appeals, affirming that of the Court of First
Instance of Misamis Occidental, the dispositive portion
of which reads:
"WHEREFORE, judgment is hereby
rendered, ordering the defendants to
jointly and severally pay to the
plaintiff the sum of (1) P973.10 for
medical
treatment
and
hospitalization; (2)P840.20 for loss of
salary during treatment; and (3)
P2,000.00 for partial permanent
deformity, with costs against the
defendants."
The facts are set forth in the decision of the Court of
Appeals, from which We quote:
" . . . In the afternoon of April 1, 1960,
he (appellee) boarded the said jeep as
a paying passenger at Oroquieta
bound
for
Jimenez,
Misamis
66

Occidental. It was then filled to


capacity, with twelve (12) passengers
in all. 'The jeep was running quite
fast and the jeep while approaching
the (Sumasap) bridge there was a
cargo truck which blew its horn for a
right of way. The jeep gave way but
did not change speed. . . . When the
jeep gave way it turned in the right
and continued running with the same
speed. In so doing . . . the driver was
not able to return the jeep to the
proper place . . . instead, it ran
obliquely towards the canal; that is
why, we fell to the ditch. . . . When
the jeep was running in the side of
the road for few meters, naturally, the
jeep was already inclined and two
passengers beside me were the ones
who pushed me. I was pushed by the
two passengers beside me; that is
why, when I was clinging, my leg
and half of my body were outside the
jeep when it reached the canal . . . My
right leg was sandwiched by the
body of the jeep and the right side of
the ditch. . . . My right leg was
broken.' He was rushed to the Saint
Mary's Hospital where he stayed for
about two (2) months. 'My right leg is
now shorter by one and one-half
inches causing me to use specially
made shoes. . . . I could not squat for
a long time; I could not kneel for a
long time; and I could not even sit for
a long time because I will suffer
cramp. . . . With my three fingers I am
still uneasy with my three fingers in
my right hand. There is a feeling of
numbness with my three fingers even
right now.'
xxx

xxx

xxx

"From appellee's version just set out,


it appears that after he boarded the
jeep in question at Oroquieta, it was
driven by defendant Montefalcon at
around forty (40) kilometers per hour
bound for Jimenez; that while
approaching Sumasap Bridge at the
said speed, a cargo truck coming
from behind blew its horn to signal
its intention to overtake the jeep; that
the latter, without changing its speed,
gave way by swerving to the right,
such that both vehicles ran side by
side for a distance of around twenty
(20) meters, and that thereafter as the
jeep was left behind, its driver was
unable to return it to its former lane
and instead it obliquely or diagonally
67

ran down an inclined terrain towards


the right until it fell into a ditch
pinning
down
and
crushing
appellee's right leg in the process.
"Throwing the blame for this accident
on the driver of the cargo truck,
appellants, in turn, state the facts to
be as follows:
'In the afternoon of April 1,
1960,
plaintiff
Gerundio
Castao boarded the said
jeepney at Oroquieta bound for
Jimenez, Misamis Occidental.
While
said
jeepney
was
negotiating
the
upgrade
approach of the Sumasap
Bridge at Jimenez, Misamis
Occidental and at a distance of
about 44 meters therefrom, a
cargo
truck,
owned
and
operated by a certain Te Tiong
alias Chinggim, then driven by
Nicostrato Digal, a person not
duly licensed to drive motor
vehicles, overtook the jeepney
so closely that in the process of
overtaking
sideswiped
the
jeepney, hitting the reserve tire
place at the left side of the
jeepney with the hinge or bolt
of the siding of the cargo truck,
causing the jeepney to swerve
from its course and after
running 14 meters from the
road it finally fell into the canal.
The right side of the jeep fell on
the right leg of the plaintiffappellee, crushing said leg
against the ditch resulting in
the injury to plaintiff-appellee
consisting of a broken right
thigh.'
and take the following stand: 'The
main
defense
of
defendantsappellants is anchored on the fact
that the jeepney was sideswiped by
the
overtaking
cargo
truck'
(Appellants' Brief, pp. 3-4, 7).
"It must be admitted, out of candor, that there
is evidence of the sideswiping relied upon by
appellants . . . "
This appeal by certiorari to review the decision of
respondent Court of Appeals asserts that the latter
decided questions of substance which are contrary to
law and the approved decisions of this Court.
Petitioners alleged that respondent Court of Appeals
erred (1) in finding contributory negligence on the part

of jeepney driver appellant Montefalcon for having


raced with the overtaking cargo truck to the bridge
instead of slackening its speeds when the person solely
responsible for the sideswiping is the unlicensed driver
of the overtaking cargo truck; (2) in finding the jeepney
driver not to have exercised extraordinary diligence,
human care, foresight and utmost diligence of very
cautious persons, when the diligence required pursuant
to Article 1763 of the New Civil Code is only that of
good father of a family since the injuries were caused
by the negligence of a stranger; and (3) in not
considering that appellants were freed from any
liability since the accident was due to fortuitous event
the sideswiping of the jeepney by the overtaking
cargo truck.
We are not persuaded. The fact is, petitioner-driver
Montefalcon did not slacken his speed but instead
continued to run the jeep at about forty (40) kilometers
per hour even at the time the overtaking cargo truck
was running side by side for about twenty (20) meters
and at which time he even shouted to the driver of the
truck. Hereunder is the testimony of private respondent
Gerundio B. Castao on this point:
xxx

xxx

xxx

Thus, had Montefalcon slackened the speed of the jeep


at the time the truck was overtaking it, instead of
running side by side with the cargo truck, there would
have been no contact and accident. He should have
foreseen that at the speed he was running, the vehicles
were getting nearer the bridge and as the road was
getting narrower the truck would be too close to the
jeep and would eventually sideswipe it. Otherwise
stated, he should have slackened his jeep when he
swerved it to the right to give way to the truck because
the two vehicles could not cross the bridge at the same
time.
The second assigned error is centered on the alleged
failure on the part of the jeepney driver to exercise
extraordinary diligence, human care, foresight and
utmost diligence of a very cautious person, when the
diligence required pursuant to Article 1763 of the Civil
Code is only that of a good father of a family.
Petitioners contend that the proximate cause of the
accident was the negligence of the driver of the truck.
However, the fact is, there was a contract of carriage
between the private respondent and the herein
petitioners in which case the Court of Appeals correctly
applied Articles 1733, 1755 and 1766 of the Civil Code
which require the exercise of extraordinary diligence on
the part of petitioner Montefalcon.
"Art. 1733.
Common carriers,
from the nature of their business and
for reasons of public policy, are
bound to observe extraordinary
diligence in the vigilance over the
goods and for the safety of the
passengers transported by them,

according to all the circumstances of


each case.
"Art. 1755.
A common carrier
is bound to carry the passengers
safely as far as human care and
foresight can provide, using the
utmost diligence of very cautious
persons, with a due regard for all the
circumstances.
"Art. 1766.
In all matters not
regulated by this Code, the rights and
obligations of common carriers shall
be governed by the Code of
Commerce and by special laws."
Indeed, the hazards of modern transportation demand
extraordinary diligence. A common carrier is vested
with public interest. Under the new Civil Code, instead
of being required to exercise mere ordinary diligence a
common carrier is exhorted to carry the passengers
safely as far as human care and foresight can provide
"using the utmost diligence of very cautious persons."
(Article 1755). Once a passenger in the course of travel
is injured, or does not reach his destination safely, the
carrier and driver are presumed to be at fault.
The third assigned error of the petitioners would find
fault upon respondent court in not freeing petitioners
from any liability, since the accident was due to a
fortuitous event. But, We repeat that the alleged
fortuitous event in this case the sideswiping of the
jeepney by the cargo truck, was something which could
have been avoided considering the narrowness of
Sumasap Bridge which was not wide enough to admit
two vehicles. As found by the Court of Appeals,
Montefalcon contributed to the occurrence of the
mishap.
WHEREFORE, the decision of the respondent Court of
Appeals, dated September 30, 1971, is hereby
AFFIRMED. With costs.
SO ORDERED.
Melencio-Herrera (Acting Chairman), Plana, Vasquez
and Gutierrez, Jr., JJ., concur.
Teehankee (Chairman), J., is on leave.
PHOENIX CONSTRUCTION, INC., ET AL. vs.
INTERMEDIATE APPELLATE COURT, ET AL.
G.R. No. 65295, 10 March 1987.
FELICIANO, J p:
In the early morning of 15 November 1975 at about
1:30 a.m. private respondent Leonardo Dionisio was
on his way home he lived in 1214-B Zamora Street,
Bangkal, Makati from a cocktails-and-dinner
meeting with his boss, the general manager of a
68

marketing corporation. During the cocktails phase of


the evening, Dionisio had taken "a shot or two" of
liquor. Dionisio was driving his Volkswagen car and
had just crossed the intersection of General Lacuna and
General Santos Streets at Bangkal, Makati, not far from
his home, and was proceeding down General Lacuna
Street, when his car headlights (in his allegation)
suddenly failed. He switched his headlights on "bright"
and thereupon he saw a Ford dump truck looming
some 2-1/2 meters away from his car. The dump truck,
owned by and registered in the name of petitioner
Phoenix Construction Inc. ("Phoenix"), was parked on
the right hand side of General Lacuna Street (i.e., on the
right hand side of a person facing in the same direction
toward which Dionisio's car was proceeding), facing
the oncoming traffic. The dump truck was parked
askew (not parallel to the street curb) in such a manner
as to stick out onto the street, partly blocking the way of
oncoming traffic. There were no lights nor any so-called
"early warning" reflector devices set anywhere near the
dump truck, front or rear. The dump truck had earlier
that evening been driven home by petitioner Armando
U. Carbonel, its regular driver, with the permission of
his employer Phoenix, in view of work scheduled to be
carried out early the following morning. Dionisio
claimed that he tried to avoid a collision by swerving
his car to the left but it was too late and his car smashed
into the dump truck. As a result of the collision,
Dionisio suffered some physical injuries including
some permanent facial scars, a "nervous breakdown"
and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the
Court of First Instance of Pampanga basically claiming
that the legal and proximate cause of his injuries was
the negligent manner in which Carbonel had parked
the dump truck entrusted to him by his employer
Phoenix. Phoenix and Carbonel, on the other hand,
countered that the proximate cause of Dionisio's
injuries was his own recklessness in driving fast at the
time of the accident, while under the influence of
liquor, without his headlights on and without a curfew
pass. Phoenix also sought to establish that it had
exercised due care in the selection and supervision of
the dump truck driver.
The trial court rendered judgment in favor of Dionisio
and against Phoenix and Carbonel and ordered the
latter:
xxx

xxx

xxx

Phoenix and Carbonel appealed to the Intermediate


Appellate Court. That court in CA-G.R. No. 65476
affirmed the decision of the trial court but modified the
award of damages to the following extent:
xxx

xxx

xxx

This decision of the Intermediate Appellate Court is


now before us on a petition for review.

69

Both the trial court and the appellate court had made
fairly explicit findings of fact relating to the manner in
which the dump truck was parked along General
Lacuna Street on the basis of which both courts drew
the inference that there was negligence on the part of
Carbonel, the dump truck driver, and that this
negligence was the proximate cause of the accident and
Dionisio's injuries. We note, however, that both courts
failed to pass upon the defense raised by Carbonel and
Phoenix that the true legal and proximate cause of the
accident was not the way in which the dump truck had
been parked but rather the reckless way in which
Dionisio had driven his car that night when he smashed
into the dump truck. The Intermediate Appellate Court
in its questioned decision casually conceded that
Dionisio was "in some way, negligent" but apparently
failed to see the relevance of Dionisio's negligence and
made no further mention of it. We have examined the
record both before the trial court and the Intermediate
Appellate Court and we find that both parties had
placed into the record sufficient evidence on the basis of
which the trial court and the appellate court could have
and should have made findings of fact relating to the
alleged reckless manner in which Dionisio drove his car
that night. The petitioners Phoenix and Carbonel
contend that if there was negligence in the manner in
which the dump truck was parked, that negligence was
merely a "passive and static condition" and that private
respondent Dionisio's recklessness constituted an
intervening, efficient cause determinative of the
accident and the injuries he sustained. The need to
administer substantial justice as between the parties in
this case, without having to remand it back to the trial
court after eleven years, compels us to address directly
the contention put forward by the petitioners and to
examine for ourselves the record pertaining to
Dionisio's alleged negligence which must bear upon the
liability, or extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into:
(a) whether or not private respondent Dionisio had a
curfew pass valid and effective for that eventful night;
(b) whether Dionisio was driving fast or speeding just
before the collision with the dump truck; (c) whether
Dionisio had purposely turned off his car's headlights
before contact with the dump truck or whether those
headlights accidentally malfunctioned moments before
the collision; and (d) whether Dionisio was intoxicated
at the time of the accident.
As to the first issue relating to the curfew pass, it is
clear that no curfew pass was found on the person of
Dionisio immediately after the accident nor was any
found in his car. Phoenix's evidence here consisted of
the testimony of Patrolman Cuyno who had taken
Dionisio, unconscious, to the Makati Medical Center for
emergency treatment immediately after the accident. At
the Makati Medical Center, a nurse took off Dionisio's
clothes and examined them along with the contents of
pockets together with Patrolman Cuyno. 1 Private
respondent Dionisio was not able to produce any
curfew pass during the trial. Instead, he offered the

explanation that his family may have misplaced his


curfew pass. He also offered a certification (dated two
years after the accident) issued by one Major Benjamin
N. Libarnes of the Zone Integrated Police Intelligence
Unit of Camp Olivas, San Fernando, Pampanga, which
was said to have authority to issue curfew passes for
Pampanga and Metro Manila. This certification was to
the effect that private respondent Dionisio had a valid
curfew pass. This certification did not, however, specify
any pass serial number or date or period of effectivity
of the supposed curfew pass. We find that private
respondent Dionisio was unable to prove possession of
a valid curfew pass during the night of the accident and
that the preponderance of evidence shows that he did
not have such a pass during that night. The relevance of
possession or non-possession of a curfew pass that
night lies in the light it tends to shed on the other
related issues: whether Dionisio was speeding home
and whether he had indeed purposely put out his
headlights before the accident, in order to avoid
detection and possibly arrest by the police in the nearby
police station for travelling after the onset of curfew
without a valid curfew pass.
On the second issue whether or not Dionisio was
speeding home that night both the trial court and the
appellate court were completely silent.
The defendants in the trial court introduced the
testimony of Patrolman Cuyno who was at the scene of
the accident almost immediately after it occurred, the
police station where he was based being barely 200
meters away. Patrolman Cuyno testified that people
who had gathered at the scene of the accident told him
that Dionisio's car was "moving fast" and did not have
its headlights on. Dionisio, on the other hand, claimed
that he was travelling at a moderate speed at 30
kilometers per hour and had just crossed the
intersection of General Santos and General Lacuna
Streets and had started to accelerate when his
headlights failed just before the collision took place.
Private respondent Dionisio asserts that Patrolman
Cuyno's testimony was hearsay and did not fall within
any of the recognized exceptions to the hearsay rule
since the facts he testified to were not acquired by him
through official information and had not been given by
the informants pursuant to any duty to do so. Private
respondent's objection fails to take account of the fact
that the testimony of Patrolman Cuyno is admissible
not under the official records exception to the hearsay
rule but rather as part of the res gestae. Testimonial
evidence under this exception to the hearsay rule
consists of excited utterances made on the occasion of
an occurrence or event sufficiently startling in nature so
as to render inoperative the normal reflective thought
processes of the observer and hence made as a
spontaneous reaction to the occurrence or event, and
not the result of reflective thought.

dead of night is a sufficiently startling event as to evoke


spontaneous, rather than reflective, reactions from
observers who happened to be around at that time. The
testimony of Patrolman Cuyno was therefore
admissible as part of the res gestae and should have
been considered by the trial court. Clearly, substantial
weight should have been ascribed to such testimony,
even though it did not, as it could not, have purported
to describe quantitatively the precise velocity at which
Dionisio was travelling just before impact with the
Phoenix dump truck.
A third related issue is whether Dionisio purposely
turned off his headlights, or whether his headlights
accidentally malfunctioned, just moments before the
accident. The Intermediate Appellate Court expressly
found that the headlights of Dionisio's car went off as
he crossed the intersection but was non-committal as to
why they did so. It is the petitioners' contention that
Dionisio purposely shut off his headlights even before
he reached the intersection so as not to be detected by
the police in the police precinct which he (being a
resident in the area) knew was not far away from the
intersection. We believe that the petitioners' theory is a
more credible explanation than that offered by private
respondent Dionisio i.e., that he had his headlights
on but that, at the crucial moment, these had in some
mysterious if convenient way malfunctioned and gone
off, although he succeeded in switching his lights on
again at "bright" split seconds before contact with the
dump truck.
A fourth and final issue relates to whether Dionisio was
intoxicated at the time of the accident. The evidence
here consisted of the testimony of Patrolman Cuyno to
the effect that private respondent Dionisio smelled of
liquor at the time he was taken from his smashed car
and brought to the Makati Medical Center in an
unconscious condition. This testimony has to be taken
in conjunction with the admission of Dionisio that he
had taken "a shot or two" of liquor before dinner with
his boss that night. We do not believe that this evidence
is sufficient to show that Dionisio was so heavily under
the influence of liquor as to constitute his driving a
motor vehicle per se an act of reckless imprudence.
There simply is not enough evidence to show how
much liquor he had in fact taken and the effects of that
upon his physical faculties or upon his judgment or
mental alertness. We are also aware that "one shot or
two" of hard liquor may affect different people
differently.
The conclusion we draw from the factual circumstances
outlined above is that private respondent Dionisio was
negligent the night of the accident. He was hurrying
home that night and driving faster than he should have
been. Worse, he extinguished his headlights at or near
the intersection of General Lacuna and General Santos
Streets and thus did not see the dump truck that was
parked askew and sticking out onto the road lane.

We think that an automobile speeding down a street


and suddenly smashing into a stationary object in the
70

Nonetheless, we agree with the Court of First Instance


and the Intermediate Appellate Court that the legal and
proximate cause of the accident and of Dionisio's
injuries was the wrongful or negligent manner in which
the dump truck was parked in other words, the
negligence of petitioner Carbonel. That there was a
reasonable relationship between petitioner Carbonel's
negligence on the one hand and the accident and
respondent's injuries on the other hand, is quite clear.
Put in a slightly different manner, the collision of
Dionisio's car with the dump truck was a natural and
foreseeable consequence of the truck driver's
negligence.
The petitioners, however, urge that the truck driver's
negligence was merely a "passive and static condition"
and that private respondent Dionisio's negligence was
an "efficient intervening cause," and that consequently
Dionisio's negligence must be regarded as the legal and
proximate cause of the accident rather than the earlier
negligence of Carbonel. We note that the petitioners'
arguments are drawn from a reading of some of the
older cases in various jurisdictions in the United States
but we are unable to persuade ourselves that these
arguments have any validity for our jurisdiction. We
note, firstly, that even in the United States, the
distinctions between "cause" and "condition" which the
petitioners would have us adopt have already been
"almost entirely discredited." Professors Prosser and
Keeton make this quite clear:
"Cause and condition. Many courts
have sought to distinguish between
the active "cause" of the harm and the
existing "conditions" upon which that
cause operated. If the defendant has
created only a passive static condition
which made the damage possible, the
defendant is said not to be liable. But
so far as the fact of causation is
concerned, in the sense of necessary
antecedents which have played an
important part in producing the
result, it is quite impossible to
distinguish between active forces and
passive situations, particularly since,
as is invariably the case, the latter are
the result of other active forces which
have gone before. The defendant who
spills gasoline about the premises
creates a "condition," but the act may
be culpable because of the danger of
fire. When a spark ignites the
gasoline, the condition has done quite
as much to bring about the fire as the
spark; and since that is the very risk
which the defendant has created, the
defendant
will
not
escape
responsibility. Even the lapse of a
considerable time during which the
"condition" remains static will not
necessarily affect liability; one who
71

digs a trench in the highway may still


be liable to another who falls into it a
month afterward. "Cause" and
"condition" still find occasional
mention in the decisions; but the
distinction is now almost entirely
discredited. So far as it has any
validity at all, it must refer to the type
of case where the forces set in
operation by the defendant have
come to rest in a position of apparent
safety, and some new force
intervenes. But even in such cases, it
is not the distinction between "cause"
and "condition" which is important,
but the nature of the risk and the
character of the intervening cause."
We believe, secondly, that the truck driver's negligence
far from being a "passive and static condition" was
rather an indispensable and efficient cause. The
collision between the dump truck and the private
respondent's car would in all probability not have
occurred had the dump truck not been parked askew
without any warning lights or reflector devices. The
improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down
General Lacuna Street and for having so created this
risk, the truck driver must be held responsible. In our
view, Dionisio's negligence, although later in point of
time than the truck driver's negligence and therefore
closer to the accident, was not an efficient intervening
or independent cause. What the petitioners describe as
an "intervening cause" was no more than a foreseeable
consequence of the risk created by the negligent
manner in which the truck driver had parked the dump
truck. In other words, the petitioner truck driver owed
a duty to private respondent Dionisio and others
similarly situated not to impose upon them the very
risk the truck driver had created. Dionisio's negligence
was not of an independent and overpowering nature as
to cut, as it were, the chain of causation in fact between
the improper parking of the dump truck and the
accident, nor to sever the juris vinculum of liability. It is
helpful to quote once more from Prosser and Keeton:
"Foreseeable Intervening Causes. If
the intervening cause is one which in
ordinary human experience is
reasonably to be anticipated, or one
which the defendant has reason to
anticipate under the particular
circumstances, the defendant may be
negligent, among other reasons,
because of failure to guard against it;
or the defendant may be negligent
only for that reason. Thus one who
sets a fire may be required to foresee
that an ordinary, usual and
customary wind arising later will
spread it beyond the defendant's own
property, and therefore to take

precautions to prevent that event.


The
person
who
leaves
the
combustible or explosive material
exposed in a public place may foresee
the risk of fire from some
independent source. . . . In all of these
cases there is an intervening cause
combining with the defendant's
conduct to produce the result, and in
each case the defendant's negligence
consists in failure to protect the
plaintiff against that very risk.
Obviously the defendant cannot be
relieved from liability by the fact that
the risk or a substantial and
important part of the risk, to which
the defendant has subjected the
plaintiff has indeed come to pass.
Foreseeable intervening forces are
within the scope of the original risk,
and hence of the defendant's
negligence. The courts are quite
generally agreed that intervening
causes which fall fairly in this
category will not supersede the
defendant's responsibility.
Thus it has been held that a
defendant will be required to
anticipate the usual weather of the
vicinity, including all ordinary forces
of nature such as usual wind or rain,
or snow or frost or fog or even
lightning; that one who leaves an
obstruction on the road or a railroad
track should foresee that a vehicle or
a train will run into it; . . . .
The risk created by the defendant
may include the intervention of the
foreseeable negligence of others. . . .
[T]he standard of reasonable conduct
may require the defendant to protect
the plaintiff against `that occasional
negligence which is one of the
ordinary incidents of human life, and
therefore to be anticipated.' Thus, a
defendant who blocks the sidewalk
and forces the plaintiff to walk in a
street where the plaintiff will be
exposed to the risks of heavy traffic
becomes liable when the plaintiff is
run down by a car, even though the
car is negligently driven; and one
who parks an automobile on the
highway without lights at night is not
relieved of responsibility when
another negligently drives into it. ---"
We hold that private respondent Dionisio's negligence
was "only contributory," that the "immediate and

proximate cause" of the injury remained the truck


driver's "lack of due care" and that consequently
respondent Dionisio may recover damages though such
damages are subject to mitigation by the courts (Article
2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the
"last clear chance" doctrine. The theory here of
petitioners is that while the petitioner truck driver was
negligent, private respondent Dionisio had the "last
clear chance" of avoiding the accident and hence his
injuries, and that Dionisio having failed to take that
"last clear chance" must bear his own injuries alone. The
last clear chance doctrine of the common law was
imported into our jurisdiction by Picart vs. Smith but it
is a matter for debate whether, or to what extent, it has
found its way into the Civil Code of the Philippines.
The historical function of that doctrine in the common
law was to mitigate the harshness of another common
law doctrine or rule that of contributory negligence.
The common law rule of contributory negligence
prevented any recovery at all by a plaintiff who was
also negligent, even if the plaintiff's negligence was
relatively minor as compared with the wrongful act or
omission of the defendant. The common law notion of
last clear chance permitted courts to grant recovery to a
plaintiff who had also been negligent provided that the
defendant had the last clear chance to avoid the
casualty and failed to do so. Accordingly, it is difficult
to see what role, if any, the common law last clear
chance doctrine has to play in a jurisdiction where the
common law concept of contributory negligence as an
absolute bar to recovery by the plaintiff, has itself been
rejected, as it has been in Article 2179 of the Civil Code
of the Philippines.
Is there perhaps a general concept of "last clear chance"
that may be extracted from its common law matrix and
utilized as a general rule in negligence cases in a civil
law jurisdiction like ours? We do not believe so. Under
Article 2179, the task of a court, in technical terms, is to
determine whose negligence the plaintiff's or the
defendant's was the legal or proximate cause of the
injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners
seem to imply by the use of terms like "last" or
"intervening" or "immediate." The relative location in
the continuum of time of the plaintiff's and the
defendant's negligent acts or omissions, is only one of
the relevant factors that may be taken into account. Of
more fundamental importance are the nature of the
negligent act or omission of each party and the
character and gravity of the risks created by such act or
omission for the rest of the community. The petitioners
urge that the truck driver (and therefore his employer)
should be absolved from responsibility for his own
prior negligence because the unfortunate plaintiff failed
to act with that increased diligence which had become
necessary to avoid the peril precisely created by the
truck driver's own wrongful act or omission. To accept
this proposition is to come too close to wiping out the
fundamental principle of law that a man must respond
72

for the foreseeable consequences of his own negligent


act or omission. Our law on quasi-delicts seeks to reduce
the risks and burdens of living in society and to allocate
them among the members of society. To accept the
petitioners' proposition must tend to weaken the very
bonds of society.
Petitioner Carbonel's proven negligence creates a
presumption of negligence on the part of his employer
Phoenix in supervising its employees properly and
adequately. The respondent appellate court in effect
found, correctly in our opinion, that Phoenix was not
able to overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver
to bring the dump truck to his home whenever there
was work to be done early the following morning,
when coupled with the failure to show any effort on the
part of Phoenix to supervise the manner in which the
dump truck is parked when away from company
premises, is an affirmative showing of culpa in vigilando
on the part of Phoenix.
Turning to the award of damages and taking into
account the comparative negligence of private
respondent Dionisio on one hand and petitioners
Carbonel and Phoenix upon the other hand, we believe
that the demands of substantial justice are satisfied by
allocating most of the damages on a 20-80 ratio. Thus,
20% of the damages awarded by the respondent
appellate court, except the award of P10,000.00 as
exemplary damages and P4,500.00 as attorney's fees
and costs, shall be borne by private respondent; only
the balance of 80% needs to be paid by petitioners
Carbonel and Phoenix who shall be solidarily liable
therefor to the former. The award of exemplary
damages and attorney's fees and costs shall be borne
exclusively by the petitioners. Phoenix is of course
entitled to reimbursement from Carbonel. We see no
sufficient reason for disturbing the reduced award of
damages made by the respondent appellate court.
WHEREFORE, the decision of the respondent appellate
court is modified by reducing the aggregate amount of
compensatory damages, loss of expected income and
moral damages private respondent Dionisio is entitled
to by 20% of such amount. Costs against the petitioners.
SO ORDERED.
Yap, Narvasa, Cruz, Gancayco and Sarmiento, JJ .,
concur.
SMITH BELL AND COMPANY (PHILIPPINES),
INC., ET AL. vs. THE COURT OF APPEALS, ET AL.
G.R. No. 56294, 20 May 1991, 197 SCRA 201
FELICIANO, J p:
In the early morning of 3 May 1970 at exactly 0350
hours, on the approaches to the port of Manila near
Caballo Island, a collision took place between the M/V
"Don Carlos," an inter-island vessel owned and
73

operated by private respondent Carlos A. Go Thong


and Company ("Go Thong"), and the M/S "Yotai
Maru," a merchant vessel of Japanese registry. The
"Don Carlos" was then sailing south bound leaving the
port of Manila for Cebu, while the "Yotai Maru" was
approaching the port of Manila, coming in from Kobe,
Japan. The bow of the "Don Carlos" rammed the
portside (left side) of the "Yotai Maru" inflicting a three
(3) cm. gaping hole on her portside near Hatch No. 3,
through which seawater rushed in and flooded that
hatch and her bottom tanks, damaging all the cargo
stowed therein.
The consignees of the damaged cargo got paid by their
insurance companies. The insurance companies in turn,
having been subrogated to the interests of the
consignees of the damaged cargo, commenced actions
against private respondent Go Thong for damages
sustained by the various shipments in the then Court of
First Instance of Manila.
Two (2) cases were filed in the Court of First Instance of
Manila. The first case, Civil Case No. 82567, was
commenced or 13 March 1971 by petitioner Smith Bell
and Company (Philippines), Inc. and Sumitomo Marine
and Fire Insurance Company Ltd., against private
respondent Go Thong, in Branch 3, which was presided
over by Judge Bernardo P. Fernandez. The second case,
Civil Case No. 82556, was filed on 15 March 1971 by
petitioners Smith Bell and Company (Philippines), Inc.
and Tokyo Marine and Fire Insurance Company, Inc.
against private respondent Go Thong in Branch 4,
which was presided over by then Judge, later Associate
Justice of this Court, Serafin R. Cuevas.
Civil Cases Nos. 82567 (Judge Fernandez) and 82556
(Judge Cuevas) were tried under the same issues and
evidence relating to the collision between the "Don
Carlos" and the "Yotai Maru" the parties in both cases
having agreed that the evidence on the collision
presented in one case would be simply adopted in the
other. In both cases, the Manila Court of First Instance
held that the officers and crew of the "Don Carlos" had
been negligent, that such negligence was the proximate
cause of the collision and accordingly held respondent
Go Thong liable for damages to the plaintiff insurance
companies. Judge Fernandez awarded the insurance
companies P19,889.79 with legal interest plus P3,000.00
as attorney's fees; while Judge Cuevas awarded the
plaintiff insurance companies on two (2) claims
US$68,640.00 or its equivalent in Philippine currency
plus attorney's fees of P30,000.00, and P19,163.02 plus
P5,000.00 as attorney's fees, respectively.
The decision of Judge Fernandez in Civil Case No.
82567 was appealed by respondent Go Thong to the
Court of Appeals, and the appeal was there docketed as
C.A.-G.R. No. 61320-R. The decision of Judge Cuevas in
Civil Case No. 82556 was also appealed by Go Thong to
the Court of Appeals, the appeal being docketed as
C.A.-G.R. No. 61206-R. Substantially identical

assignments of errors were made by Go Thong in the


two (2) appealed cases before the Court of Appeals.
In C.A.-G.R. No. 61320-R, the Court of Appeals through
Reyes, L.B., J., rendered a Decision on 8 August 1978
affirming the Decision of Judge Fernandez. Private
respondent Go Thong moved for reconsideration,
without success. Go Thong then went to the Supreme
Court on Petition for Review, the Petition being
docketed as G.R. No. L-48839 ("Carlos A. Go Thong and
Company v. Smith Bell and Company [Philippines],
Inc., et al."). In its Resolution dated 6 December 1978,
this Court, having considered "the allegations, issues
and arguments adduced in the Petition for Review on
Certiorari, of the Decision of the Court of Appeals as
well as respondent's comment", denied the Petition for
lack of merit. Go Thong filed a Motion for
Reconsideration; the Motion was denied by this Court
on 24 January 1979.
In the other (Cuevas) case, C.A.-G.R. No. 61206-R, the
Court of Appeals, on 26 November 1980 (or almost two
[2] years after the Decision of Reyes, L.B., J., in C.A.G.R. No. 61320-R, had been affirmed by the Supreme
Court on Petition for Review) through Sison, P.V., J.,
reversed the Cuevas Decision and held the officers of
the "Yotai Maru" at fault in the collision with the "Don
Carlos," and dismissed the insurance companies'
complaint. Herein petitioners asked for reconsideration,
to no avail.
The insurance companies are now before us on Petition
for Review on Certiorari, assailing the Decision of Sison,
P.V., J., in C.A.-G.R. No. 61206-R. Petitioners' principal
contentions are:
xxx
c.

xxx

xxx

that Sison, P.V., J., was in serious and reversible


error in holding that the "Yotai Maru" had been
negligent and at fault in the collision with the "Don
Carlos."
II

In their Petition for Review, petitioners assail the


finding and conclusion of the Sison Decision, that the
"Yotai Maru" was negligent and at fault in the collision,
rather than the "Don Carlos." In view of the conclusions
reached in Part I above, it may not be strictly necessary
to deal with the issue of the correctness of the Sison
Decision in this respect. The Court considers,
nonetheless, that in view of the conflicting conclusions
reached by Reyes, L.B., J., on the one hand, and Sison,
P.V., J., on the other, and since in affirming the Reyes
Decision, the Court did not engage in a detailed written
examination of the question of which vessel had been
negligent, and in view of the importance of the issues of
admiralty law involved, the Court should undertake a
careful review of the record of the case at bar and
discuss those issues in extenso.

The decision of Judge Cuevas in Civil Case No. 82556 is


marked by careful analysis of the evidence concerning
the collision. It is worth underscoring that the findings
of fact of Judge Fernandez in Civil Case No. 82567
(which was affirmed by the Court of Appeals in the
Reyes Decision and by this Court in G.R. No. L-48839)
are just about identical with the findings of Judge
Cuevas. Examining the facts as found by Judge Cuevas,
the Court believes that there are three (3) principal
factors which are constitutive of negligence on the part
of the "Don Carlos," which negligence was the
proximate cause of the collision.
The first of these factors was the failure of the "Don
Carlos" to comply with the requirements of Rule 18 (a)
of the International Rules of the Road ("Rules"), which
provides as follows
"(a) When two power-driven vessels are
meeting end on, or nearly end on, so
as to involve risk of collision, each
shall alter her course to starboard, so
that each may pass on the port side
of the other. This Rule only
applies to cases where vessels
are meeting end on or nearly end
on, in such a manner as to
involve risk of collision, and
does not apply to two vessels
which must, if both keep on their
respective course, pass clear of
each other. The only cases to
which it does apply are when
each of two vessels is end on, or
nearly end on, to the other; in
other words, to cases in which,
by day, each vessel sees the
masts of the other in a line or
nearly in a line with her own;
and by night to cases in which
each vessel is in such a position
as to see both the sidelights of
the other. It does not apply, by
day, to cases in which a vessel
sees another ahead crossing her
own course; or, by night, to cases
where the red light of one vessel
is opposed to the red light of the
other or where the green light of
one vessel is opposed to the
green light of the other or where
a red light without a green light
or a green light without a red
light is seen ahead, or where
both green and red lights are
seen anywhere but ahead."
(Emphasis supplied)
The evidence on this factor was summarized by Judge
Cuevas in the following manner:

74

"Plaintiffs and defendant's evidence


seem to agree that each vessel made a
visual sighting of each other ten
minutes before the collision which
occurred at 0350. German's version of
the incident that followed, was that
'Don Carlos' was proceeding directly
to [a] meeting [on an] 'end-on or
nearly end-on situation' (Exh. S, page
8). He also testified that 'Yotai Maru's'
headlights were 'nearly in line at 0340
A.M.' (t.s.n, June 6, 1974) clearly
indicating that both vessels were sailing
on exactly opposite paths (t.s.n. June 6,
1974, page 56). Rule 18 (a) of the
International Rules of the Road
provides as follows:
xxx

xxx

xxx

And yet German altered 'Don Carlos'


course by five degrees to the left at 0343
hours instead of to the right (t.s.n. June
6, 1974, pages 44-45) which maneuver
was the error that caused the collision in
question. Why German did so is likewise
explained by the evidence on record.
'Don Carlos' was overtaking another
vessel, the 'Don Francisco' and was then
at the starboard (right side) of the
aforesaid vessel at 3.40 a.m. It was in the
process of overtaking 'Don Francisco'
that 'Don Carlos' was finally brought
into a situation where he was meeting
end-on or nearly end -on 'Yotai Maru'
thus involving risk of collision. Hence,
German in his testimony before the
Board of Marine Inquiry stated:
'Atty. Chung:
You said in answer to the
cross-examination that you took a
change of course to the left. Why did
you not take a course to the right
instead?
German:
I did not take any course to
the right because the other vessel was
in my mind at the starboard side
following me. Besides, I don't want to
get risk of the Caballo Island (Exh. 2,
pages 209 and 210).'" (Emphasis
supplied).
For her part, the "Yotai Maru" did comply with its
obligations under Rule 18 (a). As the "Yotai Maru"
found herself on an "end-on" or a "nearly end-on"
situation vis-a-vis the "Don Carlos," and as the distance
between them was rapidly shrinking, the "Yotai Maru"
turned starboard (to its right) and at the same time gave
the required signal consisting of one short horn blast.
75

The "Don Carlos" turned to portside (to its left), instead


of turning to starboard as demanded by Rule 18 (a). The
"Don Carlos" also violated Rule 28 (c) for it failed to
give the required signal of two (2) short horn blasts
meaning "I am altering my course to port." When the
"Yotai Maru" saw that the "Don Carlos" was turning to
port, the master of the "Yotai Maru" ordered the vessel
turned "hard starboard" at 3:45 a.m. and stopped her
engines; at about 3:46 a.m. the "Yotai Maru" went "full
astern engine." The collision occurred at exactly 3:50
a.m.
The second circumstance constitutive of negligence on
the part of the "Don Carlos" was its failure to have on
board that night a "proper look-out" as required by
Rule I (B). Under Rule 29 of the same set of Rules, all
consequences arising from the failure of the "Don
Carlos" to keep a "proper look-out" must be borne by
the "Don Carlos." Judge Cuevas' summary of the
evidence said:
"The evidence on record likewise
discloses very convincingly that 'Don
Carlos' did not have a 'look-out'
whose sole and only duty is only to
act as such . . ."
A "proper look-out" is one who has been trained as
such and who is given no other duty save to act as a
look-out and who is stationed where he can see and
hear best and maintain good communication with the
officer in charge of the vessel, and who must, of course,
be vigilant. Judge Cuevas wrote:
"The 'look-out' should have no other
duty to perform. (Chamberlain v.
Ward, 21, N.O.W. 62, U.S. 548, 571).
He has only one duty, that which its
name implies to keep a 'look-out'.
So a deckhand who has other duties,
is not a proper 'look-out' (Brooklyn
Perry Co. v. U.S., 122, Fed. 696). The
navigating officer is not a sufficient
'look-out' (Larcen B. Myrtle, 44 Fed.
779) Griffin on Collision, pages
277-278). Neither the captain nor the
[helmsman] in the pilothouse can be
considered to be a 'look-out' within
the meaning of the maritime law. Nor
should he be stationed in the bridge.
He should be as near as practicable to
the surface of the water so as to be
able to see low-lying lights (Griffin on
Collision, page 273).
On the strength of the foregoing authorities, which do
not appear to be disputed even by the defendant, it is
hardly probable that neither German or Leo Enriquez
may qualify as 'look-out' in the real sense of the word."
(Emphases supplied).

