TORTS CASES (SET 3)

Case No. 1

G.R. Nos. 66102-04 August 30, 1990

PHILIPPINE RABBIT BUS LINES, INC., petitioner, vs. THE HONORABLE INTERMEDIATE
APPELLATE COURT AND CASIANO PASCUA, ET AL., respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Intermediate Appellate Court (now
Court of Appeals) dated July 29, 1983 in AC-G.R. Nos. CV-65885, CV-65886 and CV-65887 which
reversed the decision of the Court of First Instance (now Regional Trial Court) of Pangasinan
dated December 27, 1978; and its resolution dated November 28, 1983 denying the motion for
reconsideration.

It is an established principle that the factual findings of the Court of Appeals are final and may
not be reviewed by this Court on appeal. However, this principle is subject to certain exceptions.
One of these is when the findings of the appellate court are contrary to those of the trial court
(see Sabinosa v. The Honorable Court of Appeals, et al., G.R. No. L-47981, July 24, 1989) in which
case, a re-examination of the facts and evidence may be undertaken. This is Our task now.

The antecedent facts are as follows:

About 11:00 o'clock in the morning on December 24, 1966, Catalina Pascua, Caridad Pascua,
Adelaida Estomo, Erlinda Meriales, Mercedes Lorenzo, Alejandro Morales and Zenaida Parejas
boarded the jeepney owned by spouses Isidro Mangune and Guillerma Carreon and driven by
Tranquilino Manalo at Dau, Mabalacat, Pampanga bound for Carmen, Rosales, Pangasinan to
spend Christmas at their respective homes. Although they usually ride in buses, they had to ride
in a jeepney that day because the buses were full. Their contract with Manalo was for them to
pay P24.00 for the trip. The private respondents' testimonial evidence on this contractual
relationship was not controverted by Mangune, Carreon and Manalo, nor by Filriters Guaranty
Assurance Corporation, Inc., the insurer of the jeepney, with contrary evidence. Purportedly
riding on the front seat with Manalo was Mercedes Lorenzo. On the left rear passenger seat were
Caridad Pascua, Alejandro Morales and Zenaida Parejas. On the right rear passenger seat were
Catalina Pascua, Adelaida Estomo, and Erlinda Meriales. After a brief stopover at Moncada, Tarlac
for refreshment, the jeepney proceeded towards Carmen, Rosales, Pangasinan.

Upon reaching barrio Sinayoan, San Manuel, Tarlac, the right rear wheel of the jeepney was
detached, so it was running in an unbalanced position. Manalo stepped on the brake, as a result
of which, the jeepney which was then running on the eastern lane (its right of way) made a U-
turn, invading and eventually stopping on the western lane of the road in such a manner that the
jeepney's front faced the south (from where it came) and its rear faced the north (towards where
it was going). The jeepney practically occupied and blocked the greater portion of the western
lane, which is the right of way of vehicles coming from the north, among which was Bus No. 753
of petitioner Philippine Rabbit Bus Lines, Inc. (Rabbit) driven by Tomas delos Reyes. Almost at the
time when the jeepney made a sudden U-turn and encroached on the western lane of the
highway as claimed by Rabbit and delos Reyes, or after stopping for a couple of minutes as
claimed by Mangune, Carreon and Manalo, the bus bumped from behind the right rear portion of
the jeepney. As a result of the collision, three passengers of the jeepney (Catalina Pascua, Erlinda
Meriales and Adelaida Estomo) died while the other jeepney passengers sustained physical
injuries. What could have been a festive Christmas turned out to be tragic.

The causes of the death of the three jeepney passengers were as follows (p. 101, Record on
Appeal):

The deceased Catalina Pascua suffered the following injuries, to wit: fracture of the
left parietal and temporal regions of the skull; fracture of the left mandible; fracture
of the right humenous; compound fracture of the left radious and ullma middle third
and lower third; fracture of the upper third of the right tibia and fillnea; avulsion of
the head, left internal; and multiple abrasions. The cause of her death was shock,
secondary to fracture and multiple hemorrhage. The fractures were produced as a
 result of the hitting of the victim by a strong force. The abrasions could be produced
when a person falls from a moving vehicles (sic) and rubs parts of her body against
a cement road pavement. . . .

Erlinda Mariles (sic) sustained external lesions such as contusion on the left parietal
region of the skull; hematoma on the right upper lid; and abrasions (sic) on the left
knee. Her internal lesions were: hematoma on the left thorax; multiple lacerations of
the left lower lobe of the lungs; contusions on the left lower lobe of the lungs; and
simple fractures of the 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th ribs, left. The forcible
impact of the jeep caused the above injuries which resulted in her death. . . .

The cause of death of Erlinda or Florida Estomo (also called as per autopsy of Dr.
Panlasiqui was due to shock due to internal hemorrhage, ruptured spleen and
trauma. . . .

Caridad Pascua suffered physical injuries as follows (p. 101, Record on Appeal):

. . . lacerated wound on the forehead and occipital region, hematoma on the

forehead, multiple abrasions on the forearm, right upper arm, back and right
leg. . . .

The police investigators of Tacpal and policemen of San Manuel, Tarlac, Tarlac, upon arrival at the
scene of the mishap, prepared a sketch (common exhibit "K" for private respondents "19" for
Rabbit) showing the relative positions of the two vehicles as well as the alleged point of impact
(p. 100, Record on Appeal):

. . . The point of collision was a cement pave-portion of the Highway, about six (6)
meters wide, with narrow shoulders with grasses beyond which are canals on both
sides. The road was straight and points 200 meters north and south of the point of
collision are visible and unobstructed. Purportedly, the point of impact or collision
(Exh. "K-4", Pascua on the sketch Exh. "K"-Pascua) was on the western lane of the
highway about 3 feet (or one yard) from the center line as shown by the bedris (sic),
dirt and soil (obviously from the undercarriage of both vehicles) as well as paint,
marron (sic) from the Rabbit bus and greenish from the jeepney. The point of impact
encircled and marked with the letter "X" in Exh. "K"-4 Pascua, had a diameter of two
meters, the center of which was about two meters from the western edge of cement
pavement of the roadway. Pictures taken by witness Bisquera in the course of the
investigation showed the relative positions of the point of impact and center line
(Exh. "P"-Pascua) the back of the Rabbit bus (Exh. "P"-1-Pascua"), the lifeless body
of Catalina Pascua (Exh. "P-2 Pascua"), and the damaged front part of the Rabbit
bus (Exh. "P-3 Pascua"). No skid marks of the Rabbit bus was found in the vicinity of
the collision, before or after the point of impact. On the other hand, there was a skid
mark about 45 meters long purportedly of the jeepney from the eastern shoulder of
the road south of, and extending up to the point of impact.

At the time and in the vicinity of the accident, there were no vehicles following the jeepney,
neither were there oncoming vehicles except the bus. The weather condition of that day was fair.

After conducting the investigation, the police filed with the Municipal Court of San Manuel, Tarlac,
a criminal complaint against the two drivers for Multiple Homicide. At the preliminary
investigation, a probable cause was found with respect to the case of Manalo, thus, his case was
elevated to the Court of First Instance. However, finding no sufficiency of evidence as regards the
case of delos Reyes, the Court dismissed it. Manalo was convicted and sentenced to suffer
imprisonment. Not having appealed, he served his sentence.

Complaints for recovery of damages were then filed before the Court of First Instance of
Pangasinan. In Civil Case No. 1136, spouses Casiano Pascua and Juana Valdez sued as heirs of
Catalina Pascua while Caridad Pascua sued in her behalf. In Civil Case No. 1139, spouses Manuel
Millares and Fidencia Arcica sued as heirs of Erlinda Meriales. In Civil Case No. 1140, spouses
Mariano Estomo and Dionisia Sarmiento also sued as heirs of Adelaida Estomo.

In all three cases, spouses Mangune and Carreon, Manalo, Rabbit and delos Reyes were all
impleaded as defendants. Plaintiffs anchored their suits against spouses Mangune and Carreon
and Manalo on their contractual liability. As against Rabbit and delos Reyes, plaintiffs based their
suits on their culpability for a quasi-delict. Filriters Guaranty Assurance Corporation, Inc. was also
impleaded as additional defendant in Civil Case No. 1136 only.