In the case at bar, the failure of the "Don Carlos" to


recognize in a timely manner the risk of collision with
the "Yotai Maru" coming in from the opposite direction,
was at least in part due to the failure of the "Don
Carlos" to maintain a proper look-out.
The third factor constitutive of negligence on the part of
the "Don Carlos" relates to the fact that Second Mate
Benito German was, immediately before and during the
collision, in command of the "Don Carlos." Judge
Cuevas summed up the evidence on this point in the
following manner:
"The evidence on record clearly
discloses that 'Don Carlos' was, at the
time of the collision and immediately
prior thereto, under the command of
Benito German, a second mate although
its captain, Captain Rivera, was very
much in the said vessel at the time. The
defendant's evidence appears bereft
of any explanation as to why second
mate German was at the helm of the
aforesaid vessel when Captain Rivera
did not appear to be under any
disability at the time. In this
connection, Article [633] of the Code
of Commerce provides:
'Art. [633] The second mate shall
take command of the vessel in case of
the inability or disqualification of the
captain and sailing mate, assuming,
in such case, their powers and
liability.'
The fact that second mate
German was allowed to be in
command of 'Don Carlos' and
not the chief or the sailing mate
in the absence of Captain
Rivera, gives rise to no other
conclusion except that said
vessel [had] no chief mate.
Otherwise,
the
defense
evidence should have at least
explained why it was German,
only a second mate, who was
at the helm of the vessel 'Don
Carlos' at the time of the fatal
collision.
But that is not all. Worst still aside from
German's being only a second mate, is
his apparent lack of sufficient knowledge
of the basic and generally established
rules of navigation. For instance he
appeared unaware of the necessity of
employing a 'look-out' (t.s.n. June 6,
1974, page 27) which is manifest even in
his testimony before the Board of Marine
Inquiry on the same subject (Exh. 2, page

209). There is, therefore, every reasonable


ground to believe that his inability to
grasp actual situation and the
implication brought about by inadequacy
of experience and technical know-how
was mainly responsible and decidedly
accounted for the collision of the vessels
involved in this case . . ." (Emphasis
supplied)
Second Mate German simply did not have the level of
experience, judgment and skill essential for recognizing
and coping with the risk of collision as it presented
itself that early morning when the "Don Carlos,"
running at maximum speed and having just overtaken
the "Don Francisco" then approximately one mile
behind to the starboard side of the "Don Carlos," found
itself head-on or nearly head on vis-a-vis the "Yotai
Maru." It is essential to point out that this situation was
created by the "Don Carlos" itself.
The Court of Appeals in C.A.-G.R. No. 61206-R did not
make any findings of fact which contradicted the
findings of fact made by Judge Cuevas. What Sison,
P.V., J. actually did was to disregard all the facts found
by Judge Cuevas, and discussed above and,
astonishingly, found a duty on the "Yotai Maru" alone
to avoid collision with and to give way to the "Don
Carlos." Sison, P.V., J., wrote:
"At a distance of eight (8) miles and
with ten (10) minutes before the
impact, [Katoh] and Chonabayashi
had ample time to adopt effective
precautionary measures to steer away
from
the
Philippine
vessel,
particularly because both [Katoh] and
Chonabayashi also deposed that at
the time they had first eyesight of the
'Don Carlos' there was still 'no danger
at all' of a collision. Having sighted the
'Don Carlos' at a comparatively safe
distance 'no danger at all' of a
collision the Japanese ship should
have observed with the highest diligence
the course and movements of the
Philippine interisland vessel as to enable
the former to adopt such precautions as
will necessarily prevent a collision, or
give way, and in case of a collision, the
former is prima facie at fault. In G.
Urrutia & Co. vs. Baco River Plantation
Co., 26 Phil. 632, the Supreme Court
held:
'Nautical rules require that
where a steamship and sailing
vessel are approaching each
other from opposite directions,
or on intersecting lines, the
steamship, from the moment the
sailing vessel is seen, shall watch
76

with the highest diligence her


course and movements so as to
enable it to adopt such timely
means of precaution as will
necessarily prevent the two
boats from coming in contact.'
(Emphasis supplied)
At 3:44 p.m., or 4 minutes after first
sighting the 'Don Carlos', or 6
minutes
before
contact
time,
Chonabayashi revealed that the 'Yotai
Maru' gave a one-blast whistle to
inform the Philippine vessel that the
Japanese ship was turning to
starboard or to the right and that
there was no blast or a proper signal
from the 'Don Carlos' (pp. 67-68.
Deposition of Chonabayashi, List of
Exhibits). The absence of a reply signal
from the 'Don Carlos' placed the 'Yotai
Maru' in a situation of doubt as to the
course the Don Carlos' would take. Such
being the case, it was the duty of the
Japanese officers 'to stop, reverse or come
to a standstill' until the course of the
'Don Carlos' has been determined and
the risk of a collision removed (The
Sabine, 21 F (2d) 121, 124, cited in
Standard Vacuum, etc. vs. Cebu
Stevedoring, etc., 5 C.A.R. 2d 853,
861-862) . . ." (Emphasis supplied).
The Court is unable to agree with the view thus taken
by Sison, P.V., J. By imposing an exclusive obligation
upon one of the vessels, the "Yotai Maru," to avoid the
collision, the Court of Appeals not only chose to
overlook all the above facts constitutive of negligence
on the part of the "Don Carlos;" it also in effect used the
very negligence on the part of the "Don Carlos;" to
absolve it from responsibility and to shift that
responsibility exclusively onto the "Yotai Maru" the
vessel which had observed carefully the mandate of
Rule 18 (a). Moreover, G. Urrutia and Company v. Baco
River Plantation Company invoked by the Court of
Appeals seems simply inappropriate and inapplicable.
For the collision in the Urrutia case was between a
sailing vessel, on the one hand, and a power-driven
vessel, on the other; the Rules, of course, imposed a
special duty on the power-driven vessel to watch the
movements of a sailing vessel, the latter being
necessarily much slower and much less maneuverable
than the power-driven one. In the case at bar, both the
"Don Carlos" and the "Yotai Maru" were power-driven
and both were equipped with radar; the maximum
speed of the "Yotai Maru" was thirteen (13) knots while
that of the "Don Carlos" was eleven (11) knots.
Moreover, as already noted, the "Yotai Maru" precisely
took last minute measures to avert collision as it saw
the "Don Carlos" turning to portside: the "Yotai Maru"
turned "hard starboard" and stopped its engines and
then put its engines "full astern."
77

Thus, the Court agrees with Judge Cuevas (just as it


had agreed with Reyes, L.B., J.), with Judge Fernandez
and Nocon, J., that the "Don Carlos" had been negligent
and that its negligence was the sole proximate cause of
the collision and of the resulting damages.
FOR ALL THE FOREGOING, the Decision of the Court
of Appeals dated 26 November 1980 in C.A.-G.R. No.
61206-R is hereby REVERSED and SET ASIDE. The
decision of the trial court dated 22 September 1975 is
hereby REINSTATED and AFFIRMED in its entirety.
Costs against private respondent.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr.,
Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento,
Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
FERNANDO vs. COURT OF APPEALS, ET AL.
G.R. No. 92087, 8 May 1992, 208 SCRA 714
MEDIALDEA, J p:
This is a petition for review on certiorari praying that
the amended decision of the Court of Appeals dated
January 11, 1990 in CA-G.R. No. C.V. 04846, entitled
"Sofia Fernando, etc., et al. v. The City of Davao," be
reversed and that its original decision dated January 31,
1986 be reinstated subject to the modification sought by
the petitioners in their motion for partial
reconsideration dated March 6, 1986.
The antecedent facts are briefly narrated by the trial
court, as follows:
"From the evidence presented we see the following
facts: On November 7, 1975, Bibiano Morta, market
master of the Agdao Public Market filed a requisition
request with the Chief of Property of the City
Treasurer's Office for the re-emptying of the septic tank
in Agdao. An invitation to bid was issued to Aurelio
Bertulano, Lito Catarsa, Feliciano Bascon, Federico Bolo
and Antonio Suer, Jr. Bascon won the bid. On
November 26, 1975 Bascon was notified and he signed
the purchase order. However, before such date,
specifically on November 22, 1975, bidder Bertulano
with four other companions namely Joselito Garcia,
William Liagoso, Alberto Fernando and Jose Fajardo, Jr.
were found dead inside the septic tank. The bodies
were removed by a fireman. One body, that of Joselito
Garcia, was taken out by his uncle, Danilo Garcia and
taken to the Regional Hospital but he expired there. The
City Engineer's office investigated the case and learned
that the five victims entered the septic tank without
clearance from it nor with the knowledge and consent
of the market master. In fact, the septic tank was found
to be almost empty and the victims were presumed to
be the ones who did the re-emptying. Dr. Juan Abear of
the City Health Office autopsied the bodies and in his

reports, put the cause of death of all five victims as


`asphyxia' caused by the diminution of oxygen supply
in the body working below normal conditions. The
lungs of the five victims burst, swelled in hemorrhagic
areas and this was due to their intake of toxic gas,
which, in this case, was sulfide gas produced from the
waste matter inside the septic tank." (p. 177, Records).
On August 28, 1984, the trial court rendered a decision,
the dispositive portion of which reads:
"IN VIEW OF THE FOREGOING,
this case is hereby DISMISSED
without pronouncement as to costs.
"SO ORDERED." (Records, p. 181)
From the said decision, the petitioners appealed to the
then Intermediate Appellate Court (now Court of
Appeals). On January 3, 1986, the appellate court issued
a decision, the dispositive portion of which reads:
xxx

xxx

xxx

Hence, this petition raising the following issues for


resolution:
"1. Is the respondent Davao City guilty of negligence
in the case at bar?
"2. If so, is such negligence the immediate and
proximate cause of deaths of the victims hereof?"
(p. 73, Rollo)
Negligence has been defined as the failure to observe
for the protection of the interests of another person that
degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other
person suffers injury (Corliss v. Manila Railroad
Company, L-21291, March 28, 1969, 27 SCRA 674, 680).
Under the law, a person who by his omission causes
damage to another, there being negligence, is obliged to
pay for the damage done (Article 2176, New Civil
Code). As to what would constitute a negligent act in a
given situation, the case of Picart v. Smith (37 Phil. 809,
813) provides Us the answer, to wit:
"The test by which to determine the
existence or negligence in a particular
case may be stated as follows: Did the
defendant in doing the alleged negligent
act use that reasonable care and caution
which an ordinary person would have
used in the same situation? If not, then
he is guilty of negligence. The law here
in effect adopts the standard
supposed to be supplied by the
imaginary conduct of the discreet
pater familias of the Roman law. The
existence of negligence in a given
case is not determined by reference to
the personal judgment of the actor in
the situation before him. The law
considers what would be reckless,

blameworthy, or negligent in the man


of ordinary intelligence and prudence
and determines liability by that.
"The question as to what would
constitute the conduct of a prudent man
in a given situation must of course be
always determined in the light of human
experience and in view of the facts
involved in the particular case. Abstract
speculation cannot here be of much
value but this much can be profitably
said: Reasonable men govern their
conduct by the circumstances which
are before them or known to them.
They are not, and are not supposed to
be; omniscient of the future. Hence
they can be expected to take care only
when there is something before them
to suggest or warn of danger. Could a
prudent man, in the case under
consideration, foresee harm as a
result of the course actually pursued?
If so, it was the duty of the actor to
take precautions to guard against that
harm. Reasonable foresight of harm,
followed by the ignoring of the suggestion
born of this provision, is always
necessary before negligence can be held to
exist. Stated in these terms, the proper
criterion
for
determining
the
existence of negligence in a given
case is this: Conduct is said to be
negligent when a prudent man in the
position of the tortfeasor would have
foreseen that an effect harmful to another
was sufficiently probable to warrant his
foregoing the conduct or guarding
against its consequences."(Emphasis
supplied)
To be entitled to damages for an injury resulting from
the negligence of another, a claimant must establish the
relation between the omission and the damage. He
must prove under Article 2179 of the New Civil Code
that the defendant's negligence was the immediate and
proximate cause of his injury. Proximate cause has been
defined as 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 (Vda. de Bataclan, et al. v.
Medina, 102 Phil. 181, 186). Proof of such relation of
cause and effect is not an arduous one if the claimant
did not in any way contribute to the negligence of the
defendant. However, where the resulting injury was the
product of the negligence of both parties, there exists a
difficulty to discern which acts shall be considered the
proximate cause of the accident. In Taylor v. Manila
Electric Railroad and Light Co. (16 Phil. 8, 29-30), this
Court set a guideline for a judicious assessment of the
situation:

78

"Difficulty seems to be apprehended


in deciding which acts of the injured
party shall be considered immediate
causes of the accident. The test is
simple. Distinction must be made
between the accident and the injury,
between the event itself, without which
there could have been no accident, and
those acts of the victim not entering into
it, independent of it, but contributing to
his own proper hurt. For instance, the
cause of the accident under review
was the displacement of the
crosspiece or the failure to replace it.
This produced the event giving
occasion for damages that is, the
sinking of the track and the sliding of
the iron rails. To this event, the act of
the plaintiff in walking by the side of
the car did not contribute, although it
was an element of the damage which
came to himself. Had the crosspiece
been out of place wholly or partly
through his act or omission of duty,
that would have been one of the
determining causes of the event or
accident, for which he would have
been
responsible.
Where
he
contributes
to
the
principal
occurrence, as one of its determining
factors, he can not recover. Where, in
conjunction with the occurrence, he
contributes only to his own injury, he
may recover the amount that the
defendant responsible for the event
should pay for such injury, less a sum
deemed a suitable equivalent for his
own imprudence." (emphasis Ours)
Applying all these established doctrines in the case at
bar and after a careful scrutiny of the records, We find
no compelling reason to grant the petition. We affirm.
Petitioners fault the city government of Davao for
failing to clean a septic tank for the period of 19 years
resulting in an accumulation of hydrogen sulfide gas
which killed the laborers. They contend that such
failure was compounded by the fact that there was no
warning sign of the existing danger and no efforts
exerted by the public respondent to neutralize or render
harmless the effects of the toxic gas. They submit that
the public respondent's gross negligence was the
proximate cause of the fatal incident.
We do not subscribe to this view. While it may be true
that the public respondent has been remiss in its duty
to re-empty the septic tank annually, such negligence
was not a continuing one. Upon learning from the
report of the market master about the need to clean the
septic tank of the public toilet in Agdao Public Market,
the public respondent immediately responded by
issuing invitations to bid for such service. Thereafter, it
79

awarded the bid to the lowest bidder, Mr. Feliciano


Bascon (TSN, May 24, 1983, pp. 22-25). The public
respondent, therefore, lost no time in taking up
remedial measures to meet the situation. It is likewise
an undisputed fact that despite the public respondent's
failure to re-empty the septic tank since 1956, people in
the market have been using the public toilet for their
personal necessities but have remained unscathed. The
testimonies of Messrs. Danilo Garcia and David Secoja
(plaintiffs'-petitioners' witnesses) on this point are
relevant, to wit:
xxx

xxx

xxx

The absence of any accident was due to the public


respondent's compliance with the sanitary and
plumbing specifications in constructing the toilet and
the septic tank (TSN, November 4, 1983, p. 51). Hence,
the toxic gas from the waste matter could not have
leaked out because the septic tank was air-tight (TSN,
ibid. p. 49). The only indication that the septic tank in
the case at bar was full and needed emptying was when
water came out from it (TSN, September 13, 1983, p. 41).
Yet, even when the septic tank was full, there was no
report of any casualty of gas poisoning despite the
presence of people living near it or passing on top of it
or using the public toilet for their personal necessities.
Petitioners made a lot of fuss over the lack of any
ventilation pipe in the toilet to emphasize the
negligence of the city government and presented
witnesses to attest on this lack. However, this strategy
backfired on their faces. Their witnesses were not
expert witnesses. On the other hand, Engineer
Demetrio Alindada of the city government testified and
demonstrated
by
drawings how
the
safety
requirements like emission of gases in the construction
of both toilet and septic tank have been complied with.
He stated that the ventilation pipe need not be
constructed outside the building as it could also be
embodied in the hollow blocks as is usually done in
residential buildings (TSN, November 4, 1983, pp. 5051). The petitioners submitted no competent evidence
to corroborate their oral testimonies or rebut the
testimony given by Engr. Alindada.
We also do not agree with the petitioner's submission
that warning signs of noxious gas should have been put
up in the toilet in addition to the signs of "MEN" and
"WOMEN" already in place in that area. Toilets and
septic tanks are not nuisances per se as defined in
Article 694 of the New Civil Code which would
necessitate warning signs for the protection of the
public. While the construction of these public facilities
demands utmost compliance with safety and sanitary
requirements, the putting up of warning signs is not
one of those requirements. The testimony of Engr.
Alindada on this matter is elucidative:
xxx

xxx

xxx

In view of this factual milieu, it would appear that an


accident such as toxic gas leakage from the septic tank
is unlikely to happen unless one removes its covers.
The accident in the case at bar occurred because the
victims on their own and without authority from the
public respondent opened the septic tank. Considering
the nature of the task of emptying a septic tank
especially one which has not been cleaned for years, an
ordinarily prudent person should undoubtedly be
aware of the attendant risks. The victims are no
exception; more so with Mr. Bertulano, an old hand in
this kind of service, who is presumed to know the
hazards of the job. His failure, therefore, and that of his
men to take precautionary measures for their safety
was the proximate cause of the accident. In Culion Ice,
Fish and Elect. Co., v. Phil. Motors Corporation (55 Phil.
129, 133), We held that when a person holds himself out
as being competent to do things requiring professional
skill, he will be held liable for negligence if he fails to
exhibit the care and skill of one ordinarily skilled in the
particular work which he attempts to do (emphasis
Ours). The fatal accident in this case would not have
happened but for the victims' negligence. Thus, the
appellate court was correct to observe that:
". . . Could the victims have died if
they did not open the septic tank
which they were not in the first place
authorized to open? Who between
the passive object (septic tank) and
the active subject (the victims herein)
who, having no authority therefore,
arrogated unto themselves, the task
of opening the septic tank which
caused their own deaths should be
responsible for such deaths. How
could the septic tank which has been
in existence since the 1950's be the
proximate cause of an accident that
occurred only on November 22, 1975?
The stubborn fact remains that since
1956 up to occurrence of the accident
in 1975 no injury nor death was
caused by the septic tank. The only
reasonable conclusion that could be
drawn from the above is that the
victims' death was caused by their
own negligence in opening the septic
tank . . ." (Rollo, p. 23)
Petitioners further contend that the failure of the
market master to supervise the area where the septic
tank is located is a reflection of the negligence of the
public respondent.
We do not think so. The market master knew that work
on the septic tank was still forthcoming. It must be
remembered that the bidding had just been conducted.
Although the winning bidder was already known, the
award to him was still to be made by the Committee on
Awards. Upon the other hand, the accident which befell
the victims who are not in any way connected with the

winning bidder happened before the award could be


given. Considering that there was yet no award and
order to commence work on the septic tank, the duty of
the market master or his security guards to supervise
the work could not have started (TSN, September 13,
1983, p. 40). Also, the victims could not have been seen
working in the area because the septic tank was hidden
by a garbage storage which is more or less ten (10)
meters away from the comfort room itself (TSN, ibid,
pp. 38-39). The surreptitious way in which the victims
did their job without clearance from the market master
or any of the security guards goes against their good
faith. Even their relatives or family members did not
know of their plan to clean the septic tank.
Finally, petitioners insistence on the applicability of
Article 24 of the New Civil Code cannot be sustained.
Said law states:
"ARTICLE 24.
In all contractual,
property or other relations, when one
of the parties is at a disadvantage on
account of his moral dependence,
ignorance,
indigence,
mental
weakness, tender age or other
handicap, the courts must be vigilant
for his protection."
We approve of the appellate court's ruling that "(w)hile
one of the victims was invited to bid for said project, he
did not win the bid, therefore, there is a total absence of
contractual relations between the victims and the City
Government of Davao City that could give rise to any
contractual obligation, much less, any liability on the
part of Davao City." (Rollo, p. 24. The accident was
indeed tragic and We empathize with the petitioners.
However, the herein circumstances lead Us to no other
conclusion than that the proximate and immediate
cause of the death of the victims was due to their own
negligence. Consequently, the petitioners cannot
demand damages from the public respondent.
ACCORDINGLY, the amended decision of the Court of
Appeals dated January 11, 1990 is AFFIRMED. No
costs.
SO ORDERED.
Narvasa, C .J ., Cruz, Grio-Aquino and Bellosillo, JJ .,
concur.
RIDJO TAPE & CHEMICAL CORP., ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. 126074, 24 February 1998, 286 SCRA 544
ROMERO, J p:
Before us is a petition to review the decision 1 of the
Court of Appeals which reversed that of the Regional
Trial Court of Quezon City, Branch 104 in Civil Case
Nos. Q-92-13845 and Q-92-13879 ordering petitioners to
pay private respondent Manila Electric Co.
80

(MERALCO) the amount of P415,317.66 and P89,710.58


plus the costs of suit. This petition involves the two
cases filed by petitioners which were eventually
consolidated.

plaintiff(s)
defendants:

Civil Case No. 13879:


On July 30, 1992, petitioners received another demand
letter from MERALCO, this time requiring them to pay
the amount of P89,710.58 representing the unregistered
electric consumption for the period July 15, 1991 to
April 13, 1992, the deficiency again due to the defective
meter installed in petitioners' compound.
MERALCO's demand having remained unheeded,
petitioners were advised that their electric service
would be disconnected without further notice. Hence,
on November 5, 1992, petitioners filed a case before
Branch 104 of the Quezon City RTC, seeking to enjoin
MERALCO from implementing the suspension of
electric service.
Thereafter, on November 9, 1992, petitioners filed a
motion for the consolidation of the two cases, which
was granted, resulting in the joint trial of said cases
before Branch 104 of the Quezon City RTC.
On November 27, 1992, the trial court issued the
corresponding preliminary injunction.

the

Making
the
Injunction
permanent,
enjoining
the
defendants in both cases, and all
their
subordinates,
legal
representatives, electric meter
readers and technicians from
committing
acts
of
dispossession/disruption
of
electric power on the subject
premises
located
at
the
compound of Ridjo Tape and
Chemical Corporation and Ridjo
Paper Corporation located at 64
and 68 Judge Juan Luna St., San
Francisco del Monte, Quezon
City.

2.

Ordering defendants to pay the


cost of suit.

On November 16, 1990, petitioners applied for and was


granted electric service by MERALCO. Ten months
later, however, or on September 4, 1991, petitioners
received a letter from MERALCO demanding payment
of P415,317.66, allegedly representing unregistered
electric consumption for the period November 7, 1990,
to February 13, 1991. MERALCO justified its demand
on the ground that the unregistered electric
consumption was due to the defects of the electric
meter located in the premises of petitioners.

On November 19, 1992, the trial court granted the


prayer for preliminary injunction.

against

1.

Civil Case No. Q-92-13845:

Since petitioners refused to pay the amount,


MERALCO notified them that in the event the overdue
account remained unpaid, it would be forced to
disconnect their electricity. Alarmed by this
development, petitioners, instead of settling the
amount, filed on October 29, 1992 a case before Branch
98 of the Quezon City RTC for the issuance of a writ of
preliminary injunction and/or temporary restraining
order to forestall any planned disconnection by
MERALCO.

and

Defendants' counterclaim on (the)


two cases are (sic) denied for lack of
merit."
MERALCO appealed to the Court of Appeals which, on
January 22, 1996, reversed the trial court's finding, to
wit:
"WHEREFORE,
the
appealed
judgment
is
REVERSED;
and
appellees Ridjo Tape and Chemical
Corporation
and
Ridjo
Paper
Corporation are hereby ordered to
pay subject differential billings of
P415,317.66
and
P89,710.58,
respectively. Costs against the
appellees."
Aggrieved,
petitioners
filed
a
motion
for
reconsideration, which was denied by the Court of
Appeals in a resolution dated August 14, 1996. Hence,
this petition.
From the pleadings filed by the parties, it can be
deduced that the only issue to be resolved is whether
petitioners, despite the absence of evidence of
tampering, are liable to pay for the unregistered
electrical service.
For a better understanding of the two cases, the terms
and conditions of the Service Agreement regarding
payments are reproduced:
"PAYMENTS

After due trial, the lower court rendered a decision, the


dispositive portion of which reads:
"WHEREFORE, judgment is hereby
rendered in this case in favor of the
81

Bills will be rendered by the


Company to the Customer monthly
in accordance with the applicable rate
schedule. Said Bills are payable to

collectors or at the main or branch


offices of the Company or at its
authorized banks within ten (10) days
after the regular reading date of the
electric meters. The word 'month' as
used herein and in the rate schedule
is hereby defined to be the elapsed
time between two succeeding meter
readings approximately thirty (30)
days apart. In the event of the stoppage
or the failure by any meter to register the
full amount of energy consumed, the
Customer shall be billed for such period
on an estimated consumption based upon
his use of energy in a similar period of
like use." (Emphasis supplied)
In disclaiming any liability, petitioners assert that the
phrase "stoppage or failure by any meter to register the
full amount of energy consumed" can only refer to
tampering on the part of the customer and not
mechanical failure or defects. MERALCO, on the other
hand, argues that to follow the interpretation advanced
by petitioners would constitute an unjust enrichment in
favor of its customers.
Evidently, the Service Contract between petitioners and
MERALCO partakes of the nature of a contract of
adhesion as it was prepared solely by the latter, the
only participation of the former being that they affixed
or "adhered" their signature thereto, thus, leaving no
room for negotiation and depriving petitioners of the
opportunity to bargain on equal footing. Nevertheless,
these types of contracts have been declared to be
binding as ordinary contracts because the party
adhering thereto is free to reject it in its entirety.
Being an ordinary contract, therefore, the principle that
contracting parties can make stipulations in their
contract provided they are not contrary to law, morals,
good customs, public order or public policy, stands
strong and true. To be sure, contracts are respected as
laws between the contracting parties, and they may
establish such stipulations, clauses, terms and
conditions as they may want to include. Since both
parties offered conflicting interpretations of the
stipulation, however, then judicial determination of the
parties' intention is mandated. In this regard, it must be
stressed that in construing a written contract, the reason
behind and the circumstances surrounding its
execution are of paramount importance to place the
interpreter in the situation occupied by the parties
concerned at the time the writing was executed.
With these pronouncement as parameters, and
considering the circumstances of the parties, we are
constrained to uphold MERALCO's interpretation.
At this juncture, we hasten to point out that the
production and distribution of electricity is a highly
technical business undertaking, and in conducting its
operation, it is only logical for public utilities, such as

MERALCO, to employ mechanical devices


equipment for the orderly pursuit of its business.

and

It is to be expected that the parties were consciously


aware that these devices or equipment are susceptible
to defects and mechanical failure. Hence, we are not
prepared to believe that petitioners were ignorant of the
fact that stoppages in electric meters can also result
from inherent defects or flaws and not only from
tampering or intentional mishandling.
Clearly, therefore, the rationale of the provision in the
Service Agreement was primarily to cover situations
similar to the instant case, for there are instances when
electric meters do fail to record the quantity of the
current used for whatever reason. It is precisely this
kind of predicament that MERALCO seeks to protect
itself from so as to avert business losses or reverses. It
must be borne in mind that construction of the terms of
a contract which would amount to impairment or loss
of right is not favored; conservation and preservation,
not waiver, abandonment or forfeiture of a right, is the
rule. Since MERALCO supplied electricity to petitioners
for a fee, no intent to donate the same can be gleaned
from the terms of the Agreement. Hence, the stipulation
must be upheld.
Corollarily, it must be underscored that MERALCO has
the imperative duty to make a reasonable and proper
inspection of its apparatus and equipment to ensure
that they do not malfunction, and the due diligence to
discover and repair defects therein. Failure to perform
such duties constitutes negligence.
A review of the records, however, discloses that the
unpaid charges covered the periods from November 7,
1990 to February 13, 1991 for Civil Case No. Q-92-13045
and from July 15, 1991 to April 13, 1992 for Civil Case
No. 13879, approximately three months and nine
months, respectively. On such basis, we take judicial
notice that during those periods, personnel
representing MERALCO inspected and examined the
electric meters of petitioners regularly for the purpose
of determining the monthly dues payable. So, why
were these defects not detected and reported on time?
It has been held that notice of a defect need not be
direct and express; it is enough that the same had
existed for such a length of time that it is reasonable to
presume that it had been detected, and the presence of
a conspicuous defect which has existed for a
considerable length of time will create a presumption of
constructive notice thereof. Hence, MERALCO's failure
to discover the defect, if any, considering the length of
time, amounts to inexcusable negligence. Furthermore,
we need not belabor the point that as a public utility,
MERALCO has the obligation to discharge its functions
with utmost care and diligence.
Accordingly, we are left with no recourse but to
conclude that this is a case of negligence on the part of
MERALCO for which it must bear the consequences. Its
82

failure to make the necessary repairs and replacement


of the defective electric meter installed within the
premises of petitioners was obviously the proximate
cause of the instant dispute between the parties.

average electric consumption three months prior to the


period in controversy. 21 No costs. cdphil
SO ORDERED.
Narvasa, C .J . and Kapunan, JJ ., concur.

Indeed, if an unusual electric consumption was not


reflected in the statements of account of petitioners,
MERALCO, considering its technical knowledge and
vast experience in providing electric service, could have
easily verified any possible error in the meter reading.
In the absence of such a mistake, the electric meters
themselves should be inspected for possible defects or
breakdowns and forthwith repaired and, if necessary,
replaced. Furthermore, if MERALCO discovered that
contraptions or illegal devices were installed which
would alter the result of the meter reading, then it
should have filed the appropriate criminal complaint
against petitioners under Presidential Decree No. 401.
The rationale behind this ruling is that public utilities
should be put on notice, as a deterrent, that if they
completely disregard their duty of keeping their electric
meters in serviceable condition, they run the risk of
forfeiting, by reason of their negligence, amounts
originally due from their customers. Certainly, we
cannot sanction a situation wherein the defects in the
electric meter are allowed to continue indefinitely until
suddenly the public utilities concerned demand
payment for the unrecorded electricity utilized when, in
the first place, they should have remedied the situation
immediately. If we turn a blind eye on MERALCO's
omission, it may encourage negligence on the part of
public utilities, to the detriment of the consuming
public.
In view of the foregoing discussion, the liability of
petitioners for consumed but unrecorded electricity
must be limited by reason of MERALCO's negligence.
Hence, an equitable solution would be for petitioners to
pay only the estimated consumption on a three-month
average before the period in controversy. To hold
otherwise would unjustly enrich petitioners who would
be allowed to utilize additional electricity, albeit
unrecorded, at no extra cost.
To summarize, it is worth emphasizing that it is not our
intention to impede or diminish the business viability
of MERALCO, or any public utility company for that
matter. On the contrary, we would like to stress that,
being a public utility vested with vital public interest,
MERALCO is impressed with certain obligations
towards its customers and any omission on its part to
perform such duties would be prejudicial to its interest.
For in the final analysis, the bottom line is that those
who do not exercise such prudence in the discharge of
their duties shall be made to bear the consequences of
such oversight.
WHEREFORE, in view of the foregoing, the decision of
the Court of Appeals in CA-G.R. CV No. 44010 is
hereby MODIFIED. Petitioners are ordered to pay
MERALCO the amount P168,342.75, representing its

83

Purisima, J ., took no part; being ponente below.


BENGUET ELECTRIC COOPERATIVE, INC.
vs. COURT OF APPEALS, ET AL.
G.R. No. 127326, 23 December 1999, , 378 SCRA 1137
BELLOSILLO, J p:
This case involves a review on certiorari of the Decision
of the Court of Appeals affirming with modification the
decision of the Regional Trial Court of Baguio City, and
ordering petitioner Benguet Electric Cooperative Inc.
(BENECO) to pay Caridad O. Bernardo, as guardian ad
litem of the three (3) minor children of the late Jose
Bernardo P50,000.00 as indemnity for his death xxx
xxx

xxx

xxx

For five (5) years up to the time of his death, Jose


Bernardo managed a stall at the Baguio City meat
market. On 14 January 1985 at around 7:50 in the
morning, Jose together with other meat vendors went
out of their stalls to meet a jeepney loaded with
slaughtered pigs in order to select the meat they would
sell for the day. Jose was the very first to reach the
parked jeepney. Grasping the handlebars at the rear
entrance of the vehicle, and as he was about to raise his
right foot to get inside, Jose suddenly stiffened and
trembled as though suffering from an epileptic seizure.
Romeo Pimienta who saw Jose thought he was merely
joking but noticed almost in disbelief that he was
already turning black. In no time the other vendors
rushed to Jose and they discovered that the antenna of
the jeepney bearing the pigs had gotten entangled with
an open electric wire at the top of the roof of a meat
stall. Pimienta quickly got hold of a broom and pried
the antenna loose from the open wire. But shortly after,
Jose released his hold on the handlebars of the jeep only
to slump to the ground. He died shortly in the hospital.
Cause of his death was "cardio-respiratory arrest
secondary to massive brain congestion with petecchial
hemorrhage, brain bilateral pulmonary edema and
congestion and endocardial petecchial hemorrhage and
dilation (history of electrocution)."
On 6 February 1985 Caridad O. Bernardo, widow of
Jose Bernardo, and their minor children, Jojo, Jeffrey
and Jo-an, all surnamed Bernardo, filed a complaint
against BENECO before the Regional Trial Court of
Baguio City for a sum of money and damages arising
from the electrocution of Jose Bernardo. In the same
civil action, BENECO filed a third-party complaint
against Guillermo Canave, Jr., the jeepney owner.
In its decision dated 15 August 1994, the trial court
ruled in favor of the Bernardos and ordered BENECO

to pay them damages. Both petitioner and private


respondents herein appealed to the Court of Appeals.
On 5 November 1996 the appellate court promulgated
its Decision which BENECO now assails contending
inter alia that the appellate court gravely erred in
ordering BENECO to pay damages in light of the clear
evidence that it was third-party defendant Canave's
fault or negligence which was the proximate and sole
cause, or at least the principal cause, of the
electrocution and death of Jose Bernardo.
First, BENECO questions the award of damages by
respondent court notwithstanding a clear showing that
the electrocution and death of Jose Bernardo were
directly attributable to the fault and negligence of
jeepney owner Guillermo Canave, Jr.
The records of the case show that respondent court did
not commit any reversible error in affirming the
findings of the trial court that BENECO was solely
responsible for the untimely death of Jose Bernardo
through accidental electrocution. According to the trial
court, which we find substantiated by the records
Through
Virgilio
Cerezo,
a
registered master electrician and
presently
the
Chief
Electrical
Building Inspector of the General
Services Division of the City of
Baguio,
who
was
tasked
to
investigate the electrocution of
Bernardo, the plaintiffs adduced
proof tending to show that the
defendant BENECO installed a No. 2
high voltage main wire distribution
line and a No. 6 service line to
provide power at the temporary meat
market on Hilltop Road. It put up a
three-inch G.I. pipe pole to which the
No. 2 main line was strung on top of
a stall where a service drop line was
connected. The height of the electrical
connection from the No. 2 line to the
service line was barely eight (8) to
nine (9) feet (Exhibit "E"; See Exhibit
"D-1") which is in violation of the
Philippine Electrical Code which
requires
a
minimum
vertical
clearance of fourteen (14) feet from
the level of the ground since the
wiring crosses a public street.
Another violation according to
Cerezo, is that the main line
connected to the service line was not
of rigid conduit wiring but totally
exposed
without
any
safety
protection (Ibid). Worse, the open
wire connections were not insulated
(Ibid); See Exhibits "D-6", "D-6-A",
"D-7"). The jeep's antenna which was
more than eight (8) feet high (Exhibit
"D-9") from the ground (It is about six

to seven feet long and mounted on


the left fender which is about three
feet above the ground) got entangled
with the open wire connections
(Exhibit "D-8"), thereby electrically
charging its handlebars which
Bernardo held on to enter the vehicle
resulting in his electrocution.
While Vedasto Augusto, an electrical
engineer and the line superintendent
in the electrical department of the
defendant BENECO, admitted that
the allowable vertical clearance of the
service drop line is even 15 feet from
the ground level and not only 14 feet,
he and Jose Angeles, then an
instrument man or surveyor of the
BENECO, insisted that BENECO
installed (they do not know by whom
in particular) from the Apollo
Building nearby a service drop line
carrying 220 volts which was
attached to a G.I. pipe pole (Exhibits
"1" and "1-A"). The vertical clearance
of the point of attachment of the
service drop line on the G.I. post to
the ground is 15.5 feet (Exhibit "1-B"),
which is more than the allowable 15foot clearance. To this service drop
line was connected the service
entrance conductor (Exhibit "1-D") to
supply power inside the premises to
be serviced through an electric meter.
At the lower portion of the splicing or
connecting point between the service
drop line and the service entrance
conductor is a three to four-inch bare
wire to serve as a ground. They saw
the bare wire because the splicing
point was exposed as it was not
covered with tape (Exhibit "1-E"). The
antenna
of
the
jeep
which
electrocuted Bernardo got entangled
with this exposed splicing point.
Augusto claimed that it was not
BENECO's job to splice or connect the
service entrance conductor to the
service drop line but rather the owner
of the premises to be serviced whose
identity they did not, however,
determine.
Significantly, on cross-examination,
Augusto admitted that the service
drop line that BENECO installed did
not end at the point to which it is
attached to the G.I. post. Rather, it
passed through a spool insulator that
is attached to the post (Exhibit "1-F")
and extended down to where the
84

service entrance conductor is spliced


with the result that the exposed
splicing point (Exhibit "1-E") is only
about eight (8) feet from the ground
level.
There is no question that as an electric cooperative
holding the exclusive franchise in supplying electric
power to the towns of Benguet province, its primordial
concern is not only to distribute electricity to its
subscribers but also to ensure the safety of the public by
the proper maintenance and upkeep of its facilities. It is
clear to us then that BENECO was grossly negligent in
leaving unprotected and uninsulated the splicing point
between the service drop line and the service entrance
conductor, which connection was only eight (8) feet
from the ground level, in violation of the Philippine
Electrical Code. BENECO's contention that the accident
happened only on January 14, 1985, around seven (7)
years after the open wire was found existing in 1978, far
from mitigating its culpability, betrays its gross neglect
in performing its duty to the public. 4 By leaving an
open live wire unattended for years, BENECO
demonstrated its utter disregard for the safety of the
public. Indeed, Jose Bernardo's death was an accident
that was bound to happen in view of the gross
negligence of BENECO.
BENECO theorizes in its defense that the death of Jose
Bernardo could be attributed to the negligence of
Canave, Jr., in parking his jeepney so close to the
market stall which was neither a parking area nor a
loading area, with his antenna so high as to get
entangled with an open wire above the Dimasupil
store. But this line of defense must be discarded.
Canave's act of parking in an area not customarily used
for that purpose was by no means the independent
negligent act adverted to by BENECO in citing Manila
Electric Co. v. Ronquillo. Canave was well within his
right to park the vehicle in the said area where there
was no showing that any municipal law or ordinance
was violated nor that there was any foreseeable danger
posed by his act. One thing however is sure, no
accident would have happened had BENECO installed
the connections in accordance with the prescribed
vertical clearance of fifteen (15) feet.
xxx

xxx

xxx

WHEREFORE, the assailed Decision of the Court of


Appeals dated 5 November 1996 ordering petitioner
Benguet Electric Cooperative, Inc., to pay private
respondent Caridad O. Bernardo as guardian ad litem
for the minors Jojo, Jeffrey and Jo-an, all surnamed
Bernardo, P20,000.00 as exemplary damages, another
P20,000.00 for attorney's fees, and P50,000.00 as
indemnity for the death of Jose Bernardo, is AFFIRMED
with the MODIFICATION that the P864,000.00 as net
income loss is reduced to P675,000.00 and the
P100,000.00 as moral damages is also reduced to
P50,000.00.

85

Costs against petitioner.


SO ORDERED.
Mendoza, Quisumbing, Buena and De Leon, Jr., JJ.,
concur.
AUSTRIA, vs. COURT OF APPEALS, ET AL.
G.R. No. 133323, 9 March 2000, , 327 SCRA 688
QUISUMBING, J p:
Before us is a petition for review on certiorari, seeking to
set aside (1) the decision dated August 13, 1997, of the
respondent Court of Appeals in CA G.R. CR No. 16889,
affirming with modification the March 21, 1994,
judgment of the Regional Trial Court, Branch 43, of San
Fernando, Pampanga, in Criminal Case No. 5784, which
convicted the petitioner of reckless imprudence
resulting in serious physical injuries, and (2) the
resolution of said respondent court dated March 25,
1998 denying petitioner's motion for reconsideration.
The original Information dated August 27, 1990,
charging petitioner Alberto Austria and his co-accused
was amended as to correctly state the name of coaccused Rolando M. Flores, which was Rolando Torres
in the original Information. Consequently, the
Amended Information reads:
"AMENDED INFORMATION
The
undersigned
Provincial
Prosecutor and Assistant Provincial
Prosecutor
accuse
ALBERTO
AUSTRIA
y
PENAFLOR
and
ROLANDO M. FLORES of the crime
of Reckless Imprudence resulting in
Homicide and Multiple Physical
Injuries, committed as follows:
That on or about the 9th day of July
1989,
in
barangay
Cabetican,
municipality of Bacolor, province of
Pampanga, Philippines and within
the jurisdiction of this Honorable
Court, the above-named accused,
Alberto Austria y Peaflor, being
then the driver and person-in-charge
of a Ford Fiera Crew Cab bearing
Plate No. DEB 558 UV Pil. '88 and
registered under the name of
Geronimo Noceda, without due
regard to traffic laws, rules and
regulations, without taking the
necessary precaution to avoid
accident to persons and by giving
said vehicle a speed far greater than
is allowed by law, did then and there
wilfully, unlawfully and feloniously
drive, manage and operate said
vehicle in a careless, reckless and

imprudent manner, causing as a


result of his carelessness, recklessness
and imprudence to bump and hit a
cargo trailer truck bearing Plate No.
CES 518 which was improperly and
carelessly parked along the right
shoulder of the road by accused
Rolando M. Flores, driver of said
cargo trailer truck, thereby causing
fatal injuries upon Virginia Lapid
Vda. de Diwa, occupant of said Ford
Fiera Crew Cab, which directly
caused her death shortly thereafter,
and inflicted physical injuries upon
the following occupants of said Ford
Fiera Crew Cab, to wit:
Armin Q. Manalansan which
required and did require medical
attendance for a period of more than
thirty (30) days and incapacitated and
did incapacitate said victim from
performing her customary labor for
the same period of time;
Mylene S. Gigante which required
and did require medical attendance
for a period of five (5) to seven (7)
days and incapacitated and did
incapacitate from performing her
customary labor for the same period
of time;
Luzviminda S. Diwa which
required and did require medical
attendance for less than two (2)
weeks and incapacitated and did
incapacitate her from performing her
customary labor for the same period
of time;
Mark S. Diwa which required and
did require medical attendance for an
unknown duration and incapacitated
and did incapacitate him from
performing his customary labor for
the same period of time. cdrep

One of the vehicle's tire suddenly hit


a stone lying in the road, while thus
cruising, which caused the appellant
to lose control and collide with the
rear of an improperly parked cargo
truck trailer driven by accused
Rolando M. Flores. As a result of the
collision, five (5) passengers suffered
varying degrees of injuries."
While trial ensued, accused truck driver Rolando M.
Flores remained at-large.
On March 21, 1994, the trial court promulgated its
decision, disposing as follows:
"WHEREFORE, the Court finds the
accused guilty beyond reasonable
doubt hereby sentences him to suffer
an
indeterminate
penalty
of
imprisonment of two (2) months and
one (1) day of arresto mayor, as
minimum, to two (2) years, ten (10)
months and twenty (20) days of
Prision Correccional, as maximum.
The accused is likewise ordered to:
1)
2)

3)

Pay the heirs of Virginia Lapid


Vda. de Diwa the amount of
P50,000.00 as indemnity;
P6,320.00 as and for actual
expenses
incurred
by
Luzviminda Diwa, representing
medical and funeral expenses;
and
Cost of suit.

SO ORDERED."
Subsequently, on June 10, 1994, the court modified its
decision after the accused filed his motion for
reconsideration dated April 4, 1994. The modified
judgment reads:
"WHEREFORE,
the
Decision
promulgated on March 21, 1994 is
hereby modified as follows:

All contrary to law."


The facts of the case as summarized by the respondent
court are as follows:
"On July 9, 1989 at around 7:00 P.M.
along the Olongapo-Gapan Road in
the vicinity of barangay Cabetican,
Bacolor, Pampanga, the appellant
was driving his Ford Fiera with ten
(10) passengers. They came from the
Manila International Airport bound
to Dinalupihan, Bataan.

The Court, finding accused Alberto


Austria guilty beyond reasonable
doubt of the crime of Reckless
Imprudence Resulting in Serious
Physical Injuries (Art. 365 in relation
to Art. 263 [3], Revised Penal Code),
hereby sentences the said accused to
suffer a[n] indeterminate penalty of
imprisonment of one (1) month and
one (1) day to four (4) months of
arresto mayor.

86

The said accused is likewise ordered


to indemnify Luzviminda Diwa the
amount of P1,345.75; Mark Diwa the
amount of P4,716.31; and Mylene
Gigante the amount of P6,199.62 as
and for actual damages incurred.
No pronouncement as to the civil
liability of the accused to private
complainant Armin Manalansan
considering that the latter filed a
separate civil action against accused
Alberto Austria before the Regional
Trial Court of Bataan (TSN., p. 7,
February 18, 1992).
SO ORDERED."
Defendant Austria timely appealed his conviction
before the Court of Appeals, which affirmed with
modifications the lower court's decision. The appellate
court's decision disposed as follows:
"WHEREFORE,
foregoing
considered, the appealed decision is
AFFIRMED with modification that: 1)
a straight penalty of one (1) month
and one (1) day of arresto mayor for
the imprisonment of the accused is
imposed; and 2) the award in favor of
Mylene Gigante of P6,199.62 is
deleted.
SO ORDERED."
xxx

xxx

xxx

Petitioner faults respondent court for its failure to


appreciate and give credence to his testimony that
when the accident occurred, the petitioner was driving
along the Olongapo-Gapan road on the lane properly
belonging to him and driving at a moderate speed.
Petitioner cites the case of Phoenix Construction, Inc. v.
Intermediate Appellate Court, 148 SCRA 353 (1987), which
he alleges, contains a set of almost identical facts.
Further, he claims that the other driver's negligence in
parking his vehicle caused the collision. He asserts that
the truck driver, Rolando Flores, negligently parked his
trailer truck with the rear end protruding onto road,
without any warning device. This being so, he should
not be held responsible for Flores' negligence.
Worth noting, the first and second assigned errors are
factual in nature. As a general rule, findings of fact of
the Court of Appeals are binding and conclusive upon
this Court, and we will not normally disturb such
factual findings unless the findings of the court are
palpably unsupported by the evidence on record or
unless the judgment itself is based on misapprehension
of facts. We find no palpable factual error that would
warrant a reversal of the appellate courts' factual

87

determination in this wise:


"In his direct examination, the
appellant admitted that he saw the
trailer at a distance of about six (6)
meters but at the same time stated
that the distance of the focus of the
vehicle's headlight in dim position
was twenty (20) meters. These
inconsistent
statements,
taken
together with his claim on crossexamination that he saw the trailer
only when he bumped it, only show
that he was driving much faster than
thirty (30) kilometers per hour.
Assuming that he was driving his
vehicle at that speed of thirty (30)
kilometers per hour, appellant would
have not lost control of the vehicle
after it hit the stone before the
collision. Under these circumstances,
the appellant did not exercise the
necessary precaution required of him.
He was negligent."
While we note similarities of the factual milieu of
Phoenix to that of the present case, we are unable to
agree with petitioner that the truck driver should be
held solely liable while the petitioner should be
exempted from liability. In Phoenix, we ruled that the
driver of the improperly parked vehicle was liable and
the driver of the colliding car contributorily liable. We
agree with the respondent court in its observation on
the petitioner's culpability: "That he had no opportunity
to avoid the collision is of his own making and [this]
should not relieve him of liability." Patently, the
negligence of the petitioner as driver of the Ford Fiera is
the immediate and proximate cause of the collision.
xxx

xxx

xxx

WHEREFORE, the instant petition is DENIED, and the


assailed decision of the Court of Appeals is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.
THE CONSOLIDATED BANK and TRUST
CORPORATION vs. COURT OF APPEALS, ET AL.
G.R. No. 138569, 11 September 2003, 410 SCRA 562
CARPIO, J p:
The Case
Before us is a petition for review of the Decision of the
Court of Appeals dated 27 October 1998 and its
Resolution dated 11 May 1999. The assailed decision
reversed the Decision of the Regional Trial Court of
Manila, Branch 8, absolving petitioner Consolidated.
Bank and Trust Corporation, now known as Solidbank

Corporation ("Solidbank"), of any liability. The


questioned resolution of the appellate court denied the
motion for reconsideration of Solidbank but modified
the decision by deleting the award of exemplary
damages, attorney's fees, expenses of litigation and cost
of suit.
The Facts
Solidbank is a domestic banking corporation organized
and existing under Philippine laws. Private respondent
L.C. Diaz and Company, CPA's ("L.C. Diaz"), is a
professional partnership engaged in the practice of
accounting.
Sometime in March 1976, L.C. Diaz opened a savings
account with Solidbank, designated as Savings Account
No. S/A 200-16872-6.
On 14 August 1991, L.C. Diaz through its cashier,
Mercedes Macaraya ("Macaraya"), filled up a savings
(cash) deposit slip for P990 and a savings (checks)
deposit slip for P50. Macaraya instructed the messenger
of L.C. Diaz, Ismael Calapre ("Calapre"), to deposit the
money with Solidbank. Macaraya also gave Calapre the
Solidbank passbook.
Calapre went to Solidbank and presented to Teller No.
6 the two deposit slips and the passbook. The teller
acknowledged receipt of the deposit by returning to
Calapre the duplicate copies of the two deposit slips.
Teller No. 6 stamped the deposit slips with the words
"DUPLICATE" and "SAVING TELLER 6 SOLIDBANK
HEAD OFFICE." Since the transaction took time and
Calapre had to make another deposit for L.C. Diaz with
Allied Bank, he left the passbook with Solidbank.
Calapre then went to Allied Bank. When Calapre
returned to Solidbank to retrieve the passbook, Teller
No. 6 informed him that "somebody got the passbook. 3
Calapre went back to L.C. Diaz and reported the
incident to Macaraya.
Macaraya immediately prepared a deposit slip in
duplicate copies with a check of P200,000. Macaraya,
together with Calapre, went to Solidbank and
presented to Teller No. 6 the deposit slip and check.
The teller stamped the words "DUPLICATE" and
"SAVING TELLER 6 SOLIDBANK HEAD OFFICE" on
the duplicate copy of the deposit slip. When Macaraya
asked for the passbook, Teller No. 6 told Macaraya that
someone got the passbook but she could not remember
to whom she gave the passbook. When Macaraya asked
Teller No. 6 if Calapre got the passbook, Teller No. 6
answered that someone shorter than Calapre got the
passbook. Calapre was then standing beside Macaraya.
Teller No. 6 handed to Macaraya a deposit slip dated 14
August 1991 for the deposit of a check for P90,000
drawn on Philippine Banking Corporation ("PBC"). This
PBC check of L.C. Diaz was a check that it had "long
closed." PBC subsequently dishonored the check
because of insufficient funds and because the signature

in the check differed from PBC's specimen signature.


Failing to get back the passbook, Macaraya went back
to her office and reported the matter to the Personnel
Manager of L.C. Diaz, Emmanuel Alvarez.
The following day, 15 August 1991, L.C. Diaz through
its Chief Executive Officer, Luis C. Diaz ("Diaz"), called
up Solidbank to stop any transaction using the same
passbook until L.C. Diaz could open a new account. 5
On the same day, Diaz formally wrote Solidbank to
make the same request. It was also on the same day that
L.C. Diaz learned of the unauthorized withdrawal the
day before, 14 August 1991, of P300,000 from its savings
account. The withdrawal slip for the P300,000 bore the
signatures of the authorized signatories of L.C. Diaz,
namely Diaz and Rustico L. Murillo. The signatories,
however, denied signing the withdrawal slip. A certain
Noel Tamayo received the P300,000.
In an Information 6 dated 5 September 1991, L.C. Diaz
charged its messenger, Emerano Ilagan ("Ilagan") and
one Roscon Verdazola with Estafa through Falsification
of Commercial Document. The Regional Trial Court of
Manila dismissed the criminal case after the City
Prosecutor filed a Motion to Dismiss on 4 August 1992.
On 24 August 1992, L.C. Diaz through its counsel
demanded from Solidbank the return of its money.
Solidbank refused.
On 25 August 1992, L.C. Diaz filed a Complaint for
Recovery of a Sum of Money against Solidbank with
the Regional Trial Court of Manila, Branch 8. After trial,
the trial court rendered on 28 December 1994 a decision
absolving Solidbank and dismissing the complaint.
L.C. Diaz then appealed to the Court of Appeals. On 27
October 1998, the Court of Appeals issued its Decision
reversing the decision of the trial court.
On 11 May 1999, the Court of Appeals issued its
Resolution denying the motion for reconsideration of
Solidbank. The appellate court, however, modified its
decision by deleting the award of exemplary damages
and attorney's fees.
The Ruling of the Trial Court
In absolving Solidbank, the trial court applied the rules
on savings account written on the passbook. The rules
state that "possession of this book shall raise the
presumption of ownership and any payment or
payments made by the bank upon the production of the
said book and entry therein of the withdrawal shall
have the same effect as if made to the depositor
personally."
At the time of the withdrawal, a certain Noel Tamayo
was not only in possession of the passbook, he also
presented a withdrawal slip with the signatures of the
authorized signatories of L.C. Diaz. The specimen
signatures of these persons were in the signature cards.
88

The teller stamped the withdrawal slip with the words


"Saving Teller No. 5." The teller then passed on the
withdrawal slip to Genere Manuel ("Manuel") for
authentication. Manuel verified the signatures on the
withdrawal slip. The withdrawal slip was then given to
another officer who compared the signatures on the
withdrawal slip with the specimen on the signature
cards. The trial court concluded that Solidbank acted
with care and observed the rules on savings account
when it allowed the withdrawal of P300,000 from the
savings account of L.C. Diaz.
The trial court pointed out that the burden of proof
now shifted to L.C. Diaz to prove that the signatures on
the withdrawal slip were forged. The trial court
admonished L.C. Diaz for not offering in evidence the
National Bureau of Investigation ("NBI") report on the
authenticity of the signatures on the withdrawal slip for
P300,000. The trial court believed that L.C. Diaz did not
offer this evidence because it is derogatory to its action.
Another provision of the rules on savings account states
that the depositor must keep the passbook "under lock
and key." When another person presents the passbook
for withdrawal prior to Solidbank's receipt of the notice
of loss of the passbook, that person is considered as the
owner of the passbook. The trial court ruled that the
passbook presented during the questioned transaction
was "now out of the lock and key and presumptively
ready for a business transaction."
Solidbank did not have any participation in the custody
and care of the passbook. The trial court believed that
Solidbank's act of allowing the withdrawal of P300,000
was not the direct and proximate cause of the loss. The
trial court held that L.C. Diaz's negligence caused the
unauthorized withdrawal. Three facts establish L.C.
Diaz's negligence: (1) the possession of the passbook by
a person other than the depositor L.C. Diaz; (2) the
presentation of a signed withdrawal receipt by an
unauthorized person; and (3) the possession by an
unauthorized person of a PBC check "long closed" by
L.C. Diaz, which check was deposited on the day of the
fraudulent withdrawal.
The trial court debunked L.C. Diaz's contention that
Solidbank did not follow the precautionary procedures
observed by the two parties whenever L.C. Diaz
withdrew significant amounts from its account. L.C.
Diaz claimed that a letter must accompany withdrawals
of more than P20,000. The letter must request Solidbank
to allow the withdrawal and convert the amount to a
manager's check. The bearer must also have a letter
authorizing him to withdraw the same amount.
Another person driving a car must accompany the
bearer so that he would not walk from Solidbank to the
office in making the withdrawal. The trial court pointed
out that L.C. Diaz disregarded these precautions in its
past withdrawal. On 16 July 1991, L.C. Diaz withdrew
P82,554 without any separate letter of authorization or
any communication with Solidbank that the money be
converted into a manager's check.
89

The trial court further justified the dismissal of the


complaint by holding that the case was a last ditch
effort of L.C. Diaz to recover P300,000 after the
dismissal of the criminal case against Ilagan.
xxx

xxx

xxx

The Ruling of the Court of Appeals


The Court of Appeals ruled that Solidbank's negligence
was the proximate cause of the unauthorized
withdrawal of P300,000 from the savings account of
L.C. Diaz. The appellate court reached this conclusion
after applying the provision of the Civil Code on quasidelict, to wit: xxx
xxx

xxx

xxx

The Ruling of the Court


The petition is partly meritorious.
Solidbank's Fiduciary Duty under the Law
The rulings of the trial court and the Court of Appeals
conflict on the application of the law. The trial court
pinned the liability on L.C. Diaz based on the
provisions of the rules on savings account, a
recognition of the contractual relationship between
Solidbank and L.C. Diaz, the latter being a depositor of
the former. On the other hand, the Court of Appeals
applied the law on quasi-delict to determine who
between the two parties was ultimately negligent. The
law on quasi-delict or culpa aquiliana is generally
applicable when there is no pre-existing contractual
relationship between the parties.
We hold that Solidbank is liable for breach of contract
due to negligence, or culpa contractual.
The contract between the bank and its depositor is
governed by the provisions of the Civil Code on simple
loan. 17 Article 1980 of the Civil Code expressly
provides that ". . . savings . . . deposits of money in
banks and similar institutions shall be governed by the
provisions concerning simple loan." There is a debtorcreditor relationship between the bank and its
depositor. The bank is the debtor and the depositor is
the creditor. The depositor lends the bank money and
the bank agrees to pay the depositor on demand. The
savings deposit agreement between the bank and the
depositor is the contract that determines the rights and
obligations of the parties.
The law imposes on banks high standards in view of
the fiduciary nature of banking. Section 2 of Republic
Act No. 8791 ("RA 8791"), 18 which took effect on 13
June 2000, declares that the State recognizes the
"fiduciary nature of banking that requires high
standards of integrity and performance." This new
provision in the general banking law, introduced in

2000, is a statutory affirmation of Supreme Court


decisions, starting with the 1990 case of Simex
International v. Court of Appeals, holding that "the bank is
under obligation to treat the accounts of its depositors
with meticulous care, always having in mind the
fiduciary nature of their relationship.
This fiduciary relationship means that the bank's
obligation to observe "high standards of integrity and
performance" is deemed written into every deposit
agreement between a bank and its depositor. The
fiduciary nature of banking requires banks to assume a
degree of diligence higher than that of a good father of
a family. Article 1172 of the Civil Code states that the
degree of diligence required of an obligor is that
prescribed by law or contract, and absent such
stipulation then the diligence of a good father of a
family. 22 Section 2 of RA 8791 prescribes the statutory
diligence required from banks that banks must
observe "high standards of integrity and performance"
in servicing their depositors. Although RA 8791 took
effect almost nine years after the unauthorized
withdrawal of the P300,000 from L.C. Diaz's savings
account, jurisprudence 23 at the time of the withdrawal
already imposed on banks the same high standard of
diligence required under RA No. 8791.
However, the fiduciary nature of a bank-depositor
relationship does not convert the contract between the
bank and its depositors from a simple loan to a trust
agreement, whether express or implied. Failure by the
bank to pay the depositor is failure to pay a simple
loan, and not a breach of trust. The law simply imposes
on the bank a higher standard of integrity and
performance in complying with its obligations under
the contract of simple loan, beyond those required of
non-bank debtors under a similar contract of simple
loan.
The fiduciary nature of banking does not convert a
simple loan into a trust agreement because banks do
not accept deposits to enrich depositors but to earn
money for themselves. The law allows banks to offer
the lowest possible interest rate to depositors while
charging the highest possible interest rate on their own
borrowers. The interest spread or differential belongs to
the bank and not to the depositors who are not cestui
que trust of banks. If depositors are cestui que trust of
banks, then the interest spread or income belongs to the
depositors, a situation that Congress certainly did not
intend in enacting Section 2 of RA 8791.
Solidbank's Breach of its Contractual Obligation
Article 1172 of the Civil Code provides that
"responsibility arising from negligence in the
performance of every kind of obligation is
demandable." For breach of the savings deposit
agreement due to negligence, or culpa contractual, the
bank is liable to its depositor.

Calapre left the passbook with Solidbank because the


"transaction took time" and he had to go to Allied Bank
for another transaction. The passbook was still in the
hands of the employees of Solidbank for the processing
of the deposit when Calapre left Solidbank. Solidbank's
rules on savings account require that the "deposit book
should be carefully guarded by the depositor and kept
under lock and key, if possible." When the passbook is
in the possession of Solidbank's tellers during
withdrawals, the law imposes on Solidbank and its
tellers an even higher degree of diligence in
safeguarding the passbook.
Likewise, Solidbank's tellers must exercise a high
degree of diligence in insuring that they return the
passbook only to the depositor or his authorized
representative. The tellers know, or should know, that
the rules on savings account provide that any person in
possession of the passbook is presumptively its owner.
If the tellers give the passbook to the wrong person,
they would be clothing that person presumptive
ownership of the passbook, facilitating unauthorized
withdrawals by that person. For failing to return the
passbook to Calapre, the authorized representative of
L.C. Diaz, Solidbank and Teller No. 6 presumptively
failed to observe such high degree of diligence in
safeguarding the passbook, and in insuring its return to
the party authorized to receive the same.
In culpa contractual, once the plaintiff proves a breach
of contract, there is a presumption that the defendant
was at fault or negligent. The burden is on the
defendant to prove that he was not at fault or negligent.
In contrast, in culpa aquiliana the plaintiff has the
burden of proving that the defendant was negligent. In
the present case, L.C. Diaz has established that
Solidbank breached its contractual obligation to return
the passbook only to the authorized representative of
L.C. Diaz. There is thus a presumption that Solidbank
was at fault and its teller was negligent in not returning
the passbook to Calapre. The burden was on Solidbank
to prove that there was no negligence on its part or its
employees.
Solidbank failed to discharge its burden. Solidbank did
not present to the trial court Teller No. 6, the teller with
whom Calapre left the passbook and who was
supposed to return the passbook to him. The record
does not indicate that Teller No. 6 verified the identity
of the person who retrieved the passbook. Solidbank
also failed to adduce in evidence its standard procedure
in verifying the identity of the person retrieving the
passbook, if there is such a procedure, and that Teller
No. 6 implemented this procedure in the present case.
Solidbank is bound by the negligence of its employees
under the principle of respondeat superior or command
responsibility. The defense of exercising the required
diligence in the selection and supervision of employees
is not a complete defense in culpa contractual, unlike in
culpa aquiliana.

90

The bank must not only exercise "high standards of


integrity and performance," it must also insure that its
employees do likewise because this is the only way to
insure that the bank will comply with its fiduciary
duty. Solidbank failed to present the teller who had the
duty to return to Calapre the passbook, and thus failed
to prove that this teller exercised the "high standards of
integrity and performance" required of Solidbank's
employees.

observe whenever withdrawals of large amounts are


made does not direct Solidbank to call up L.C. Diaz.

Proximate Cause of the Unauthorized Withdrawal


Another point of disagreement between the trial and
appellate courts is the proximate cause of the
unauthorized withdrawal. The trial court believed that
L.C. Diaz's negligence in not securing its passbook
under lock and key was the proximate cause that
allowed the impostor to withdraw the P300,000. For the
appellate court, the proximate cause was the teller's
negligence in processing the withdrawal without first
verifying with L.C. Diaz. We do not agree with either
court.

Teller No. 5 who processed the withdrawal could not


have been put on guard to verify the withdrawal. Prior
to the withdrawal of P300,000, the impostor deposited
with Teller No. 6 the P90,000 PBC check, which later
bounced. The impostor apparently deposited a large
amount of money to deflect suspicion from the
withdrawal of a much bigger amount of money. The
appellate court thus erred when it imposed on
Solidbank the duty to call up L.C. Diaz to confirm the
withdrawal when no law requires this from banks and
when the teller had no reason to be suspicious of the
transaction.

Proximate cause 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. Proximate
cause is determined by the facts of each case upon
mixed considerations of logic, common sense, policy
and precedent.

Solidbank continues to foist the defense that Ilagan


made the withdrawal. Solidbank claims that since
Ilagan was also a messenger of L.C. Diaz, he was
familiar with its teller so that there was no more need
for the teller to verify the withdrawal. Solidbank relies
on the following statements in the Booking and
Information Sheet of Emerano Ilagan:

L.C. Diaz was not at fault that the passbook landed in


the hands of the impostor. Solidbank was in possession
of the passbook while it was processing the deposit.
After completion of the transaction, Solidbank had the
contractual obligation to return the passbook only to
Calapre, the authorized representative of L.C. Diaz.
Solidbank failed to fulfill its contractual obligation
because it gave the passbook to another person.

. . . Ilagan also had with him (before


the withdrawal) a forged check of
PBC and indicated the amount of
P90,000 which he deposited in favor
of L.C. Diaz and Company. After
successfully withdrawing this large
sum of money, accused Ilagan gave
alias Rey (Noel Tamayo) his share of
the loot. Ilagan then hired a taxicab in
the amount of P1,000 to transport him
(Ilagan) to his home province at
Bauan,
Batangas.
Ilagan
extravagantly and lavishly spent his
money but a big part of his loot was
wasted in cockfight and horse racing.
Ilagan was apprehended and meekly
admitted
his
guilt.
(Emphasis
supplied.)

Solidbank's failure to return the passbook to Calapre


made possible the withdrawal of the P300,000 by the
impostor who took possession of the passbook. Under
Solidbank's rules on savings account, mere possession
of the passbook raises the presumption of ownership. It
was the negligent act of Solidbank's Teller No. 6 that
gave the impostor presumptive ownership of the
passbook. Had the passbook not fallen into the hands of
the impostor, the loss of P300,000 would not have
happened. Thus, the proximate cause of the
unauthorized withdrawal was Solidbank's negligence
in not returning the passbook to Calapre.
We do not subscribe to the appellate court's theory that
the proximate cause of the unauthorized withdrawal
was the teller's failure to call up L.C. Diaz to verify the
withdrawal. Solidbank did not have the duty to call up
L.C. Diaz to confirm the withdrawal. There is no
arrangement between Solidbank and L.C. Diaz to this
effect. Even the agreement between Solidbank and L.C.
Diaz pertaining to measures that the parties must

91

There is no law mandating banks to call up their clients


whenever their representatives withdraw significant
amounts from their accounts. L.C. Diaz therefore had
the burden to prove that it is the usual practice of
Solidbank to call up its clients to verify a withdrawal of
a large amount of money. L.C. Diaz failed to do so.

L.C. Diaz refutes Solidbank's contention by pointing


out that the person who withdrew the P300,000 was a
certain Noel Tamayo. Both the trial and appellate courts
stated that this Noel Tamayo presented the passbook
with the withdrawal slip.
We uphold the finding of the trial and appellate courts
that a certain Noel Tamayo withdrew the P300,000. The
Court is not a trier of facts. We find no justifiable reason
to reverse the factual finding of the trial court and the
Court of Appeals. The tellers who processed the deposit
of the P90,000 check and the withdrawal of the P300,000

were not presented during trial to substantiate


Solidbank's claim that Ilagan deposited the check and
made the questioned withdrawal. Moreover, the entry
quoted by Solidbank does not categorically state that
Ilagan presented the withdrawal slip and the passbook.
Doctrine of Last Clear Chance
The doctrine of last clear chance states that where both
parties are negligent but the negligent act of one is
appreciably later than that of the other, or where it is
impossible to determine whose fault or negligence
caused the loss, the one who had the last clear
opportunity to avoid the loss but failed to do so, is
chargeable with the loss. Stated differently, the
antecedent negligence of the plaintiff does not preclude
him from recovering damages caused by the
supervening negligence of the defendant, who had the
last fair chance to prevent the impending harm by the
exercise of due diligence.
We do not apply the doctrine of last clear chance to the
present case. Solidbank is liable for breach of contract
due to negligence in the performance of its contractual
obligation to L.C. Diaz. This is a case of culpa
contractual, where neither the contributory negligence
of the plaintiff nor his last clear chance to avoid the loss,
would exonerate the defendant from liability. Such
contributory negligence or last clear chance by the
plaintiff merely serves to reduce the recovery of
damages by the plaintiff but does not exculpate the
defendant from his breach of contract.
Mitigated Damages
Under Article 1172, "liability (for culpa contractual)
may be regulated by the courts, according to the
circumstances." This means that if the defendant
exercised the proper diligence in the selection and
supervision of its employee, or if the plaintiff was
guilty of contributory negligence, then the courts may
reduce the award of damages. In this case, L.C. Diaz
was guilty of contributory negligence in allowing a
withdrawal slip signed by its authorized signatories to
fall into the hands of an impostor. Thus, the liability of
Solidbank should be reduced.
In Philippine Bank of Commerce v. Court of Appeals, where
the Court held the depositor guilty of contributory
negligence, we allocated the damages between the
depositor and the bank on a 40-60 ratio. Applying the
same ruling to this case, we hold that L.C. Diaz must
shoulder 40% of the actual damages awarded by the
appellate court. Solidbank must pay he other 60% of the
actual damages.
WHEREFORE, the decision of the Court of Appeals is
AFFIRMED
with
MODIFICATION.
Petitioner
Solidbank Corporation shall pay private respondent
L.C. Diaz and Company, CPA's only 60% of the actual
damages awarded by the Court of Appeals. The
remaining 40% of the actual damages shall be borne by

private respondent L.C. Diaz and Company, CPA's.


Proportionate costs. IDcTEA
SO ORDERED.
Davide, Jr., C.J., Vitug and Ynares-Santiago, JJ., concur.
Azcuna, J., is on official leave.
PHILIPPINE NATIONAL RAILWAYS, ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. 157658, 15 October 2007
NACHURA, J p:
Before the Court is a petition for review on certiorari
under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, seeking to annul and set aside the Decision
of the Court of Appeals (CA) in CA-G.R. CV No. 54906
which reversed the Decision of the Regional Trial Court
(RTC) of Manila, Branch 28, in Civil Case No. 92-61987.
The factual antecedents are as follows:
In the early afternoon of April 27, 1992, Jose Amores
(Amores) was traversing the railroad tracks in Kahilum
II Street, Pandacan, Manila. Before crossing the railroad
track, he stopped for a while then proceeded
accordingly. Unfortunately, just as Amores was at the
intersection, a Philippine National Railways' (PNR)
train with locomotive number T-517 turned up and
collided with the car.
At the time of the mishap, there was neither a signal
nor a crossing bar at the intersection to warn motorists
of an approaching train. Aside from the railroad track,
the only visible warning sign at that time was the
defective standard signboard "STOP, LOOK and
LISTEN" wherein the sign "Listen" was lacking while
that of "Look" was bent. No whistle blow from the train
was likewise heard before it finally bumped the car of
Amores. After impact, the car was dragged about ten
(10) meters beyond the center of the crossing. Amores
died as a consequence thereof.
On July 22, 1992, the heirs of Amores, consisting of his
surviving wife and six children, herein respondents,
filed a Complaint for Damages against petitioners PNR
and Virgilio J. Borja (Borja), PNR's locomotive driver at
the time of the incident, before the RTC of Manila. The
case was raffled to Branch 28 and was docketed as Civil
Case No. 92-61987. In their complaint, respondents
averred that the train's speedometer was defective, and
that the petitioners' negligence was the proximate cause
of the mishap for their failure to take precautions to
prevent injury to persons and property despite the
dense population in the vicinity. They then prayed for
actual and moral damages, as well as attorney's fees.
In their Answer, the petitioners denied the allegations,
stating that the train was railroad-worthy and without
any defect. According to them, the proximate cause of
the death of Amores was his own carelessness and
92

negligence, and Amores wantonly disregarded traffic


rules and regulations in crossing the railroad tracks and
trying to beat the approaching train. They admitted that
there was no crossing bar at the site of the accident
because it was merely a barangay road. PNR stressed
that it exercised the diligence of a good father of a
family in the selection and supervision of the
locomotive driver and train engineer, Borja, and that
the latter likewise used extraordinary diligence and
caution to avoid the accident. Petitioners further
asserted that respondents had the last clear chance to
avoid the accident but recklessly failed to do so.
After trial on the merits, on August 22, 1996, the RTC
rendered judgment in favor of the petitioners, the
dispositive portion of which reads:
xxx

xxx

xxx

The RTC rationalized that the proximate cause of the


collision was Amores' fatal misjudgment and the
reckless course of action he took in crossing the railroad
track even after seeing or hearing the oncoming train.
On appeal, the CA reversed the RTC decision, as
follows: xxx
xxx

xxx

xxx

In reversing the trial court's decision, the appellate


court found the petitioners negligent. The court based
the petitioners' negligence on the failure of PNR to
install a semaphore or at the very least, to post a
flagman, considering that the crossing is located in a
thickly populated area. Moreover, the signboard "Stop,
Look and Listen" was found insufficient because of its
defective condition as described above. Lastly, no
negligence could be attributed to Amores as he
exercised reasonable diligence in crossing the railroad
track.
Aggrieved by this reversal, the petitioners filed the
present petition for review on certiorari, raising the
following grounds:
xxx

xxx

xxx

The petitioners insist that Amores must have heard the


train's whistle and heeded the warning but, noting that
the train was still a distance away and moving slowly,
he must have calculated that he could beat it to the
other side of the track before the train would arrive at
the intersection. The petitioners likewise add that the
train was railroad-worthy and that its defective
speedometer did not affect the train's operation. Lastly,
they insist that evidence showed sufficient warning
signs strategically installed at the crossing to alert both
motorists and pedestrians.
Respondents, on the other hand, argue that the cause of
the accident was petitioners' carelessness, imprudence
and laxity in failing to provide a crossing bar and
93

keeper at the Kahilum II railway intersection.


Considering that Kahilum II Street is in the middle of a
thickly populated squatters' area, and many pedestrians
cross the railroad track, notwithstanding the fact that it
is a public street and a main thoroughfare utilized in
going to Herran Street, the presence of adequate
warning signals would have prevented the untimely
death of Amores. Another crucial point raised by the
respondents is the manner in which Borja applied the
brakes of the train only when the locomotive was
already very near Amores' car, as admitted by witness
Querimit. Finally, respondents claim that Borja's failure
to blow the locomotive's horn, pursuant to the usual
practice of doing the same 100 meters before reaching
the Kahilum II crossing point is an earmark of
recklessness on the part of the petitioners.
The petition must fail.
The only issue to be resolved in the present case is
whether the appellate court was correct in ascribing
negligence on the part of the petitioners. It was
ascertained beyond quandary that the proximate cause
of the collision is the negligence and imprudence of the
petitioner PNR and its locomotive driver, Borja, in
operating the passenger train.
As the action is predicated on negligence, the relevant
provision is Article 2176 of the New Civil Code, which
states that:
Whoever by act or omission causes
damage to another, there being fault
or negligence, is obliged to pay for
the damage done. Such fault or
negligence, if there was no preexisting contractual relation between
the parties, is called quasi-delict and is
governed by the provisions of this
chapter.
We have thoroughly reviewed the records of the case
and we find no cogent reason to reverse the appellate
court's decision. Negligence has been defined as "the
failure to observe for the protection of the interests of
another person that degree of care, precaution, and
vigilance which the circumstances justly demand,
whereby such other person suffers injury." Using the
aforementioned philosophy, it may be reliably
concluded that there is no hard and fast rule whereby
such degree of care and vigilance is calibrated; it is
dependent upon the circumstances in which a person
finds himself. All that the law requires is that it is
perpetually compelling upon a person to use that care
and diligence expected of sensible men under
comparable circumstances.
We hold that the petitioners were negligent when the
collision took place. The transcript of stenographic
notes reveals that the train was running at a fast speed
because notwithstanding the application of the
ordinary and emergency brakes, the train still dragged

the car some distance away from the point of impact.


Evidence likewise unveils the inadequate precautions
taken by petitioner PNR to forewarn the public of the
impending danger. Aside from not having any crossing
bar, no flagman or guard to man the intersection at all
times was posted on the day of the incident. A reliable
signaling device in good condition, not just a
dilapidated "Stop, Look and Listen" signage because of
many years of neglect, is needed to give notice to the
public. It is the responsibility of the railroad company
to use reasonable care to keep the signal devices in
working order. Failure to do so would be an indication
of negligence.
As held in the case of Philippine National Railway v.
Brunty, it may broadly be stated that railroad
companies owe to the public a duty of exercising a
reasonable degree of care to avoid injury to persons and
property at railroad crossings, which duties pertain
both to the operation of trains and to the maintenance
of the crossings. Moreover, every corporation
constructing or operating a railway shall make and
construct at all points where such railway crosses any
public road, good, sufficient, and safe crossings, and
erect at such points, at sufficient elevation from such
road as to admit a free passage of vehicles of every
kind, a sign with large and distinct letters placed
thereon, to give notice of the proximity of the railway,
and warn persons of the necessity of looking out for
trains. The failure of the PNR to put a cross bar, or
signal light, flagman or switchman, or semaphore is
evidence of negligence and disregard of the safety of
the public, even if there is no law or ordinance
requiring it, because public safety demands that said
device or equipment be installed.
The petitioners insist that a train has a right-of-way in a
railroad crossing under the existing laws. They derive
their theory from Section 42 (d), Article III of R.A. 4136,
otherwise known as the Land Transportation and
Traffic Code, which states that:
The driver of a vehicle upon a
highway shall bring to a full stop
such vehicle before traversing any
"through highway" or railroad
crossing: Provided, That when it is
apparent that no hazard exists, the
vehicle may be slowed down to five
miles per hour instead of bringing it
to a full stop.
They claim that motorists are enjoined by law to stop,
look and listen before crossing railroad tracks and that
a heavier responsibility rests upon the motorists in
avoiding accidents at level crossings.
It is true that one driving an automobile must use his
faculties of seeing and hearing when nearing a railroad
crossing. However, the obligation to bring to a full stop
vehicles moving in public highways before traversing
any "through street" only accrues from the time the said

"through street" or crossing is so designated and signposted. From the records of the case, it can be inferred
that Amores exercised all the necessary precautions
required of him as to avoid injury to himself and to
others. The witnesses' testimonies showed that Amores
slackened his speed, made a full stop, and then
proceeded to cross the tracks when he saw that there
was no impending danger to his life. Under these
circumstances, we are convinced that Amores did
everything, with absolute care and caution, to avoid the
collision.
It is settled that every person or motorist crossing a
railroad track should use ordinary prudence and
alertness to determine the proximity of a train before
attempting to cross. We are persuaded that the
circumstances were beyond the control of Amores for
no person would sacrifice his precious life if he had the
slightest opportunity to evade the catastrophe. Besides,
the authority in this jurisdiction is that the failure of a
railroad company to install a semaphore or at the very
least, to post a flagman or watchman to warn the public
of the passing train amounts to negligence.
In view of the foregoing, We will now discuss the
liability of petitioner PNR. Article 2180 of the New Civil
Code discusses the liability of the employer once
negligence or fault on the part of the employee has been
established. The employer is actually liable on the
assumption of juris tantum that the employer failed to
exercise diligentissimi patris families in the selection and
supervision of its employees. The liability is primary
and can only be negated by showing due diligence in
the selection and supervision of the employee, a factual
matter that has not been demonstrated. 21 Even the
existence of hiring procedures and supervisory
employees cannot be incidentally invoked to overturn
the presumption of negligence on the part of the
employer.
WHEREFORE, the petition is DENIED. The Decision of
the Court of Appeals dated March 31, 2003 in CA-G.R.
CV No. 54906 is hereby AFFIRMED.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Chico-Nazario and
Reyes, JJ., concur.
LUCAS, ET AL. TUAO
G.R. No. 178763, 21 April 2009
CHICO-NAZARIO, J p:
In this petition for review on certiorari under Rule 45 of
the Revised Rules of Court, petitioners Peter Paul
Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas
and Gillian Lucas seek the reversal of the 27 September
2006 Decision and 3 July 2007 Resolution, both of the
Court of Appeals in CA-G.R. CV No. 68666, entitled
"Peter Paul Patrick Lucas, Fatima Gladys Lucas,

94

Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C.