For the death of Catalina Pascua, plaintiffs in Civil Case No. 1136 sought to collect the aggregate
amount of P70,060.00 in damages, itemized as follows: P500.00 for burial expenses; P12,000.00
for loss of wages for 24 years; P10,000.00 for exemplary damages; P10,000.00 for moral
damages; and P3,000.00 for attorney's fees. In the same case, plaintiff Caridad Pascua claimed
P550.00 for medical expenses; P240.00 for loss of wages for two months; P2,000.00 for
disfigurement of her face; P3,000.00 for physical pain and suffering; P2,500.00 as exemplary
damages and P2,000.00 for attorney's fees and expenses of litigation.

In Civil Case No. 1139, plaintiffs demanded P500.00 for burial expenses; P6,000.00 for the death
of Erlinda, P63,000.00 for loss of income; P10,000.00 for moral damages and P3,000.00 for
attorney's fees or total of P80,000.00.

In Civil Case No. 1140, plaintiffs claimed P500.00 for burial expenses; P6,000.00 for the death of
Adelaide, P56,160.00 for loss of her income or earning capacity; P10,000.00 for moral damages;
and P3,000.00 for attorney's fees.

Rabbit filed a cross-claim in the amount of P15,000.00 for attorney's fees and expenses of
litigation. On the other hand, spouses Mangune and Carreon filed a cross-claim in the amount of
P6,168.00 for the repair of the jeepney and P3,000.00 for its non-use during the period of repairs.

On December 27, 1978, the trial court rendered its decision finding Manalo negligent, the
dispositive portion of which reads (pp. 113-114, Record on Appeal):

PREMISES CONSIDERED, this Court is of the opinion and so holds:

1) That defendants Isidro Mangune, Guillerma Carreon and Tranquilino Manalo thru
their negligence, breached contract of carriage with their passengers the plaintiffs'
and/or their heirs, and this Court renders judgment ordering said defendants, jointly
and severally, to pay the plaintiffs

a) In Civil Case No. 1136, for the death of Catalina Pascua, to pay her heirs the
amounts of P12,000.00 for indemnity for loss of her life; P41,760.00 for loss of
earnings; P324.40 for actual expenses and P2,000.00 for moral damages;

b) In the same Civil Case No.1136 for the injuries of Caridad Pascua, to pay her the
amounts of P240.00 for loss of wages, P328.20 for actual expenses and P500.00 for
moral damages;

c) In Civil Case No.1139 for the death of Erlinda Meriales, to pay her heirs (the
plaintiffs) the amount of P12,000.00 for indemnity for loss of her life; P622.00 for
actual expenses, P60,480.00 for loss of wages or income and P2,000.00 for moral
damages;

d) In Civil Case No. 1140, for the death of Erlinda (also called Florida or Adelaida
Estomo), to pay her heirs (the plaintiff the amount of P12,000.00 for indemnity for
the loss of her life; P580.00 for actual expenses; P53,160.00 for loss of wages or
income and P2,000.00 for moral damages.

2) The defendant Filriters Guaranty Insurance Co., having contracted to ensure and
answer for the obligations of defendants Mangune and Carreon for damages due
their passengers, this Court renders judgment against the said defendants Filriters
Guaranty Insurance Co., jointly and severally with said defendants (Mangune and
Carreon) to pay the plaintiffs the amount herein above adjudicated in their favor in
Civil Case No. 1136 only. All the amounts awarded said plaintiff, as set forth in
paragraph one (1) hereinabove;

3) On the cross claim of Phil. Rabbit Bus Lines, Inc. ordering the defendant, Isidro
Mangune, Guillerma Carreon and Tranquilino Manalo, to pay jointly and severally,
 cross-claimant Phil. Rabbit Bus Lines, Inc., the amounts of P216.27 as actual
damages to its Bus No. 753 and P2,173.60 for loss of its earning.

All of the above amount, shall bear legal interest from the filing of the complaints.

Costs are adjudged against defendants Mangune, Carreon and Manalo and Filriters
Guaranty.

SO ORDERED

On appeal, the Intermediate Appellate Court reversed the above-quoted decision by finding delos
Reyes negligent, the dispositive portion of which reads (pp. 55-57, Rollo):

WHEREFORE, PREMISES CONSIDERED, the lower court's decision is hereby

REVERSED as to item No. 3 of the decision which reads:

3) On the cross claim of Philippine Rabbit Bus Lines, Inc. ordering the defendants
Isidro Mangune, Guillerma Carreon and Tranquilino Manalo, to pay jointly and
severally, the amounts of P216.27 as actual damages to its Bus No. 753 and
P2,173.60 for loss of its earnings.

and another judgment is hereby rendered in favor of plaintiffs-appellants Casiana

Pascua, Juan Valdez and Caridad Pascua, ordering the Philippine Rabbit Bus Lines,
Inc. and its driver Tomas delos Reyes to pay the former jointly and severally
damages in amounts awarded as follows:

For the death of Catalina Pascua, the parents and/or heirs are awarded

Civil Case No. 1136

a) Indemnity for the loss of life P12,000.00

b) Loss of Salaries or earning capacity 14,000.00

c) Actual damages (burial expenses) 800.00

d) For moral damages 10,000.00

e) Exemplary damages 3,000.00

f) For attorney's fees 3,000.00

Total P38,200.00 (sic)

For the physical injuries suffered by Caridad Pascua:

Civil Case No. 1136

a) Actual damages (hospitalization expenses) P550.00

b) Moral damages (disfigurement of the

face and physical suffering 8,000.00

c) Exemplary damages 2,000.00

Total P10,550.00
 For the death of Erlinda Arcega Meriales. the parents and/or heirs:

Civil Case No. 1139

a) Indemnity for loss of life P12,000.00

b) Loss of Salary or Earning Capacity 20,000.00

c) Actual damages (burial expenses) 500.00

d) Moral damages 15,000.00

e) Exemplary damages 15,000.00

f) Attorney's fees 3,000.00

Total P65,500.00

For the death of Florida Sarmiento Estomo:

Civil Case No. 1140

a) Indemnity for loss of life P12,000.00

b) Loss of Salary or Earning capacity 20,000.00

c) Actual damages (burial expenses) 500.00

d) Moral damages 3,000.00

e) Exemplary damages 3,000.00

f) Attorney's fees 3,000.00

Total P41,500.00

With costs against the Philippine Rabbit Bus Lines, Inc.

SO ORDERED.

The motion for reconsideration was denied. Hence, the present petition.

The issue is who is liable for the death and physical injuries suffered by the passengers of the
jeepney?

The trial court, in declaring that Manalo was negligent, considered the following (p. 106, Record
on Appeal):

(1) That the unrebutted testimony of his passenger plaintiff Caridad Pascua that a
long ways (sic) before reaching the point of collision, the Mangune jeepney was
"running fast" that his passengers cautioned driver Manalo to slow down but did not
heed the warning: that the right rear wheel was detached causing the jeepney to
run to the eastern shoulder of the road then back to the concrete pavement; that
driver Manalo applied the brakes after which the jeepney made a U-turn (half-turn)
in such a manner that it inverted its direction making it face South instead of north;
that the jeepney stopped on the western lane of the road on the right of way of the
oncoming Phil. Rabbit Bus where it was bumped by the latter;
 (2) The likewise unrebutted testimony of Police Investigator Tacpal of the San
Manuel (Tarlac) Police who, upon responding to the reported collission, found the
real evidence thereat indicate in his sketch (Exh. K, Pascua ), the tracks of the
jeepney of defendant Mangune and Carreon running on the Eastern shoulder
(outside the concrete paved road) until it returned to the concrete road at a sharp
angle, crossing the Eastern lane and the (imaginary) center line and encroaching
fully into the western lane where the collision took place as evidenced by the point
of impact;

(3) The observation of witness Police Corporal Cacalda also of the San Manuel Police
that the path of the jeepney they found on the road and indicated in the sketch
(Exh. K-Pascua) was shown by skid marks which he described as "scratches on the
road caused by the iron of the jeep, after its wheel was removed;"

(4) His conviction for the crime of Multiple Homicide and Multiple Serious Physical
Injuries with Damage to Property thru Reckless Imprudence by the Court of First
Instance of Tarlac (Exh. 24-Rabbit) upon the criminal Information by the Provincial
Fiscal of Tarlac (Exh. 23-Rabbit), as a result of the collision, and his commitment to
prison and service of his sentence (Exh. 25-Rabbit) upon the finality of the decision
and his failure to appeal therefrom; and

(5) The application of the doctrine of res-ipsa loquitar (sic) attesting to the
circumstance that the collision occured (sic) on the right of way of the Phil. Rabbit
Bus.

The respondent court had a contrary opinion. Applying primarily (1) the doctrine of last clear
chance, (2) the presumption that drivers who bump the rear of another vehicle guilty and the
cause of the accident unless contradicted by other evidence, and (3) the substantial factor test.
concluded that delos Reyes was negligent.

The misappreciation of the facts and evidence and the misapplication of the laws by the
respondent court warrant a reversal of its questioned decision and resolution.

We reiterate that "[t]he principle about "the last clear" chance, would call for application in a suit
between the owners and drivers of the two colliding vehicles. It does not arise where a passenger
demands responsibility from the carrier to enforce its contractual obligations. For it would be
inequitable to exempt the negligent driver of the jeepney and its owners on the ground that the
other driver was likewise guilty of negligence." This was Our ruling in Anuran, et al. v. Buo et al.,
G.R. Nos. L-21353 and L-21354, May 20, 1966, 17 SCRA 224. 1 Thus, the respondent court erred
in applying said doctrine.

On the presumption that drivers who bump the rear of another vehicle guilty and the cause of
the accident, unless contradicted by other evidence, the respondent court said (p. 49, Rollo):

. . . the jeepney had already executed a complete turnabout and at the time of
impact was already facing the western side of the road. Thus the jeepney assumed
a new frontal position vis a vis, the bus, and the bus assumed a new role of
defensive driving. The spirit behind the presumption of guilt on one who bumps the
rear end of another vehicle is for the driver following a vehicle to be at all times
prepared of a pending accident should the driver in front suddenly come to a full
stop, or change its course either through change of mind of the front driver,
mechanical trouble, or to avoid an accident. The rear vehicle is given the
responsibility of avoiding a collision with the front vehicle for it is the rear vehicle
who has full control of the situation as it is in a position to observe the vehicle in
front of it.

The above discussion would have been correct were it not for the undisputed fact that the U-turn
made by the jeepney was abrupt (Exhibit "K," Pascua). The jeepney, which was then traveling on
the eastern shoulder, making a straight, skid mark of approximately 35 meters, crossed the
eastern lane at a sharp angle, making a skid mark of approximately 15 meters from the eastern
shoulder to the point of impact (Exhibit "K" Pascua). Hence, delos Reyes could not have
anticipated the sudden U-turn executed by Manalo. The respondent court did not realize that the
presumption was rebutted by this piece of evidence.
With regard to the substantial factor test, it was the opinion of the respondent court that (p.
52, Rollo):

. . . It is the rule under the substantial factor test that if the actor's conduct is a
substantial factor in bringing about harm to another, the fact that the actor neither
foresaw nor should have foreseen the extent of the harm or the manner in which it
occurred does not prevent him from being liable (Restatement, Torts, 2d). Here, We
find defendant bus running at a fast speed when the accident occurred and did not
even make the slightest effort to avoid the accident, . . . . The bus driver's conduct
is thus a substantial factor in bringing about harm to the passengers of the jeepney,
not only because he was driving fast and did not even attempt to avoid the mishap
but also because it was the bus which was the physical force which brought about
the injury and death to the passengers of the jeepney.

The speed of the bus was calculated by respondent court as follows (pp. 54-55, Rollo):

According to the record of the case, the bus departed from Laoag, Ilocos Norte, at
4:00 o'clock A.M. and the accident took place at approximately around 12:30 P.M.,
after travelling roughly for 8 hours and 30 minutes. Deduct from this the actual
stopover time of two Hours (computed from the testimony of the driver that he
made three 40-minute stop-overs), We will have an actual travelling time of 6 hours
and 30 minutes.

Under the circumstances, We calculate that the Laoag-Tarlac route (365 kms.)
driving at an average of 56 km. per hour would take 6 hours and 30 minutes.
Therefore, the average speed of the bus, give and take 10 minutes, from the point
of impact on the highway with excellent visibility factor would be 80 to 90 kms. per
hour, as this is the place where buses would make up for lost time in traversing
busy city streets.

Still, We are not convinced. It cannot be said that the bus was travelling at a fast speed when the
accident occurred because the speed of 80 to 90 kilometers per hour, assuming such calculation
to be correct, is yet within the speed limit allowed in highways. We cannot even fault delos Reyes
for not having avoided the collision. As aforestated, the jeepney left a skid mark of about 45
meters, measured from the time its right rear wheel was detached up to the point of collision.
Delos Reyes must have noticed the perilous condition of the jeepney from the time its right rear
wheel was detached or some 90 meters away, considering that the road was straight and points
200 meters north and south of the point of collision, visible and unobstructed. Delos Reyes
admitted that he was running more or less 50 kilometers per hour at the time of the accident.
Using this speed, delos Reyes covered the distance of 45 meters in 3.24 seconds. If We adopt the
speed of 80 kilometers per hour, delos Reyes would have covered that distance in only 2.025
seconds. Verily, he had little time to react to the situation. To require delos Reyes to avoid the
collision is to ask too much from him. Aside from the time element involved, there were no
options available to him. As the trial court remarked (pp. 107-108, Record on Appeal):

. . . They (plaintiffs) tried to impress this Court that defendant de los Reyes, could
have taken either of two options: (1) to swerve to its right (western shoulder) or (2)
to swerve to its left (eastern lane), and thus steer clear of the Mangune jeepney.
This Court does not so believe, considering the existing exigencies of space and
time.

As to the first option, Phil. Rabbit's evidence is convincing and unrebutted that the
Western shoulder of the road was narrow and had tall grasses which would indicate
that it was not passable. Even plaintiffs own evidence, the pictures (Exhs. P and P-2,
Pascua) are mute confirmation of such fact. Indeed, it can be noticed in the picture
(Exh. P-2, Pascua) after the Rabbit bus came to a full stop, it was tilted to right front
side, its front wheels resting most probably on a canal on a much lower elevation
that of the shoulder or paved road. It too shows that all of the wheels of the Rabbit
bus were clear of the roadway except the outer left rear wheel. These observations
appearing in said picture (Exh P-2, Pascua) clearly shows coupled with the finding
the Rabbit bus came to a full stop only five meters from the point of impact (see
sketch, Exh. K-Pascua) clearly show that driver de los Reyes veered his Rabbit bus to
the right attempt to avoid hitting the Mangune's jeepney. That it was not successful
 in fully clearing the Mangune jeepney as its (Rabbit's) left front hit said jeepney (see
picture Exh. 10-A-Rabbit) must have been due to limitations of space and time.

Plaintiffs alternatively claim that defendant delos Reyes of the Rabbit bus could also
have swerved to its left (eastern lane) to avoid bumping the Mangune jeepney
which was then on the western lane. Such a claim is premised on the hypothesis
(sic) that the eastern lane was then empty. This claim would appear to be good copy
of it were based alone on the sketch made after the collision. Nonetheless, it loses
force it one were to consider the time element involved, for moments before that,
the Mangune jeepney was crossing that very eastern lane at a sharp angle. Under
such a situation then, for driver delos Reyes to swerve to the eastern lane, he would
run the greater risk of running smack in the Mangune jeepney either head on or
broadside.

After a minute scrutiny of the factual matters and duly proven evidence, We find that the
proximate cause of the accident was the negligence of Manalo and spouses Mangune and
Carreon. They all failed to exercise the precautions that are needed precisely pro hac vice.

In culpa contractual, the moment a passenger dies or is injured, the carrier is presumed to have
been at fault or to have acted negligently, and this disputable presumption may only be
overcome by evidence that he had observed extra-ordinary diligence as prescribed in Articles
1733, 1755 and 1756 of the New Civil Code 2 or that the death or injury of the passenger was
due to a fortuitous event 3 (Lasam v. Smith, Jr., 45 Phil. 657).