Tuao".
In the questioned decision and resolution, the Court of
Appeals affirmed the 14 July 2000 Decision of the
Regional Trial Court (RTC), Branch 150, Makati City,
dismissing the complaint filed by petitioners in a civil
case entitled, "Peter Paul Patrick Lucas, Fatima Gladys
Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero
Ma. C. Tuao", docketed as Civil Case No. 92-2482.
From the record of the case, the established factual
antecedents of the present petition are:
Sometime in August 1988, petitioner Peter Paul Patrick
Lucas (Peter) contracted "sore eyes" in his right eye.
On 2 September 1988, complaining of a red right eye
and swollen eyelid, Peter made use of his health care
insurance issued by Philamcare Health Systems, Inc.
(Philamcare), for a possible consult. The Philamcare
Coordinator, Dr. Edwin Oca, M.D., referred Peter to
respondent, Dr. Prospero Ma. C. Tuao, M.D. (Dr.
Tuao), an ophthalmologist at St. Luke's Medical
Center, for an eye consult.
Upon consultation with Dr. Tuao, Peter narrated that
it had been nine (9) days since the problem with his
right eye began; and that he was already taking
Maxitrol to address the problem in his eye. According
to Dr. Tuao, he performed "ocular routine
examination" on Peter's eyes, wherein: (1) a gross
examination of Peter's eyes and their surrounding area
was made; (2) Peter's visual acuity were taken; (3)
Peter's eyes were palpated to check the intraocular
pressure of each; (4) the motility of Peter's eyes was
observed; and (5) the ophthalmoscopy on Peter's eyes
was used. On that particular consultation, Dr. Tuao
diagnosed that Peter was suffering from conjunctivitis
or "sore eyes". Dr. Tuao then prescribed Spersacet-C
eye drops for Peter and told the latter to return for
follow-up after one week.
As instructed, Peter went back to Dr. Tuao on 9
September 1988. Upon examination, Dr. Tuao told
Peter that the "sore eyes" in the latter's right eye had
already cleared up and he could discontinue the
Spersacet-C. However, the same eye developed
Epidemic Kerato Conjunctivitis (EKC), a viral infection.
To address the new problem with Peter's right eye, Dr.
Tuao prescribed to the former a steroid-based eye
drop called Maxitrol, a dosage of six (6) drops per day.
To recall, Peter had already been using Maxitrol prior
to his consult with Dr. Tuao.
On 21 September 1988, Peter saw Dr. Tuao for a
follow-up consultation. After examining both of Peter's
eyes, Dr. Tuao instructed the former to taper down the
dosage of Maxitrol, because the EKC in his right eye
had already resolved. Dr. Tuao specifically cautioned
Peter that, being a steroid, Maxitrol had to be
withdrawn gradually; otherwise, the EKC might recur.
95

Complaining of feeling as if there was something in his


eyes, Peter returned to Dr. Tuao for another check-up
on 6 October 1988. Dr. Tuao examined Peter's eyes
and found that the right eye had once more developed
EKC. So, Dr. Tuao instructed Peter to resume the use
of Maxitrol at six (6) drops per day.
On his way home, Peter was unable to get a hold of
Maxitrol, as it was out of stock. Consequently, Peter
was told by Dr. Tuano to take, instead, Blephamide,
another steroid-based medication, but with a lower
concentration, as substitute for the unavailable
Maxitrol, to be used three (3) times a day for five (5)
days; two (2) times a day for five (5) days; and then just
once a day.
Several days later, on 18 October 1988, Peter went to see
Dr. Tuao at his clinic, alleging severe eye pain, feeling
as if his eyes were about to "pop-out", a headache and
blurred vision. Dr. Tuao examined Peter's eyes and
discovered that the EKC was again present in his right
eye. As a result, Dr. Tuao told Peter to resume the
maximum dosage of Blephamide.
Dr. Tuao saw Peter once more at the former's clinic on
4 November 1988. Dr. Tuao's examination showed
that only the periphery of Peter's right eye was positive
for EKC; hence, Dr. Tuao prescribed a lower dosage of
Blephamide.
It was also about this time that Fatima Gladys Lucas
(Fatima), Peter's spouse, read the accompanying
literature of Maxitrol and found therein the following
warning against the prolonged use of such steroids:
WARNING:
Prolonged use may result in
glaucoma, with damage to the optic
nerve, defects in visual acuity and
fields of vision, and posterior,
subcapsular
cataract
formation.
Prolonged use may suppress the host
response and thus increase the
hazard
of
secondary
ocular
infractions, in those diseases causing
thinning of the cornea or sclera,
perforations have been known to
occur with the use of topical steroids.
In acute purulent conditions of the
eye, steroids may mask infection or
enhance existing infection. If these
products are used for 10 days or
longer, intraocular pressure should
be routinely monitored even though
it may be difficult in children and
uncooperative patients.
Employment of steroid medication in
the treatment of herpes simplex
requires great caution.
xxx
xxx
xxx

ADVERSE REACTIONS:
Adverse reactions have occurred with
steroid/anti-infective
combination
drugs which can be attributed to the
steroid component, the anti-infective
component, or the combination. Exact
incidence figures are not available
since no denominator of treated
patients is available.
Reactions occurring most often from
the presence of the anti-infective
ingredients are allergic sensitizations.
The reactions due to the steroid
component in decreasing order to
frequency are elevation of intraocular pressure (IOP) with possible
development of glaucoma, infrequent
optic nerve damage; posterior
subcapsular cataract formation; and
delayed wound healing.
Secondary
infection:
The
development of secondary has
occurred after use of combination
containing
steroids
and
antimicrobials. Fungal infections of
the correa are particularly prone to
develop coincidentally with longterm applications of steroid. The
possibility of fungal invasion must be
considered in any persistent corneal
ulceration where steroid treatment
has been used.
Secondary bacterial ocular infection
following suppression of host
responses also occurs.
On 26 November 1988, Peter returned to Dr. Tuao's
clinic, complaining of "feeling worse". It appeared that
the EKC had spread to the whole of Peter's right eye yet
again. Thus, Dr. Tuao instructed Peter to resume the
use of Maxitrol. Petitioners averred that Peter already
made mention to Dr. Tuao during said visit of the
above-quoted warning against the prolonged use of
steroids, but Dr. Tuao supposedly brushed aside
Peter's concern as mere paranoia, even assuring him
that the former was taking care of him (Peter).
Petitioners further alleged that after Peter's 26
November 1988 visit to Dr. Tuao, Peter continued to
suffer pain in his right eye, which seemed to "progress",
with the ache intensifying and becoming more
frequent.
Upon waking in the morning of 13 December 1988,
Peter had no vision in his right eye. Fatima observed
that Peter's right eye appeared to be bloody and
swollen. Thus, spouses Peter and Fatima rushed to the
clinic of Dr. Tuao. Peter reported to Dr. Tuao that he

had been suffering from constant headache in the


afternoon and blurring of vision.
Upon examination, Dr. Tuao noted the hardness of
Peter's right eye. With the use of a tonometer to verify
the exact intraocular pressure 17 (IOP) of Peter's eyes,
Dr. Tuao discovered that the tension in Peter's right
eye was 39.0 Hg, while that of his left was 17.0 Hg.
Since the tension in Peter's right eye was way over the
normal IOP, which merely ranged from 10.0 Hg to 21.0
Hg, Dr. Tuao ordered him to immediately discontinue
the use of Maxitrol and prescribed to the latter Diamox
and Normoglaucon, instead. Dr. Tuao also required
Peter to go for daily check-up in order for the former to
closely monitor the pressure of the latter's eyes.
On 15 December 1988, the tonometer reading of Peter's
right eye yielded a high normal level, i.e., 21.0 Hg.
Hence, Dr. Tuao told Peter to continue using Diamox
and Normoglaucon. But upon Peter's complaint of
"stomach pains and tingling sensation in his fingers",
Dr. Tuao discontinued Peter's use of Diamox.
Peter went to see another ophthalmologist, Dr. Ramon
T. Batungbacal (Dr. Batungbacal), on 21 December 1988,
who allegedly conducted a complete ophthalmological
examination of Peter's eyes. Dr. Batungbacal's diagnosis
was Glaucoma O.D. He recommended Laser
Trabeculoplasty for Peter's right eye.
When Peter returned to Dr. Tuao on 23 December
1988, the tonometer measured the IOP of Peter's right
eye to be 41.0 Hg, again, way above normal. Dr. Tuao
addressed the problem by advising Peter to resume
taking Diamox along with Normoglaucon.
During the Christmas holidays, Peter supposedly
stayed in bed most of the time and was not able to
celebrate the season with his family because of the
debilitating effects of Diamox.
On 28 December 1988, during one of Peter's regular
follow-ups with Dr. Tuao, the doctor conducted
another ocular routine examination of Peter's eyes. Dr.
Tuao noted the recurrence of EKC in Peter's right eye.
Considering, however, that the IOP of Peter's right eye
was still quite high at 41.0 Hg, Dr. Tuao was at a loss
as to how to balance the treatment of Peter's EKC vis-vis the presence of glaucoma in the same eye. Dr.
Tuao, thus, referred Peter to Dr. Manuel B. Agulto,
M.D.
(Dr.
Agulto),
another
ophthalmologist
specializing in the treatment of glaucoma. Dr. Tuao's
letter of referral to Dr. Agulto stated that:
Referring to you Mr. Peter Lucas for
evaluation & possible management. I
initially saw him Sept. 2, 1988
because of conjunctivitis. The latter
resolved and he developed EKC for
which I gave Maxitrol. The EKC was
recurrent after stopping steroid
drops. Around 1 month of steroid
96

treatment, he noted blurring of vision


& pain on the R. however, I
continued the steroids for the sake of
the EKC. A month ago, I noted iris
atrophy, so I took the IOP and it was
definitely elevated. I stopped the
steroids immediately and has (sic)
been treating him medically.
It seems that the IOP can be
controlled only with oral Diamox,
and at the moment, the EKC has
recurred and I'm in a fix whether to
resume the steroid or not considering
that the IOP is still uncontrolled.
On 29 December 1988, Peter went to see Dr. Agulto at
the latter's clinic. Several tests were conducted thereat
to evaluate the extent of Peter's condition. Dr. Agulto
wrote Dr. Tuao a letter containing the following
findings and recommendations:
Thanks for sending Peter Lucas. On
examination conducted vision was
20/25 R and 20/20L. Tension curve
19 R and 15 L at 1210 H while on
Normoglaucon BID OD & Diamox
1/2 tab every 6h po.
Slit lamp evaluation disclosed
subepithelial corneal defect outer OD.
There was circumferential peripheral
iris atrophy, OD. The lenses were
clear.
Funduscopy showed vertical cup disc
of 0.85 R and 0.6 L with temporal
slope R>L.
Zeiss gonioscopy revealed basically
open angles both eyes with
occasional PAS, 36 OD.
Rolly, I feel that Peter Lucas has
really sustained significant glaucoma
damage. I suggest that we do a
baseline visual fields and push
medication to lowest possible levels.
If I may suggest further, I think we
should prescribe Timolol BID OD in
lieu of Normoglaucon. If the IOP is
still inadequate, we may try D'epifrin
BID OD (despite low PAS). I'm in
favor of retaining Diamox or similar
CAI.
If fields show further loss in say 3
mos. then we should consider
trabeculoplasty.
I trust that this approach will prove
reasonable for you and Peter.
97

Peter went to see Dr. Tuao on 31 December 1988,


bearing Dr. Agulto's aforementioned letter. Though
Peter's right and left eyes then had normal IOP of 21.0
Hg and 17.0 Hg, respectively, Dr. Tuao still gave him a
prescription for Timolol B.I.D. so Peter could
immediately start using said medication. Regrettably,
Timolol B.I.D. was out of stock, so Dr. Tuao instructed
Peter to just continue using Diamox and Normoglaucon
in the meantime.
Just two days later, on 2 January 1989, the IOP of Peter's
right eye remained elevated at 21.0 Hg, 42 as he had
been without Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuao conducted a visual field
study of Peter's eyes, which revealed that the latter had
tubular vision in his right eye, while that of his left eye
remained normal. Dr. Tuao directed Peter to
religiously use the Diamox and Normoglaucon, as the
tension of the latter's right eye went up even further to
41.0 Hg in just a matter of two (2) days, in the meantime
that Timolol B.I.D. and D'epifrin were still not available
in the market. Again, Dr. Tuao advised Peter to come
for regular check-up so his IOP could be monitored.
Obediently, Peter went to see Dr. Tuao on the 7th,
13th, 16th and 20th of January 1989 for check-up and
IOP monitoring.
In the interregnum, however, Peter was prodded by his
friends to seek a second medical opinion. On 13 January
1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr.
Lapuz), an ophthalmologist, who, in turn, referred
Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino),
another ophthalmologist who specializes in the
treatment of glaucoma and who could undertake the
long term care of Peter's eyes.
According to petitioners, after Dr. Aquino conducted an
extensive evaluation of Peter's eyes, the said doctor
informed Peter that his eyes were relatively normal,
though the right one sometimes manifested maximum
borderline tension. Dr. Aquino also confirmed Dr.
Tuao's diagnosis of tubular vision in Peter's right eye.
Petitioners claimed that Dr. Aquino essentially told
Peter that the latter's condition would require lifetime
medication and follow-ups.
In May 1990 and June 1991, Peter underwent two (2)
procedures of laser trabeculoplasty to attempt to
control the high IOP of his right eye.
Claiming to have steroid-induced glaucoma and
blaming Dr. Tuao for the same, Peter, joined by: (1)
Fatima, his spouse; 46 (2) Abbeygail, his natural child;
47 and (3) Gillian, his legitimate child 48 with Fatima,
instituted on 1 September 1992, a civil complaint for
damages against Dr. Tuao, before the RTC, Branch
150, Quezon City. The case was docketed as Civil Case
No. 92-2482.

In their Complaint, petitioners specifically averred that


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

xxx

xxx

In a Decision dated 14 July 2000, the RTC dismissed


Civil Case No. 92-2482 "for insufficiency of evidence".
The decretal part of said Decision reads:
Wherefore, premises considered, the
instant complaint is dismissed for
insufficiency of evidence. The counter
claim (sic) is likewise dismissed in the
absence of bad faith or malice on the
part of plaintiff in filing the suit.
The RTC opined that petitioners failed to prove by
preponderance of evidence that Dr. Tuao was
negligent in his treatment of Peter's condition. In
particular, the record of the case was bereft of any
evidence to establish that the steroid medication and its
dosage, as prescribed by Dr. Tuao, caused Peter's
glaucoma. The trial court reasoned that the "recognized
standards of the medical community has not been
established in this case, much less has causation been
established to render [Tuao] liable". According to the
RTC:
xxx

xxx

xxx

Undaunted, petitioners appealed the foregoing RTC


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

xxx

xxx

A reading of the afore-quoted reversible errors


supposedly committed by the Court of Appeals in its
Decision and Resolution would reveal that petitioners
are fundamentally assailing the finding of the Court of
Appeals that the evidence on record is insufficient to
establish petitioners' entitlement to any kind of
damage. Therefore, it could be said that the sole issue
for our resolution in the Petition at bar is whether the
Court of Appeals committed reversible error in
affirming the judgment of the RTC that petitioners
failed to prove, by preponderance of evidence, their
claim for damages against Dr. Tuao.
Evidently, said issue constitutes a question of fact, as
we are asked to revisit anew the factual findings of the

Court of Appeals, as well as of the RTC. In effect,


petitioners would have us sift through the evidence on
record and pass upon whether there is sufficient basis
to establish Dr. Tuao's negligence in his treatment of
Peter's eye condition. This question clearly involves a
factual inquiry, the determination of which is not
within the ambit of this Court's power of review under
Rule 45 of the 1997 Rules Civil Procedure, as amended.
Elementary is the principle that this Court is not a trier
of facts; only errors of law are generally reviewed in
petitions for review on certiorari criticizing decisions of
the Court of Appeals. Questions of fact are not
entertained.
Nonetheless, the general rule that only questions of law
may be raised on appeal in a petition for review under
Rule 45 of the Rules of Court admits of certain
exceptions, including the circumstance when the
finding of fact of the Court of Appeals is premised on
the supposed absence of evidence, but is contradicted
by the evidence on record. Although petitioners may
not explicitly invoke said exception, it may be gleaned
from their allegations and arguments in the instant
Petition.
Petitioners contend, that "[c]ontrary to the findings of
the Honorable Court of Appeals, [they] were more than
able to establish that: Dr. Tuao ignored the standard
medical procedure for ophthalmologists, administered
medication with recklessness, and exhibited an absence
of competence and skills expected from him". 72
Petitioners reject the necessity of presenting expert
and/or medical testimony to establish (1) the standard
of care respecting the treatment of the disorder
affecting Peter's eye; and (2) whether or not negligence
attended Dr. Tuao's treatment of Peter, because, in
their words
That Dr. Tuao was grossly negligent
in the treatment of Peter's simple eye
ailment is a simple case of cause and
effect. With mere documentary
evidence and based on the facts
presented
by
the
petitioners,
respondent can readily be held liable
for damages even without any expert
testimony. In any case, however, and
contrary to the finding of the trial
court and the Court of Appeals, there
was a medical expert presented by
the
petitioner
showing
the
recklessness committed by [Dr.
Tuao] Dr. Tuao himself.
[Emphasis supplied.]
They insist that Dr. Tuao himself gave sufficient
evidence to establish his gross negligence that
ultimately caused the impairment of the vision of
Peter's right eye, i.e., that "[d]espite [Dr. Tuao's]
knowledge that 5% of the population reacts adversely
to Maxitrol, [he] had no qualms whatsoever in
98

prescribing said steroid to Peter without first


determining whether or not the (sic) Peter belongs to
the 5%".
We are not convinced. The judgments of both the Court
of Appeals and the RTC are in accord with the evidence
on record, and we are accordingly bound by the
findings of fact made therein.
Petitioners' position, in sum, is that Peter's glaucoma is
the direct result of Dr. Tuao's negligence in his
improper administration of the drug Maxitrol; "thus,
[the latter] should be liable for all the damages suffered
and to be suffered by [petitioners]". Clearly, the present
controversy is a classic illustration of a medical
negligence case against a physician based on the latter's
professional negligence. In this type of suit, the patient
or his heirs, in order to prevail, is required to prove by
preponderance of evidence that the physician failed to
exercise that degree of skill, care, and learning
possessed by other persons in the same profession; and
that as a proximate result of such failure, the patient or
his heirs suffered damages.
For lack of a specific law geared towards the type of
negligence committed by members of the medical
profession, such claim for damages is almost always
anchored on the alleged violation of Article 2176 of the
Civil Code, which states that:
ART. 2176.
Whoever by act or
omission causes damage to another,
there being fault or negligence, is
obliged to pay for the damage done.
Such fault or negligence, if there is no
pre-existing
contractual
relation
between the parties, is called a quasidelict and is governed by the
provisions of this Chapter.
In medical negligence cases, also called medical
malpractice suits, there exist a physician-patient
relationship between the doctor and the victim. But just
like any other proceeding for damages, four essential
(4) elements i.e., (1) duty; (2) breach; (3) injury; and (4)
proximate causation, 76 must be established by the
plaintiff/s. All the four (4) elements must co-exist in
order to find the physician negligent and, thus, liable
for damages.
When a patient engages the services of a physician, a
physician-patient relationship is generated. And in
accepting a case, the physician, for all intents and
purposes, represents that he has the needed training
and skill 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 [the former] to exercise that degree of
care, skill and diligence which physicians in the same
general neighborhood and in the same general line of
practice ordinarily possess and exercise in like cases.
99

Stated otherwise, the physician has the duty to use at


least the same level of care that any other reasonably
competent physician would use to treat the condition
under similar circumstances.
This standard level of care, skill and diligence is a
matter best addressed by expert medical testimony,
because the standard of care in a medical malpractice
case is a matter peculiarly within the knowledge of
experts in the field.
There is breach of duty of care, skill and diligence, or
the improper performance of such duty, by the
attending physician when the patient is injured in body
or in health [and this] constitutes the actionable
malpractice. Proof of such breach must likewise rest
upon the testimony of an expert witness that the
treatment accorded to the patient failed to meet the
standard level of care, skill and diligence which
physicians in the same general neighborhood and in the
same general line of practice ordinarily possess and
exercise in like cases.
Even so, proof of breach of duty on the part of the
attending physician is insufficient, for there must be a
causal connection between said breach and the
resulting injury sustained by the patient. Put in another
way, in order that there may be a recovery for an injury,
it must be shown that the "injury for which recovery is
sought must be the legitimate consequence of the
wrong done; the connection between the negligence
and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes"; that
is, the negligence must be the proximate cause of the
injury. And the proximate cause of an injury is that
cause, which, in the natural and continuous sequence,
unbroken by any efficient intervening cause, produces
the injury, and without which the result would not
have occurred.
Just as with the elements of duty and breach of the
same, in order to establish the proximate cause [of the
injury] by a preponderance of the evidence in a medical
malpractice action, [the patient] must similarly use
expert testimony, because the question of whether the
alleged professional negligence caused [the patient's]
injury is generally one for specialized expert knowledge
beyond the ken of the average layperson; using the
specialized knowledge and training of his field, the
expert's role is to present to the [court] a realistic
assessment of the likelihood that [the physician's]
alleged negligence caused [the patient's] injury.
From the foregoing, it is apparent that medical
negligence cases are best proved by opinions of expert
witnesses belonging in the same general neighborhood
and in the same general line of practice as defendant
physician or surgeon. The deference of courts to the
expert opinion of qualified physicians [or surgeons]
stems from the former's realization that the latter
possess unusual technical skills which laymen in most

instances are incapable of intelligently evaluating;


hence, the indispensability of expert testimonies.
In the case at bar, there is no question that a physicianpatient relationship developed between Dr. Tuao and
Peter when Peter went to see the doctor on 2 September
1988, seeking a consult for the treatment of his sore
eyes. Admittedly, Dr. Tuao, an ophthalmologist,
prescribed Maxitrol when Peter developed and had
recurrent EKC. Maxitrol or neomycin/polymyxin B
sulfates/dexamethasone ophthalmic ointment is a
multiple-dose anti-infective steroid combination in
sterile form for topical application. It is the drug which
petitioners claim to have caused Peter's glaucoma.
However, as correctly pointed out by the Court of
Appeals, "[t]he onus probandi was on the patient to
establish before the trial court that the physicians
ignored standard medical procedure, prescribed and
administered medication with recklessness and
exhibited an absence of the competence and skills
expected of general practitioners similarly situated".
Unfortunately, in this case, there was absolute failure
on the part of petitioners to present any expert
testimony to establish: (1) the standard of care to be
implemented by competent physicians in treating the
same condition as Peter's under similar circumstances;
(2) that, in his treatment of Peter, Dr. Tuao failed in his
duty to exercise said standard of care that any other
competent physician would use in treating the same
condition as Peter's under similar circumstances; and
(3) that the injury or damage to Peter's right eye, i.e., his
glaucoma, was the result of his use of Maxitrol, as
prescribed by Dr. Tuao. Petitioners' failure to prove
the first element alone is already fatal to their cause.
Petitioners maintain that Dr. Tuao failed to follow in
Peter's case the required procedure for the prolonged
use of Maxitrol. But what is actually the required
procedure in situations such as in the case at bar? To be
precise, what is the standard operating procedure when
ophthalmologists prescribe steroid medications which,
admittedly, carry some modicum of risk?
Absent a definitive standard of care or diligence
required of Dr. Tuao under the circumstances, we
have no means to determine whether he was able to
comply with the same in his diagnosis and treatment of
Peter. This Court has no yardstick upon which to
evaluate or weigh the attendant facts of this case to be
able to state with confidence that the acts complained
of, indeed, constituted negligence and, thus, should be
the subject of pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr.
Tuao should have determined first whether Peter was
a "steroid responder". Yet again, petitioners did not
present any convincing proof that such determination is
actually part of the standard operating procedure
which ophthalmologists should unerringly follow prior
to prescribing steroid medications.

In contrast, Dr. Tuao was able to clearly explain that


what is only required of ophthalmologists, in cases such
as Peter's, is the conduct of standard tests/procedures
known as "ocular routine examination", 88 composed of
five (5) tests/procedures specifically, gross
examination of the eyes and the surrounding area;
taking of the visual acuity of the patient; checking the
intraocular pressure of the patient; checking the
motility of the eyes; and using ophthalmoscopy on the
patient's eye and he did all those tests/procedures
every time Peter went to see him for follow-up
consultation and/or check-up.
We cannot but agree with Dr. Tuao's assertion that
when a doctor sees a patient, he cannot determine
immediately whether the latter would react adversely
to the use of steroids; all the doctor can do is map out a
course of treatment recognized as correct by the
standards of the medical profession. It must be
remembered that a physician is not an insurer of the
good result of treatment. The mere fact that the patient
does not get well or that a bad result occurs does not in
itself indicate failure to exercise due care. The result is
not determinative of the performance [of the physician]
and he is not required to be infallible.
Moreover, that Dr. Tuao saw it fit to prescribe
Maxitrol to Peter was justified by the fact that the latter
was already using the same medication when he first
came to see Dr. Tuao on 2 September 1988 and had
exhibited no previous untoward reaction to that
particular drug.
Also, Dr. Tuao categorically denied petitioners' claim
that he never monitored the tension of Peter's eyes
while the latter was on Maxitrol. Dr. Tuao testified
that he palpated Peter's eyes every time the latter came
for a check-up as part of the doctor's ocular routine
examination, a fact which petitioners failed to rebut. Dr.
Tuao's regular conduct of examinations and tests to
ascertain the state of Peter's eyes negate the very basis
of petitioners' complaint for damages. As to whether
Dr. Tuao's actuations conformed to the standard of
care and diligence required in like circumstances, it is
presumed to have so conformed in the absence of
evidence to the contrary.
Even if we are to assume that Dr. Tuao committed
negligent acts in his treatment of Peter's condition, the
causal connection between Dr. Tuao's supposed
negligence and Peter's injury still needed to be
established. The critical and clinching factor in a
medical negligence case is proof of the causal
connection between the negligence which the evidence
established and the plaintiff's injuries. The plaintiff
must plead and prove not only that he has been injured
and defendant has been at fault, but also that the
defendant's fault caused the injury. A verdict in a
malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a
reasonable medical probability based upon competent
expert testimony.
100

The causation between the physician's negligence and


the patient's injury may only be established by the
presentation of proof that Peter's glaucoma would not
have occurred but for Dr. Tuao's supposed negligent
conduct. Once more, petitioners failed in this regard.
Dr. Tuao does not deny that the use of Maxitrol
involves the risk of increasing a patient's IOP. In fact,
this was the reason why he made it a point to palpate
Peter's eyes every time the latter went to see him so
he could monitor the tension of Peter's eyes. But to say
that said medication conclusively caused Peter's
glaucoma is purely speculative. Peter was diagnosed
with open-angle glaucoma. This kind of glaucoma is
characterized by an almost complete absence of
symptoms and a chronic, insidious course. In openangle glaucoma, halos around lights and blurring of
vision do not occur unless there has been a sudden
increase in the intraocular vision. Visual acuity remains
good until late in the course of the disease. Hence, Dr.
Tuao claims that Peter's glaucoma "can only be long
standing . . . because of the large C:D ratio", and that
"[t]he steroids provoked the latest glaucoma to be
revealed earlier" was a blessing in disguise "as [Peter]
remained asymptomatic prior to steroid application".
Who between petitioners and Dr. Tuao is in a better
position to determine and evaluate the necessity of
using Maxitrol to cure Peter's EKC vis--vis the
attendant risks of using the same?
That Dr. Tuao has the necessary training and skill to
practice his chosen field is beyond cavil. Petitioners do
not dispute Dr. Tuao's qualifications that he has
been a physician for close to a decade and a half at the
time Peter first came to see him; that he has had various
medical training; that he has authored numerous
papers in the field of ophthalmology, here and abroad;
that he is a Diplomate of the Philippine Board of
Ophthalmology; that he occupies various teaching
posts (at the time of the filing of the present complaint,
he was the Chair of the Department of Ophthalmology
and an Associate Professor at the University of the
Philippines-Philippine General Hospital and St. Luke's
Medical Center, respectively); and that he held an
assortment of positions in numerous medical
organizations like the Philippine Medical Association,
Philippine Academy of Ophthalmology, Philippine
Board of Ophthalmology, Philippine Society of
Ophthalmic Plastic and Reconstructive Surgery,
Philippine Journal of Ophthalmology, Association of
Philippine Ophthalmology Professors, et al.
It must be remembered that when the qualifications of a
physician are admitted, as in the instant case, there is an
inevitable presumption that in proper cases, he takes
the necessary precaution and employs the best of his
knowledge and skill in attending to his clients, unless
the contrary is sufficiently established. In making the
judgment call of treating Peter's EKC with Maxitrol, Dr.
Tuao took the necessary precaution by palpating
101

Peter's eyes to monitor their IOP every time the latter


went for a check-up, and he employed the best of his
knowledge and skill earned from years of training and
practice.
In contrast, without supporting expert medical
opinions, petitioners' bare assertions of negligence on
Dr. Tuao's part, which resulted in Peter's glaucoma,
deserve scant credit.
Our disposition of the present controversy might have
been vastly different had petitioners presented a
medical expert to establish their theory respecting Dr.
Tuao's so-called negligence. In fact, the record of the
case reveals that petitioners' counsel recognized the
necessity of presenting such evidence. Petitioners even
gave an undertaking to the RTC judge that Dr. Agulto
or Dr. Aquino would be presented. Alas, no followthrough on said undertaking was made.
The plaintiff in a civil case has the burden of proof as he
alleges the affirmative of the issue. However, in the
course of trial in a civil case, once plaintiff makes out a
prima facie case in his favor, the duty or the burden of
evidence shifts to defendant to controvert plaintiff's
prima facie case; otherwise, a verdict must be returned
in favor of plaintiff. The party having the burden of
proof must establish his case by a preponderance of
evidence. The concept of "preponderance of evidence"
refers to evidence which is of greater weight or more
convincing than that which is offered in opposition to
it; in the last analysis, it means probability of truth. It is
evidence which is more convincing to the court as
worthy of belief than that which is offered in opposition
thereto. Rule 133, Section 1 of the Revised Rules of
Court provides the guidelines for determining
preponderance of evidence, thus:
In civil cases, the party having the
burden of proof must establish his
case by a preponderance of evidence.
In
determining
where
the
preponderance or superior weight of
evidence on the issues involved lies
the court may consider all the facts
and circumstances of the case, the
witnesses' manner of testifying, their
intelligence,
their
means
and
opportunity of knowing the facts to
which they are testifying, the nature
of the facts to which they testify, the
probability or improbability of their
testimony, their interest or want of
interest, and also their personal
credibility so far as the same
legitimately appear upon the trial.
The court may also consider the
number of witnesses, though the
preponderance is not necessarily with
the greater number.

Herein, the burden of proof was clearly upon


petitioners, as plaintiffs in the lower court, to establish
their case by a preponderance of evidence showing a
reasonable connection between Dr. Tuao's alleged
breach of duty and the damage sustained by Peter's
right eye. This, they did not do. In reality, petitioners'
complaint for damages is merely anchored on a
statement in the literature of Maxitrol identifying the
risks of its use, and the purported comment of Dr.
Agulto another doctor not presented as witness
before the RTC concerning the prolonged use of
Maxitrol for the treatment of EKC.
It seems basic that what constitutes proper medical
treatment is a medical question that should have been
presented to experts. If no standard is established
through expert medical witnesses, then courts have no
standard by which to gauge the basic issue of breach
thereof by the physician or surgeon. The RTC and
Court of Appeals, and even this Court, could not be
expected to determine on its own what medical
technique should have been utilized for a certain
disease or injury. Absent expert medical opinion, the
courts would be dangerously engaging in speculations.
All told, we are hard pressed to find Dr. Tuao liable
for any medical negligence or malpractice where there
is no evidence, in the nature of expert testimony, to
establish that in treating Peter, Dr. Tuao failed to
exercise reasonable care, diligence and skill generally
required in medical practice. Dr. Tuao's testimony,
that his treatment of Peter conformed in all respects to
standard medical practice in this locality, stands
unrefuted. Consequently, the RTC and the Court of
Appeals correctly held that they had no basis at all to
rule that petitioners were deserving of the various
damages prayed for in their Complaint.
WHEREFORE, premises considered, the instant petition
is DENIED for lack of merit. The assailed Decision
dated 27 September 2006 and Resolution dated 3 July
2007, both of the Court of Appeals in CA-G.R. CV No.
68666, are hereby AFFIRMED. No cost.

sustained in the evening of July 30, 1968 when their jeep


ran over a mound of earth and fell into an open trench,
an excavation allegedly undertaken by PLDT for the
installation of its underground conduit system. The
complaint alleged that respondent Antonio Esteban
failed to notice the open trench which was left
uncovered because of the creeping darkness and the
lack of any warning light or signs. As a result of the
accident, respondent Gloria Esteban allegedly sustained
injuries on her arms, legs and face, leaving a permanent
scar on her cheek, while the respondent husband
suffered cut lips. In addition, the windshield of the jeep
was shattered.
PLDT, in its answer, denies liability on the contention
that the injuries sustained by respondent spouses were
the result of their own negligence and that the entity
which should be held responsible, if at all, is L.R. Barte
and Company (Barte, for short), an independent
contractor which undertook the construction of the
manhole and the conduit system. Accordingly, PLDT
filed a third-party complaint against Barte alleging that,
under the terms of their agreement, PLDT should in no
manner be answerable for any accident or injuries
arising from the negligence or carelessness of Barte or
any of its employees. In answer thereto, Barte claimed
that it was not aware nor was it notified of the accident
involving respondent spouses and that it had complied
with the terms of its contract with PLDT by installing
the necessary and appropriate standard signs in the
vicinity of the work site, with barricades at both ends of
the excavation and with red lights at night along the
excavated area to warn the traveling public of the
presence of excavations.
On October 1, 1974, the trial court rendered a decision
in favor of private respondents, the decretal part of
which reads:
xxx

xxx

xxx

From this decision both PLDT and private respondents


appealed, the latter appealing only as to the amount of
damages. Third-party defendant Barte did not appeal.

SO ORDERED.
xxx
Ynares-Santiago,
Peralta, JJ., concu
c.

Austria-Martinez,

Nachura

xxx

xxx

and

Proof of negligence

PHILIPPINE LONG DISTANCE TELEPHONE CO.,


INC. vs. COURT OF APPEALS, ET AL.
G.R. No. 57079, 29 September 1989, 178 SCRA 94
REGALADO, J p:
This case had its inception in an action for damages
instituted in the former Court of First Instance of
Negros Occidental by private respondent spouses
against petitioner Philippine Long Distance Telephone
Company (PLDT, for brevity) for the injuries they

Prescinding from the aforesaid procedural lapses into


the substantive merits of the case, we find no error in
the findings of the respondent court in its original
decision that the accident which befell private
respondents was due to the lack of diligence of
respondent Antonio Esteban and was not imputable to
negligent omission on the part of petitioner PLDT. Such
findings were reached after an exhaustive assessment
and evaluation of the evidence on record, as evidenced
by the respondent court's resolution of January 24, 1980
which we quote with approval:
"First. Plaintiff's jeep was running
along the inside lane of Lacson Street.
If it had remained on that inside lane,
102

it would not have hit the ACCIDENT


MOUND.
"Exhibit B shows, through the
tiremarks, that the ACCIDENT
MOUND was hit by the jeep
swerving from the left that is,
swerving from the inside lane. What
caused the swerving is not disclosed;
but, as the cause of the accident,
defendant cannot be made liable for
the damages suffered by plaintiffs.
The accident was not due to the
absence of warning signs, but to the
unexplained abrupt swerving of the
jeep from the inside lane. That may
explain plaintiff-husband's insistence
that he did not see the ACCIDENT
MOUND for which reason he ran
into it.
"Second. That plaintiff's Jeep was on
the inside lane before it swerved to
hit the ACCIDENT MOUND could
have been corroborated by a picture
showing Lacson Street to the south of
the ACCIDENT MOUND.
"It has been stated that the ditches
along Lacson Street had already been
covered except the 3 or 4 meters
where the ACCIDENT MOUND was
located. Exhibit B-1 shows that the
ditches on Lacson Street north of the
ACCIDENT MOUND had already
been covered, but not in such a way
as to allow the outer lane to be freely
and
conveniently
passable
to
vehicles. The situation could have
been worse to the south of the
ACCIDENT MOUND for which
reason no picture of the ACCIDENT
MOUND facing south was taken.
Third. Plaintiff's jeep was not running
at 25 kilometers an hour as plaintiffhusband claimed. At that speed, he
could have braked the vehicle the
moment it struck the ACCIDENT
MOUND. The jeep would not have
climbed the ACCIDENT MOUND
several feet as indicated by the
tiremarks in Exhibit B. The jeep must
have been running quite fast. If the
jeep had been braked at 25 kilometers
an hour, plaintiffs would not have
been thrown against the windshield
and they would not have suffered
their injuries.
"Fourth. If the accident did not
happen because the jeep was running
103

quite fast on the inside lane and for


some reason or other it had to swerve
suddenly to the right and had to
climb over the ACCIDENT MOUND,
then plaintiff-husband had not
exercised the diligence of a good
father of a family to avoid the
accident. With the drizzle, he should
not have run on dim lights, but
should have put on his regular lights
which should have made him see the
ACCIDENT MOUND in time. If he
was running on the outside lane at 25
kilometers an hour, even on dim
lights, his failure to see the
ACCIDENT MOUND in time to
brake the car was negligence on his
part. The ACCIDENT MOUND was
relatively big and visible, being 2 to 3
feet high and 1-1/2 feet wide. If he
did not see the ACCIDENT MOUND
in time, he would not have seen any
warning sign either. He knew of the
existence and location of the
ACCIDENT MOUND, having seen it
many previous times. With ordinary
precaution, he should have driven his
jeep on the night of the accident so as
to avoid hitting the ACCIDENT
MOUND."
The above findings clearly show that the negligence of
respondent Antonio Esteban was not only contributory
to his injuries and those of his wife but goes to the very
cause of the occurrence of the accident, as one of its
determining factors, and thereby precludes their right
to recover damages.
The perils of the road were
known to, hence appreciated and assumed by, private
respondents. By exercising reasonable care and
prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even
assuming arguendo that there was some alleged
negligence on the part of petitioner.
The presence of warning signs could not have
completely prevented the accident; the only purpose of
said signs was to inform and warn the public of the
presence of excavations on the site. The private
respondents already knew of the presence of said
excavations. It was not the lack of knowledge of these
excavations which caused the jeep of respondents to fall
into the excavation but the unexplained sudden
swerving of the jeep from the inside lane towards the
accident mound. As opined in some quarters, the
omission to perform a duty, such as the placing of
warning signs on the site of the excavation, constitutes
the proximate cause only when the doing of the said
omitted act would have prevented the injury. It is basic
that private respondents cannot charge PLDT for their
injuries where their own failure to exercise due and
reasonable care was the cause thereof. It is both a
societal norm and necessity that one should exercise a

reasonable degree of caution for his own protection.


Furthermore, respondent Antonio Esteban had the last
clear chance or opportunity to avoid the accident,
notwithstanding the negligence he imputes to
petitioner PLDT. As a resident of Lacson Street, he
passed on that street almost everyday and had
knowledge of the presence and location of the
excavations there. It was his negligence that exposed
him and his wife to danger, hence he is solely
responsible for the consequences of his imprudence.

on negligence for his cause of action has the burden in


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

Moreover, we also sustain the findings of respondent


Court of Appeals in its original decision that there was
insufficient evidence to prove any negligence on the
part of PLDT. We have for consideration only the selfserving testimony of respondent Antonio Esteban and
the unverified photograph of merely a portion of the
scene of the accident. The absence of a police report of
the incident and the non-submission of a medical report
from the hospital where private respondents were
allegedly treated have not even been satisfactorily
explained.

Melencio-Herrera, Paras, Padilla and Sarmiento, JJ.,


concur.
d.
1.

Presumption of Negligence
Res ipsa loquitur
AFRICA, ET AL. vs. CALTEX (PHIL.) INC., ET AL.
G.R. No. L-12986, 31 March 1966, 16 SCRA 448.

MAKALINTAL, J p:
As aptly observed by respondent court in its aforecited
extended resolution of January 24, 1980
"(a)
There was no third party
eyewitness of the accident. As to how
the accident occurred, the Court can
only rely on the testimonial evidence
of plaintiffs themselves, and such
evidence should be very carefully
evaluated, with defendant, as the
party being charged, being given the
benefit of any doubt. Definitely
without
ascribing
the
same
motivation to plaintiffs, another
person could have deliberately
engineered a similar accident in the
hope and expectation that the Court
can grant him substantial moral and
exemplary damages from the big
corporation that defendant is. The
statement is made only to stress the
disadvantageous
position
of
defendant
which
would
have
extreme difficulty in contesting such
person's claim. If there were no
witness or record available from the
police department of Bacolod,
defendant would not be able to
determine for itself which of the
conflicting testimonies of plaintiffs is
correct as to the report or non-report
of the accident to the police
department."
A person claiming damages for the negligence of
another has the burden of proving the existence of such
fault or negligence causative thereof. The facts
constitutive of negligence must be affirmatively
established by competent evidence. Whosoever relies

This case is before us on a petition for review of the


decision of the Court of Appeals, which affirmed that of
the Court of First Instance of Manila dismissing
petitioners' second amended complaint against
respondents.
The action is for damages under Articles 1902 and 1903
of the old Civil Code. It appears that in the afternoon of
March 18, 1948 a fire broke out at the Caltex service
station at the corner of Antipolo street and Rizal
Avenue, Manila. It started while gasoline was being
hosed from a tank truck into the underground storage,
right at the opening of the receiving tank where the
nozzle of the hose was inserted. The fire spread to and
burned several neighboring houses, including the
personal properties and effects inside them. Their
owners, among them petitioners here, sued
respondents Caltex (Phil.), Inc. and Mateo Boquiren, the
first as alleged owner of the station and the second as
its agent in charge of operation. Negligence on the part
of both of them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that
petitioners failed to prove negligence and that
respondents had exercised due care in the premises and
with respect to the supervision of their employees.
xxx

xxx

xxx

The next question is whether or not, without proof as to


the cause and origin of the fire, the doctrine of res ipsa
loquitur should apply so as to presume negligence on
the part of appellees. Both the trial court and the
appellate court refused to apply the doctrine in the
instant case on the grounds that "as to (its) applicability
. . . in the Philippines, there seems to be nothing
definite," and that while the rules do not prohibit its
adoption in appropriate cases, "in the case at bar,
104

however, we find no practical use for such doctrine."


The question deserves more than such summary
dismissal. The doctrine has actually been applied in this
jurisdiction in the case of Espiritu vs. Philippine Power
and Development Co. (C.A. G. R. No. L-324O-R,
September 20, 1949), wherein the decision of the Court
of Appeals was penned by Mr. Justice J.B.L. Reyes now
a member of the Supreme Court.
The facts of that case are stated in the decision as
follows:
"In the afternoon of May 5, 1946,
while the plaintiff-appellee and other
companions were loading grass
between the municipalities of Bay
and Calauan, in the province of
Laguna, with clear weather and
without any wind blowing, an
electric transmission wire, installed
and maintained by the defendant
Philippine Power and Development
Co., Inc. alongside the road, suddenly
parted, and one of the broken ends
hit the head of the plaintiff as he was
about to board the truck. As a result,
plaintiff received the full shock of
4,400 volts carried by the wire and
was knocked unconscious to the
ground. The electric charge coursed
through his body and caused
extensive and serious multiple burns
from skull to legs, leaving the bone
exposed in some parts and causing
intense pain and wounds that were
not completely healed when the case
was tried on June 18, 1947, over one
year after the mishap."
The defendant therein disclaimed liability on the
ground that the plaintiff had failed to show any specific
act of negligence but the appellate court overruled the
defense under the doctrine of res ipsa loquitur. The court
said:
"The first point is directed against the
sufficiency of plaintiff's evidence to
place appellant on its defense. While
it is the rule, as contended by the
appellant,
that
in
case
of
noncontractual negligence, or culpa
aquiliana, the burden of proof is on
the plaintiff to establish that the
proximate cause of his injury was the
negligence of the defendant, it is also
a recognized principle that 'Where
the thing which caused injury,
without fault of the injured person, is
under the exclusive control of the
defendant and the injury is such as in
the ordinary course of things does
not occur if those having such control
105

use proper care, it affords reasonable


evidence, in the absence of the
explanation that the injury arose from
defendant's want of care.'
"And the burden of evidence is
shifted to him to establish that he has
observed due care and diligence. (San
Juan Light & Transit Co. vs. Requena,
224 U.S. 89, 56 L. ed. 68 ). This rule is
known by the name of res ipsa loquitur
(the transaction speaks for itself), and
is peculiarly applicable to the case at
bar, where it is unquestioned that the
plaintiff had every right to be on the
highway, and the electric wire was
under the sole control of defendant
company. In the ordinary course of
events, electric wires do not part
suddenly in fair weather and injure
people, unless they are subjected to
unusual strain and stress or there are
defects
in
their
installation,
maintenance and supervision; just as
barrels do not ordinarily roll out of
the warehouse windows to injure
passersby unless some one was
negligent. (Byrne vs. Boadle, 2 H & Co.
22; 159 Eng. Reprint 299, the leading
case that established that rule).
Consequently, in the absence of
contributory negligence (which is
admittedly not present) the fact that
the wire snapped suffices to raise a
reasonable
presumption
of
negligence in the installation, care
and maintenance. Thereafter, as
observed by Chief Baron Pollock, if
there are any facts inconsistent with
negligence, it is for the defendant to
prove.'"
It is true of course that decisions of the Court of
Appeals do not lay down doctrines binding on the
Supreme Court, but we do not consider this a reason for
not applying the particular doctrine of res ipsa loquitur
in the case at bar. Gasoline is a high]y combustible
material, in the storage and sale of which extreme care
must be taken. On the other hand, fire is not considered
a fortuitous event, as it arises almost invariably from
some act of man. A case strikingly similar to the one
before Us is Jones vs. Shell Petroleum Corporation, et al.,
171 So. 447;
"Arthur O. Jones is the owner of a
building in the city of Hammon
which in the year 1934 was leased to
the Shell Petroleum Corporation for a
gasoline filling station. On October 8,
1934, during the term of the lease,
while gasoline was being transferred,
from the tank wagon, also operated

by the Shell Petroleum Corporation,


to the underground tank of the
station, a fire started with resulting
damages to the building owned by
Jones. Alleging that the damages to
his building amounted to $516.95,
Jones sued the Shell Petroleum
Corporation for the recovery of that
amount. The judge of the district
court, after hearing the testimony,
concluded that plaintiff was entitled
to a recovery and rendered judgment
in his favor for $427.82. The Court of
Appeals for the First Circuit reversed
this judgment, on the ground the
testimony failed to show with
reasonable certainty any negligence
on the part of the Shell Petroleum
Corporation or any of its agents or
employees. Plaintiff applied to this
Court for a Writ of Review which
was granted, and the case is now
before us for decision."
In resolving the issue of negligence, the Supreme Court
of Louisiana held:
"Plaintiff's petition contains two
distinct charges of negligence one
relating to the cause of the fire and
the other relating to the spreading of
the gasoline about the filling station.
"Other than an expert to asses the
damages caused plaintiff's building
by the fire, no witnesses were placed
on the stand by the defendant.
"Taking up plaintiff's charge of
negligence relating to the cause of the
fire, we find it established by the
record that the filling station and the
tank truck were under the control of
the defendant and operated by its
agents or employees. We further find
from the uncontradicted testimony of
plaintiff's witnesses that fire started
in the underground tank attached to
the filling station while it was being
filled from the tank truck and while
both the tank and the truck were in
charge of and being operated by the
agents
or
employees
of
the
defendant, extended to the hose and
tank truck, and was communicated
from the burning hose, tank truck,
and escaping gasoline to the building
owned by the plaintiff.
Predicated on these circumstances
and the further circumstance of
defendants failure to explain the

cause of the fire or to show its lack of


knowledge of the cause, plaintiff has
evoked the doctrine of res ipsa
loquitur. There are many cases in
which
the
doctrine
may
be
successfully invoked and this, we
think, is one of them.
Where the thing which caused the
injury complained of is shown to be
under the management of defendant
or his servants and the accident is
such as in the ordinary course of
things does not happen if those who
have its management or control use
proper care, it affords reasonable
evidence, in absence of explanation
by defendant, that the accident arose
from want of care. (45 C. J. #768, p.
1193).
"This statement of the rule of res ipsa
loquitur has been widely approved
and adopted by the courts of last
resort. Some of the cases in this
jurisdiction in which the doctrine has
been applied are the following, viz.;
Maus vs. Broderick, 51 La. Ann. 1153,
25 So. 977; Hebert vs. Lake Charles Ice
etc., Co., 111 La. 522, 35 So. 731, 64
L.R.A. 101, 100 Am. St. Rep. 505;
Willis vs. Vicksburg, etc., R. Co., 115
La. 53, 38 So. 892; Bents, vs. Page, 115
La. 560, 39 So. 599."
The principle enunciated in the aforequoted case
applies with equal force here. The gasoline station, with
all its appliances, equipment and employees, was under
the control of appellees. A fire occurred therein and
spread to and burned the neighboring houses. The
persons who knew or could have known how the fire
started were appellees and their employees, but they
gave no explanation thereof whatsoever. It is a fair and
reasonable inference that the incident happened
because of want of care.
In the report submitted by Captain Leoncio Mariano of
the Manila Police Department (Exh. X-1 Africa) the
following appears:
"Investigation of the basic complaint
disclosed that the Caltex Gasoline
Station complained of occupies a lot
approximately 10 m x 10 m at the
southwest corner of Rizal Avenue
and Antipolo. The location is within a
very busy business district near the
Obrero Market, a railroad crossing
and
very
thickly
populated
neighborhood where a great number
of people mill around throughout the
day until late at night. The
106

circumstances put the gasoline


station in a situation primarily
prejudicial to its operation because
the passersby, those waiting for buses
or transportation, those waiting to
cross the streets and others loafing
around have to occupy not only the
sidewalks but also portion of the
gasoline station itself. Whatever be
the activities of these people smoking
or lighting a cigarette cannot be
excluded and this constitute a
secondary hazard to its operation
which in turn endangers the entire
neighborhood to conflagration.
"Furthermore, aside from precautions
already taken by its operator the
concrete walls south and west
adjoining the neighborhood are only
2 1/2 meters high at most and cannot
avoid the flames from leaping over it
in case of fire.
"Records show that there have been
two cases of fire which caused not
only
material
damages
but
desperation and also panic in the
neighborhood.
"Although the soft drinks stand had
been eliminated, this gasoline service
station is also used by its operator as
a garage and repair shop for his fleet
of taxicabs numbering ten or more,
adding another risk to the possible
outbreak of fire at this already small
but crowded gasoline station."
The foregoing report, having been submitted by a
police officer in the performance of his duties on the
basis of his own personal observation of the facts
reported, may properly be considered as an exception
to the hearsay rule. Those facts, descriptive of the
location and objective circumstances surrounding the
operation of the gasoline station in question, strengthen
the presumption of negligence under the doctrine of res
ipsa loquitur, since on their face they called for more
stringent measures of caution than those which would
satisfy the standard of due diligence under ordinary
circumstances.
There
is
no
more
eloquent
demonstration of this than the statement of Leandro
Flores before the police investigator. Flores was the
driver of the gasoline tank wagon who, alone and
without assistance, was transferring the contents
thereof into the underground storage when the fire
broke out. He said: "Before loading the underground
tank there were no people, but while the loading was
going on, there were people who went to drink cocacola (at the coca-cola stand) which is about a meter
from the hole leading to the underground tank." He
added that when the tank was almost filled he went to
107

the tank truck to close the valve, and while he had his
back turned to the "manhole" he heard someone shout
"fire."
Even then the fire possibly would not have spread to
the neighboring houses were it not for another
negligent omission on the part of defendants, namely,
their failure to provide a concrete wall high enough to
prevent the flames from leaping over it. As it was the
concrete wall was only 2 1/2 meters high, and beyond
that height it consisted merely of galvanized iron
sheets, which would predictably crumple and melt
when subjected to intense heat. Defendants' negligence,
therefore, was not only with respect to the cause of the
fire but also with respect to the spread thereof to the
neighboring houses.
There is an admission on the part of Boquiren in his
amended answer to the second amended complaint that
"the fire was caused through the acts of a stranger who,
without authority, or permission of answering
defendant, passed through the gasoline station and
negligently threw a lighted match in the premises." No
evidence on this point was adduced, but assuming the
allegation to be true certainly any unfavorable
inference from the admission may be taken against
Boquiren it does not extenuate his negligence. A
decision of the Supreme Court of Texas, upon facts
analogous to those of the present case, states the rule
which we find acceptable here: "It is the rule that those
who distribute a dangerous article or agent owe a
degree of protection to the public proportionate to and
commensurate with a danger involved . . . we think it is
the generally accepted rule as applied to torts that 'if
the effects of the actor's negligent conduct actively and
continuously operate to bring about harm to another,
the fact that the active and substantially simultaneous
operation of the effects of a third person's innocent,
tortious or criminal act is also a substantial factor in
bringing about the harm, does not protect the actor
from liability.' (Restatement of the Law of Torts, vol. 2,
p. 1184, #439. Stated in another way, 'The intervention
of an unforeseen and unexpected cause, is not sufficient
to relieve a wrongdoer from consequences of
negligence, if such negligence directly and proximately
cooperates with the independent cause in the resulting
injury.' (MacAfee et al. vs. Traver's Gas Corp., et al., 153
S.W. 2nd 442.)
The next issue is whether Caltex should be held liable
for the damages caused to appellants. This issue
depends on whether Boquiren was an independent
contractor, as held by the Court of Appeals, or an agent
of Caltex. This question, in the light of the facts not
controverted, is one of law and hence may be passed
upon by this Court. These facts are: 1) Boquiren made
an admission that he was an agent of Caltex; (2) at the
time of the fire Caltex owned the gasoline station and
all the equipment therein; (3) Caltex exercised control
over Boquiren in the management of the station; (4) the
delivery truck used in delivering gasoline to the station
had the name CALTEX painted on it; and (5) the license

to store gasoline at the station was in the name of


Caltex, which paid the license fees. (Exhibit T-Africa;
Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa;
Exhibit Y-Africa).
In Boquiren's amended answer to the second amended
complaint, he denied that he directed one of his drivers
to remove gasoline from the truck into the tank and
alleged that the "alleged driver, if one there was, was
not in his employ, the driver being an employee of the
Caltex (Phil.) Inc. and/or the owners of the gasoline
station." It is true that Boquiren later on amended his
answer, and that among the changes was one to the
effect that he was not acting as agent of Caltex. But then
again, in his motion to dismiss appellants' second
amended complaint the ground alleged was that it
stated no cause of action since under the allegations
thereof he was merely acting as agent of Caltex, such
that he could not have incurred personal liability. A
motion to dismiss on this ground is deemed to be an
admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well
as the equipment therein, but claims that the business
conducted at the service station in question was owned
and operated by Boquiren. But Caltex did not present
any contract with Boquiren that would reveal the
nature of their relationship at the time of the fire. There
must have been one in existence at that time. Instead,
what was presented was a license agreement manifestly
tailored for purposes of this case, since it was entered
into shortly before the expiration of the one- year
period it was intended to operate. This so-called license
agreement (Exhibit 5-Caltex) was executed on
November 29, 1948, but made effective as of January 1,
1948 so as to cover the date of the fire, namely, March
18, 1948. This retroactivity provision is quite significant,
and gives rise to the conclusion that it was designed
precisely to free Caltex from any responsibility with
respect to the fire, as shown by the clause that Caltex
"shall not be liable for any injury to person or property
while in the property herein licensed, it being
understood and agreed that LICENSEE (Boquiren) is
not an employee, representative or agent of LICENSOR
(Caltex)."
But even if the license agreement were to govern,
Boquiren can hardly be considered an independent
contractor. Under that agreement Boquiren would pay
Caltex the purely nominal sum of P1.00 for the use of
the premises and all the equipment therein. He could
sell only Caltex products. Maintenance of the station
and its equipment was subject to the approval, in other
words control, of Caltex. Boquiren could not assign or
transfer his rights as licensee without the consent of
Caltex. The license agreement was supposed to be from
January 1, 1948 to December 31, 1948, and thereafter
until terminated by Caltex upon two days prior written
notice. Caltex could at any time cancel and terminate
the agreement in case Boquiren ceased to sell Caltex
products, or did not conduct the business with due
diligence, in the judgment of Caltex. Termination of the

contract was therefore a right granted only to Caltex


but not to Boquiren. These provisions of the contract
show the extent of the control of Caltex over Boquiren.
The control was such that the latter was virtually an
employee of the former.
"Taking into consideration the fact
that the operator owed his position to
the company and the latter could
remove him or terminate his services
at will; that the service station
belonged to the company and bore its
tradename and the operator sold only
the products of the company; that the
equipment used by the operator
belonged to the company and were
just loaned to the operator and the
company took charge of their repair
and maintenance; that an employee
of the company supervised the
operator and conducted periodic
inspection of the company's gasoline
and service station; that the price of
the products sold by the operator was
fixed by the company and not by the
operator; and that the receipts signed
by the operator indicated that he was
a mere agent, the finding of the Court
of Appeals that the operator was an
agent of the company and not an
independent contractor should not be
disturbed.
"To determine the nature of a contract
courts do not have or are not bound
to rely upon the name or title given it
by the contracting parties, should
there be a controversy as to what they
really had intended to enter into, but
the way the contracting parties do or
perform their respective obligations
stipulated or agreed upon may be
shown and inquired into, and should
such performance conflict with the
name or title given the contract by the
parties, the former must prevail over
the latter." Shell Company of the
Philippines, Ltd. vs. Firemen's
Insurance Company of Newark, New
Jersey, 100 Phil. 757).
"The written contract was apparently
drawn for the purpose of creating the
apparent relationship of employer
and independent contractor, and of
avoiding liability for the negligence
of the employees about the station;
but the company was not satisfied to
allow such relationship to exist. The
evidence shows that it immediately
assumed control, and proceeded to
direct the method by which the work
108

contracted for should be performed.


By reserving the right to terminate
the contract at will, it retained the
means of compelling submission to
its orders. Having elected to assume
control and to direct the means and
methods by which the work has to be
performed, it must be held liable for
the negligence of those performing
service under its direction. We think
the evidence was sufficient to sustain
the verdict of the jury." (Gulf Refining
Company vs. Rogers 57 S.W. 2d 183).
Caltex further argues that the gasoline stored in the
station belonged to Boquiren. But no cash invoices were
presented to show that Boquiren had bought said
gasoline from Caltex. Neither was there a sales contract
to prove the same.
As found by the trial court the Africas sustained a loss
of P9,005.80, after deducting the amount of P2,000.00
collected by them on the insurance of the house. The
deduction is now challenged as erroneous on the
ground that Article 2207 of the new Civil Code, which
provides for the subrogation of the insurer to the rights
of the insured, was not yet in effect when the loss took
place. However, regardless of the silence of the law on
this point at that time, the amount that should be
recovered must be measured by the damages actually
suffered, otherwise the principle prohibiting unjust
enrichment would be violated. With respect to the
claim of the heirs of Ong, P7,500.00 was adjudged by
the lower court on the basis of the assessed value of the
property destroyed namely, P1,500.00, disregarding the
testimony of one of the Ong children that said property
was worth P4,000.00. We agree that the court erred,
since it is of common knowledge that the assessment
for taxation purposes is not an accurate gauge of fair
market value, and in this case should not prevail over
positive evidence of such value. The heirs of Ong are
therefore entitled to P10,000.00.

This petition to review the decision of the Court of


Appeals puts in issue the application of the common
law doctrine of res ipsa loquitur.
The essential facts of the case are not disputed.
The furniture manufacturing shop of petitioner in
Caloocan City was situated adjacent to the residence of
private respondents. Sometime in August 1971, private
respondent Gregorio Mable first approached Eric Cruz,
petitioner's plant manager, to request that a firewall be
constructed between the shop and private respondents'
residence. The request was repeated several times but
they fell on deaf ears. In the early morning of
September 6, 1974, fire broke out in petitioner's shop.
Petitioner's employees, who slept in the shop premises,
tried to put out the fire, but their efforts proved futile.
The fire spread to private respondents' house. Both the
shop and the house were razed to the ground. The
cause of the conflagration was never discovered. The
National Bureau of Investigation found specimens from
the burned structures negative for the presence of
inflammable substances.
Subsequently, private respondents collected P35,000.00
on the insurance on their house and the contents
thereof.
On January 23, 1975, private respondents filed an action
for damages against petitioner, praying for a judgment
in their favor awarding P150,000.00 as actual damages,
P50,000.00 as moral damages, P25,000.00 as exemplary
damages, P20,000.00 as attorney's fees and costs. The
Court of First Instance held for private respondents:
xxx

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes,


J.B.L., Barrera, Regala, Bengzon, J.P. and Zaldivar, JJ.,
concur.

xxx

On appeal, the Court of Appeals, in a decision


promulgated on November 19, 1979, affirmed the
decision of the trial court but reduced the award of
damages:
xxx

Wherefore, the decision appealed from is reversed and


respondents- appellees are held liable solidarily to
appellants, and ordered to pay them the aforesaid sums
of P9,005.80 and P10,000.00, respectively, with interest
from the filing of the complaint, and costs.

xxx

xxx

xxx

The pivotal issue in this case is the applicability of the


common law doctrine of res ipsa loquitur, the issue of
damages being merely consequential. In view thereof,
the errors assigned by petitioner shall be discussed in
the reverse order.
1.
The doctrine of res ipsa loquitur, whose
application to the instant case petitioner objects to, may
be stated as follows:

Dizon, J., took no part.


F.F. CRUZ and CO., INC. vs.
COURT OF APPEALS, ET AL.
G.R. No. 52732, 29 August 1988.
CORTES, J p:

109

Where the thing which caused the


injury complained of is shown to be
under the management of the
defendant or his servants and the
accident is such as in the ordinary
course of things does not happen if
those who have its management or
control use proper care, it affords

reasonable evidence, in the absence of


explanation by the defendant, that
the accident arose from want of care.
[Africa v. Caltex (Phil.), Inc., G.R. No.
L-12986, March 31, 1966, 16 SCRA
448.]
Thus, in Africa, supra, where fire broke out in a Caltex
service station while gasoline from a tank truck was
being unloaded into an underground storage tank
through a hose and the fire spread to and burned
neighboring houses, this Court, applying the doctrine
of res ipsa loquitur, adjudged Caltex liable for the loss.
The facts of the case likewise call for the application of
the doctrine, considering that in the normal course of
operations of a furniture manufacturing shop,
combustible material such as wood chips, sawdust,
paint, varnish and fuel and lubricants for machinery
may be found thereon.
It must also be noted that negligence or want of care on
the part of petitioner or its employees was not merely
presumed. The Court of Appeals found that petitioner
failed to construct a firewall between its shop and the
residence of private respondents as required by a city
ordinance; that the fire could have been caused by a
heated motor or a lit cigarette; that gasoline and alcohol
were used and stored in the shop; and that workers
sometimes smoked inside the shop [CA Decision, p. 5;
Rollo, p. 33.]
Even without applying the doctrine of res ipsa loquitur,
petitioner's failure to construct a firewall in accordance
with city ordinances would suffice to support a finding
of negligence.
Even then the fire possibly would not have spread to
the neighboring houses were it not for another
negligent omission on the part of defendants, namely,
their failure to provide a concrete wall high enough to
prevent the flames from leaping over it. As it was the
concrete wall was only 2-1/2 meters high, and beyond
that height it consisted merely of galvanized iron
sheets, which would predictably crumble and melt
when subjected to intense heat. Defendant's negligence,
therefore, was not only with respect to the cause of the
fire but also with respect to the spread thereof to the
neighboring houses. [Africa Y. Caltex (Phil.) Inc., supra;
Emphasis supplied.]
In the instant case, with more reason should petitioner
be found guilty of negligence since it had failed to
construct a firewall between its property and private
respondents' residence which sufficiently complies with
the pertinent city ordinances. The failure to comply
with an ordinance providing for safety regulations had
been ruled by the Court as an act of negligence [Teague
v. Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA
181.]

The Court of Appeals, therefore, had more than


adequate basis to find petitioner liable for the loss
sustained by private respondents.
xxx

xxx

xxx

WHEREFORE, in view of the foregoing, the decision of


the Court of Appeals is hereby AFFIRMED with the
following modifications as to the damages awarded for
the loss of private respondents' house, considering their
receipt of P35,000.00 from their insurer: (1) the damages
awarded for the loss of the house is reduced to
P35,000.00; and (2) the right of the insurer to
subrogation and thus seek reimbursement from
petitioner for the P35,000.00 it had paid private
respondents is recognized.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ.,
concur.
BATIQUIN, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 118231, 5 July 1996, 258 SCRA 334
DAVIDE, JR., J p:
Throughout history, patients have consigned their fates
and lives to the skill of their doctors. For a breach of
this trust, men have been quick to demand retribution.
Some 4,000 years ago, the Code of Hammurabi 1 then
already provided: "If a physician make a deep incision
upon a man with his bronze lancet and cause the man's
death, or operate on the eye socket of a man with his
bronze lancet and destroy the man's eyes, they shall cut
off his hand." Subsequently, Hippocrates wrote what
was to become part of the healer's oath: "I will follow
that method of treatment which according to my ability
and judgment, I consider for the benefit of my patents,
and abstain from whatever is deleterious and
mischievous . . . While I continue to keep this oath
unviolated may it be granted me to enjoy life and
practice the art, respected by all men at all times but
should I trespass and violate this oath, may the reverse
be my lot." At present, the primary objective of the
medical profession is the preservation of life and
maintenance of the health of the people.
Needless to say then, when a physician strays from his
sacred duty and endangers instead the life of his
patient, he must be made to answer therefor. Although
society today cannot and will not tolerate the
punishment meted out by the ancients, neither will it
and this Court, as this case would show, let the act go
uncondemned.
The petitioners appeal from the decision of the Court of
Appeals of 11 May 1994 in CA-G.R. CV No. 30851,
which reversed the decision 6 of 21 December 1990 of
Branch 30 of the Regional Trial Court (RTC) of Negros
Oriental in Civil Case No. 9492.

110

The facts, as found by the trial court, are as follows:


Dr. Batiquin was a Resident Physician at the Negros
Oriental Provincial Hospital, Dumaguete City from
January 9, 1978 to September 1989. Between 1987 and
September, 1989 she was also the Actg. Head of the
Department of Obstetrics and Gynecology at the said
Hospital.
Mrs. Villegas is a married woman who submitted to Dr.
Batiquin for prenatal care as the latter's private patient
sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin with
the assistance of Dr. Doris Teresita Sy who was also a
Resident Physician at the same Hospital, C.I. and O.R.
Nurse Arlene Diones and some student nurses
performed a simple cesarean section on Mrs. Villegas at
the Negros Oriental Provincial Hospital and after 45
minutes Mrs. Villegas delivered her first Child, Rachel
Acogido, at about 11:45 that morning. Thereafter,
Plaintiff remained confined at the Hospital until
September 27, 1988 during which period of
confinement she was regularly visited by Dr. Batiquin.
On September 28, 1988 Mrs. Villegas checked out of the
Hospital . . . and on the same day she paid Dr. Batiquin,
thru the latter's secretary, the amount of P1,500.00 as
"professional fee" . . .
Soon after leaving the Hospital Mrs. Villegas began to
suffer abdominal pains and complained of being
feverish. She also gradually lost her appetite, so she
consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines . . . which she had
been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical
Certificate by Dr. Batiquin on October 31, 1988 . . .
certifying to her physical fitness to return to her work
on November 7, 1988. So on the second week of
November, 1988 Mrs. Villegas returned to her work at
the Rural Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and
bothered Mrs. Villegas no end and despite the
medications administered by Dr. Batiquin. When the
pains become unbearable and she was rapidly losing
weight she consulted Dr. Ma. Salud Kho at the Holy
Child's Hospital in Dumaguete City on January 20,
1989.
The evidence of Plaintiffs show that when Dr. Ma.
Salud Kho examined Mrs. Villegas at the Holy Child's
Hospital on January 20, 1989 she found Mrs. Villegas to
be feverish, pale and was breathing fast. Upon
examination she felt an abdominal mass one finger
below the umbilicus which she suspected to be either a
tumor of the uterus or an ovarian cyst, either of which
could be cancerous. She had an x-ray taken of Mrs.
Villegas ' chest, abdomen and kidney. She also took
blood tests of Plaintiff. A blood count showed that Mrs.
Villegas had [an] infection inside her abdominal cavity.
The results of all those examinations impelled Dr. Kho
111

to suggest that Mrs. Villegas submit to another surgery


to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas
she found whitish-yellow discharge inside, an ovarian
cyst on each of the left and right ovaries which gave out
pus, dirt and pus behind the uterus, and a piece of
rubber materials on the right side of the uterus
embedded on [sic] the ovarian cyst. 2 inches by 3/4
inch in size. This piece of rubber material which Dr.
Kho described as a "foreign body" looked like a piece of
a "rubber glove" . . . and which is [sic] also "rubberdrain like . . . It could have been a torn section of a
surgeon's gloves or could have come from other
sources. And this foreign body was the cause of the
infection of the ovaries and consequently of all the
discomfort suffered by Mrs. Villegas after her delivery
on September 21, 1988.
The piece of rubber allegedly found near private
respondent Flotilde Villegas's uterus was not presented
in court, and although Dr. Ma. Salud Kho testified that
she sent it to a pathologist in Cebu City for
examination, it was not mentioned in the pathologist's
Surgical Pathology Report.
Aside from Dr. Kho's testimony, the evidence which
mentioned the piece of rubber are a Medical Certificate,
a Progress Record, an Anesthesia Record, a Nurse's
Record, and a Physician's Discharge Summary. The trial
court, however, regarded these documentary evidence
as mere hearsay, "there being no showing that the
person or persons who prepared them are deceased or
unable to testify on the facts therein stated . . . Except
for the Medical Certificate (Exhibit "F"), all the above
documents were allegedly prepared by persons other
than Dr. Kho, and she merely affixed her signature on
some of them to express her agreement thereto . . . " The
trial court also refused to give weight to Dr. Kho's
testimony regarding the subject piece of rubber as Dr.
Kho "may not have had first-hand knowledge" thereof,
as could be gleaned from her statement, thus:
xxx

xxx

xxx

All told, the trial court held in favor of the petitioners


herein.
The Court of Appeals reviewed the entirety of Dr. Kho's
testimony and, even without admitting the private
respondents' documentary evidence, deemed Dr. Kho's
positive testimony to definitely establish that a piece of
rubber was found near private respondent Villegas's
uterus. Thus, the Court of Appeals reversed the
decision of the trial court, holding:
4.
The fault or negligence of
appellee Dr. Batiquin is established
by preponderance of evidence. The
trial court itself had narrated what
happened to appellant Flotilde after
the caesarean operation made by

appellee doctor . . . After the second


operation, appellant Flotilde became
well and healthy. Appellant Flotilde's
troubles were caused by the infection
due to the "rubber" that was left
inside her abdomen. Both appellants
testified that after the operation made
by appellee doctor, they did not go to
any other doctor until they finally
decided to see another doctor in
January, 1989 when she was not
getting any better under the care of
appellee Dr. Batiquin . . . Appellee
Dr. Batiquin admitted on the witness
stand that she alone decided when to
close the operating area; that she
examined the portion she operated
on before closing the same . . . Had
she exercised due diligence, appellee
Dr. Batiquin would have found the
rubber and removed it before closing
the operating area.
The appellate court then ruled:
Appellants' evidence show[s] that
they paid a total of P17,000.00
[deposit of P7,100.00 (Exh. G-1-A)
plus hospital and medical expenses
together with doctor's fees in the total
amount P9,900.00 (Exhs. G and G-2)]
for the second operation that saved
her life.
For the miseries appellants endured
for more than three (3) months, due
to the negligence of appellee Dr.
Batiquin, they are entitled to moral
damages
in
the
amount
of
P100,000.00; exemplary damages in
the amount of P20,000.00 and
attorney's fees in the amount of
P25,000.00.
The fact that appellant Flotilde can no
longer bear children because her
uterus and ovaries were removed by
Dr. Kho is not taken into
consideration as it is not shown that
the removal of said organs were the
direct result of the rubber left by
appellee Dr. Batiquin near the uterus.
What is established is that the rubber
left by appellee cause infection,
placed the life of appellant Flotilde in
jeopardy and caused appellants fear,
worry and anxiety . . .
WHEREFORE,
the
appealed
judgment, dismissing the complaint
for damages is REVERSED and SET
ASIDE. Another judgment is hereby

entered
ordering
defendantsappellees to pay plaintiffs-appellants
the amount of P17,000.00 as and for
actual damages; P100,000.00 as and
for moral damages; P20,000.00 as and
for
exemplary
damages;
and
P25,000.00 as and for attorney's fees
plus the cost of litigation.
SO ORDERED.
From the above judgment, the petitioners appealed to
this Court claiming that the appellate court; (1)
committed grave abuse of discretion by resorting to
findings of fact not supported by the evidence on
record, and (2) exceeded its discretion, amounting to
lack or excess of jurisdiction, when it gave credence to
testimonies punctured with contradictions and falsities.
xxx

xxx

xxx

The petitioners emphasize that the private respondents


never reconciled Dr. Kho's testimony with Dr.
Batiquin's claim on the witness stand that when Dr.
Batiquin confronted Dr. Kho about the foreign body,
the latter said that there was a piece of rubber but that
she threw it away. Although hearsay, Dr. Batiquin's
claim was not objected to, and hence, the same is
admissible but it carries no probative value.
Nevertheless, assuming otherwise, Dr. Batiquin's
statement cannot belie the fact that Dr. Kho found a
piece of rubber near private respondent Villegas uterus.
And even if we were to doubt Dr. Kho as to what she
did to the piece of rubber, i.e., whether she threw it
away or sent it to Cebu City, we are not justified in
distrusting her as to her recovery of a piece of rubber
from private respondent Villegas's abdomen. On this
score, it is perfectly reasonable to believe the testimony
of a witness with respect to some facts and disbelieve
his testimony with respect to other facts. And it has
been aptly said that even when a witness it found to
have deliberately falsified in some material particulars,
it is not required that the whole of his uncorroborated
testimony be rejected, but such portions thereof
deemed worthy of belief may be credited.
It is here worth nothing that the trial court paid heed to
the following portions of Dr. Batiquin's testimony: that
no rubber drain was used in the operation, and that
there was neither any tear on Dr. Batiquin's gloves after
the operation nor blood smears on her hands upon
removing her gloves. Moreover, the trial court pointed
out that the absence of a rubber drain was corroborated
by Dr. Doris Sy, Dr. Batiquin's assistant during the
operation on private respondent Villegas. But the trial
court failed to recognize that the assertions of Drs.
Batiquin and Sy were denials or negative testimonies.
Well-settled is the rule that positive testimony is
stronger than negative testimony. Of course, as the
petitioners advocate, such positive testimony must
come from a credible source, which leads us to the
second assigned error.
112

While the petitioners claim that contradictions and


falsities punctured Dr. Kho's testimony, a reading of the
said testimony reveals no such infirmity and establishes
Dr. Kho as a credible witness. Dr. Kho was frank
throughout her turn on the witness stand. Furthermore,
no motive to state any untruth was ever imputed
against Dr. Kho, leaving her trustworthiness
unimpaired. The trial court's following declaration
shows that while it was critical of the lack of care with
which Dr. Kho handled the piece of rubber, it was not
prepared to doubt Dr. Kho's credibility, thus only
supporting out appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less
than honest when she testified about
her findings, but it can also be said
that she did not take the most
appropriate precaution to preserve
that "piece of rubber" as an eloquent
evidence of what she would reveal
should there be a "legal problem"
which
she
claim[s]
to
have
anticipated.
Considering that we have assessed Dr. Kho to be a
credible witness, her positive testimony [that a piece of
rubber was indeed found in private respondent
Villegas's abdomen] prevails over the negative
testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This
Court has had occasion to delve into the nature and
operation of this doctrine:
This doctrine [res ipsa loquitur] is
stated thus: "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." Or as Black's Law
Dictionary puts it:
Res ipsa loquitur.
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 ordinary does not
happen
in
absence
of
negligence. Res ipsa loquitur is
[a] rule of evidence whereby
113

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 the 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 [sic]
was such that in the ordinary
course of things would not
happen if reasonable care had
been used.
xxx

xxx

xxx

The doctrine of [r]es ipsa loquitur as a


rule of evidence is peculiar to the law
of negligence which recognizes that
prima facie negligence may be
established without direct proof and
furnishes a substitute for specific
proof of negligence. The doctrine is
not a rule of substantive law, but
merely a mode of proof or a mere
procedural convenience. The rule,
when applicable to the facts and
circumstances of a particular case, is
not intended to and does not
dispense with the requirement of
proof of culpable negligence on the
party charged. It merely determines
and regulates what shall the prima
facie evidence thereof and facilitates
the burden of plaintiff of proving a
breach of the duty of due care. The
doctrine can be invoked when and
only when, under the circumstances
involved direct evidence is absent
and not readily available.
In the instant case, all the requisites for recourse to the
doctrine are present. First, the entire proceedings of the
caesarean section were under the exclusive control of
Dr. Batiquin. In this light, the private respondents were
bereft of direct evidence as to the actual culprit or the
exact cause of the foreign object finding its way into
private respondent Villegas's body, which, needless to

say, does not occur unless through the intervention of


negligence. Second, since aside from the caesarean
section, private respondent Villegas underwent no
other operation which could have caused the offending
piece of rubber to appear in her uterus, it stands to
reason that such could only have been a by-product of
the cesarean section performed by Dr. Batiquin. The
petitioners, in this regard, failed to overcome the
presumption of negligence arising from resort to the
doctrine of res ipsa loquitur. Dr. Batiquin is therefore
liable for negligently leaving behind a piece of rubber
in private respondent Villegas's abdomen and for all
the adverse effects thereof.
As a final word, this Court reiterates its recognition of
the vital role the medical profession plays in the lives of
the people, and State's compelling interest to enact
measures to protect the public from "the potentially
deadly effects of incompetence and ignorance in those
who would undertake to treat our bodies and minds for
disease or trauma." Indeed, a physician is bound to
serve the interest of his patients "with the greatest of
solicitude, giving them always his best talent and skill."
Through her tortious conduct, the petitioner
endangered the life of Flotilde Villegas, in violation of
her profession's rigid ethical code and in contravention
of the legal standards set forth for professionals, in the
general, and members of the medical profession, in
particular.
WHEREFORE, the challenged decision of 11 May 1994
of the Court of Appeals in CA-G.R. CV No. 30851 is
hereby AFFIRMED in toto.
Costs against the petitioners.

1992, finding private respondents liable for damages


arising from negligence in the performance of their
professional duties towards petitioner Erlinda Ramos
resulting in her comatose condition.
The antecedent facts as summarized by the trial court
are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the
afternoon of June 17, 1985, a 47-year
old (Exh. "A") robust woman (TSN,
October 19, 1989, p. 10). Except for
occasional complaints of discomfort
due to pains allegedly caused by the
presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she
was as normal as any other woman.
Married to Rogelio E. Ramos, an
executive of Philippine Long Distance
Telephone Company, she has three
children whose names are Rommel
Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19,
1989, pp. 5-6).
Because the discomforts somehow
interfered with her normal ways, she
sought professional advice. She was
advised to undergo an operation for
the removal of a stone in her gall
bladder (TSN, January 13, 1988, p. 5).
She
underwent
a
series
of
examinations which included blood
and urine tests (Exhs. "A" and "C")
which indicated she was fit for
surgery.

SO ORDERED.
Narvasa, C .J ., Melo, Francisco and Panganiban, JJ .,
concur.
RAMOS, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 124354, 29 December 1999, 321 SCRA 584
KAPUNAN, J p:
The Hippocratic Oath mandates physicians to give
primordial consideration to the health and welfare of
their patients. If a doctor fails to live up to this precept,
he is made accountable for his acts. A mistake, through
gross negligence or incompetence or plain human error,
may spell the difference between life and death. In this
sense, the doctor plays God on his patient's fate.
In the case at bar, the Court is called upon to rule
whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose
condition of a patient scheduled for cholecystectomy.
Petitioners seek the reversal of the decision of the Court
of Appeals, dated 29 May 1995, which overturned the
decision of the Regional Trial Court, dated 30 January

Through the intercession of a mutual


friend, Dr. Buenviaje (TSN, January
13, 1988, p. 7), she and her husband
Rogelio met for the first time Dr.
Orlino Hozaka (should be Hosaka;
see TSN, February 20, 1990, p. 3), one
of the defendants in this case, on June
10, 1985. They agreed that their date
at the operating table at the DLSMC
(another defendant), would be on
June 17, 1985 at 9:00 A.M.. Dr.
Hosaka decided that she should
undergo
a
"cholecystectomy"
operation
after
examining
the
documents (findings from the Capitol
Medical Center, FEU Hospital and
DLSMC) presented to him. Rogelio E.
Ramos, however, asked Dr. Hosaka
to look for a good anesthesiologist.
Dr. Hosaka, in turn, assured Rogelio
that
he
will
get
a
good
anesthesiologist. Dr. Hosaka charged
a fee of P16,000.00, which was to
include the anesthesiologist's fee and
which was to be paid after the
114

operation (TSN, October 19, 1989, pp.


14-15, 22-23, 31-33; TSN, February 27,
1990, p. 13; and TSN, November 9,
1989, pp. 3-4, 10, 17).
A day before the scheduled date of
operation, she was admitted at one of
the rooms of the DLSMC, located
along E. Rodriguez Avenue, Quezon
City (TSN, October 19, 1989, p. 11).
At around 7:30 A.M. of June 17, 1985
and while still in her room, she was
prepared for the operation by the
hospital staff. Her sister-in-law,
Herminda Cruz, who was the Dean
of the College of Nursing at the
Capitol Medical Center, was also
there for moral support. She
reiterated her previous request for
Herminda to be with her even during
the operation. After praying, she was
given injections. Her hands were held
by Herminda as they went down
from her room to the operating room
(TSN, January 13, 1988, pp. 9-11). Her
husband, Rogelio, was also with her
(TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about
two or three nurses and Dr. Perfecta
Gutierrez, the other defendant, who
was
to
administer
anesthesia.
Although not a member of the
hospital staff, Herminda introduced
herself as Dean of the College of
Nursing at the Capitol Medical
Center who was to provide moral
support to the patient, to them.
Herminda was allowed to stay inside
the operating room.
At around 9:30 A.M., Dr. Gutierrez
reached a nearby phone to look for
Dr. Hosaka who was not yet in (TSN,
January 13, 1988, pp. 11-12). Dr.
Gutierrez
thereafter
informed
Herminda Cruz about the prospect of
a delay in the arrival of Dr. Hosaka.
Herminda then went back to the
patient who asked, "Mindy, wala pa
ba ang Doctor"? The former replied,
"Huwag kang mag-alaala, darating
na iyon" (ibid.).
Thereafter, Herminda went out of the
operating room and informed the
patient's husband, Rogelio, that the
doctor was not yet around (id., p. 13).
When she returned to the operating
room, the patient told her, "Mindy,
inip na inip na ako, ikuha mo ako ng
ibang Doctor." So, she went out again
115

and told Rogelio about what the


patient said (id., p. 15). Thereafter, she
returned to the operating room.
At around 10:00 A.M., Rogelio E.
Ramos was "already dying [and]
waiting for the arrival of the doctor"
even as he did his best to find
somebody who will allow him to pull
out his wife from the operating room
(TSN, October 19, 1989, pp. 19-20). He
also thought of the feeling of his wife,
who was inside the operating room
waiting for the doctor to arrive (ibid.).
At almost 12:00 noon, he met Dr.
Garcia who remarked that he (Dr.
Garcia) was also tired of waiting for
Dr. Hosaka to arrive (id., p. 21). While
talking to Dr. Garcia at around 12:10
P.M., he came to know that Dr.
Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka,
dumating na raw." Upon hearing
those words, he went down to the
lobby and waited for the operation to
be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz,
who was inside the operating room
with the patient, heard somebody say
that "Dr. Hosaka is already here." She
then saw people inside the operating
room "moving, doing this and that,
[and] preparing the patient for the
operation" (TSN, January 13, 1988, p.
16). As she held the hand of Erlinda
Ramos, she then saw Dr. Gutierrez
intubating the hapless patient. She
thereafter heard Dr. Gutierrez say,
"ang hirap ma-intubate nito, mali
yata ang pagkakapasok. O lumalaki
ang tiyan" (id., p. 17). Because of the
remarks of Dra. Gutierrez, she
focused her attention on what Dr.
Gutierrez was doing. She thereafter
noticed bluish discoloration of the
nailbeds of the left hand of the
hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr.
Hosaka issue an order for someone to
call
Dr.
Calderon,
another
anesthesiologist (id., p. 19). After Dr.
Calderon arrived at the operating
room, she saw this anesthesiologist
trying to intubate the patient. The
patient's nailbed became bluish and
the patient was placed in a
trendelenburg position a position
where the head of the patient is
placed in a position lower than her
feet which is an indication that there
is a decrease of blood supply to the

patient's brain (Id., pp. 19-20).