The negligence of Manalo was proven during the trial by the unrebutted testimonies of Caridad
Pascua, Police Investigator Tacpal, Police Corporal Cacalda, his (Manalo's) conviction for the crime
of Multiple Homicide and Multiple Serious Injuries with Damage to Property thru Reckless
Imprudence, and the application of the doctrine of res ipsa loquitur supra. The negligence of
spouses Mangune and Carreon was likewise proven during the trial (p. 110, Record on Appeal):

To escape liability, defendants Mangune and Carreon offered to show thru their
witness Natalio Navarro, an alleged mechanic, that he periodically checks and
maintains the jeepney of said defendants, the last on Dec. 23, the day before the
collision, which included the tightening of the bolts. This notwithstanding the right
rear wheel of the vehicle was detached while in transit. As to the cause thereof no
evidence was offered. Said defendant did not even attempt to explain, much less
establish, it to be one caused by a caso fortuito. . . .

In any event, "[i]n an action for damages against the carrier for his failure to safely carry
his passenger to his destination, an accident caused either by defects in the automobile or
through the negligence of its driver, is not a caso fortuito which would avoid the carriers
liability for damages (Son v. Cebu Autobus Company, 94 Phil. 892 citing Lasam, et al. v.
Smith, Jr., 45 Phil. 657; Necesito, etc. v. Paras, et al., 104 Phil. 75).

The trial court was therefore right in finding that Manalo and spouses Mangune and Carreon 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). In other words, the carrier can neither shift his liability on the
contract to his driver nor share it with him, for his driver's negligence is his. 4 Secondly, if We
make the driver jointly and severally liable with the carrier, that would make the carrier's liability
personal instead of merely vicarious and consequently, entitled to recover only the share which
corresponds to the driver, 5 contradictory to the explicit provision of Article 2181 of the New Civil
Code. 6

We affirm the amount of damages adjudged by the trial court, except with respect to the
indemnity for loss of life. Under Article 1764 in relation to Article 2206 of the New Civil Code, the
amount of damages for the death of a passenger is at least three thousand pesos (P3,000.00).
The prevailing jurisprudence has increased the amount of P3,000.00 to P30,000.00 (see Heirs of
Amparo delos Santos, et al. v. Honorable Court of Appeals, et al., G.R. No. 51165, June 21, 1990
citing De Lima v. Laguna Tayabas Co., G.R. Nos. L-35697-99, April 15, 1988, 160 SCRA 70).

ACCORDINGLY, the petition is hereby GRANTED. The decision of the Intermediate Appellate Court
dated July 29, 1983 and its resolution dated November 28, 1983 are SET ASIDE. The decision of
the Court of First Instance dated December 27, 1978 is REINSTATED MODIFICATION that only
Isidro Mangune, Guillerma Carreon and Filriters Guaranty Assurance Corporation, Inc. are liable to
the victims or their heirs and that the amount of indemnity for loss of life is increased to thirty
thousand pesos (P30,000.00).

SO ORDERED.