Immediately thereafter, she went out
of the operating room, and she told
Rogelio E. Ramos "that something
wrong was . . . happening" (Ibid.). Dr.
Calderon was then able to intubate
the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was
outside the operating room, saw a
respiratory machine being rushed
towards the door of the operating
room. He also saw several doctors
rushing towards the operating room.
When informed by Herminda Cruz
that
something
wrong
was
happening, he told her (Herminda) to
be back with the patient inside the
operating room (TSN, October 19,
1989, pp. 25-28).
Herminda Cruz immediately rushed
back, and saw that the patient was
still in trendelenburg position (TSN,
January 13, 1988, p. 20). At almost
3:00 P.M. of that fateful day, she saw
the patient taken to the Intensive
Care Unit (ICU).
About two days thereafter, Rogelio E.
Ramos was able to talk to Dr. Hosaka.
The latter informed the former that
something went wrong during the
intubation. Reacting to what was told
to him, Rogelio reminded the doctor
that the condition of his wife would
not have happened, had he (Dr.
Hosaka)
looked
for
a
good
anesthesiologist (TSN, October 19,
1989, p. 31).
Doctors Gutierrez and Hosaka were
also asked by the hospital to explain
what happened to the patient. The
doctors explained that the patient
had bronchospasm (TSN, November
15, 1990, pp. 26-27).

anything. She cannot move any part


of her body. She cannot see or hear.
She is living on mechanical means.
She suffered brain damage as a result
of the absence of oxygen in her brain
for four to five minutes (TSN,
November 9, 1989, pp. 21-22). After
being discharged from the hospital,
she has been staying in their
residence, still needing constant
medical attention, with her husband
Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00
(TSN, October 19, 1989, pp. 32-34).
She was also diagnosed to be
suffering from "diffuse cerebral
parenchymal damage" (Exh. "G"; see
also TSN, December 21, 1989, p. 6).
Thus, on 8 January 1986, petitioners filed a civil case for
damages with the Regional Trial Court of Quezon City
against herein private respondents alleging negligence
in the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to
the possible cause of Erlinda's injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and
Dr. Mariano Gavino to prove that the damage sustained
by Erlinda was due to lack of oxygen in her brain
caused by the faulty management of her airway by
private respondents during the anesthesia phase. On
the other hand, private respondents primarily relied on
the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain
damage was Erlinda's allergic reaction to the anesthetic
agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the
Regional Trial Court rendered judgment in favor of
petitioners, to wit:

Erlinda Ramos stayed at the ICU for a


month. About four months thereafter
or on November 15, 1985, the patient
was released from the hospital.

After evaluating the evidence as


shown in the finding of facts set forth
earlier, and applying the aforecited
provisions of law and jurisprudence
to the case at bar, this Court finds and
so holds that defendants are liable to
plaintiffs
for
damages.
The
defendants were guilty of, at the very
least, negligence in the performance
of their duty to plaintiff-patient
Erlinda Ramos.

During the whole period of her


confinement, she incurred hospital
bills amounting to P93,542.25 which
is the subject of a promissory note
and affidavit of undertaking executed
by Rogelio E. Ramos in favor of
DLSMC. Since that fateful afternoon
of June 17, 1985, she has been in a
comatose condition. She cannot do

On the part of Dr. Perfecta Gutierrez,


this Court finds that she omitted to
exercise reasonable care in not only
intubating the patient, but also in not
repeating the administration of
atropine (TSN, August 20, 1991, pp.
5-10), without due regard to the fact
that the patient was inside the
operating room for almost three (3)
116

hours. For after she committed a


mistake in intubating [the] patient,
the patient's nailbed became bluish
and the patient, thereafter, was
placed in trendelenburg position,
because of the decrease of blood
supply to the patient's brain. The
evidence further shows that the
hapless patient suffered brain
damage because of the absence of
oxygen in her (patient's) brain for
approximately four to five minutes
which, in turn, caused the patient to
become comatose.
On the part of Dr. Orlino Hosaka, this
Court finds that he is liable for the
acts of Dr. Perfecta Gutierrez whom
he had chosen to administer
anesthesia on the patient as part of
his obligation to provide the patient a
'good anesthesiologist', and for
arriving for the scheduled operation
almost three (3) hours late.
On the part of DLSMC (the hospital),
this Court finds that it is liable for the
acts of negligence of the doctors in
their 'practice of medicine' in the
operating room. Moreover, the
hospital is liable for failing through
its responsible officials, to cancel the
scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.
In having held thus, this Court rejects
the defense raised by defendants that
they have acted with due care and
prudence in rendering medical
services to plaintiff-patient. For if the
patient was properly intubated as
claimed by them, the patient would
not have become comatose. And, the
fact that another anesthesiologist was
called to try to intubate the patient
after her (the patient's) nailbed
turned bluish, belie their claim.
Furthermore, the defendants should
have rescheduled the operation to a
later date. This, they should have
done, if defendants acted with due
care and prudence as the patient's
case was an elective, not an
emergency case.
xxx

xxx

xxx

WHEREFORE, and in view of the


foregoing, judgment is rendered in
favor of the plaintiffs and against the
defendants. Accordingly, the latter
are ordered to pay, jointly and
117

severally, the former the following


sums of money, to wit:
xxx

xxx

xxx

Private respondents seasonably interposed an appeal to


the Court of Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing the findings of
the trial court. The decretal portion of the decision of
the appellate court reads:
xxx

xxx

xxx

After resolving the foregoing procedural issue, we shall


now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the
issue on the applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter, the first two
assigned errors shall be tackled in relation to the res ipsa
loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means
"the thing or the transaction speaks for itself." The
phrase "res ipsa loquitur" is a maxim for the rule that the
fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or
raise a presumption of negligence, or make out a
plaintiff's prima facie case, and present a question of
fact for defendant to meet with an explanation. Where
the thing which caused the injury complained of is
shown to be under the management of the defendant or
his servants and the accident is such as in ordinary
course of things does not happen if those who have its
management or control use proper care, it affords
reasonable evidence, in the absence of explanation by
the defendant, that the accident arose from or was
caused by the defendant's want of care.
The doctrine of res ipsa loquitur is simply a recognition
of the postulate that, as a matter of common knowledge
and experience, the very nature of certain types of
occurrences may justify an inference of negligence on
the part of the person who controls the instrumentality
causing the injury in the absence of some explanation
by the defendant who is charged with negligence. It is
grounded in the superior logic of ordinary human
experience 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.
However, much has been said the res ipsa loquitur is not
a rule of substantive law and, as such, does not create
or constitute an independent or separate ground of
liability. Instead, it is considered as merely evidentiary
or in the nature of a procedural rule. It is regarded as a
mode of proof, of a mere procedural convenience since
it furnishes a substitute for, and relieves a plaintiff of,
the burden of producing specific proof of negligence. In
other words, mere invocation and application of the
doctrine does not dispense with the requirement of

proof of negligence. It is simply a step in the process of


such proof, permitting the plaintiff to present along
with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an
inference or presumption of negligence, and to thereby
place on the defendant the burden of going forward
with the proof. Still, before resort to the doctrine may
be allowed, the following requisites must be
satisfactorily shown:
1.

The accident is of a kind which ordinarily does not


occur in the absence of someone's negligence;

2.

It is caused by an instrumentality within the


exclusive control of the defendant or defendants;
and

3.

The possibility of contributing conduct which


would make the plaintiff responsible is eliminated.

In the above requisites, the fundamental element is the


"control of the instrumentality" which caused the
damage. Such element of control must be shown to be
within the dominion of the defendant. 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.
Medical malpractice cases do not escape the application
of this doctrine. Thus, res ipsa loquitur has been applied
when the circumstances attendant upon the harm are
themselves of such a character as to justify an inference
of negligence as the cause of that harm. The application
of res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to
determine whether a certain set of circumstances does,
as a matter of law, permit a given inference.
Although generally, expert medical testimony is relied
upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res
ipsa loquitur is availed by the plaintiff, the need for
expert medical testimony is dispensed with because the
injury itself provides the proof of negligence. The
reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within
the domain of medical science, and not to matters that
are within the common knowledge of mankind which
may be testified to by anyone familiar with the facts.
Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a
patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony
as to the statements and acts of physicians and
surgeons, external appearances, and manifest
conditions which are observable by any one may be
given by non-expert witnesses. Hence, in cases where
the res ipsa loquitur is applicable, the court is 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. When the
doctrine is appropriate, all that the patient must do is
prove a nexus between the particular act or omission
complained of and the injury sustained while under the
custody and management of the defendant without
need to produce expert medical testimony to establish
the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and
ordinary conditions, by which the patient can obtain
redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the
doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation,
injuries sustained on a healthy part of the body which
was not under, or in the area, of treatment, removal of
the wrong part of the body when another part was
intended, knocking out a tooth while a patient's jaw
was under anesthetic for the removal of his tonsils, and
loss of an eye while the patient plaintiff was under the
influence of anesthetic, during or following an
operation for appendicitis, among others.
Nevertheless, despite the fact that the scope of res ipsa
loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence
as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances
of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the
consequences of professional care were not as such as
would ordinarily have followed if due care had been
exercised. A distinction must be made between the
failure to secure results, and the occurrence of
something more unusual and not ordinarily found if
the service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It
must be conceded that the doctrine of res ipsa loquitur
can have no application in a suit against a physician or
surgeon which involves the merits of a diagnosis or of a
scientific treatment. The physician or surgeon is not
required at his peril to explain why any particular
diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result.
Thus, res ipsa loquitur is not available in a malpractice
suit if the only showing is that the desired result of an
operation or treatment was not accomplished. The real
question, therefore, is whether or not in the process of
the operation any extraordinary incident or unusual
118

event outside of the routine performance occurred


which is beyond the regular scope of customary
professional activity in such operations, which, if
unexplained would themselves reasonably speak to the
average man as the negligent cause or causes of the
untoward consequence. If there was such extraneous
interventions, the doctrine or res ipsa loquitur may be
utilized and the defendant is called upon to explain the
matter, by evidence of exculpation, if he could.
We find the doctrine of res ipsa loquitur appropriate in
the case bar. As will hereinafter be explained, the
damage sustained by Erlinda in her brain prior to a
scheduled gall bladder operation presents a case for the
application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs.
Bridwell, where the Kansas Supreme Court in applying
the res ipsa loquitur stated:
The plaintiff herein submitted
himself for a mastoid operation and
delivered his person over to the care,
custody and control of his physician
who had complete and exclusive
control over him, but the operation
was never performed. At the time of
submission he was neurologically
sound and physically fit in mind and
body, but he suffered irreparable
damage and injury rendering him
decerebrate and totally incapacitated.
The injury was one which does not
ordinarily occur in the process of a
mastoid operation or in the absence
of negligence in the administration of
an anesthetic, and in the use and
employment of an endoctracheal
tube. Ordinarily a person being put
under anesthesia is not rendered
decerebrate as a consequence of
administering such anesthesia in the
absence of negligence. Upon these
facts and under these circumstances a
layman would be able to say, as a
matter of common knowledge and
observation, that the consequences of
professional treatment were not as
such as would ordinarily have
followed if due care had been
exercised.
Here the plaintiff could not have been
guilty of contributory negligence
because he was under the influence
of anesthetics and unconscious, and
the circumstances are such that the
true explanation of event is more
accessible to the defendants than to
the plaintiff for they had the
exclusive
control
of
the
instrumentalities of anesthesia.
119

Upon all the facts, conditions and


circumstances alleged in Count II it is
held that a cause of action is stated
under the doctrine of res ipsa loquitur.
Indeed, the principles enunciated in the aforequoted
case apply with equal force here. In the present case,
Erlinda submitted herself for cholecystectomy and
expected a routine general surgery to be performed on
her gall bladder. On that fateful day she delivered her
person over to the care, custody and control of private
respondents who exercised complete and exclusive
control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and
body. However, during the administration of
anesthesia and prior to the performance of
cholecystectomy she suffered irreparable damage to her
brain. Thus, without undergoing surgery, she went out
of the operating room already decerebrate and totally
incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in
the process of a gall bladder operation. In fact, this kind
of situation does not happen in the absence of
negligence of someone in the administration of
anesthesia and in the use of endotracheal tube.
Normally, a person being put under anesthesia is not
rendered
decerebrate
as
a
consequence
of
administering such anesthesia if the proper procedure
was followed. Furthermore, the instruments used in the
administration
of
anesthesia,
including
the
endotracheal tube, were all under the exclusive control
of private respondents, who are the physicians-incharge. Likewise, petitioner Erlinda could not have
been guilty of contributory negligence because she was
under the influence of anesthetics which rendered her
unconscious.
Considering that a sound and unaffected member of the
body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and
exclusive control of the physicians, we hold that a
practical administration of justice dictates the
application of res ipsa loquitur. Upon these facts and
under these circumstances the Court would be able to
say, as a matter of common knowledge and
observation, if negligence attended the management
and care of the patient. Moreover, the liability of the
physicians and the hospital in this case is not
predicated upon an alleged failure to secure the desired
results of an operation nor on an alleged lack of skill in
the diagnosis or treatment as in fact no operation or
treatment was ever performed on Erlinda. Thus, upon
all these initial determination a case is made out for the
application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available
to the present case we are not saying that the doctrine is
applicable in any and all cases where injury occurs to a
patient while under anesthesia, or to any and all
anesthesia cases. Each case must be viewed in its own

light and scrutinized in order to be within the res ipsa


loquitur coverage.
Having in mind the applicability of the res ipsa loquitur
doctrine and the presumption of negligence allowed
therein, the Court now comes to the issue of whether
the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda
during the anesthesia phase of the operation and, if in
the affirmative, whether the alleged negligence was the
proximate cause of Erlinda's comatose condition.
Corollary thereto, we shall also determine if the Court
of Appeals erred in relying on the testimonies of the
witnesses for the private respondents.

beside the patient when the tragic event occurred.


Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra.
Perfecta Gutierrez do, if any on
the patient?
A: In particular, I could see that she
was intubating the patient.
Q: Do you know what happened to
that
intubation
process
administered by Dra. Gutierrez?
ATTY. ALCERA:

In sustaining the position of private respondents, the


Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving
weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to
admit that she experienced some difficulty in the
endotracheal intubation of the patient and thus, cannot
be said to be covering her negligence with falsehood.
The appellate court likewise opined that private
respondents were able to show that the brain damage
sustained by Erlinda was not caused by the alleged
faulty intubation but was due to the allergic reaction of
the patient to the drug Thiopental Sodium (Pentothal),
a short-acting barbiturate, as testified on by their expert
witness, Dr. Jamora. On the other hand, the appellate
court rejected the testimony of Dean Herminda Cruz
offered in favor of petitioners that the cause of the brain
injury was traceable to the wrongful insertion of the
tube since the latter, being a nurse, was allegedly not
knowledgeable in the process of intubation. In so
holding, the appellate court returned a verdict in favor
of respondents physicians and hospital and absolved
them of any liability towards Erlinda and her family.

She will be incompetent Your


Honor.
COURT:
Witness
knows.
A:

may

answer

if

she

As I have said, I was with the


patient, I was beside the stretcher
holding the left hand of the
patient and all of a sudden I
heard some remarks coming
from Dra. Perfecta Gutierrez
herself. She was saying "Ang
hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki
ang tiyan."
xxx

xxx

xxx

ATTY. PAJARES:

We disagree with the findings of the Court of Appeals.


We hold that private respondents were unable to
disprove the presumption of negligence on their part in
the care of Erlinda and their negligence was the
proximate cause of her piteous condition.

Q: From whom did you hear those


words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.

In the instant case, the records are helpful in furnishing


not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the
Court the legal nexus upon which liability is based. As
will be shown hereinafter, private respondents' own
testimonies which are reflected in the transcript of
stenographic notes are replete of signposts indicative of
their negligence in the care and management of Erlinda.

Q. After
hearing
the
phrase
"lumalaki ang tiyan," what did
you notice on the person of the
patient?
A: I notice (sic) some bluish
discoloration on the nailbeds of
the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka
then at that particular time?
A: I saw him approaching the
patient during that time.
Q: When he approached the patient,
what did he do, if any?
A: He made an order to call on the
anesthesiologist in the person of
Dr. Calderon.

With regard to Dra. Gutierrez, we find her negligent in


the care of Erlinda during the anesthesia phase. As
borne by the records, respondent Dra. Gutierrez failed
to properly intubate the patient. This fact was attested
to by Prof. Herminda Cruz, Dean of the Capitol
Medical Center School of Nursing and petitioner's
sister-in-law, who was in the operating room right

xxx

xxx

xxx

120

Q: Did Dr. Calderon, upon being


called,
arrive
inside
the
operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the
patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to
intubate the patient, after a while
the patient's nailbed became
bluish and I saw the patient was
placed in trendelenburg position.
xxx

xxx

xxx

Q: Do you know the reason why the


patient was placed in that
trendelenburg position?
A: As far as I know, when a patient
is in that position, there is a
decrease of blood supply to the
brain.
xxx

xxx

xxx

The appellate court, however, disbelieved Dean Cruz's


testimony in the trial court by declaring that:
A perusal of the standard nursing
curriculum in our country will show
that intubation is not taught as part of
nursing procedures and techniques.
Indeed, we take judicial notice of the
fact that nurses do not, and cannot,
intubate. Even on the assumption
that she is fully capable of
determining whether or not a patient
is properly intubated, witness
Herminda Cruz, admittedly, did not
peep into the throat of the patient.
(TSN, July 25, 1991, p. 13). More
importantly, there is no evidence that
she ever auscultated the patient or
that she conducted any type of
examination
to
check
if
the
endotracheal tube was in its proper
place, and to determine the condition
of the heart, lungs, and other organs.
Thus, witness Cruz's categorical
statements that appellant Dra.
Gutierrez failed to intubate the
appellee Erlinda Ramos and that it
was Dra. Calderon who succeeded in
doing so clearly suffer from lack of
sufficient factual bases.
In other words, what the Court of Appeals is trying to
impress is that being a nurse, and considered a layman
in the process of intubation, witness Cruz is not
competent to testify on whether or not the intubation as
a success.
121

We do not agree with the above reasoning of the


appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters
on which she is capable of observing such as, the
statements and acts of the physician and surgeon,
external appearances, and manifest conditions which
are observable by any one. This is precisely allowed
under the doctrine of res ipsa loquitur where the
testimony of expert witnesses is not required. It is the
accepted rule that expert testimony is not necessary for
the proof of negligence in non-technical matters or
those of which an ordinary person may be expected to
have knowledge, or where the lack of skill or want of
care is so obvious as to render expert testimony
unnecessary. We take judicial notice of the fact that
anesthesia procedures have become so common, that
even an ordinary person can tell if it was administered
properly. As such, it would not be too difficult to tell if
the tube was properly inserted. This kind of
observation, we believe, does not require a medical
degree to be acceptable.
At any rate, without doubt, petitioner's witness, an
experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the
Capitol Medical Center School of Nursing, was fully
capable of determining whether or not the intubation
was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse
and clinical instructor in a teaching hospital, the FEUNRMF; Dean of the Laguna College of Nursing in San
Pablo City; and then Dean of the Capitol Medical
Center School of Nursing. Reviewing witness Cruz'
statements, we find that the same were delivered in a
straightforward manner, with the kind of detail, clarity,
consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a
nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly
transpired on that fateful day.
Most of all, her testimony was affirmed by no less than
respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into
Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora,
while you were intubating at
your first attempt (sic), you did
not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube
immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.

Q: When you said "mahirap yata


ito," what were you referring to?
A: "Mahirap yata itong i-intubate,"
that was the patient.
Q: So, you found some difficulty in
inserting the tube?
A: Yes, because of (sic) my first
attempt, I did not see right away.
Curiously in the case at bar, respondent Dra. Gutierrez
made the haphazard defense that she encountered
hardship in the insertion of the tube in the trachea of
Erlinda because it was positioned more anteriorly
(slightly deviated from the normal anatomy of a
person) making it harder to locate and, since Erlinda is
obese and has a short neck and protruding teeth, it
made intubation even more difficult.
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a
means of defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Preoperative evaluation and preparation for anesthesia
begins when the anesthesiologist reviews the patient's
medical records and visits with the patient,
traditionally, the day before elective surgery. It includes
taking the patient's medical history, review of current
drug therapy, physical examination and interpretation
of laboratory data. The physical examination performed
by the anesthesiologist is directed primarily toward the
central nervous system, cardiovascular system, lungs
and upper airway. A thorough analysis of the patient's
airway normally involves investigating the following:
cervical spine mobility, temporomandibular mobility,
prominent central incisors, diseased or artificial teeth,
ability to visualize uvula and the thyromental distance.
Thus, physical characteristics of the patient's upper
airway that could make tracheal intubation difficult
should be studied. Where the need arises, as when
initial assessment indicates possible problems (such as
the alleged short neck and protruding teeth of Erlinda)
a thorough examination of the patient's airway would
go a long way towards decreasing patient morbidity
and mortality.
In the case at bar, respondent Dra. Gutierrez admitted
that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no
prior consultations with, or pre-operative evaluation of
Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was
likewise not properly informed of the possible
difficulties she would face during the administration of

anesthesia to Erlinda. Respondent Dra. Gutierrez' act of


seeing her patient for the first time only an hour before
the scheduled operative procedure was therefore, an act
of
exceptional
negligence
and
professional
irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of
the physician's centuries-old Hippocratic Oath. Her
failure to follow this medical procedure is, therefore, a
clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss
over this omission by playing around with the trial
court's ignorance of clinical procedure, hoping that she
could get away with it. Respondent Dra. Gutierrez tried
to muddle the difference between an elective surgery
and an emergency surgery just so her failure to perform
the required pre-operative evaluation would escape
unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it
is good medical practice to see
the patient a day before so you
can
introduce
yourself
to
establish good doctor-patient
relationship and gain the trust
and confidence of the patient?
DRA. GUTIERREZ:
A:

As I said in my previous
statement, it depends on the
operative procedure of the
anesthesiologist and in my case,
with elective cases and normal
cardio-pulmonary clearance like
that, I usually don't do it except
on emergency and on cases that
have an abnormalities (sic).

However, the exact opposite is true. In an emergency


procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that
an anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on
the other hand, are operative procedures that can wait
for days, weeks or even months. Hence, in these cases,
the anesthesiologist possesses the luxury of time to
make a proper assessment, including the time to be at
the patient's bedside to do a proper interview and
clinical evaluation. There is ample time to explain the
method of anesthesia, the drugs to be used, and their
possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at
least one day before the intended surgery, when the
patient is relaxed and cooperative.
Erlinda's case was elective and this was known to
respondent Dra. Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlinda's case prior to
the operation and prepare her for anesthesia. However,
122

she never saw the patient at the bedside. She herself


admitted that she had seen petitioner only in the
operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take
advantage of this important opportunity. As such, her
attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez
failed to perform pre-operative evaluation of the
patient which, in turn, resulted to a wrongful
intubation, we now determine if the faulty intubation is
truly the proximate cause of Erlinda's comatose
condition.
Private respondents repeatedly hammered the view
that the cerebral anoxia which led to Erlinda's coma
was due to bronchospasm mediated by her allergic
response to the drug, Thiopental Sodium, introduced
into her system. Towards this end, they presented Dr.
Jamora, a Fellow of the Philippine College of Physicians
and Diplomate of the Philippine Specialty Board of
Internal Medicine, who advanced private respondents'
theory that the oxygen deprivation which led to anoxic
encephalopathy, was due to an unpredictable drug
reaction to the short-acting barbiturate. We find the
theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an
authority in the field of anesthesiology simply because
he is not an anesthesiologist. Since Dr. Jamora is a
pulmonologist, he could not have been capable of
properly enlightening the court about anesthesia
practice and procedure and their complications. Dr.
Jamora is likewise not an allergologist and could not
therefore properly advance expert opinion on allergicmediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court
the pharmacologic and toxic effects of the supposed
culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr.
Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is
further supported by his own admission that he
formulated his opinions on the drug not from the
practical experience gained by a specialist or expert in
the administration and use of Sodium Pentothal on
patients, but only from reading certain references, to
wit:
ATTY. LIGSAY:
Q: In your line of expertise on
pulmonology, did you have any
occasion to use pentothal as a
method of management?
DR. JAMORA:
A:

123

We do it in conjunction with the


anesthesiologist when they have
to intubate our patient.

Q: But not in particular when you


practice pulmonology?
A: No.
Q: In other words, your knowledge
about pentothal is based only on
what you have read from books
and not by your own personal
application of the medicine
pentothal?
A: Based on my personal experience
also on pentothal.
Q: How many times have you used
pentothal?
A: They used it on me. I went into
bronchospasm
during
my
appendectomy.
Q: And because they have used it
on you and on account of your
own personal experience you
feel that you can testify on
pentothal here with medical
authority?
A: No. That is why I used references
to support my claims.
An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical
pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly,
many bronchospastic-mediated pulmonary diseases are
within the expertise of pulmonary medicine, Dr.
Jamora's field, the anesthetic drug-induced, allergic
mediated bronchospasm alleged in this case is within
the disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript,
in which the pulmonologist himself admitted that he
could not testify about the drug with medical authority,
it is clear that the appellate court erred in giving weight
to Dr. Jamora's testimony as an expert in the
administration of Thiopental Sodium.
xxx

xxx

xxx

Moreover, private respondents' theory, that Thiopental


Sodium may have produced Erlinda's coma by
triggering an allergic mediated response, has no
support in evidence. No evidence of stridor, skin
reactions, or wheezing some of the more common
accompanying signs of an allergic reaction appears
on record. No laboratory data were ever presented to
the court.
In any case, private respondents themselves admit that
Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept
private respondents' hypothesis without supporting
medical proof, and against the weight of available
evidence, then every anesthetic accident would be an
act of God. Evidently, the Thiopental-allergy theory
vigorously asserted by private respondents was a mere
afterthought. Such an explanation was advanced in

order to absolve them of any and all responsibility for


the patient's condition.
In view of the evidence at hand, we are inclined to
believe petitioners' stand that it was the faulty
intubation which was the proximate cause of Erlinda's
comatose condition.
Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and
without which the result would not have occurred. An
injury or damage is proximately caused by an act or a
failure to act, whenever it appears from the evidence in
the case, that the act or omission played a substantial
part in bringing about or actually causing the injury or
damage; and that the injury or damage was either a
direct result or a reasonably probable consequence of
the act or omission. It is the dominant, moving or
producing cause.
Applying the above definition in relation to the
evidence at hand, faulty intubation is undeniably the
proximate cause which triggered the chain of events
leading to Erlinda's brain damage and, ultimately, her
comatosed condition.
Private respondents themselves admitted in their
testimony that the first intubation was a failure. This
fact was likewise observed by witness Cruz when she
heard respondent Dra. Gutierrez remarked, "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan." Thereafter, witness Cruz noticed
abdominal distention on the body of Erlinda. The
development of abdominal distention, together with
respiratory
embarrassment
indicates
that
the
endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended
endotracheal intubation what actually took place was
an esophageal intubation. During intubation, such
distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of
the lungs through the trachea. Entry into the esophagus
would certainly cause some delay in oxygen delivery
into the lungs as the tube which carries oxygen is in the
wrong place. That abdominal distention had been
observed during the first intubation suggests that the
length of time utilized in inserting the endotracheal
tube (up to the time the tube was withdrawn for the
second attempt) was fairly significant. Due to the delay
in the delivery of oxygen in her lungs Erlinda showed
signs of cyanosis. As stated in the testimony of Dr.
Hosaka, the lack of oxygen became apparent only after
he noticed that the nailbeds of Erlinda were already
blue. However, private respondents contend that a
second intubation was executed on Erlinda and this one
was successfully done. We do not think so. No evidence
exists on record, beyond private respondents' bare
claims, which supports the contention that the second
intubation was successful. Assuming that the
endotracheal tube finally found its way into the proper
orifice of the trachea, the same gave no guarantee of

oxygen delivery, the hallmark of a successful


intubation. In fact, cyanosis was again observed
immediately after the second intubation. Proceeding
from this event (cyanosis), it could not be claimed, as
private respondents insist, that the second intubation
was accomplished. Even granting that the tube was
successfully inserted during the second attempt, it, was
obviously too late. As aptly explained by the trial court,
Erlinda already suffered brain damage as a result of the
inadequate oxygenation of her brain for about four to
five minutes.
The above conclusion is not without basis. Scientific
studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious
injuries associated with anesthesia.
Nevertheless,
ninety-eight percent (98%) or the vast majority of
difficult intubations may be anticipated by performing
a thorough evaluation of the patient's airway prior to
the operation. As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative
protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable
care been used in the pre-operative evaluation,
respondent physician could have been much more
prepared to meet the contingency brought about by the
perceived anatomic variations in the patient's neck and
oral area, defects which would have been easily
overcome by a prior knowledge of those variations
together with a change in technique. In other words, an
experienced anesthesiologist, adequately alerted by a
thorough pre-operative evaluation, would have had
little difficulty going around the short neck and
protruding teeth. Having failed to observe common
medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez' negligence
resulted in cerebral anoxia and eventual coma of
Erlinda.
We now determine the responsibility of respondent Dr.
Orlino Hosaka as the head of the surgical team. As the
so-called "captain of the ship," it is the surgeon's
responsibility to see to it that those under him perform
their task in the proper manner. Respondent Dr.
Hosaka's negligence can be found in his failure to
exercise the proper authority (as the "captain" of the
operative team) in not determining if his
anesthesiologist observed proper anesthesia protocols.
In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra.
Gutierrez properly intubated the patient. Furthermore,
it does not escape us that respondent Dr. Hosaka had
scheduled another procedure in a different hospital at
the same time as Erlinda's cholecystectomy, and was in
fact over three hours late for the latter's operation.
Because of this, he had little or no time to confer with
his anesthesiologist regarding the anesthesia delivery.
This indicates that he was remiss in his professional
duties towards his patient. Thus, he shares equal
responsibility for the events which resulted in Erlinda's
condition.

124

We now discuss the responsibility of the hospital in this


particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending
and visiting "consultants," who are allegedly not
hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice
cases. However, the difficulty is only more apparent
than real.
In the first place, hospitals exercise significant control in
the hiring and firing of consultants and in the conduct
of their work within the hospital premises. Doctors who
apply for "consultant" slots, visiting or attending, are
required to submit proof of completion of residency,
their educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate),
evidence of fellowship in most cases, and references.
These requirements are carefully scrutinized by
members of the hospital administration or by a review
committee set up by the hospital who either accept or
reject the application. This is particularly true with
respondent hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate
grand rounds and patient audits and perform other
tasks and responsibilities, for the privilege of being able
to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In
addition to these, the physician's performance as a
specialist is generally evaluated by a peer review
committee on the basis of mortality and morbidity
statistics, and feedback from patients, nurses, interns
and residents. A consultant remiss in his duties, or a
consultant who regularly falls short of the minimum
standards acceptable to the hospital or its peer review
committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise
real control over their attending and visiting
"consultant" staff. While "consultants" are not,
technically employees, a point which respondent
hospital asserts in denying all responsibility for the
patient's condition, the control exercised, the hiring,
and the right to terminate consultants all fulfill the
important hallmarks of an employer-employee
relationship, with the exception of the payment of
wages. In assessing whether such a relationship in fact
exists, the control test is determining. Accordingly, on
the basis of the foregoing, we rule that for the purpose
of allocating responsibility in medical negligence cases,
an employer-employee relationship in effect exists
between hospitals and their attending and visiting
physicians. This being the case, the question now arises
as to whether or not respondent hospital is solidarily
liable with respondent doctors for petitioner's
condition.
The basis for holding an employer solidarily
responsible for the negligence of its employee is found
125

in Article 2180 of the Civil Code which considers a


person accountable not only for his own acts but also
for those of others based on the former's responsibility
under a relationship of patria potestas.
Such
responsibility ceases when the persons or entity
concerned prove that they have observed the diligence
of a good father of the family to prevent damage. In
other words, while the burden of proving negligence
rests on the plaintiffs, once negligence is shown, the
burden shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they
observed the diligence of a good father of a family to
prevent damage.
In the instant case, respondent hospital, apart from a
general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it
exercised the diligence of a good father of a family in
the hiring and supervision of the latter. It failed to
adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In
neglecting to offer such proof, or proof of a similar
nature, respondent hospital thereby failed to discharge
its burden under the last paragraph of Article 2180.
Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians
for Erlinda's condition.
Based on the foregoing, we hold that the Court of
Appeals erred in accepting and relying on the
testimonies of the witnesses for the private
respondents. Indeed, as shown by the above
discussions, private respondents were unable to rebut
the presumption of negligence. Upon these
disquisitions we hold that private respondents are
solidarily liable for damages under Article 2176 of the
Civil Code.
We now come to the amount of damages due
petitioners. The trial court awarded a total of
P632,000.00 pesos (should be P616,000.00) in
compensatory damages to the plaintiff, "subject to its
being updated" covering the period from 15 November
1985 up to 15 April 1992, based on monthly expenses
for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount
established by the trial court at the time of its decision
would be grossly inadequate to cover the actual costs of
home-based care for a comatose individual. The
calculated amount was not even arrived at by looking
at the actual cost of proper hospice care for the patient.
What it reflected were the actual expenses incurred and
proved by the petitioners after they were forced to
bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a
hospital or be transferred to a hospice specializing in
the care of the chronically ill for the purpose of
providing a proper milieu adequate to meet minimum
standards of care. In the instant case for instance,
Erlinda has to be constantly turned from side to side to

prevent bedsores and hypostatic pneumonia. Feeding is


done by nasogastric tube. Food preparation should be
normally made by a dietitian to provide her with the
correct daily caloric requirements and vitamin
supplements. Furthermore, she has to be seen on a
regular basis by a physical therapist to avoid muscle
atrophy, and by a pulmonary therapist to prevent the
accumulation of secretions which can lead to
respiratory complications.
Given these considerations, the amount of actual
damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of
proper care, not the cost of the care the family is usually
compelled to undertake at home to avoid bankruptcy.
However, the provisions of the Civil Code on actual or
compensatory damages present us with some
difficulties.
Well-settled is the rule that actual damages which may
be claimed by the plaintiff are those suffered by him as
he has duly proved. The Civil Code provides:
ARTICLE 2199. Except as provided
by law or by stipulation, one is
entitled to an adequate compensation
only for such pecuniary loss suffered
by him as he has duly proved. Such
compensation is referred to as actual
or compensatory damages.
Our rules on actual or compensatory damages
generally assume that at the time of litigation, the injury
suffered as a consequence of an act of negligence has
been completed and that the cost can be liquidated.
However, these provisions neglect to take into account
those situations, as in this case, where the resulting
injury might be continuing and possible future
complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly
respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved,
up to the time of trial; and one which would meet
pecuniary loss certain to be suffered but which could
not, from the nature of the case, be made with certainty.
In other words, temperate damages can and should be
awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing.
And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate
damages are provided for. The reason is that these
damages cover two distinct phases.
As it would not be equitable and certainly not in the
best interests of the administration of justice for the
victim in such cases to constantly come before the
courts and invoke their aid in seeking adjustments to
the compensatory damages previously awarded
temperate damages are appropriate. The amount given

as temperate damages, though to a certain extent


speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only
home-based nursing care for a comatose patient who
has remained in that condition for over a decade.
Having premised our award for compensatory
damages on the amount provided by petitioners at the
onset of litigation, it would be now much more in step
with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide
optimal care for their loved one in a facility which
generally specializes in such care. They should not be
compelled by dire circumstances to provide
substandard care at home without the aid of
professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable.
In Valenzuela vs. Court of Appeals, this Court was
confronted with a situation where the injury suffered
by the plaintiff would have led to expenses which were
difficult to estimate because while they would have
been a direct result of the injury (amputation), and were
certain to be incurred by the plaintiff, they were likely
to arise only in the future. We awarded P1,000,000.00 in
moral damages in that case.
Describing the nature of the injury, the Court therein
stated:
As a result of the accident, Ma.
Lourdes Valenzuela underwent a
traumatic amputation of her left
lower extremity at the distal left thigh
just above the knee. Because of this,
Valenzuela will forever be deprived
of the full ambulatory functions of
her left extremity, even with the use
of state of the art prosthetic
technology. Well beyond the period
of hospitalization (which was paid
for by Li), she will be required to
undergo
adjustments
in
her
prosthetic devise due to the
shrinkage of the stump from the
process of healing.
These adjustments entail costs,
prosthetic replacements and months
of
physical
and
occupational
rehabilitation and therapy. During
her lifetime, the prosthetic devise will
have to be replaced and readjusted to
changes in the size of her lower limb
effected by the biological changes of
middle-age, menopause and aging.
Assuming she reaches menopause,
for example, the prosthetic will have
to be adjusted to respond to the
126

changes in bone resulting from a


precipitate decrease in calcium levels
observed in the bones of all postmenopausal women. In other words,
the damage done to her would not
only be permanent and lasting, it
would also be permanently changing
and adjusting to the physiologic
changes which her body would
normally undergo through the years.
The replacements, changes, and
adjustments
will
require
corresponding adjustive physical and
occupational therapy. All of these
adjustments, it has been documented,
are painful.
xxx

xxx

Finally, by way of example, exemplary damages in the


amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we
are of the opinion that attorney's fees valued at
P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating
medical negligence cases because physicians are not
insurers of life and, they rarely set out to intentionally
cause injury or death to their patients. However, intent
is immaterial in negligence cases because where
negligence exists and is proven, the same automatically
gives the injured a right to reparation for the damage
caused.

xxx

A
prosthetic
devise,
however
technologically advanced, will only
allow a reasonable amount of
functional restoration of the motor
functions of the lower limb. The
sensory functions are forever lost.
The resultant anxiety, sleeplessness,
psychological injury, mental and
physical pain are inestimable.
The injury suffered by Erlinda as a consequence of
private respondents' negligence is certainly much more
serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when
the incident occurred. She has been in a comatose state
for over fourteen years now. The burden of care has so
far been heroically shouldered by her husband and
children, who, in the intervening years have been
deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial
cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages
herein awarded would be inadequate if petitioner's
condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the
victim's actual injury would not even scratch the
surface of the resulting moral damage because it would
be highly speculative to estimate the amount of
emotional and moral pain, psychological damage and
injury suffered by the victim or those actually affected
by the victim's condition. The husband and the
children, all petitioners in this case, will have to live
with the day to day uncertainty of the patient's illness,
knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into
account their life with a comatose patient. They, not the
respondents, are charged with the moral responsibility
of the care of the victim. The family's moral injury and
suffering in this case is clearly a real one. For the
127

foregoing reasons, an award of P2,000,000.00 in moral


damages would be appropriate.

Established medical procedures and practices, though


in constant flux are devised for the purpose of
preventing complications. A physician's experience
with his patients would sometimes tempt him to
deviate from established community practices, and he
may end a distinguished career using unorthodox
methods without incident. However, when failure to
follow established procedure results in the evil
precisely sought to be averted by observance of the
procedure and a nexus is made between the deviation
and the injury or damage, the physician would
necessarily be called to account for it. In the case at bar,
the failure to observe pre-operative assessment protocol
which would have influenced the intubation in a
salutary way was fatal to private respondents' case.
WHEREFORE, the decision and resolution of the
appellate court appealed from are hereby modified so
as to award in favor of petitioners, and solidarily
against private respondents the following: 1)
P1,352,000.00 as actual damages computed as of the
date of promulgation of this decision plus a monthly
payment of P8,000.00 up to the time that petitioner
Erlinda Ramos expires or miraculously survives; 2)
P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary
damages and attorney's fees; and, 5) the costs of the
suit.
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ.,
concur.
RAMOS, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 124354, 11 April 2002, 380 SCRA 467
KAPUNAN, J p:
Private respondents De Los Santos Medical Center, Dr.
Orlino Hosaka and Dr. Perfecta Gutierrez move for a
reconsideration of the Decision, dated December 29,
1999, of this Court holding them civilly liable for
petitioner Erlinda Ramos' comatose condition after she

delivered herself to them for their professional care and


management.

Court, the intubation she performed on Erlinda was


successful.

For better understanding of the issues raised in private


respondents' respective motions, we will briefly restate
the facts of the case as follows:

Unfortunately, Dr. Gutierrez' claim of lack of


negligence on her part is belied by the records of the
case. It has been sufficiently established that she failed
to exercise the standards of care in the administration of
anesthesia on a patient. Dr. Egay enlightened the Court
on what these standards are:

xxx

xxx

xxx

In the Resolution of February 21, 2000, this Court


denied the motions for reconsideration of private
respondents Drs. Hosaka and Gutierrez. They then filed
their respective second motions for reconsideration.
The Philippine College of Surgeons filed its Petition-inIntervention contending in the main that this Court
erred in holding private respondent Dr. Hosaka liable
under the captain-of-the-ship doctrine. According to the
intervenor, said doctrine had long been abandoned in
the United States in recognition of the developments in
modern medical and hospital practice. The Court noted
these pleadings in the Resolution of July 17, 2000.
On March 19, 2001, the Court heard the oral arguments
of the parties, including the intervenor. Also present
during the hearing were the amicii curiae: Dr. Felipe A.
Estrella, Jr., Consultant of the Philippine Charity
Sweepstakes, former Director of the Philippine General
Hospital and former Secretary of Health; Dr. Iluminada
T. Camagay, President of the Philippine Society of
Anesthesiologists, Inc. and Professor and Vice-Chair for
Research, Department of Anesthesiology, College of
Medicine-Philippine General Hospital, University of
the Philippines; and Dr. Lydia M. Egay, Professor and
Vice-Chair
for
Academics,
Department
of
Anesthesiology, College of Medicine-Philippine
General Hospital, University of the Philippines.
The Court enumerated the issues to be resolved in this
case as follows:
1.
2.
3.

WHETHER OR NOT DR. ORLINO HOSAKA


(SURGEON) IS LIABLE FOR NEGLIGENCE;
WHETHER OR NOT DR. PERFECTA GUTIERREZ
(ANESTHESIOLOGIST)
IS
LIABLE
FOR
NEGLIGENCE; AND
WHETHER OR NOT THE HOSPITAL (DELOS
SANTOS MEDICAL CENTER) IS LIABLE FOR
ANY ACT OF NEGLIGENCE COMMITTED BY
THEIR VISITING CONSULTANT SURGEON
AND ANESTHESIOLOGIST.

We shall first resolve the issue pertaining to private


respondent Dr. Gutierrez. She maintains that the Court
erred in finding her negligent and in holding that it was
the faulty intubation which was the proximate cause of
Erlinda's comatose condition. The following objective
facts allegedly negate a finding of negligence on her
part: 1) That the outcome of the procedure was a
comatose patient and not a dead one; 2) That the
patient had a cardiac arrest; and 3) That the patient was
revived from that cardiac arrest. 9 In effect, Dr.
Gutierrez insists that, contrary to the finding of this

. . . What are the standards of care


that an anesthesiologist should do
before we administer anesthesia? The
initial step is the preparation of the
patient for surgery and this is a preoperative evaluation because the
anesthesiologist is responsible for
determining the medical status of the
patient, developing the anesthesia
plan and acquainting the patient or
the responsible adult particularly if
we are referring with the patient or to
adult patient who may not have, who
may have some mental handicaps of
the proposed plans. We do preoperative evaluation because this
provides for an opportunity for us to
establish identification and personal
acquaintance with the patient. It also
makes us have an opportunity to
alleviate anxiety, explain techniques
and risks to the patient, given the
patient the choice and establishing
consent to proceed with the plan.
And lastly, once this has been agreed
upon by all parties concerned the
ordering
of
pre-operative
medications. And following this line
at the end of the evaluation we
usually come up on writing,
documentation is very important as
far
as
when
we
train
an
anesthesiologist
we
always
emphasize this because we need
records for our protection, well,
records. And it entails having brief
summary of patient history and
physical
findings
pertinent
to
anesthesia, plan, organize as a
problem list, the plan anesthesia
technique, the plan post operative,
pain management if appropriate,
special issues for this particular
patient. There are needs for special
care after surgery and if it so it must
be written down there and a request
must be made known to proper
authorities that such and such care is
necessary. And the request for
medical evaluation if there is an
indication. When we ask for a cardiopulmonary clearance it is not in fact
128

to tell them if this patient is going to


be fit for anesthesia, the decision to
give anesthesia rests on the
anesthesiologist. What we ask them is
actually to give us the functional
capacity of certain systems which
may be affected by the anesthetic
agent or the technique that we are
going to use. But the burden of
responsibility in terms of selection of
agent and how to administer it rest
on the anesthesiologist.
The conduct of a preanesthetic/preoperative evaluation
prior to an operation, whether elective or emergency,
cannot be dispensed with. Such evaluation is necessary
for the formulation of a plan of anesthesia care suited to
the needs of the patient concerned.
Pre-evaluation for anesthesia involves taking the
patient's medical history, reviewing his current drug
therapy, conducting physical examination, interpreting
laboratory data, and determining the appropriate
prescription of preoperative medications as necessary
to the conduct of anesthesia.
Physical examination of the patient entails not only
evaluating the patient's central nervous system,
cardiovascular system and lungs but also the upper
airway. Examination of the upper airway would in turn
include an analysis of the patient's cervical spine
mobility, temporomandibular mobility, prominent
central incisors, deceased or artificial teeth, ability to
visualize uvula and the thyromental distance.

during
the
administration
of
anesthesia to Erlinda. Respondent
Dra. Gutierrez' act of seeing her
patient for the first time only an hour
before the scheduled operative
procedure was, therefore, an act of
exceptional
negligence
and
professional irresponsibility. The
measures cautioning prudence and
vigilance in dealing with human lives
lie at the core of the physician's
centuries-old Hippocratic Oath. Her
failure to follow this medical
procedure is, therefore, a clear indicia
of her negligence.
Further, there is no cogent reason for the Court to
reverse its finding that it was the faulty intubation on
Erlinda that caused her comatose condition. There is no
question that Erlinda became comatose after Dr.
Gutierrez performed a medical procedure on her. Even
the counsel of Dr. Gutierrez admitted to this fact during
the oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your
argument saying that this involves a
comatose patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:

Nonetheless, Dr. Gutierrez omitted to perform a


thorough preoperative evaluation on Erlinda. As she
herself admitted, she saw Erlinda for the first time on
the day of the operation itself, one hour before the
scheduled operation. She auscultated 14 the patient's
heart and lungs and checked the latter's blood pressure
to determine if Erlinda was indeed fit for operation.
However, she did not proceed to examine the patient's
airway. Had she been able to check petitioner Erlinda's
airway prior to the operation, Dr. Gutierrez would most
probably not have experienced difficulty in intubating
the former, and thus the resultant injury could have
been avoided. As we have stated in our Decision:
In the case at bar, respondent Dra.
Gutierrez admitted that she saw
Erlinda for the first time on the day of
the operation itself, on 17 June 1985.
Before
this
date,
no
prior
consultations with, or pre-operative
evaluation of Erlinda was done by
her. Until the day of the operation,
respondent Dra. Gutierrez was
unaware of the physiological makeup and needs of Erlinda. She was
likewise not properly informed of the
possible difficulties she would face
129

How do you mean by that, a


comatose, a comatose after any other
acts were done by Dr. Gutierrez or
comatose before any act was done by
her?
ATTY. GANA:
No, we meant comatose as a final
outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient became
comatose after some intervention,
professional acts have been done by
Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:

In other words, the comatose status


was a consequence of some acts
performed by Dr. Gutierrez?
ATTY. GANA:
It was a consequence of the well,
(interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not
correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.
What is left to be determined therefore is whether
Erlinda's hapless condition was due to any fault or
negligence on the part of Dr. Gutierrez while she
(Erlinda) was under the latter's care. Dr. Gutierrez
maintains that the bronchospasm and cardiac arrest
resulting in the patient's comatose condition was
brought about by the anaphylactic reaction of the
patient to Thiopental Sodium (pentothal). 18 In the
Decision, we explained why we found Dr. Gutierrez'
theory unacceptable. In the first place, Dr. Eduardo
Jamora, the witness who was presented to support her
(Dr. Gutierrez) theory, was a pulmonologist. Thus, he
could not be considered an authority on anesthesia
practice and procedure and their complications.
Secondly, there was no evidence on record to support
the theory that Erlinda developed an allergic reaction to
pentothal. Dr. Camagay enlightened the Court as to the
manifestations of an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic
reaction. In medical terminology an
allergic reaction is something which
is not usual response and it is further
qualified by the release of a hormone
called histamine and histamine has
an effect on all the organs of the body
generally
release
because
the
substance that entered the body
reacts with the particular cell, the
mass cell, and the mass cell secretes
this histamine. In a way it is some
form of response to take away that
which is not mine, which is not part
of the body. So, histamine has
multiple effects on the body. So, one
of the effects as you will see you will
have redness, if you have an allergy

you will have tearing of the eyes, you


will have swelling, very crucial
swelling sometimes of the larynges
which is your voice box main airway,
that swelling may be enough to
obstruct the entry of air to the trachea
and you could also have contraction,
constriction of the smaller airways
beyond the trachea, you see you have
the trachea this way, we brought
some visual aids but unfortunately
we do not have a projector. And then
you have the smaller airways, the
bronchi and then eventually into the
mass of the lungs you have the
bronchus. The difference is that these
tubes have also in their walls muscles
and this particular kind of muscles is
smooth muscle so, when histamine is
released they close up like this and
that phenomenon is known as bronco
spasm. However, the effects of
histamine also on blood vessels are
different. They dilate blood vessel
open up and the patient or whoever
has this histamine release has
hypertension or low blood pressure
to a point that the patient may have
decrease blood supply to the brain
and may collapse so, you may have
people who have this.
These symptoms of an allergic reaction were not shown
to have been extant in Erlinda's case. As we held in our
Decision, "no evidence of stridor, skin reactions, or
wheezing some of the more common accompanying
signs of an allergic reaction appears on record. No
laboratory data were ever presented to the court."
Dr. Gutierrez, however, insists that she successfully
intubated Erlinda as evidenced by the fact that she was
revived after suffering from cardiac arrest. Dr.
Gutierrez faults the Court for giving credence to the
testimony of Cruz on the matter of the administration
of anesthesia when she (Cruz), being a nurse, was
allegedly not qualified to testify thereon. Rather, Dr.
Gutierrez invites the Court's attention to her synopsis
on what transpired during Erlinda's intubation:
12:15 p.m.

Patient was inducted


with sodium pentothal
2.5% (250 mg) given by
slow IV. 02 was started
by
mask.
After
pentothal injection this
was followed by IV
injection of Norcuron 4
mg. After 2 minutes 02
was given by positive
pressure for about one
minute. Intubation with
endotracheal tube 7.5
130

m. in diameter was
done
with
slight
difficulty (short neck &
slightly
prominent
upper teeth) chest was
examined for breath
sounds & checked if
equal on both sides. The
tube was then anchored
to the mouth by plaster
& cuff inflated. Ethrane
2% with 02 4 liters was
given. Blood pressure
was checked 120/80 &
heart rate regular and
normal 90/min.
12:25 p.m.

After 10 minutes patient


was cyanotic. Ethrane
was discontinued & 02
given alone. Cyanosis
disappeared.
Blood
pressure
and
heart
beats stable.

12:30 p.m.

Cyanosis
again
reappeared this time
with
sibilant
and
sonorous rales all over
the chest. D_5%_H2O &
1
ampule
of
aminophyline by fast
drip was started. Still
the
cyanosis
was
persistent. Patient was
connected to a cardiac
monitor.
Another
ampule of of [sic]
aminophyline
was
given and solu cortef
was given.

12:40 p.m.

There
was
cardiac
arrest. Extra cardiac
massage
and
intercardiac injection of
adrenalin was given &
heart beat reappeared
in less than one minute.
Sodium bicarbonate &
another dose of solu
cortef was given by IV.
Cyanosis
slowly
disappeared
&
02
continuously given &
assisted
positive
pressure.
Laboratory
exams done (see results
in chart).

Patient was transferred to ICU for further management.

131

From the foregoing, it can be allegedly seen that there


was no withdrawal (extubation) of the tube. And the
fact that the cyanosis allegedly disappeared after pure
oxygen was supplied through the tube proved that it
was properly placed.
The Court has reservations on giving evidentiary
weight to the entries purportedly contained in Dr.
Gutierrez' synopsis. It is significant to note that the said
record prepared by Dr. Gutierrez was made only after
Erlinda was taken out of the operating room. The
standard practice in anesthesia is that every single act
that the anesthesiologist performs must be recorded. In
Dr. Gutierrez' case, she could not account for at least
ten (10) minutes of what happened during the
administration of anesthesia on Erlinda. The following
exchange between Dr. Estrella, one of the amicii curiae,
and Dr. Gutierrez is instructive:
DR. ESTRELLA
You mentioned that there were
two (2) attempts in the
intubation period?
DR. GUTIERREZ
Yes.
Q There were two attempts. In the
first attempt was the tube
inserted or was the laryngoscope
only
inserted,
which
was
inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I
remember right somewhere in
the re-direct, a certain lawyer,
you were asked that you did a
first attempt and the question
was did you withdraw the
tube? And you said you never
withdrew the tube, is that right?
A Yes.
Q Yes. And so if you never
withdrew the tube then there
was no, there was no insertion of
the tube during that first
attempt. Now, the other thing
that we have to settle here is
when cyanosis occurred, is it
recorded in the anesthesia record
when the cyanosis, in your
recording when did the cyanosis
occur?
A (sic)
Q Is it a standard practice of
anesthesia that whatever you do
during that period or from the
time of induction to the time that
you probably get the patient out
of the operating room that every
single action that you do is so
recorded in your anesthesia
record?

Q
A
Q
A
Q
A
Q
A
Q
A

Q
A
Q
A

Q
A
Q
A
Q
A

I was not able to record


everything I did not have time
anymore because I did that after
the, when the patient was about
to leave the operating room.
When there was second cyanosis
already
that
was
the
(interrupted)
When was the first cyanosis?
The first cyanosis when I was
(interrupted)
What time, more or less?
I think it was 12:15 or 12:16.
Well, if the record will show you
started induction at 12:15?
Yes, Your Honor.
And the first medication you
gave was what?
The first medication, no, first the
patient was oxygenated for
around one to two minutes.
Yes, so, that is about 12:13?
Yes, and then, I asked the
resident physician to start giving
the pentothal very slowly and
that was around one minute.
So, that is about 12:13 no, 12:15,
12:17?
Yes, and then, after one minute
another oxygenation was given
and after (interrupted)
12:18?
Yes, and then after giving the
oxygen we start the menorcure
which is a relaxant. After that
relaxant (interrupted)
After that relaxant, how long do
you wait before you do any
manipulation?
Usually you wait for two
minutes or three minutes.
So, if our estimate of the time is
accurate we are now more or less
12:19, is that right?
May be.
12:19. And at that time, what
would have been done to this
patient?
After that time you examine the,
if there is relaxation of the jaw
which you push it downwards
and when I saw that the patient
was
relax
because
that
monorcure is a relaxant, you
cannot intubate the patient or
insert the laryngoscope if it is not
keeping him relax. So, my first
attempt when I put the
laryngoscope on I saw the
trachea was deeply interiorly. So,
what I did ask "mahirap ata ito
ah."
So,
I
removed
the

A
Q
A
Q
A

Q
A
Q
A
Q

A
Q

A
Q
A
Q
A
Q
A
Q

laryngoscope and oxygenated


again the patient.
So, more or less you attempted
to do an intubation after the first
attempt as you claimed that it
was only the laryngoscope that
was inserted.
Yes.
And in the second attempt you
inserted the laryngoscope and
now possible intubation?
Yes.
And at that point, you made a
remark, what remark did you
make?
I said "mahirap ata ito" when the
first attempt I did not see the
trachea right away. That was
when I (interrupted)
That was the first attempt?
Yes.
What about the second attempt?
On the second attempt I was able
to intubate right away within
two to three seconds.
At what point, for purposes of
discussion without accepting it,
at what point did you make the
comment "na mahirap ata to
intubate,
mali
ata
ang
pinasukan"?
I did not say "mali ata ang
pinasukan" I never said that.
Well, just for the information of
the group here the remarks I am
making is based on the
documents that were forwarded
to me by the Supreme Court.
That is why for purposes of
discussion I am trying to clarify
this
for
the
sake
of
enlightenment. So, at what point
did you ever make that
comment?
Which one, sir?
The "mahirap intubate ito"
assuming that you (interrupted)
Iyon lang, that is what I only said
"mahirap intubate (interrupted)
At what point?
When the first attempt when I
inserted the laryngoscope for the
first time.
So, when you claim that at the
first attempt you inserted the
laryngoscope, right?
Yes.
But in one of the recordings
somewhere at the, somewhere in
the transcript of records that
when the lawyer of the other
party try to inquire from you
132

A
Q
A
Q

A
Q
A
Q
A
Q

A
Q

A
Q
A
Q
A
Q

133

during the first attempt that was


the time when "mayroon ba
kayong hinugot sa tube, I do not
remember the page now, but it
seems to me it is there. So, that it
was on the second attempt that
(interrupted)
I was able to intubate.
And this is more or less about
what time 12:21?
May be, I cannot remember the
time, Sir.
Okay, assuming that this was
done at 12:21 and looking at the
anesthesia records from 12:20 to
12:30 there was no recording of
the vital signs. And can we
presume that at this stage there
was already some problems in
handling the patient?
Not yet.
But why are there no recordings
in the anesthesia record?
I did not have time.
Ah, you did not have time, why
did you not have time?
Because it was so fast, I really (at
this juncture the witness is
laughing)
No, I am just asking. Remember I
am not here not to pin point on
anybody I am here just to more
or less clarify certainty more or
less on the record.
Yes, Sir.
And so it seems that there were
no recording during that span of
ten (10) minutes. From 12:20 to
12:30, and going over your
narration, it seems to me that the
cyanosis appeared ten (10)
minutes after induction, is that
right?
Yes.
And that is after induction 12:15
that is 12:25 that was the first
cyanosis?
Yes.
And that the 12:25 is after the
12:20?
We cannot (interrupted)
Huwag ho kayong makuwan, we
are just trying to enlighten, I am
just going over the record ano,
kung mali ito kuwan eh di ano.
So, ganoon po ano, that it seems
to me that there is no recording
from 12:20 to 12:30, so, I am just
wondering why there were no
recordings during the period and
then of course the second
cyanosis, after the first cyanosis.

I think that was the time Dr.


Hosaka came in?
No,
the
first
cyanosis
(interrupted).

We cannot thus give full credence to Dr. Gutierrez'


synopsis in light of her admission that it does not fully
reflect the events that transpired during the
administration of anesthesia on Erlinda. As pointed out
by Dr. Estrella, there was a ten-minute gap in Dr.
Gutierrez' synopsis, i.e., the vital signs of Erlinda were
not recorded during that time. The absence of these
data is particularly significant because, as found by the
trial court, it was the absence of oxygen supply for four
(4) to five (5) minutes that caused Erlinda's comatose
condition.
On the other hand, the Court has no reason to
disbelieve the testimony of Cruz. As we stated in the
Decision, she is competent to testify on matters which
she is capable of observing such as, the statements and
acts of the physician and surgeon, external appearances
and manifest conditions which are observable by any
one. Cruz, Erlinda's sister-in-law, was with her inside
the operating room. Moreover, being a nurse and Dean
of the Capitol Medical Center School of Nursing at that,
she is not entirely ignorant of anesthetic procedure.
Cruz narrated that she heard Dr. Gutierrez remark,
"Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan." She observed
that the nailbeds of Erlinda became bluish and
thereafter Erlinda was placed in trendelenburg
position. 25 Cruz further averred that she noticed that
the abdomen of Erlinda became distended.
The cyanosis (bluish discoloration of the skin or
mucous membranes caused by lack of oxygen or
abnormal hemoglobin in the blood) and enlargement of
the stomach of Erlinda indicate that the endotracheal
tube was improperly inserted into the esophagus
instead of the trachea. Consequently, oxygen was
delivered not to the lungs but to the gastrointestinal
tract. This conclusion is supported by the fact that
Erlinda was placed in trendelenburg position. This
indicates that there was a decrease of blood supply to
the patient's brain. The brain was thus temporarily
deprived of oxygen supply causing Erlinda to go into
coma.
The injury incurred by petitioner Erlinda does not
normally happen absent any negligence in the
administration of anesthesia and in the use of an
endotracheal tube. As was noted in our Decision, the
instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the
exclusive control of private respondents Dr. Gutierrez
and Dr. Hosaka. In Voss vs. Bridwell, which involved a
patient who suffered brain damage due to the wrongful
administration of anesthesia, and even before the
scheduled mastoid operation could be performed, the
Kansas Supreme Court applied the doctrine of res ipsa
loquitur, reasoning that the injury to the patient therein

was one which does not ordinarily take place in the


absence of negligence in the administration of an
anesthetic, and in the use and employment of an
endotracheal tube. The court went on to say that
"[o]rdinarily a person being put under anesthesia is not
rendered
decerebrate
as
a
consequence
of
administering such anesthesia in the absence of
negligence. Upon these facts and under these
circumstances, a layman would be able to say, as a
matter of common knowledge and observation, that the
consequences of professional treatment were not as
such as would ordinarily have followed if due care had
been exercised. Considering the application of the
doctrine of res ipsa loquitur, the testimony of Cruz was
properly given credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court
erred in finding him negligent as a surgeon by applying
the Captain-of-the-Ship doctrine. Dr. Hosaka argues
that the trend in United States jurisprudence has been
to reject said doctrine in light of the developments in
medical practice. He points out that anesthesiology and
surgery are two distinct and specialized fields in
medicine and as a surgeon, he is not deemed to have
control over the acts of Dr. Gutierrez. As
anesthesiologist, Dr. Gutierrez is a specialist in her field
and has acquired skills and knowledge in the course of
her training which Dr. Hosaka, as a surgeon, does not
possess. He states further that current American
jurisprudence on the matter recognizes that the trend
towards specialization in medicine has created
situations where surgeons do not always have the right
to control all personnel within the operating room,
especially a fellow specialist.
Dr. Hosaka cites the case of Thomas v. Raleigh General
Hospital, which involved a suit filed by a patient who
lost his voice due to the wrongful insertion of the
endotracheal tube preparatory to the administration of
anesthesia in connection with the laparotomy to be
conducted on him. The patient sued both the
anesthesiologist and the surgeon for the injury suffered
by him. The Supreme Court of Appeals of West
Virginia held that the surgeon could not be held liable
for the loss of the patient's voice, considering that the
surgeon did not have a hand in the intubation of the
patient. The court rejected the application of the
"Captain-of-the-Ship Doctrine," citing the fact that the
field of medicine has become specialized such that
surgeons can no longer be deemed as having control
over the other personnel in the operating room. It held
that "[a]n assignment of liability based on actual control
more realistically reflects the actual relationship which
exists in a modern operating room." Hence, only the
anesthesiologist who inserted the endotracheal tube
into the patient's throat was held liable for the injury
suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do
away with the Captain-of-the-Ship doctrine does not

mean that this Court will ipso facto follow said trend.
Due regard for the peculiar factual circumstances
obtaining in this case justify the application of the
Captain-of-the-Ship doctrine. From the facts on record
it can be logically inferred that Dr. Hosaka exercised a
certain degree of, at the very least, supervision over the
procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to
petitioners the services of Dr. Gutierrez. In effect, he
represented to petitioners that Dr. Gutierrez possessed
the necessary competence and skills. Drs. Hosaka and
Gutierrez had worked together since 1977. Whenever
Dr. Hosaka performed a surgery, he would always
engage the services of Dr. Gutierrez to administer the
anesthesia on his patient.
Second, Dr. Hosaka himself admitted that he was the
attending physician of Erlinda. Thus, when Erlinda
showed signs of cyanosis, it was Dr. Hosaka who gave
instructions to call for another anesthesiologist and
cardiologist to help resuscitate Erlinda.
Third, it is conceded that in performing their
responsibilities to the patient, Drs. Hosaka and
Gutierrez worked as a team. Their work cannot be
placed in separate watertight compartments because
their duties intersect with each other.
While the professional services of Dr. Hosaka and Dr.
Gutierrez were secured primarily for their performance
of acts within their respective fields of expertise for the
treatment of petitioner Erlinda, and that one does not
exercise control over the other, they were certainly not
completely independent of each other so as to absolve
one from the negligent acts of the other physician.
That they were working as a medical team is evident
from the fact that Dr. Hosaka was keeping an eye on
the intubation of the patient by Dr. Gutierrez, and while
doing so, he observed that the patient's nails had
become dusky and had to call Dr. Gutierrez's attention
thereto. The Court also notes that the counsel for Dr.
Hosaka admitted that in practice, the anesthesiologist
would also have to observe the surgeon's acts during
the surgical process and calls the attention of the
surgeon whenever necessary in the course of the
treatment. The duties of Dr. Hosaka and those of Dr.
Gutierrez in the treatment of petitioner Erlinda are
therefore not as clear-cut as respondents claim them to
be. On the contrary, it is quite apparent that they have a
common responsibility to treat the patient, which
responsibility necessitates that they call each other's
attention to the condition of the patient while the other
physician is performing the necessary medical
procedures.
It is equally important to point out that Dr. Hosaka was
remiss in his duty of attending to petitioner Erlinda
promptly, for he arrived more than three (3) hours late
for the scheduled operation. The cholecystectomy was
set for June 17, 1985 at 9:00 a.m., but he arrived at
134

DLSMC only at around 12:10 p.m. In reckless disregard


for his patient's well being, Dr. Hosaka scheduled two
procedures on the same day, just thirty minutes apart
from each other, at different hospitals. Thus, when the
first procedure (protoscopy) at the Sta. Teresita
Hospital did not proceed on time, Erlinda was kept in a
state of uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlinda's
scheduled operation subjected her to continued
starvation and consequently, to the risk of acidosis, 40
or the condition of decreased alkalinity of the blood and
tissues, marked by sickly sweet breath, headache,
nausea and vomiting, and visual disturbances. 41 The
long period that Dr. Hosaka made Erlinda wait for him
certainly aggravated the anxiety that she must have
been feeling at the time. It could be safely said that her
anxiety adversely affected the administration of
anesthesia on her. As explained by Dr. Camagay, the
patient's anxiety usually causes the outpouring of
adrenaline which in turn results in high blood pressure
or disturbances in the heart rhythm:

DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in
this particular case that was the case,
three hours waiting and the patient
was already on the operating table
(interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that
the surgeon contributed to the
aggravation of the anxiety of the
patient?

DR. CAMAGAY:

DR. CAMAGAY:

. . . Pre-operative medication has


three main functions: One is to
alleviate anxiety. Second is to dry up
the secretions and Third is to relieve
pain. Now, it is very important to
alleviate anxiety because anxiety is
associated with the outpouring of
certain substances formed in the body
called adrenalin. When a patient is
anxious there is an outpouring of
adrenalin which would have adverse
effect on the patient. One of it is high
blood pressure, the other is that he
opens himself to disturbances in the
heart rhythm, which would have
adverse implications. So, we would
like to alleviate patient's anxiety
mainly because he will not be in
control of his body there could be
adverse results to surgery and he will
be opened up; a knife is going to
open up his body. . . .

That this operation did not take place


as scheduled is already a source of
anxiety and most operating tables are
very narrow and that patients are
usually at risk of falling on the floor
so there are restraints that are placed
on them and they are never, never
left alone in the operating room by
themselves specially if they are
already pre-medicated because they
may not be aware of some of their
movement that they make which
would contribute to their injury.

Dr. Hosaka cannot now claim that he was entirely


blameless of what happened to Erlinda. His conduct
clearly constituted a breach of his professional duties to
Erlinda:

CHIEF JUSTICE:
In other words due diligence would
require a surgeon to come on time?
DR. CAMAGAY:
I think it is not even due diligence it
is courtesy.
CHIEF JUSTICE:
Courtesy.

CHIEF JUSTICE:

DR. CAMAGAY:

Two other points. The first, Doctor,


you were talking about anxiety,
would you consider a patient's stay
on the operating table for three hours
sufficient enough to aggravate or
magnify his or her anxiety?

And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:

135

Yes, Your Honor.


Dr. Hosaka's irresponsible conduct of arriving very late
for the scheduled operation of petitioner Erlinda is
violative, not only of his duty as a physician "to serve
the interest of his patients with the greatest solicitude,
giving them always his best talent and skill," but also of
Article 19 of the Civil Code which requires a person, in
the performance of his duties, to act with justice and
give everyone his due.
Anent private respondent DLSMC's liability for the
resulting injury to petitioner Erlinda, we held that
respondent hospital is solidarily liable with respondent
doctors therefor under Article 2180 of the Civil Code
since there exists an employer-employee relationship
between private respondent DLSMC and Drs. Gutierrez
and Hosaka:
In other words, private hospitals,
hire, fire and exercise real control
over their attending and visiting
"consultant" staff. While "consultants"
are not, technically employees, . . . the
control exercised, the hiring and the
right to terminate consultants all
fulfill the important hallmarks of an
employer-employee
relationship,
with the exception of the payment of
wages. In assessing whether such a
relationship in fact exists, the control
test is determining . . . .
DLSMC however contends that applying the four-fold
test in determining whether such a relationship exists
between it and the respondent doctors, the inescapable
conclusion is that DLSMC cannot be considered an
employer of the respondent doctors.
It has been consistently held that in determining
whether an employer-employee relationship exists
between the parties, the following elements must be
present: (1) selection and engagement of services; (2)
payment of wages; (3) the power to hire and fire; and
(4) the power to control not only the end to be achieved,
but the means to be used in reaching such an end.
DLSMC maintains that first, a hospital does not hire or
engage the services of a consultant, but rather, accredits
the latter and grants him or her the privilege of
maintaining a clinic and/or admitting patients in the
hospital upon a showing by the consultant that he or
she possesses the necessary qualifications, such as
accreditation by the appropriate board (diplomate),
evidence of fellowship and references. Second, it is not
the hospital but the patient who pays the consultant's
fee for services rendered by the latter. Third, a hospital
does not dismiss a consultant; instead, the latter may
lose his or her accreditation or privileges granted by the
hospital. Lastly, DLSMC argues that when a doctor
refers a patient for admission in a hospital, it is the

doctor who prescribes the treatment to be given to said


patient. The hospital's obligation is limited to providing
the patient with the preferred room accommodation,
the nutritional diet and medications prescribed by the
doctor, the equipment and facilities necessary for the
treatment of the patient, as well as the services of the
hospital staff who perform the ministerial tasks of
ensuring that the doctor's orders are carried out strictly.
After a careful consideration of the arguments raised by
DLSMC, the Court finds that respondent hospital's
position on this issue is meritorious. There is no
employer-employee relationship between DLSMC and
Drs. Gutierrez and Hosaka which would hold DLSMC
solidarily liable for the injury suffered by petitioner
Erlinda under Article 2180 of the Civil Code.
As explained by respondent hospital, that the
admission of a physician to membership in DLSMC's
medical staff as active or visiting consultant is first
decided upon by the Credentials Committee thereof,
which is composed of the heads of the various specialty
departments such as the Department of Obstetrics and
Gynecology, Pediatrics, Surgery with the department
head of the particular specialty applied for as chairman.
The Credentials Committee then recommends to
DLSMC's Medical Director or Hospital Administrator
the acceptance or rejection of the applicant physician,
and said director or administrator validates the
committee's recommendation. Similarly, in cases where
a disciplinary action is lodged against a consultant, the
same is initiated by the department to whom the
consultant concerned belongs and filed with the Ethics
Committee consisting of the department specialty
heads. The medical director/hospital administrator
merely acts as ex-officio member of said committee.
Neither is there any showing that it is DLSMC which
pays any of its consultants for medical services
rendered by the latter to their respective patients.
Moreover, the contract between the consultant in
respondent hospital and his patient is separate and
distinct from the contract between respondent hospital
and said patient. The first has for its object the rendition
of medical services by the consultant to the patient,
while the second concerns the provision by the hospital
of facilities and services by its staff such as nurses and
laboratory personnel necessary for the proper treatment
of the patient.
Further, no evidence was adduced to show that the
injury suffered by petitioner Erlinda was due to a
failure on the part of respondent DLSMC to provide for
hospital facilities and staff necessary for her treatment.
For these reasons, we reverse the finding of liability on
the part of DLSMC for the injury suffered by petitioner
Erlinda.
Finally, the Court also deems it necessary to modify the
award of damages to petitioners in view of the
supervening event of petitioner Erlinda's death. In the
136

assailed Decision, the Court awarded actual damages of


One Million Three Hundred Fifty-Two Thousand Pesos
(P1,352,000.00) to cover the expenses for petitioner
Erlinda's treatment and care from the date of
promulgation of the Decision up to the time the patient
expires or survives. In addition thereto, the Court
awarded temperate damages of One Million Five
Hundred Thousand Pesos (P1,500,000.00) in view of the
chronic and continuing nature of petitioner Erlinda's
injury and the certainty of further pecuniary loss by
petitioners as a result of said injury, the amount of
which, however, could not be made with certainty at
the time of the promulgation of the decision. The Court
justified such award in this manner:
Our rules on actual or compensatory damages
generally assume that at the time of litigation, the injury
suffered as a consequence of an act of negligence has
been completed and that the cost can be liquidated.
However, these provisions neglect to take into account
those situations, as in this case, where the resulting
injury might be continuing and possible future
complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly
respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved,
up to the time of trial; and one which would meet
pecuniary loss certain to be suffered but which could
not, from the nature of the case, be made with certainty.
In other words, temperate damages can and should be
awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing.
And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate
damages are provided for. The reason is that these
damages cover two distinct phases.
As it would not be equitable and certainly not in the
best interests of the administration of justice for the
victim in such cases to constantly come before the
courts and invoke their aid in seeking adjustments to
the compensatory damages previously awarded
temperate damages are appropriate. The amount given
as temperate damages, though to a certain extent
speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only
home-based nursing care for a comatose patient who
has remained in that condition for over a decade.
Having premised our award for compensatory
damages on the amount provided by petitioners at the
onset of litigation, it would be now much more in step
with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide
optimal care for their loved one in a facility which
generally specializes in such care. They should not be
compelled by dire circumstances to provide
substandard care at home without the aid of
137

professionals, for anything less would be grossly


inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable.
However, subsequent to the promulgation of the
Decision, the Court was informed by petitioner Rogelio
that petitioner Erlinda died on August 3, 1999. In view
of this supervening event, the award of temperate
damages in addition to the actual or compensatory
damages would no longer be justified since the actual
damages awarded in the Decision are sufficient to cover
the medical expenses incurred by petitioners for the
patient. Hence, only the amounts representing actual,
moral and exemplary damages, attorney's fees and
costs of suit should be awarded to petitioners.
xxx

xxx

xxx

SO ORDERED.
Davide, Jr., C.J., Puno and Ynares-Santiago, JJ., concur.
REYES, ET AL. vs.
SISTERS OF MERCY HOSPITAL, ET AL.
G.R. No. 130547, 3 October 2000, 341 SCRA 760
MENDOZA, J p:
This is a petition for review of the decision 1 of the
Court of Appeals in CA-G.R. CV No. 36551 affirming
the decision of the Regional Trial Court, Branch IX,
Cebu City which dismissed a complaint for damages
filed by petitioners against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late
Jorge Reyes. The other petitioners, namely, Rose
Nahdja, Johnny, Lloyd, and Kristine, all surnamed
Reyes, were their children. Five days before his death
on January 8, 1987, Jorge had been suffering from a
recurring fever with chills. After he failed to get relief
from some home medication he was taking, which
consisted of analgesic, antipyretic, and antibiotics, he
decided to see the doctor.
On January 8, 1987, he was taken to the Mercy
Community Clinic by his wife. He was attended to by
respondent Dr. Marlyn Rico, resident physician and
admitting physician on duty, who gave Jorge a physical
examination and took his medical history. She noted
that at the time of his admission, Jorge was conscious,
ambulatory, oriented, coherent, and with respiratory
distress. Typhoid fever was then prevalent in the
locality, as the clinic had been getting from 15 to 20
cases of typhoid per month. Suspecting that Jorge could
be suffering from this disease, Dr. Rico ordered a Widal
Test, a standard test for typhoid fever, to be performed
on Jorge. Blood count, routine urinalysis, stool
examination, and malarial smear were also made. 4
After about an hour, the medical technician submitted

the results of the test from which Dr. Rico concluded


that Jorge was positive for typhoid fever. As her shift
was only up to 5:00 p.m., Dr. Rico indorsed Jorge to
respondent Dr. Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the
evening. She also took Jorge's history and gave him a
physical examination. Like Dr. Rico, her impression
was that Jorge had typhoid fever. Antibiotics being the
accepted treatment for typhoid fever, she ordered that a
compatibility test with the antibiotic chloromycetin be
done on Jorge. Said test was administered by nurse
Josephine Pagente who also gave the patient a dose of
triglobe. As she did not observe any adverse reaction by
the patient to chloromycetin, Dr. Blanes ordered the
first five hundred milligrams of said antibiotic to be
administered on Jorge at around 9:00 p.m. A second
dose was administered on Jorge about three hours later
just before midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was
called as Jorge's temperature rose to 41C. The patient
also experienced chills and exhibited respiratory
distress, nausea, vomiting, and convulsions. Dr. Blanes
put him under oxygen, used a suction machine, and
administered hydrocortisone, temporarily easing the
patient's convulsions. When he regained consciousness,
the patient was asked by Dr. Blanes whether he had a
previous heart ailment or had suffered from chest pains
in the past. Jorge replied he did not. After about 15
minutes, however, Jorge again started to vomit, showed
restlessness, and his convulsions returned. Dr. Blanes
re-applied the emergency measures taken before and,
in addition, valium was administered. Jorge, however,
did not respond to the treatment and slipped into
cyanosis, a bluish or purplish discoloration of the skin
or mucous membrane due to deficient oxygenation of
the blood. At around 2:00 a.m., Jorge died. He was forty
years old. The cause of his death was "Ventricular
Arrythemia Secondary to Hyperpyrexia and typhoid
fever."
On June 3, 1987, petitioners filed before the Regional
Trial Court of Cebu City a complaint for damages
against respondents Sisters of Mercy, Sister Rose
Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse
Josephine Pagente. On September 24, 1987, petitioners
amended their complaint to implead respondent Mercy
Community Clinic as additional defendant and to drop
the name of Josephine Pagente as defendant since she
was no longer connected with respondent hospital.
Their principal contention was that Jorge did not die of
typhoid fever. Instead, his death was due to the
wrongful administration of chloromycetin. They
contended that had respondent doctors exercised due
care and diligence, they would not have recommended
and rushed the performance of the Widal Test, hastily
concluded that Jorge was suffering from typhoid fever,
and administered chloromycetin without first
conducting sufficient tests on the patient's compatibility
with said drug. They charged respondent clinic and its
directress, Sister Rose Palacio, with negligence in failing

to provide adequate facilities and in hiring negligent


doctors and nurses.
Respondents denied the charges. During the pre-trial
conference, the parties agreed to limit the issues on the
following: (1) whether the death of Jorge Reyes was due
to or caused by the negligence, carelessness,
imprudence, and lack of skill or foresight on the part of
defendants; (2) whether respondent Mercy Community
Clinic was negligent in the hiring of its employees; and
(3) whether either party was entitled to damages. The
case was then heard by the trial court during which, in
addition to the testimonies of the parties, the
testimonies of doctors as expert witnesses were
presented.
Petitioners offered the testimony of Dr. Apolinar
Vacalares, Chief Pathologist at the Northern Mindanao
Training Hospital, Cagayan de Oro City. On January 9,
1987, Dr. Vacalares performed an autopsy on Jorge
Reyes to determine the cause of his death. However, he
did not open the skull to examine the brain. His
findings showed that the gastro-intestinal tract was
normal and without any ulceration or enlargement of
the nodules. Dr. Vacalares testified that Jorge did not
die of typhoid fever. He also stated that he had not seen
a patient die of typhoid fever within five days from the
onset of the disease.
For their part, respondents offered the testimonies of
Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong
is a diplomate in internal medicine whose expertise is
microbiology and infectious diseases. He is also a
consultant at the Cebu City Medical Center and an
associate professor of medicine at the South Western
University College of Medicine in Cebu City. He had
treated over a thousand cases of typhoid patients.
According to Dr. Gotiong, the patient's history and
positive Widal Test results ratio of 1:320 would make
him suspect that the patient had typhoid fever. As to
Dr. Vacalares' observation regarding the absence of
ulceration in Jorge's gastro-intestinal tract, Dr. Gotiong
said that such hyperplasia in the intestines of a typhoid
victim may be microscopic. He noted that since the
toxic effect of typhoid fever may lead to meningitis, Dr.
Vacalares' autopsy should have included an
examination of the brain.
The other doctor presented was Dr. Ibarra Panopio, a
member of the American Board of Pathology, examiner
of the Philippine Board of Pathology from 1978 to 1991,
fellow of the Philippine Society of Pathologist, associate
professor of the Cebu Institute of Medicine, and chief
pathologist of the Andres Soriano Jr. Memorial Hospital
in Toledo City. Dr. Panopio stated that although he was
partial to the use of the culture test for its greater
reliability in the diagnosis of typhoid fever, the Widal
Test may also be used. Like Dr. Gotiong, he agreed that
the 1:320 ratio in Jorge's case was already the maximum
by which a conclusion of typhoid fever may be made.
No additional information may be deduced from a

138

higher dilution. He said that Dr. Vacalares' autopsy on


Jorge was incomplete and thus inconclusive.
On September 12, 1991, the trial court rendered its
decision absolving respondents from the charges of
negligence and dismissing petitioners' action for
damages. The trial court likewise dismissed
respondents' counterclaim, holding that, in seeking
damages from respondents, petitioners were impelled
by the honest belief that Jorge's death was due to the
latter's negligence.
Petitioners brought the matter to the Court of Appeals.
On July 31, 1997, the Court of Appeals affirmed the
decision of the trial court.
Hence this petition.
Petitioners raise the following assignment of errors:
xxx

xxx

xxx

Petitioner's action is for medical malpractice. This is a


particular form of negligence which consists in the
failure of a physician or surgeon to apply to his practice
of medicine that degree of care and skill which is
ordinarily employed by the profession generally, under
similar conditions, and in like surrounding
circumstances. In order to successfully pursue such a
claim, a patient must prove that the physician or
surgeon either failed to do something which a
reasonably prudent physician or surgeon would have
done, or that he or she did something that a reasonably
prudent physician or surgeon would not have done,
and that the failure or action caused injury to the
patient. There are thus four elements involved in
medical negligence cases, namely: duty, breach, injury,
and proximate causation.
In the present case, there is no doubt that a physicianpatient relationship existed between respondent
doctors and Jorge Reyes. Respondents were thus dutybound to use at least the same level of care that any
reasonably competent doctor would use to treat a
condition under the same circumstances. It is breach of
this duty which constitutes actionable malpractice. As
to this aspect of medical malpractice, the determination
of the reasonable level of care and the breach thereof,
expert testimony is essential. Inasmuch as the causes of
the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it
has been recognized that expert testimony is usually
necessary to support the conclusion as to causation.
Res Ipsa Loquitur
There is a case when expert testimony may be
dispensed with, and that is under the doctrine of res
ipsa loquitur. As held in Ramos v. Court of Appeals:
Although generally, expert medical
testimony
is
relied
upon
in
139

malpractice suits to prove that a


physician has done a negligent act or
that he has deviated from the
standard medical procedure, when
the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for
expert
medical
testimony
is
dispensed with because the injury
itself
provides
the
proof
of
negligence. The reason is that the
general rule on the necessity of expert
testimony applies only to such
matters clearly within the domain of
medical science, and not to matters
that are within the common
knowledge of mankind which may be
testified to by anyone familiar with
the facts. Ordinarily, only physicians
and surgeons of skill and experience
are competent to testify as to whether
a patient has been treated or operated
upon with a reasonable degree of
skill and care. However, testimony as
to the statements and acts of
physicians and surgeons, external
appearances, and manifest conditions
which are observable by any one may
be given by non-expert witnesses.
Hence, in cases where the res ipsa
loquitur is applicable, the court is
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. When the doctrine is
appropriate, all that the patient must
do is prove a nexus between the
particular act or omission complained
of and the injury sustained while
under the custody and management
of the defendant without need to
produce expert medical testimony to
establish the standard of care. Resort
to res ipsa loquitur is allowed because
there is no other way, under usual
and ordinary conditions, by which
the patient can obtain redress for
injury suffered by him.