Case No. 2
G.R. No. L-68102 July 16, 1992
GEORGE MCKEE and ARACELI KOH MCKEE, petitioners, vs. INTERMEDIATE APPELLATE
COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.
G.R. No. L-68103 July 16, 1992
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE,
ANTONIO KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.
DAVIDE, JR., J.:
Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-
G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated
29 November 1983 reversing the Decision of the trial court which dismissed petitioners'
complaints in Civil Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance (now
Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero,
Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo," and "George
McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo," respectively, and granted
the private respondents' counterclaim for moral damages, attorney's fees and litigation
expenses.
The said civil cases for damages based on quasi-delict were filed as a result of a vehicular
accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused
physical injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh McKee.
Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee
and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner
Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and children,
respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the other hand,
private respondents are the owners of the cargo truck which figured in the mishap; a certain
Ruben Galang was the driver of the truck at the time of the accident.
The antecedent facts are not disputed.
Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along
MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision
took place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76
owned by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing Plate
No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose Koh, Kim
Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher Koh McKee
and Araceli Koh McKee, all passengers of the Ford Escort.
Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George,
Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and
a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc who
was at the front passenger's seat of the car while Araceli and her two (2) sons were seated at the
car's back seat.
Immediately before the collision, the cargo truck, which was loaded with two hundred (200)
cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San
Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its
way to Angeles City from San Fernando. When the northbound car was about (10) meters away
from the southern approach of the bridge, two (2) boys suddenly darted from the right side of the
road and into the lane of the car. The boys were moving back and forth, unsure of whether to
cross all the way to the other side or turn back. Jose Koh blew the horn of the car, swerved to the
left and entered the lane of the truck; he then switched on the headlights of the car, applied the
brakes and thereafter attempted to return to his lane. Before he could do so, his car collided with
the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the said
bridge.
The incident was immediately reported to the police station in Angeles City; consequently, a
team of police officers was forthwith dispatched to conduct an on the spot investigation. In the
sketch prepared by the investigating officers, the bridge is described to be sixty (60) "footsteps"
long and fourteen (14) "footsteps" wide seven (7) "footsteps" from the center line to the inner
edge of the side walk on both sides. Pulong Pulo Bridge, which spans a dry brook, is made of
concrete with soft shoulders and concrete railings on both sides about three (3) feet high.
The sketch of the investigating officer discloses that the right rear portion of the cargo truck was
two (2) "footsteps" from the edge of the right sidewalk, while its left front portion was touching
the center line of the bridge, with the smashed front side of the car resting on its front bumper.
The truck was about sixteen (16) "footsteps" away from the northern end of the bridge while the
car was about thirty-six (36) "footsteps" from the opposite end. Skid marks produced by the right
front tire of the truck measured nine (9) "footsteps", while skid marks produced by the left front
tire measured five (5) "footsteps." The two (2) rear tires of the truck, however, produced no skid
marks.
In his statement to the investigating police officers immediately after the accident, Galang
admitted that he was traveling at thirty (30) miles (48 kilometers) per hour.
As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on
31 January 1977 before the then Court of First Instance of Pampanga and were raffled to Branch
III and Branch V of the said court, respectively. In the first, herein petitioners in G.R. No. 68103
prayed for the award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as moral
damages, P60,000.00 as exemplary damages, P10,000.00 for litigation expenses, P6,000.00 for
burial expenses, P3,650.00 for the burial lot and P9,500.00 for the tomb, plus attorney's fees. In
the second case, petitioners in G.R. No. 68102 prayed for the following: (a) in connection with the
death of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00 for funeral services,
P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral damages,
P10,000.00 as exemplary damages and P2,000.00 as miscellaneous damages; (b) in the case of
Araceli Koh McKee, in connection with the serious physical injuries suffered, the sum of
P100,000.00 as moral damages, P20,000.00 as exemplary damages, P12,000.00 for loss of
earnings, P5,000.00 for the hospitalization expenses up to the date of the filing of the complaint;
and (c) with respect to George McKee, Jr., in connection with the serious physical injuries
suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages and the
following medical expenses: P3,400 payable to the Medical Center, P3,500.00 payable to the St.
Francis Medical Center, P5,175.00 payable to the Clark Air Base Hospital, and miscellaneous
expenses amounting to P5,000.00. They also sought an award of attorney's fees amounting to
25% of the total award plus traveling and hotel expenses, with costs.
On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence
Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with
the trial court. It was docketed as Criminal Case No. 3751 and was raffled to Branch V of the
court, the same Branch where Civil Case No. 4478 was assigned.
In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it
was the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben
Galang and, as counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00
as actual and liquidated damages, P100,000.00 as moral damages and P30,000.00 as business
losses. In Civil Case No. 4478, private respondents first filed a motion to dismiss on grounds of
pendency of another action (Civil Case No. 4477) and failure to implead an indispensable party,
Ruben Galang, the truck driver; they also filed a motion to consolidate the case with Civil Case
No. 4477 pending before Branch III of the same court, which was opposed by the plaintiffs. Both
motions were denied by Branch V, then presided over by Judge Ignacio Capulong. Thereupon,
private respondents filed their Answer with Counter-claim wherein they alleged that Jose Koh was
the person "at fault having approached the lane of the truck driven by Ruben Galang, . . . which
was on the right lane going towards Manila and at a moderate speed observing all traffic rules
and regulations applicable under the circumstances then prevailing;" in their counterclaim, they
prayed for an award of damages as may be determined by the court after due hearing, and the
sums of P10,000.00 as attorney's fees and P5,000.00 as expenses of litigation.
Petitioners filed their Answers to the Counterclaims in both cases.
To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion
to adopt the testimonies of witnesses taken during the hearing of Criminal Case No. 3751, which
private respondents opposed and which the court denied. Petitioners subsequently moved to
reconsider the order denying the motion for consolidation, which Judge Capulong granted in the
Order of 5 September 1978; he then directed that Civil Case No. 4478 be consolidated with Civil
Case No. 4477 in Branch III of the court then presided over by Judge Mario Castaeda, Jr.
Left then with Branch V of the trial court was Criminal Case No. 3751.
In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuag, Col.
Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, and offered
several documentary exhibits. Upon the other hand, private respondents presented as witnesses
Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit.
In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia,
Pfc. Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector,
Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and
Eugenio Tanhueco, and offered several documentary exhibits. Upon the other hand, the defense
presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and
offered documentary exhibits.
On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in
the aforesaid criminal case. The dispositive portion of the decision reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Ruben
Galang guilty beyond reasonable doubt of the crime charged in the information and after
applying the provisions of Article 365 of the Revised Penal Code and indeterminate sentence law,
this Court, imposes upon said accused Ruben Galang the penalty of six (6) months of arresto
mayor as minimum to two (2) years, four (4) months and one (1) day of prision correccional as
maximum; the accused is further sentenced to pay and indemnify the heirs of Loida Bondoc the
amount of P12,000.00 as indemnity for her death; to reimburse the heirs of Loida Bondoc the
amount of P2,000.00 representing the funeral expenses; to pay the heirs of Loida Bondoc the
amount of P20,000.00 representing her loss of income; to indemnify and pay the heirs of the
deceased Jose Koh the value of the car in the amount of P53,910.95, and to pay the costs.
The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel
for petitioners filed with Branch III of the court where the two (2) civil cases were pending a
manifestation to that effect and attached thereto a copy of the decision.
Upon the other hand, Judge Mario Castaeda, Jr. dismissed the two (2) civil cases on 12
November 1980 and awarded the private respondents moral damages, exemplary damages and
attorney's fees. The dispositive portion of the said decision reads as follows:
WHEREFORE, finding the preponderance of evidence to be in favor of the defendants and against
the plaintiffs, these cases are hereby ordered DISMISSED with costs against the plaintiffs. The
defendants had proven their counter-claim, thru evidences (sic) presented and unrebutted.
Hence, they are hereby awarded moral and exemplary damages in the amount of P100,000.00
plus attorney's fee of P15,000.00 and litigation expenses for (sic) P2,000.00. The actual damages
claimed for (sic) by the defendants is (sic) hereby dismissing for lack of proof to that effect (sic).
A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and
was received on 2 December 1980.
Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal
was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs
in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision
to the appellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No.
69040-R, respectively, and were assigned to the Fourth Civil Cases Division.
On 4 October 1982, the respondent Court promulgated its decision in C.A.-G.R. Blg. 24764-CR
affirming the conviction of Galang. The dispositive portion of the decision reads:
DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang
kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol.
A motion for reconsideration of the decision was denied by the respondent Court in
its Kapasiyahan promulgated on 25 November 1982. A petition for its review was filed with this
Court; said petition was subsequently denied. A motion for its reconsideration was denied with
finality in the Resolution of 20 April 1983.
On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court,
promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive
portion of which reads:
WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is
rendered, ordering defendants-appellees to pay plaintiffs-appellants as follows:
For the death of Jose Koh:
P 50,000.00 as moral damages
P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)
For the death of Kim Koh McKee:
P 50,000.00 as moral damages
P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)
For the physical injuries suffered by George Koh McKee:
P 25,000.00 as moral damages
P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)
For the physical injuries suffered by Araceli Koh McKee:
P 25,000.00 as moral damages
P 1,055.00 paid to St. Francis Medical Center (Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muoz Clinic (Exh. MM)
For the physical injuries suffered by Christopher Koh McKee:
P 10,000.00 as moral damages
P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)
In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another
P10,000.00; as counsel (sic) fees in Civil Case No. 4478.
No pronouncement as to costs.
SO ORDERED.
The decision is anchored principally on the respondent Court's findings that it was Ruben
Galang's inattentiveness or reckless imprudence which caused the accident. The appellate court
further said that the law presumes negligence on the part of the defendants (private
respondents), as employers of Galang, in the selection and supervision of the latter; it was
further asserted that these defendants did not allege in their Answers the defense of having
exercised the diligence of a good father of a family in selecting and supervising the said
employee. 27This conclusion of reckless imprudence is based on the following findings of fact:
In the face of these diametrically opposed judicial positions, the determinative issue in this
appeal is posited in the fourth assigned error as follows:
IV
THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS TRUCK
BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT.
Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:
Q What happened after that, as you approached the bridge?
A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right
side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to
avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid
hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck
driver, to slow down to give us the right of way to come back to our right lane.
Q Did the truck slow down?
A No, sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is ( sic)
coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic),
sir. (tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in these Civil Cases).
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not
reduce its speed before the actual impact of collision (sic) as you narrated in this Exhibit "1," how
did you know (sic)?
A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our
right lane on side (sic) of the highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these
Civil Cases) (pp. 30-31, Appellants' Brief).
Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and
circumstances:
1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck stopped
only when it had already collided with the car:
xxx xxx xxx
Tanhueco repeated the same testimony during the hearing in the criminal case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the
first to arrive at the scene of the accident. As a matter of fact, he brought one of the injured
passengers to the hospital.
We are not prepared to accord faith and credit to defendants' witnesses, Zenaida Soliman, a
passenger of the truck, and Roman Dayrit, who supposedly lived across the street.
Regarding Soliman, experience has shown that in the ordinary course of events people usually
take the side of the person with whom they are associated at the time of the accident, because,
as a general rule, they do not wish to be identified with the person who was at fault. Thus an
imaginary bond is unconsciously created among the several persons within the same group
(People vs. Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).
With respect to Dayrit, We cannot help suspecting (sic) that he is an accommodation witness. He
did not go to the succor of the injured persons. He said he wanted to call the police authorities
about the mishap, but his phone had no dial tone. Be this (sic) as it may, the trial court in the
criminal case acted correctly in refusing to believe Dayrit.
2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his truck at
a safe distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This contention of
appellants was completely passed sub-silencio or was not refuted by appellees in their brief.
Exhibit 2 is one of the exhibits not included in the record. According to the Table of Contents
submitted by the court below, said Exhibit 2 was not submitted by defendants-appellees. In this
light, it is not far-fetched to surmise that Galang's claim that he stopped was an eleventh-hour
desperate attempt to exculpate himself from imprisonment and damages.
3. Galang divulged that he stopped after seeing the car about 10 meters away:
ATTY. SOTTO:
Q Do I understand from your testimony that in spite of the fact that you admitted that the road is
straight and you may be able to (sic) see 500-1000 meters away from you any vehicle, you first
saw that car only about ten (10) meters away from you for the first time?
xxx xxx xxx
A I noticed it, sir, that it was about ten (10) meters away.
ATTY. SOTTO:
Q So, for clarification, you clarify and state under your oath that you have (sic) not noticed it
before that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16, Appellants' Brief)
Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because of
the impact. At ten (10) meters away, with the truck running at 30 miles per hour, as revealed in
Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh impossible to avoid a collision
on a bridge.
5. Galang's truck stopped because of the collision, and not because he waited for Jose Koh to
return to his proper lane. The police investigator, Pfc. Fernando L. Nuag, stated that he found
skid marks under the truck but there were not (sic) skid marks behind the truck (pp. 19-20, t.s.n.,
Nov. 3, 1978). The presence of skid marks show (sic) that the truck was speeding. Since the skid
marks were found under the truck and none were found at the rear of the truck, the reasonable
conclusion is that the skid marks under the truck were caused by the truck's front wheels when
the trucks (sic) suddenly stopped seconds before the mishap in an endeavor to avoid the same.
But, as aforesaid, Galang saw the car at barely 10 meters away, a very short distance to avoid a
collision, and in his futile endeavor to avoid the collision he abruptly stepped on his brakes but
the smashup happened just the same.
For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on the
part of the defendants in the selection of their driver or in the supervision over him. Appellees
did not allege such defense of having exercised the duties of a good father of a family in the
selection and supervision of their employees in their answers. They did not even adduce
evidence that they did in fact have methods of selection and programs of supervision. The
inattentiveness or negligence of Galang was the proximate cause of the mishap. If Galang's
attention was on the highway, he would have sighted the car earlier or at a very safe distance
than (sic) 10 meters. He proceeded to cross the bridge, and tried to stop when a collision was
already inevitable, because at the time that he entered the bridge his attention was not riveted
to the road in front of him.
On the question of damages, the claims of appellants were amply proven, but the items must be
reduced.
A motion for reconsideration alleging improper appreciation of the facts was subsequently filed
by private respondents on the basis of which the respondent Court, in its Resolution of 3 April
1984, reconsidered and set aside its 29 November 1983 decision and affirmed in toto the trial
court's judgment of 12 November 1980. A motion to reconsider this Resolution was denied by the
respondent Court on 4 July 1984.
Hence, this petition.
Petitioners allege that respondent Court:
I
. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY REVERSED ITS DECISION