Thus, courts of other jurisdictions


have applied the doctrine in the
following situations: leaving of a
foreign object in the body of the
patient after an operation, injuries
sustained on a healthy part of the
body which was not under, or in the
area, of treatment, removal of the
wrong part of the body when another
part was intended, knocking out a
tooth while a patient's jaw was under
anesthetic for the removal of his
tonsils, and loss of an eye while the
patient was under the influence of
anesthetic, during or following an
operation for appendicitis, among
others.
Petitioners asserted in the Court of Appeals that the
doctrine of res ipsa loquitur applies to the present case
because Jorge Reyes was merely experiencing fever and
chills for five days and was fully conscious, coherent,
and ambulant when he went to the hospital. Yet, he
died after only ten hours from the time of his
admission.
This contention was rejected by the appellate court.
Petitioners now contend that all requisites for the
application of res ipsa loquitur were present, namely: (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.
The contention is without merit. We agree with the
ruling of the Court of Appeals. In the Ramos case, the
question was whether a surgeon, an anesthesiologist,
and a hospital should be made liable for the comatose
condition of a patient scheduled for cholecystectomy. In
that case, the patient was given anesthesia prior to her
operation. Noting that the patient was neurologically
sound at the time of her operation, the Court applied
the doctrine of res ipsa loquitur as mental brain damage
does not normally occur in a gallbladder operation in
the absence of negligence of the anesthesiologist.
Taking judicial notice that anesthesia procedures had
become so common that even an ordinary person could
tell if it was administered properly, we allowed the
testimony of a witness who was not an expert. In this
case, while it is true that the patient died just a few
hours after professional medical assistance was
rendered, there is really nothing unusual or
extraordinary about his death. Prior to his admission,
the patient already had recurring fevers and chills for
five days unrelieved by the analgesic, antipyretic, and
antibiotics given him by his wife. This shows that he
had been suffering from a serious illness and
professional medical help came too late for him.

Respondents alleged failure to observe due care was


not immediately apparent to a layman so as to justify
application of res ipsa loquitur. The question required
expert opinion on the alleged breach by respondents of
the standard of care required by the circumstances.
Furthermore, on the issue of the correctness of her
diagnosis, no presumption of negligence can be applied
to Dr. Marlyn Rico. As held in Ramos:
. . . 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. It must be
conceded that the doctrine of res ipsa
loquitur can have no application in a
suit against a physician or a surgeon
which involves the merits of a
diagnosis or of a scientific treatment.
The physician or surgeon is not
required at his peril to explain why
any particular diagnosis was not
correct, or why any particular
scientific treatment did not produce
the desired result.
Specific Acts of Negligence
We turn to the question whether petitioners have
established specific acts of negligence allegedly
committed by respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and
erroneously relied upon the Widal test, diagnosed
Jorge's illness as typhoid fever, and immediately
prescribed the administration of the antibiotic
chloromycetin; and (2) Dr. Marvie Blanes erred in
ordering the administration of the second dose of 500
milligrams of chloromycetin barely three hours after
the first was given. Petitioners presented the testimony
of Dr. Apolinar Vacalares, Chief Pathologist of the
Northern Mindanao Training Hospital, Cagayan de Oro
City, who performed an autopsy on the body of Jorge
Reyes. Dr. Vacalares testified that, based on his findings
during the autopsy, Jorge Reyes did not die of typhoid
fever but of shock undetermined, which could be due

140

to allergic reaction or chloromycetin overdose. We are


not persuaded.
First. While petitioners presented Dr. Apolinar
Vacalares as an expert witness, we do not find him to
be so as he is not a specialist on infectious diseases like
typhoid fever. Furthermore, although he may have had
extensive experience in performing autopsies, he
admitted that he had yet to do one on the body of a
typhoid victim at the time he conducted the
postmortem on Jorge Reyes. It is also plain from his
testimony that he has treated only about three cases of
typhoid fever. Thus, he testified that:
ATTY. PASCUAL:
Q Why? Have you not testified
earlier that you have never seen
a patient who died of typhoid
fever?
A In autopsy. But, that was when I
was a resident physician yet.
Q But you have not performed an
autopsy of a patient who died of
typhoid fever?
A I have not seen one.
Q And you testified that you have
never seen a patient who died of
typhoid fever within five days?
A I have not seen one.
Q How many typhoid fever cases
had you seen while you were in
the general practice of medicine?
A In our case we had no widal test
that time so we cannot consider
that the typhoid fever is like this
and like that. And the widal test
does not specify the time of the
typhoid fever.
Q The question is: how many
typhoid fever cases had you seen
in
your
general
practice
regardless of the cases now you
practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in
UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico
erred in her diagnosis. Both lower courts were therefore
correct in discarding his testimony, which is really
inadmissible.
In Ramos, the defendants presented the testimony of a
pulmonologist to prove that brain injury was due to
oxygen
deprivation
after
the
patient
had
bronchospasms triggered by her allergic response to a
drug, and not due to faulty intubation by the
anesthesiologist. As the issue was whether the
intubation
was
properly
performed
by
an
141

anesthesiologist, we rejected the opinion of the


pulmonologist on the ground that he was not: (1) an
anesthesiologist who could enlighten the court about
anesthesia practice, procedure, and their complications;
nor (2) an allergologist who could properly advance
expert opinion on allergic mediated processes; nor (3) a
pharmacologist who could explain the pharmacologic
and toxic effects of the drug allegedly responsible for
the bronchospasms.
Second. On the other hand, the two doctors presented
by respondents clearly were experts on the subject.
They vouched for the correctness of Dr. Marlyn Rico's
diagnosis. Dr. Peter Gotiong, a diplomate whose
specialization is infectious diseases and microbiology
and an associate professor at the Southwestern
University College of Medicine and the Gullas College
of Medicine, testified that he has already treated over a
thousand cases of typhoid fever. According to him,
when a case of typhoid fever is suspected, the Widal
test is normally used, and if the 1:320 results of the
Widal test on Jorge Reyes had been presented to him
along with the patient's history, his impression would
also be that the patient was suffering from typhoid
fever. As to the treatment of the disease, he stated that
chloromycetin was the drug of choice. He also
explained that despite the measures taken by
respondent doctors and the intravenous administration
of two doses of chloromycetin, complications of the
disease could not be discounted. His testimony is as
follows:
ATTY. PASCUAL:
Q If with that count with the test of
positive for 1 is to 320, what
treatment if any would be given?
A If those are the findings that
would be presented to me, the
first thing I would consider
would be typhoid fever.
Q And presently what are the
treatments commonly used?
A Drug
of
choice
of
chloramphenical.
Q Doctor, if given the same patient
and after you have administered
chloramphenical about 3 1/2
hours
later,
the
patient
associated
with
chills,
temperature 41C, what could
possibly come to your mind?
A Well, when it is change in the
clinical finding, you have to
think of complication.
Q And what will you consider on
the complication of typhoid?
A One must first understand that
typhoid fever is toxemia. The
problem is complications are
caused by toxins produced by
the bacteria . . . whether you
have suffered complications to

A
Q

A
Q
A

think
of

heart
toxic
myocardities; then you can
consider a toxic meningitis and
other
complications
and
perforations and bleeding in the
ilium.
Even that 40-year old married
patient who received medication
of
chloromycetin
of
500
milligrams intravenous, after the
skin test, and received a second
dose of chloromycetin of 500
milligrams, 3 hours later, the
patient developed chills . . . rise
in temperature to 41C, and then
about 40 minutes later the
temperature rose to 100F,
cardiac rate of 150 per minute
who appeared to be coherent,
restless,
nauseating,
with
seizures: what significance could
you attach to these clinical
changes?
I would then think of toxemia,
which was toxic meningitis and
probably a toxic meningitis
because of the high cardiac rate.
Even if the same patient who,
after having given intramuscular
valium, became conscious and
coherent about 20 minutes later,
have seizure and cyanosis and
rolling of eyeballs and vomiting .
. . and death: what significance
would you attach to this
development?
We are probably dealing with
typhoid to meningitis.
In such case, Doctor, what
finding if any could you expect
on
the
post-mortem
examination?
No, the finding would be more
on the meninges or covering of
the brain.
And in order to see those
changes
would
it
require
opening the skull?
Yes.

As regards Dr. Vacalares' finding during the autopsy


that the deceased's gastro-intestinal tract was normal,
Dr. Rico explained that, while hyperplasia in the
payer's patches or layers of the small intestines is
present in typhoid fever, the same may not always be
grossly visible and a microscope was needed to see the
texture of the cells.
Respondents also presented the testimony of Dr. Ibarra
T. Panopio who is a member of the Philippine and
American Board of Pathology, an examiner of the
Philippine Board of Pathology, and chief pathologist at

the Metro Cebu Community Hospital, Perpetual Succor


Hospital, and the Andres Soriano Jr. Memorial Medical
Center. He stated that, as a clinical pathologist, he
recognized that the Widal test is used for typhoid
patients, although he did not encourage its use because
a single test would only give a presumption
necessitating that the test be repeated, becoming more
conclusive at the second and third weeks of the disease.
He corroborated Dr. Gotiong's testimony that the
danger with typhoid fever is really the possible
complications which could develop like perforation,
hemorrhage, as well as liver and cerebral
complications. As regards the 1:320 results of the Widal
test on Jorge Reyes, Dr. Panopio stated that no
additional information could be obtained from a higher
ratio. He also agreed with Dr. Gotiong that hyperplasia
in the payer's patches may be microscopic.
Indeed, the standard contemplated is not what is
actually the average merit among all known
practitioners from the best to the worst and from the
most to the least experienced, but the reasonable
average merit among the ordinarily good physicians.
Here, Dr. Marlyn Rico did not depart from the
reasonable standard recommended by the experts as
she in fact observed the due care required under the
circumstances. Though the Widal test is not conclusive,
it remains a standard diagnostic test for typhoid fever
and, in the present case, greater accuracy through
repeated testing was rendered unobtainable by the
early death of the patient. The results of the Widal test
and the patient's history of fever with chills for five
days, taken with the fact that typhoid fever was then
prevalent as indicated by the fact that the clinic had
been getting about 15 to 20 typhoid cases a month, were
sufficient to give upon any doctor of reasonable skill
the impression that Jorge Reyes had typhoid fever.
Dr. Rico was also justified in recommending the
administration of the drug chloromycetin, the drug of
choice for typhoid fever. The burden of proving that
Jorge Reyes was suffering from any other illness rested
with the petitioners. As they failed to present expert
opinion on this, preponderant evidence to support their
contention is clearly absent.
Third. Petitioners contend that respondent Dr. Marvie
Blanes, who took over from Dr. Rico, was negligent in
ordering the intravenous administration of two doses of
500 milligrams of chloromycetin at an interval of less
than three hours. Petitioners claim that Jorge Reyes
died of anaphylactic shock 38 or possibly from
overdose as the second dose should have been
administered five to six hours after the first, per
instruction of Dr. Marlyn Rico. As held by the Court of
Appeals, however:
That chloromycetin was likewise a
proper
prescription
is
best
established by medical authority.
Wilson, et. al., in Harrison's Principle
of Internal Medicine, 12th ed. write
142

that chloramphenicol (which is the


generic of chloromycetin) is the drug
of choice for typhoid fever and that
no drug has yet proven better in
promoting a favorable clinical
response.
"Chlorampenicol
(Chloromycetin)
is
specifically
indicated for bacterial meningitis,
typhoid fever, rickettsial infections,
bacteriodes infections, etc." (PIMS
Annual, 1994, p. 211) The dosage
likewise
including
the
first
administration of five hundred
milligrams (500 mg.) at around nine
o'clock in the evening and the second
dose at around 11:30 the same night
was still within medically acceptable
limits, since the recommended dose
of chloromycetin is one (1) gram
every six (6) hours. (cf. Pediatric Drug
Handbook, 1st Ed., Philippine
Pediatric Society, Committee on
Therapeutics and Toxicology, 1996).
The intravenous route is likewise
correct.
(Mansser,
O'Nick,
Pharmacology and Therapeutics)
Even if the test was not administered
by
the
physician-on-duty,
the
evidence introduced that it was Dra.
Blanes who interpreted the results
remain uncontroverted. (Decision, pp
16-17) Once more, this Court rejects
any claim of professional negligence
in this regard.
xxx

xxx

xxx

As regards anaphylactic shock, the


usual way of guarding against it
prior to the administration of a drug,
is the skin test of which, however, it
has been observed: "Skin testing with
haptenic drugs is generally not
reliable.
Certain
drugs
cause
nonspecific
histamine
release,
producing a weal-and-flare reaction
in normal individuals. Immunologic
activation of mast cells requires a
polyvalent allergen, so a negative
skin test to a univalent haptenic drug
does not rule out anaphylactic
sensitivity to that drug." (Terr,
"Anaphylaxis and Urticaria" in Basic
and Clinical Immunology, p. 349)
What all this means legally is that
even if the deceased suffered from an
anaphylactic shock, this, of itself,
would not yet establish the
negligence of the appellee-physicians
for all that the law requires of them is
that they perform the standard tests
and perform standard procedures.
143

The law cannot require them to


predict every possible reaction to all
drugs administered. The onus
probandi was on the appellants to
establish, before the trial court, that
the
appellee-physicians
ignored
standard
medical
procedure,
prescribed
and
administered
medication with recklessness and
exhibited an absence of the
competence and skills expected of
general
practitioners
similarly
situated.
Fourth. Petitioners correctly observe that the medical
profession is one which, like the business of a common
carrier, is affected with public interest. Moreover, they
assert that since the law imposes upon common carriers
the duty of observing extraordinary diligence in the
vigilance over the goods and for the safety of the
passengers, 40 physicians and surgeons should have
the same duty toward their patients. 41 They also
contend that the Court of Appeals erred when it
allegedly assumed that the level of medical practice is
lower in Iligan City, thereby reducing the standard of
care and degree of diligence required from physicians
and surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to
common carriers. The Civil Code provides:
Art. 1733.
Common carriers,
from the nature of their business and
for reasons of public policy, are
bound to observe extraordinary
diligence in the vigilance over the
goods and for the safety of the
passengers transported by them,
according to the circumstances of
each case. . . .
The practice of medicine is a profession engaged in only
by qualified individuals. It is a right earned through
years of education, training, and by first obtaining a
license from the state through professional board
examinations. Such license may, at any time and for
cause, be revoked by the government. In addition to
state regulation, the conduct of doctors is also strictly
governed by the Hippocratic Oath, an ancient code of
discipline and ethical rules which doctors have
imposed upon themselves in recognition and
acceptance of their great responsibility to society. Given
these safeguards, there is no need to expressly require
of doctors the observance of "extraordinary" diligence.
As it is now, the practice of medicine is already
conditioned upon the highest degree of diligence. And,
as we have already noted, the standard contemplated
for doctors is simply the reasonable average merit
among ordinarily good physicians. That is reasonable
diligence for doctors or, as the Court of Appeals called
it, the reasonable "skill and competence . . . that a

physician in the same or similar locality . . . should


apply."
WHEREFORE, the instant petition is DENIED and the
decision of the Court of Appeals is AFFIRMED.

Consunji, Inc. The employer raised, among other


defenses, the widow's prior availment of the benefits
from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the
widow Maria Juego. Xxx

SO ORDERED.
xxx
Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ.,
concur.
D.M. CONSUNJI, INC. vs.
COURT OF APPEALS, ET AL.
G.R. No. 137873, 20 April 2001, 357 SCRA 249

xxx

xxx

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:
xxx

xxx

xxx

KAPUNAN, J p:
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.

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.
xxx

PO3 Rogelio Villanueva of the Eastern Police District


investigated the tragedy and filed a report dated
November 25, 1990, stating that:
. . . . [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 . . . 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 to
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.
On May 9, 1991, Jose Juego's widow, Maria, filed in the
Regional Trial Court (RTC) of Pasig a complaint for
damages against the deceased's employer, D.M.

xxx

xxx

In any case, the Court holds that portions of PO3


Villanueva's testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died
as a result of the elevator crash. PO3 Villanueva had
seen Juego's remains at the morgue, 12 making the
latter's death beyond dispute. PO3 Villanueva also
conducted an ocular inspection of the premises of the
building the day after the incident 13 and saw the
platform for himself. 14 He observed that the platform
was crushed 15 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.
What petitioner takes particular exception to is PO3
Villanueva's testimony that the cause of the fall of the
platform was the loosening of the bolt from the chain
block. It is claimed that such portion of the testimony is
mere opinion. Subject to certain exceptions, the opinion
of a witness is generally not admissible.
Petitioner's contention, however, loses relevance in the
face of the application of res ipsa loquitur by the CA. The
effect of the doctrine is to warrant a presumption or
inference that the mere fall of the elevator was a result
of the person having charge of the instrumentality was
negligent. As a rule of evidence, the doctrine of res ipsa
loquitur is peculiar to the law of negligence which
recognizes that prima facie negligence may be
established without direct proof and furnishes a
substitute for specific proof of negligence.
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
144

injury will not generally give rise to


an inference or presumption that it
was due to negligence on defendant's
part, under the doctrine of res ipsa
loquitur, which means, literally, the
thing or transaction speaks for itself,
or in one jurisdiction, that the thing
or instrumentality speaks for itself,
the
facts
or
circumstances
accompanying an injury may be such
as to raise a presumption, or at least
permit an inference of negligence on
the part of the defendant, or some
other person who is charged with
negligence.
. . . where it is shown that the thing or
instrumentality which caused the
injury complained of was under the
control or management of the
defendant, and that the occurrence
resulting in the injury was such as in
the ordinary course of things would
not happen if those who had its
control or management used proper
care, there is sufficient evidence, or,
as sometimes stated, reasonable
evidence,
in
the
absence
of
explanation by the defendant, that
the injury arose from or was caused
by the defendant's want of care.
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
145

of care exercised by the defendant in


respect of the matter of which the
plaintiff complains. The res ipsa
loquitur doctrine, another court has
said, is a rule of necessity, in that it
proceeds on the theory that under the
peculiar circumstances in which the
doctrine is applicable, it is within the
power of the defendant to show that
there was no negligence on his part,
and direct proof of defendant's
negligence is beyond plaintiff's
power. Accordingly, some courts 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.
The CA held that all the requisites of res ipsa loquitur are
present in the case at bar:
There is no dispute that appellee's
husband fell down from the 14th
floor of a building to the basement
while he was working with
appellant's
construction
project,
resulting
to
his
death.
The
construction site is within the
exclusive control and management of
appellant. It has a safety engineer, a
project superintendent, a carpenter
leadman and others who are in
complete control of the situation
therein. The circumstances of any
accident that would occur therein are
peculiarly within the knowledge of
the appellant or its employees. On the
other hand, the appellee is not in a
position to know what caused the
accident. Res ipsa loquitur is a rule of
necessity and it applies where
evidence is absent or not readily
available, provided the following
requisites are present: (1) the accident
was of a kind which does not
ordinarily occur unless someone is
negligent; (2) the instrumentality or
agency which caused the injury was
under the exclusive control of the
person charged with negligence; and
(3) the injury suffered must not have
been due to any voluntary action or
contribution on the part of the person
injured. . . . .

No worker is going to fall from the


14th floor of a building to the
basement while performing work in a
construction site unless someone is
negligent[;] thus, the first requisite for
the application of the rule of res ipsa
loquitur is present. As explained
earlier, the construction site with all
its
paraphernalia
and
human
resources that likely caused the injury
is under the exclusive control and
management of appellant[;] thus[,]
the second requisite is also present.
No contributory negligence was
attributed to the appellee's deceased
husband[;] thus[,] the last requisite is
also present. All the requisites for the
application of the rule of res ipsa
loquitur are present, thus a reasonable
presumption
or
inference
of
appellant's negligence arises. . . .
Petitioner does not dispute the existence of the
requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was
negligent did not arise since it "proved that it exercised
due care to avoid the accident which befell respondent's
husband."
Petitioner apparently misapprehends the procedural
effect of the doctrine. As stated earlier, the defendant's
negligence is presumed or 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.
In any case, petitioner cites the sworn statement of its
leadman Ferdinand Fabro executed before the police
investigator as evidence of its due care. According to
Fabro's sworn statement, the company enacted rules
and regulations for the safety and security of its
workers. Moreover, the leadman and the bodegero
inspect the chain block before allowing its use.

placed on the witness stand to testify thereon. The


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

xxx

xxx

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.
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ.,
concur.
PERLA COMPANIA DE SEGUROS, INC., ET AL.
vs. SARANGAYA, ET AL.
G.R. No. 147746. October 25, 2005, 474 SCRA 191
CORONA, J p:
This is an appeal by certiorari under Rule 45 of the 1997
Rules of Civil Procedure seeking to annul the decisions
of the Court of Appeals (CA) dated June 29, 2000 and
March 31, 2001, respectively, which affirmed the
decision of the Regional Trial Court (RTC), Branch 21 of
Santiago, Isabela.

It is ironic that petitioner relies on Fabro's sworn


statement as proof of its due care but, in arguing that
private respondent failed to prove negligence on the
part of petitioner's employees, also assails the same
statement for being hearsay.

In 1986, respondent spouses Gaudencio Sarangaya III


and Primitiva Sarangaya erected a semi-concrete, seminarra, one-storey commercial building fronting the
provincial road of Santiago, Isabela. The building was
known as "Super A Building" and was subdivided into
three doors, each of which was leased out. The twostorey residence of the Sarangayas was behind the
second and third doors of the building. On the left side
of the commercial building stood the office of the
Matsushita
Electric
Philippine
Corporation
(Matsushita).

Petitioner is correct. Fabro's sworn statement is hearsay


and inadmissible. Affidavits are inadmissible as
evidence under the hearsay rule, unless the affiant is

In 1988, petitioner Perla Compania de Seguros, Inc.


(petitioner-corporation), through its branch manager
and co-petitioner Bienvenido Pascual, entered into a
146

contract of lease of the first door of the "Super A


Building," abutting the office of Matsushita. Petitionercorporation renovated its rented space and divided it
into two. The left side was converted into an office
while the right was used by Pascual as a garage for a
1981 model 4-door Ford Cortina, a company-provided
vehicle he used in covering the different towns within
his area of supervision.

In his answer, Pascual insisted that the fire was purely


an accident, a caso fortuito, hence, he was not liable for
damages. He also denied putting a container of
gasoline in the car's rear compartment. For its part,
petitioner-corporation refused liability for the accident
on the ground that it exercised due diligence of a good
father of a family in the selection and supervision of
Pascual as its branch manager.

On July 7, 1988, Pascual left for San Fernando,


Pampanga but did not bring the car with him. Three
days later, he returned to Santiago and, after checking
his appointments the next day, decided to "warm up"
the car. When he pulled up the handbrake and
switched on the ignition key, the engine made an "odd"
sound and did not start. Thinking it was just the
gasoline percolating into the engine, he again stepped
on the accelerator and started the car. This revved the
engine but petitioner again heard an unusual sound. He
then saw a small flame coming out of the engine.
Startled, he turned it off, alighted from the vehicle and
started to push it out of the garage when suddenly, fire
spewed out of its rear compartment and engulfed the
whole garage. Pascual was trapped inside and suffered
burns on his face, legs and arms.

After the trial, the court a quo ruled in favor of


respondents. xxx

Meanwhile, respondents were busy watching television


when they heard two loud explosions. The smell of
gasoline permeated the air and, in no time, fire spread
inside their house, destroying all their belongings,
furniture and appliances.
The city fire marshall conducted an investigation and
thereafter submitted a report to the provincial fire
marshall. He concluded that the fire was "accidental."
The report also disclosed that petitioner-corporation
had no fire permit as required by law.
Based on the same report, a criminal complaint for
"Reckless Imprudence Resulting to (sic) Damage in (sic)
Property" 1 was filed against petitioner Pascual. On the
other hand, petitioner-corporation was asked to pay the
amount of P7,992,350, inclusive of the value of the
commercial building. At the prosecutor's office,
petitioner Pascual moved for the withdrawal of the
complaint, which was granted.
Respondents later on filed a civil complaint based on
quasi-delict against petitioners for a "sum of money and
damages," alleging that Pascual acted with gross
negligence while petitioner-corporation lacked the
required diligence in the selection and supervision of
Pascual as its employee. xxx
xxx

xxx

xxx

xxx

The court a quo declared that, although the respondents


failed to prove the precise cause of the fire that
engulfed the garage, Pascual was nevertheless
negligent based on the doctrine of res ipsa loquitur. It did
not, however, categorically rule that the gasoline
container allegedly placed in the rear compartment of
the car caused the fire. The trial court instead declared
that both petitioners failed to adduce sufficient
evidence to prove that they employed the necessary
care and diligence in the upkeep of the car. Contrary
to the claims of petitioner-corporation, the trial court
also found that it failed to employ the diligence of a
good father of a family, as required by law, in the
selection and supervision of Pascual.
xxx

xxx

xxx

On appeal to the Court of Appeals, the appellate court


again ruled in favor of respondents but modified the
amount of damages awarded by the trial court. It held:
xxx

xxx

xxx

Via this petition, petitioners ascribe the following errors


to the appellate court:
(a) THE COURT OF APPEALS ERRED IN APPLYING
THE DOCTRINE OF ["RES IPSA LOQUITUR"] IN
THE PRESENT CASE;
(b) THE COURT OF APPEALS ERRED WHEN IT
FOUND
PERLA
NEGLIGENT
IN
THE
SUPERVISION
OF
PASCUAL,
AND
CONSEQUENTLY, VICARIOUSLY LIABLE FOR
THE FIRE BECAUSE PERLA FAILED TO
ADDUCE EVIDENCE OF SUPERVISION OF
EMPLOYEE'S
CARE
AND
UPKEEP
OF
COMPANY VEHICLES REQUIRED BY THE
SUPREME COURT ON TRANSPORTATION
COMPANIES; AND xxx

xxx
xxx

During the trial, respondents presented witnesses who


testified that a few days before the incident, Pascual
was seen buying gasoline in a container from a nearby
gas station. He then placed the container in the rear
compartment of the car.

147

xxx

xxx

xxx

Res ipsa loquitur is a Latin phrase which literally means


"the thing or the transaction speaks for itself." It relates
to the fact of an injury that sets out an inference to the
cause thereof or establishes the plaintiff's prima facie
case. The doctrine rests on inference and not on

presumption. The facts of the occurrence warrant the


supposition of negligence and they furnish
circumstantial evidence of negligence when direct
evidence is lacking.
The doctrine is based on the theory that the defendant
either knows the cause of the accident or has the best
opportunity of ascertaining it and the plaintiff, having
no knowledge thereof, is compelled to allege negligence
in general terms. In such instance, the plaintiff relies on
proof of the happening of the accident alone to establish
negligence.
The doctrine provides a means by which a plaintiff can
pin liability on a defendant who, if innocent, should be
able to explain the care he exercised to prevent the
incident complained of. Thus, it is the defendant's
responsibility to show that there was no negligence on
his part.
To sustain the allegation of negligence based on the
doctrine of res ipsa loquitur, the following requisites
must concur:
1)
2)
3)

the accident is of a kind which does not ordinarily


occur unless someone is negligent;
the cause of the injury was under the exclusive
control of the person in charge and
the injury suffered must not have been due to any
voluntary action or contribution on the part of the
person injured.

Under the first requisite, the occurrence must be one


that does not ordinarily occur unless there is
negligence. "Ordinary" refers to the usual course of
events. Flames spewing out of a car engine, when it is
switched on, is obviously not a normal event. Neither
does an explosion usually occur when a car engine is
revved. Hence, in this case, without any direct evidence
as to the cause of the accident, the doctrine of res ipsa
loquitur comes into play and, from it, we draw the
inference that based on the evidence at hand, someone
was in fact negligent and responsible for the accident.
The test to determine the existence of negligence in a
particular case may be stated as follows: did the
defendant in committing the alleged negligent act, use
reasonable care and caution which an ordinarily
prudent person in the same situation would have
employed? If not, then he is guilty of negligence.
Here, the fact that Pascual, as the caretaker of the car,
failed to submit any proof that he had it periodically
checked (as its year-model and condition required)
revealed his negligence. A prudent man should have
known that a 14-year-old car, constantly used in
provincial trips, was definitely prone to damage and
other defects. For failing to prove care and diligence in
the maintenance of the vehicle, the necessary inference
was that Pascual had been negligent in the upkeep of
the car.

Pascual attempted to exculpate himself from liability by


insisting that the incident was a caso fortuito. We
disagree.
The exempting circumstance of caso fortuito may be
availed only when: (a) the cause of the unforeseen and
unexpected occurrence was independent of the human
will; (b) it was impossible to foresee the event which
constituted the caso fortuito or, if it could be foreseen, it
was impossible to avoid; (c) the occurrence must be
such as to render it impossible to perform an obligation
in a normal manner and (d) the person tasked to
perform the obligation must not have participated in
any course of conduct that aggravated the accident.
In fine, human agency must be entirely excluded as the
proximate cause or contributory cause of the injury or
loss. In a vehicular accident, for example, a mechanical
defect will not release the defendant from liability if it is
shown that the accident could have been prevented had
he properly maintained and taken good care of the
vehicle.
The circumstances on record do not support the defense
of Pascual. Clearly, there was no caso fortuito because of
his want of care and prudence in maintaining the car.
Under the second requisite, the instrumentality or
agency that triggered the occurrence must be one that
falls under the exclusive control of the person in charge
thereof. In this case, the car where the fire originated
was under the control of Pascual. Being its caretaker, he
alone had the responsibility to maintain it and ensure
its proper functioning. No other person, not even the
respondents, was charged with that obligation except
him.
Where the circumstances which caused the accident are
shown to have been under the management or control
of a certain person and, in the normal course of events,
the incident would not have happened had that person
used proper care, the inference is that it occurred
because of lack of such care. The burden of evidence is
thus shifted to defendant to establish that he observed
all that was necessary to prevent the accident from
happening. In this aspect, Pascual utterly failed.
Under the third requisite, there is nothing in the records
to show that respondents contributed to the incident.
They had no access to the car and had no responsibility
regarding its maintenance even if it was parked in a
building they owned.
On the second assigned error, we find no reason to
reverse the decision of the Court of Appeals. The
relationship between the two petitioners was based on
the principle of pater familias according to which the
employer becomes liable to the party aggrieved by its
employee if he fails to prove due diligence of a good
father of a family in the selection and supervision of his
employees. The burden of proof that such diligence was
observed devolves on the employer who formulated
148

the rules and procedures for the selection and hiring of


his employees.

(Ong) and Genovevo


insufficiency of evidence.

In the selection of prospective employees, employers


are required to examine them as to their qualifications,
experience and service records. While the petitionercorporation does not appear to have erred in
considering Pascual for his position, its lack of
supervision over him made it jointly and solidarily
liable for the fire.

The antecedent facts follow.

In the supervision of employees, the employer must


formulate standard operating procedures, monitor their
implementation and impose disciplinary measures for
the breach thereof. To fend off vicarious liability,
employers must submit concrete proof, including
documentary evidence, that they complied with
everything that was incumbent on them. Here,
petitioner-corporation's evidence hardly included any
rule or regulation that Pascual should have observed in
performing his functions. It also did not have any
guidelines for the maintenance and upkeep of company
property like the vehicle that caught fire. Petitionercorporation did not require periodic reports on or
inventories of its properties either. Based on these
circumstances, petitioner-corporation clearly did not
exert effort to be apprised of the condition of Pascual's
car or its serviceability.
Petitioner-corporation's argument that the liability
attached to employers only applies in cases involving
the supervision of employees in the transportation
business is incorrect. Article 2180 of the Civil Code
states that employers shall be liable for the damage
caused by their employees. The liability is imposed on
all those who by their industry, profession or other
enterprise have other persons in their service or
supervision. Nowhere does it state that the liability is
limited to employers in the transportation business.
WHEREFORE, the petition is hereby DENIED and the
decision 29 of the Court of Appeals affirmed in toto.
Costs against petitioners.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Carpio-Morales and
Garcia, JJ., concur.
MACALINAO vs. ONG, ET AL.
G.R. No. 146635, 14 December 2005, 477 SCRA 740
TINGA, J p:
Before this Court is a Petition for Review on Certiorari
assailing the Decision and Resolution of the Court of
Appeals dated 31 May 2000 and 7 September 2000,
respectively, in CA-G.R. CV No. 52963. The Court of
Appeals reversed the judgment of the trial court and
dismissed the complaint for damages filed by Marcelo
Macalinao (Macalinao) against Eddie Medecielo Ong
149

Sebastian

(Sebastian)

for

Macalinao and Ong were employed as utility man and


driver, respectively, at the Genetron International
Marketing (Genetron), a single proprietorship owned
and operated by Sebastian. On 25 April 1992, Sebastian
instructed Macalinao, Ong and two truck helpers to
deliver a heavy piece of machinery a reactor/motor
for mixing chemicals, to Sebastian's manufacturing
plant in Angat, Bulacan. While in the process of
complying with the order, the vehicle driven by Ong,
Genetron's Isuzu Elf truck with plate no. PMP-106 hit
and bumped the front portion of a private jeepney with
plate no. DAF-922 along Caypombo, Sta. Maria,
Bulacan at around 11:20 in the morning.
Both vehicles incurred severe damages while the
passengers sustained physical injuries as a consequence
of the collision. 4 Macalinao incurred the most serious
injuries among the passengers of the truck. He was
initially brought to the Sta. Maria District Hospital for
first aid treatment but in view of the severity of his
condition, he was transferred to the Philippine
Orthopedic Center at the instance of Sebastian. He was
again moved to the Capitol Medical Center by his
parents, petitioners herein, for medical reasons and
later to the Philippine General Hospital for financial
considerations.
Macalinao's body was paralyzed and immobilized from
the neck down as a result of the accident and per
doctor's advice, his foot was amputated. He also
suffered from bed sores and infection. His immedicable
condition, coupled with the doctor's recommendation,
led his family to bring him home where he died on 7
November 1992.
Before he died, Macalinao was able to file an action for
damages against both Ong and Sebastian before the
Regional Trial Court (RTC) of Quezon City, Branch 81.
7 After his death, Macalinao was substituted by his
parents in the action. A criminal case for reckless
imprudence resulting to serious physical injuries 9 had
also been instituted earlier against Ong but for reasons
which do not appear in the records of this case, trial
thereon did not ensue.
After trial in the civil action, the RTC held that based on
the evidence, Ong drove the Isuzu truck in a reckless
and imprudent manner thereby causing the same to hit
the private jeepney. It observed that while respondents
claimed that Ong was driving cautiously and prudently
at the time of the mishap, no evidence was presented to
substantiate the claim. It declared Ong negligent and at
the same time, it held that Sebastian failed to exercise
the diligence of a good father of a family in the selection
and supervision of Ong. Consequently, the trial court
pronounced the two of them jointly liable to pay actual,
moral, and exemplary damages as well as civil

indemnity for Macalinao's death. The trial court


subsequently increased the monetary award upon
petitioners' motion for reconsideration thereof.
On appeal, the appellate court reversed the findings of
the trial court. It held that the evidence presented by
petitioners was woefully scant to support a verdict of
negligence against Ong. And since respondents'
liability hinged squarely on proof of Ong's negligence,
neither of them could be held liable for damages to
petitioners.
Aggrieved at the ruling, petitioners elevated the case to
this Court. They herein contend that contrary to the
conclusion reached by the Court of Appeals, the
evidence conclusively establish fault or negligence on
the part of Ong and justify the award of damages in
their favor.
The petition is meritorious.
The issue of negligence is factual and, in quasi-delicts,
crucial in the award of damages. In the case at bar, the
crux of the controversy is the sufficiency of the
evidence presented to support a finding of negligence
against Ong. Given the contradictory conclusions of the
trial court and the appellate court on this issue, this
Court is impelled to ascertain for itself which court
made the correct determination.
xxx

xxx

xxx

In reversing the trial court and absolving respondents


from liability, the appellate court made the following
pronouncement:
The evidence presented is woefully
scant. The pictures of the collision
afford no basis for concluding that it
was the fault of the defendant driver,
or that he was driving recklessly. The
police report contains no findings as
to the road conditions, estimates of
the relative speed of the vehicles, or
their exact position at the time of the
accident. And even so, entries in the
police blotter should not be given
significance or probative value as
they do not constitute conclusive
proof of the truth thereof. Nor were
eyewitnesses presented, not even
affidavits or statements to give any
indication as to what actually
happened. The police investigator's
findings are sketchy at best, with only
the phrase "Isuzu lost control" as his
opinion, with no explanation how he
reached it. Civil cases require
evidence of a lesser degree than
criminal cases, but one sentence by
one who did not even witness an
event, is not conclusive proof.

xxx

xxx

xxx

There was only the fact of the


collision before the trial court. The
attendant circumstances were not
established, and no fault could be
determined using the evidence, both
testimonial
and
documentary
presented.
Contrary to the above conclusion of the appellate court,
the evidence on record coupled with the doctrine of res
ipsa loquitur sufficiently establishes Ong's negligence.
We focus first on the evidence presented before the trial
court.
The photographs of the accident which the appellate
court cavalierly brushed aside as insignificant deserve
substantial cogitation. In Jose v. Court of Appeals, we
upheld the trial court's reliance on photographs of the
accident as opposed to a party's obviously biased
testimony. In so doing, we stated:
In criminal cases such as murder or
rape where the accused stands to lose
his liberty if found guilty, this Court
has, in many occasions, relied
principally upon physical evidence in
ascertaining the truth. In People v.
Vasquez, where the physical evidence
on record ran counter to the
testimonial
evidence
of
the
prosecution witnesses, we ruled that
the
physical
evidence
should
prevail.
Physical evidence is a mute but an eloquent
manifestation of truth which ranks high in our
hierarchy of trustworthy evidence.
In this case, while there is a dearth of testimonial
evidence to enlighten us about what actually happened,
photographs depicting the relative positions of the
vehicles immediately after the accident took place do
exist. It is well established that photographs, when duly
verified and shown by extrinsic evidence to be faithful
representations of the subject as of the time in question,
are, in the discretion of the trial court, admissible in
evidence as aids in arriving at an understanding of the
evidence, the situation or condition of objects or
premises or the circumstances of an accident.
According to American courts, photographs are
admissible in evidence in motor vehicle accident cases
when they appear to have been accurately taken and
are proved to be a faithful and clear representation of
the subject, which cannot itself be produced, and are of
such nature as to throw light upon a disputed point.
Before a photograph may be admitted in evidence,
however, its accuracy or correctness must be proved,
and it must be authenticated or verified first. In the case
150

at bar, the photographer testified in open court and


properly identified the pictures as the ones he took at
the scene of the accident.
An examination of said photographs clearly shows that
the road where the mishap occurred is marked by a line
at the center separating the right from the left lane.
Based on the motorist's right of way rule, the Isuzu
truck which was headed towards Norzagaray, Bulacan
should have been occupying the left lane while the
private jeepney which was traversing the road to the
town proper of Sta. Maria, Bulacan should have been in
the right lane. Exhibits "L" and "L-4" among the
photographs, however, reveal that in the aftermath of
the collision, the Isuzu truck usurped the opposite lane
to such an extent that only its right rear wheel remained
in the left lane, a few inches from the demarcation line.
Its two front wheels and left rear wheel were planted
squarely on the private jeepney's lane and the Isuzu
truck had rotated such that its front no longer pointed
towards Norzagaray but partially faced the town
proper of Sta. Maria instead.
While ending up at the opposite lane is not conclusive
proof of fault in automobile collisions, the position of
the two vehicles gives rise to the conclusion that it was
the Isuzu truck which hit the private jeepney rather
than the other way around. The s