BY MERELY BASING IT FROM (sic) A MERE "PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE
RESPONDENTS' DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE
PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO DISREGARDED THE EVIDENCE
ADDUCED AND FOUND IN THE RECORDS; THEREFORE, RESPONDENT COURT'S RESOLUTIONS
(ANNEXES A and B, PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS,
CONJECTURES AND WITHOUT SURE FOUNDATION IN THE EVIDENCE.
II
. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT DISREGARDED A
DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY STATING AMONG OTHERS, "IT CANNOT
CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF
THE TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.
III
. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A MISLEADING
PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT UPON THE PLAINTIFFS-APPELLANTS
(APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT
THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS'
DRIVER.
IV
. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE ABUSE OF DISCRETION
AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE CASES.
V
. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN ADOPTING THE
FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY TO THE
EVIDENCE FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE ADMITTED
FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE RESPONDENTS' DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY
ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT
SUPPORTED BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW AND
THE CONSISTENT DECISIONS OF THIS HONORABLE COURT.
VII
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY
ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING DAMAGES TO PETITIONERS
WHICH IS CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE
RELATIVE TO THE AWARD OF DAMAGES.
In the Resolution of 12 September 1984, We required private respondents to Comment on the
petition. After the said Comment 33 was filed, petitioners submitted a Reply thereto; this Court
then gave due course to the instant petitions and required petitioners to file their Brief, which
they accordingly complied with.
There is merit in the petition. Before We take on the main task of dissecting the arguments and
counter-arguments, some observations on the procedural vicissitudes of these cases are in order.
Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-
delict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal
Case No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint
trial in Branch III of the trial court. The records do not indicate any attempt on the part of the
parties, and it may therefore be reasonably concluded that none was made, to consolidate
Criminal Case No. 3751 with the civil cases, or vice-versa. The parties may have then believed,
and understandably so, since by then no specific provision of law or ruling of this Court expressly
allowed such a consolidation, that an independent civil action, authorized under Article 33 in
relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot be
consolidated with the criminal case. Indeed, such consolidation could have been farthest from
their minds as Article 33 itself expressly provides that the "civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of evidence."
Be that as it may, there was then no legal impediment against such consolidation. Section 1,
Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against
oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial
court, or in short, attain justice with the least expense to the parties litigants, would have easily
sustained a consolidation, thereby preventing the unseeming, if no ludicrous, spectacle of two (2)
judges appreciating, according to their respective orientation, perception and perhaps even
prejudice, the same facts differently, and thereafter rendering conflicting decisions. Such was
what happened in this case. It should not, hopefully, happen anymore. In the recent case
of Cojuangco vs. Court of Appeals, this Court held that the present provisions of Rule 111 of the
Revised Rules of Court allow a consolidation of an independent civil action for the recovery of
civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal
action subject, however, to the condition that no final judgment has been rendered in that
criminal case.
Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of
reckless imprudence, although already final by virtue of the denial by no less than this Court of
his last attempt to set aside the respondent Court's affirmance of the verdict of conviction, has
no relevance or importance to this case.
As We held in Dionisio vs. Alvendia, 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. And, as more concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in
the case of independent civil actions under the new Civil Code, the result of the criminal case,
whether acquittal or conviction, would be entirely irrelevant to the civil action." In Salta vs. De
Veyra and PNB vs. Purisima, this Court stated:
. . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33,
permitted in the same manner to be filed separately from the criminal case, may proceed
similarly regardless of the result of the criminal case.
Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately
and to proceed independently even during the pendency of the latter case, the intention is
patent to make the court's disposition of the criminal case of no effect whatsoever on the
separate civil case. This must be so because the offenses specified in Article 33 are of such a
nature, unlike other offenses not mentioned, that they may be made the subject of a separate
civil action because of the distinct separability of their respective juridical cause or basis of
action . . . .
What remains to be the most important consideration as to why the decision in the criminal case
should not be considered in this appeal is the fact that private respondents were not parties
therein. It would have been entirely different if the petitioners' cause of action was for damages
arising from a delict, in which case private respondents' liability could only be subsidiary
pursuant to Article 103 of the Revised Penal Code. In the absence of any collusion, the judgment
of conviction in the criminal case against Galang would have been conclusive in the civil cases
for the subsidiary liability of the private respondents.
And now to the merits of the petition.
It is readily apparent from the pleadings that the principal issue raised in this petition is whether
or not respondent Court's findings in its challenged resolution are supported by evidence or are
based on mere speculations, conjectures and presumptions.
The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal
by certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be raised.
The resolution of factual issues is the function of the lower courts whose findings on these
matters are received with respect and are, as a rule, binding on this Court.
The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and
the Court of Appeals may be set aside when such findings are not supported by the evidence or
when the trial court failed to consider the material facts which would have led to a conclusion
different from what was stated in its judgment. The same is true where the appellate court's
conclusions are grounded entirely on conjectures, speculations and surmises or where the
conclusions of the lower courts are based on a misapprehension of facts.
It is at once obvious to this Court that the instant case qualifies as one of the aforementioned
exceptions as the findings and conclusions of the trial court and the respondent Court in its
challenged resolution are not supported by the evidence, are based on an misapprehension of
facts and the inferences made therefrom are manifestly mistaken. The respondent Court's
decision of 29 November 1983 makes the correct findings of fact.
In the assailed resolution, the respondent Court held that the fact that the car improperly
invaded the lane of the truck and that the collision occurred in said lane gave rise to the
presumption that the driver of the car, Jose Koh, was negligent. On the basis of this presumed
negligence, the appellate court immediately concluded that it was Jose Koh's negligence that was
the immediate and proximate cause of the collision. This is an unwarranted deduction as the
evidence for the petitioners convincingly shows that the car swerved into the truck's lane
because as it approached the southern end of the bridge, two (2) boys darted across the road
from the right sidewalk into the lane of the car. As testified to by petitioner Araceli Koh McKee:
Q What happened after that, as you approached the bridge?
A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right
side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to
avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid
hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck
driver, to slow down to give us the right of way to come back to our right lane.
Q Did the truck slow down?
A No sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is ( sic)
coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic),
sir.
Her credibility and testimony remained intact even during cross examination. Jose Koh's entry
into the lane of the truck was necessary in order to avoid what was, in his mind at that time, a
greater peril death or injury to the two (2) boys. Such act can hardly be classified as negligent.
Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate
Court, thus:
. . . Negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do (Black's Law Dictionary, Fifth
Edition, 930), or as Judge Cooley defines it, "(T)he 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." (Cooley on Torts, Fourth
Edition, vol. 3, 265)
In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a sound rule,
(W)e held:
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 pater familias of the Roman
law. . . .
In Corliss vs. Manila Railroad Company, We held:
. . . Negligence is want of the care required by the circumstances. It is a relative or comparative,
not an absolute, term and its application depends upon the situation of the parties and the
degree of care and vigilance which the circumstances reasonably require. Where the danger is
great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care
under the circumstances. (citing Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894).
On the basis of the foregoing definition, the test of negligence and the facts obtaining in this
case, it is manifest that no negligence could be imputed to Jose Koh. Any reasonable and
ordinary prudent man would have tried to avoid running over the two boys by swerving the car
away from where they were even if this would mean entering the opposite lane. Avoiding such
immediate peril would be the natural course to take particularly where the vehicle in the
opposite lane would be several meters away and could very well slow down, move to the side of
the road and give way to the oncoming car. Moreover, under what is known as the emergency
rule, "one who suddenly finds himself in a place of danger, and is required to act without time to
consider the best means that may be adopted to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and upon reflection may appear to have been
a better method, unless the emergency in which he finds himself is brought about by his own
negligence."
Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose
Koh adopted the best means possible in the given situation to avoid hitting them. Applying the
above test, therefore, it is clear that he was not guilty of negligence.
In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence
was the proximate cause of the collision. 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. And more
comprehensively, the proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous chain
of events, each having a close causal connection with its immediate predecessor, the final event
in the chain immediately effecting the injury as a natural and probable result of the cause which
first acted, under such circumstances that the person responsible for the first event should, as an
ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his
act or default that an injury to some person might probably result therefrom.
Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent,
was the initial act in the chain of events, it cannot be said that the same caused the eventual
injuries and deaths because of the occurrence of a sufficient intervening event, the negligent act
of the truck driver, which was the actual cause of the tragedy. The entry of the car into the lane
of the truck would not have resulted in the collision had the latter heeded the emergency signals
given by the former to slow down and give the car an opportunity to go back into its proper lane.
Instead of slowing down and swerving to the far right of the road, which was the proper
precautionary measure under the given circumstances, the truck driver continued at full speed
towards the car. The truck driver's negligence becomes more apparent in view of the fact that
the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters,
in width. This would mean that both car and truck could pass side by side with a clearance of
3.661 meters to spare. 51 Furthermore, the bridge has a level sidewalk which could have partially
accommodated the truck. Any reasonable man finding himself in the given situation would have
tried to avoid the car instead of meeting it head-on.
The truck driver's negligence is apparent in the records. He himself said that his truck was
running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed
by law on a bridge is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person
driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic
regulation. We cannot give credence to private respondents' claim that there was an error in the
translation by the investigating officer of the truck driver's response in Pampango as to whether
the speed cited was in kilometers per hour or miles per hour. The law presumes that official duty
has been regularly performed; unless there is proof to the contrary, this presumption holds. In
the instant case, private respondents' claim is based on mere conjecture.
The truck driver's negligence was likewise duly established through the earlier quoted testimony
of petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio
Tanhueco, an impartial eyewitness to the mishap.
Araceli Koh McKee testified further, thus:
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not
reduce its speed before the actual impact of collision as you narrated in this Exhibit "1," how did
you know?
A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our
right lane on side (sic) of the highway, sir. (tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in these
Civil Cases) (pp. 30-31, Appellants' Brief)
while Eugenio Tanhueco testified thus:
Q When you saw the truck, how was it moving?
A It was moving 50 to 60 kilometers per hour, sir.
Q Immediately after you saw this truck, do you know what happened?
A I saw the truck and a car collided (sic), sir, and I went to the place to help the victims. (tsn. 28,
April 19, 1979)
xxx xxx xxx
Q From the time you saw the truck to the time of the impact, will you tell us if the said truck ever
stopped?
A I saw it stopped (sic) when it has (sic) already collided with the car and it was already
motionless. (tsn. 31, April 19, 1979; Emphasis Supplied). (p. 27, Appellants' Brief).
Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper
measures and degree of care necessary to avoid the collision which was the proximate cause of
the resulting accident.
Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here.
Last clear chance is a doctrine in the law of torts which states that the contributory negligence of
the party injured will not defeat the claim for damages if it is shown that the defendant might, by
the exercise of reasonable care and prudence, have avoided the consequences of the negligence
of the injured party. In such cases, the person who had the last clear chance to avoid the mishap
is considered in law solely responsible for the consequences thereof.
In Bustamante vs. Court of Appeals, We held:
The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is
that the negligence of the plaintiff does not preclude a recovery for the negligence of the
defendant where it appears that the defendant, by exercising reasonable care and prudence,
might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's
negligence. In other words, the doctrine of last clear chance means that even though a person's
own acts may have placed him in a position of peril, and an injury results, the injured person is
entitled to recovery (sic). As the doctrine is usually stated, a person who has the last clear
chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his
opponent or that of a third person imputed to the opponent is considered in law solely
responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p.
165).
The practical import of the doctrine is that a negligent defendant is held liable to a negligent
plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he,
aware of the plaintiff's peril, or according to some authorities, should have been aware of it in the
reasonable exercise of due care, had in fact an opportunity later than that of the plaintiff to avoid
an accident (57 Am. Jur., 2d, pp. 798-799).
In Pantranco North Express, Inc., vs. Baesa, We ruled:
The doctrine of last clear chance was defined by this Court in the case of Ong v. Metropolitan
Water District, 104 Phil. 397 (1958), in this wise:
The doctrine of the last clear chance simply, means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided injurious consequences to
claimant notwithstanding his negligence.
The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent
negligence but the defendant, who had the last fair chance to avoid the impending harm and
failed to do so, is made liable for all the consequences of the accident notwithstanding the prior
negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan People's Lumber and
Hardware, et al. vs. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No.
70493, May, 18, 1989]. The subsequent negligence of the defendant in failing to exercise
ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the
accident which intervenes between the accident and the more remote negligence of the plaintiff,
thus making the defendant liable to the plaintiff [Picart v. Smith, supra].
Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable
to a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as
a defense to defeat claim (sic) for damages.
Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck
driver's negligence in failing to exert ordinary care to avoid the collision which was, in law, the
proximate cause of the collision. As employers of the truck driver, the private respondents are,
under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The
presumption that they are negligent flows from the negligence of their employee. That
presumption, however, is only juris tantum, not juris et de jure. 59 Their only possible defense is
that they exercised all the diligence of a good father of a family to prevent the damage. Article
2180 reads as follows:
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.
xxx xxx xxx
Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any
business or industry.
xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage.
The diligence of a good father referred to means the diligence in the selection and supervision of
employees. 60The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not
interpose this defense. Neither did they attempt to prove it.
The respondent Court was then correct in its Decision of 29 November 1983 in reversing the
decision of the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolution
of 3 April 1984 finds no sufficient legal and factual moorings.
61
In the light of recent decisions of this Court, the indemnity for death must, however, be
increased from P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court of
3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos. 69040-41
is REINSTATED, subject to the modification that the indemnity for death is increased from
P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh McKee.
Costs against private respondents.
SO ORDERED.
Case No. 3
[G.R. Nos. 79050-51. November 14, 1989.]

PANTRANCO NORTH EXPRESS, INC., Petitioner, v. MARICAR BASCOS BAESA, thru her
personal guardian FRANCISCA O. BASCOS, FE O. ICO, in her behalf and in behalf of her
minor children, namely ERWIN, OLIVE, EDMUNDO and SHARON ICO, Respondents.

SYLLABUS
1. CIVIL LAW; DAMAGES; LAST CLEAR CHANCE DOCTRINE; WHEN APPLICABLE. The doctrine of
last clear chance applies only in a situation where the defendant, having the last fair chance to
avoid the impending harm and failed to do so, becomes liable for all the consequences of the
accident notwithstanding the prior negligence of the plaintiff.

2. ID.; ID.; ID.; CONDITION TO MAKE DOCTRINE APPLICABLE. In order that the doctrine of last
clear chance may be applied, it must be shown that the person who allegedly had the last
opportunity to avert the accident was aware of the existence of the peril or with exercise of due
care should have been aware of it.

3. ID.; ID.; ID.; NOT APPLICABLE TO PERSON ACTING INSTANTANEOUSLY OR BY AVAILABLE MEANS.
This doctrine of last chance has no application to a case where a person is to act
instantaneously, and if the injury cannot be avoided by using all means available after the peril is
or should have been discovered.

4. ID.; ID.; PROVISION OF R.A. NO. 4136 RE VEHICLE ENTERING A THROUGH HIGHWAY OR A STOP
INTERSECTION. Section 43 (c), Article III, Chapter IV of Republic Act No. 1436 cannot apply to
case a bar where at the time of the accident, the jeepney had already crossed the intersection.

5. ID.; ID.; NEGLIGENCE; BURDEN OF PROOF LIES ON THE EMPLOYER. A finding of negligence
on the part of the driver establishes a presumption that the employer has been negligent and the
latter has the burden of proof that it has exercised due negligence not only in the selection of its
employees but also in adequately supervising their work.

6. ID.; ID.; FAILURE TO PRESENT EVIDENCE TO SUPPORT CLAIM FOR DAMAGES. Plaintiffs
failure to present documentary evidence to support their claim for damages for loss of earning
capacity of the deceased victim does not bar recovery of the damages, if such loss may be based
sufficiently on their testimonies.

7. ID.; ID.; INDEMNITY FIXED AT P30,000. The indemnity for the death of a person was fixed by
this Court at (P30,000.00).
CORTES, J.:
In this Petition, Pantranco North Express Inc. (PANTRANCO), asks the Court to review the decision
of the Court of Appeals in CA-G.R. No. 05494-95 which affirmed the decisions of the Court of First
Instance of Rosales, Pangasinan in Civil Case No. 561-R and Civil Case No. 589-R wherein
PANTRANCO was ordered to pay damages and attorneys fees to herein private respondents.

The pertinent fact are as follows:

At about 7:00 oclock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa and
their children Harold Jim, Marcelino and Maricar, together with spouses David Ico and Fe O. Ico
with their son Erwin Ico and seven other persons, were aboard a passenger jeepney on their way
to a picnic at Malalam River, Ilagan, Isabela, to celebrate the fifth wedding anniversary of Ceasar
and Marilyn Baesa.

The group, numbering fifteen (15) persons, rode in the passenger jeepney driven by David Ico,
who was also the registered owner thereof. From Ilagan, Isabela, they proceeded to Barrio
Capayacan to deliver some viands to one Mrs. Bascos and thenceforth to San Felipe, taking the
highway going to Malalam River. Upon reaching the highway, the jeepney turned right and
proceeded to Malalam River at a speed of about 20 kph. While they were proceeding towards
Malalam River, a speeding PANTRANCO bus from Aparri, on its regular route to Manila,
encroached on the jeepneys lane while negotiating a curve, and collided with it.

As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn Baesa and their children,
Harold Jim and Marcelino Baesa, died while the rest of the passengers suffered injuries. The
jeepney was extensively damaged. After the accident the driver of the PANTRANCO Bus,
Ambrosio Ramirez, boarded a car and proceeded to Santiago, Isabela. From that time on up to
the present, Ramirez has never been seen and has apparently remained in hiding.

All the victims and/or their surviving heirs except herein private respondents settled the case
amicably under the "No Fault" insurance coverage of PANTRANCO.

Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself and for her
minor children, filed separate actions for damages arising from quasi-delict against PANTRANCO,
respectively docketed as Civil Case No. 561-R and 589-R of the Court of First Instance of
Pangasinan.

In its answer, PANTRANCO, aside from pointing to the late David Icos alleged negligence as the
proximate cause of the accident, invoked the defense of due diligence in the selection and
supervision of its driver, Ambrosio Ramirez.chanroblesvirtualawlibrary

On July 3, 1984, the CFI of Pangasinan rendered a decision against PANTRANCO awarding the
total amount of Two Million Three Hundred Four Thousand Six Hundred Forty-Seven
(P2,304,647.00) as damages, plus 10% thereof as attorneys fees and costs to Maricar Baesa in
Civil Case No. 561-R, and the total amount of Six Hundred Fifty Two Thousand Six Hundred
Seventy-Two Pesos (P652,672.00) as damages, plus 10% thereof as attorneys fees and costs to
Fe Ico and her children in Civil Case No. 589-R. On appeal, the cases were consolidated and the
Court of Appeals modified the decision of the trial court by ordering PANTRANCO to pay the total
amount of One Million One Hundred Eighty-Nine Thousand Nine Hundred Twenty Seven Pesos
(P1,189,927.00) as damages, plus Twenty Thousand Pesos (P20,000.00) as attorneys fees to
Maricar Baesa, and the total amount of Three Hundred Forty-Four Thousand Pesos (P344,000.00)
plus Ten Thousand Pesos (P10,000.00) as attorneys fees to Fe Ico and her children, and to pay
the costs in both cases. The dispositive portion of the assailed decision reads as follows:

WHEREFORE, the decision appealed from is hereby modified by ordering the defendant
PANTRANCO North Express, Inc. to pay:chanrob1es virtual 1aw library

I. The plaintiff in Civil Case No. 561-R, Maricar Bascos Baesa, the following damages:chanrob1es
virtual 1aw library

A) As compensatory damages for the death of Ceasar Baesa P30,000.00;

B) As compensatory damages for the death of Marilyn Baesa P30,000.00;

C) As compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa
P30,000.00;

D) For the loss of earnings of Ceasar Baesa P630,000.00;

E) For the loss of earnings of Marilyn Bascos Baesa P375,000.00;

F) For the burial expenses of the deceased Ceasar and Marilyn Baesa P41,200.00;

G) For hospitalization expenses of Maricar Baesa P3,727.00;

H) As moral damages P50,000.00;

I) As attorneys fees P20,000.00;

II. The plaintiffs in Civil Case No. 589-R, the following damages:chanrob1es virtual 1aw library

A) As compensatory damages for the death of David Ico P30,000.00;

B) For loss of earning capacity of David Ico P252,000.00;

C) As moral damages for the death of David Ico and the injury of Fe Ico P30,000.00

D) As payment for the jeepney P20,000.00;

E) For the hospitalization of Fe Ico P12,000.000;

F) And for attorneys fees P10,000.00;

and to pay the costs in both cases.

The amount of P25,000 paid to Maricar Bascos Baesa, plaintiff in Civil Case No. 561-R, and the
medical expenses in the sum of P3,273.55, should be deducted from the award in her
favor.chanrobles virtual lawlibrary

All the foregoing amounts herein awarded except the costs shall earn interest at the legal rate
from date of this decision until fully paid. [CA Decision, pp. 14-15; Rollo, pp. 57-58.]

PANTRANCO filed a motion for reconsideration of the Court of Appeals decision, but on June 26,
1987, it denied the same for lack of merit. PANTRANCO then filed the instant petition for review.
I

Petitioner faults the Court of Appeals for not applying the doctrine of the "last clear chance"
against the jeepney driver. Petitioner claims that under the circumstances of the case, it was the
driver of the passenger jeepney who had the last clear chance to avoid the collision and was
therefore negligent in failing to utilize with reasonable care and competence his then existing
opportunity to avoid the harm.

The doctrine of the last clear chance was defined by this Court in the case of Ong v. Metropolitan
Water District, 104 Phil. 397 (1958), in this wise:
The doctrine of the last clear chance simply, means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided injurious consequences to
claimant notwithstanding his negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent
negligence but the defendant, who had the last fair chance to avoid the impending harm and
failed to do so, is made liable for all the consequences of the accident notwithstanding the prior
negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan Peoples Lumber and
Hardware, Et. Al. v. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, Et Al., G.R. No.
70493, May 18, 1989]. The subsequent negligence of the defendant in failing to exercise ordinary
care to avoid injury to plaintiff becomes the immediate or proximate cause of the accident which
intervenes between the accident and the more remote negligence of the plaintiff, thus making
the defendant liable to the plaintiff [Picart v. Smith, supra].

Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable
to a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as
a defense to defeat claim for damages.

To avoid liability for the negligence of its driver, petitioner claims that the original negligence of
its driver was not the proximate cause of the accident and that the sole proximate cause was the
supervening negligence of the jeepney driver David Ico in failing to avoid the accident. It is
petitioners position that even assuming arguendo, that the bus encroached into the lane of the
jeepney, the driver of the latter could have swerved the jeepney towards the spacious dirt
shoulder on his right without danger to himself or his passengers.

The above contention of petitioner is manifestly devoid of merit.

Contrary to the petitioners contention, the doctrine of "last clear chance" finds no application in
this case. For the doctrine to be applicable, it is necessary to show that the person who allegedly
had the last opportunity to avert the accident was aware of the existence of the peril or should,
with exercise of due care, have been aware of it. One cannot be expected to avoid an accident or
injury if he does not know or could not have known the existence of the peril. In this case, there
is nothing to show that the jeepney driver David Ico knew of the impending danger. When he saw
at a distance that the approaching bus was encroaching on his lane, he did not immediately
swerve the jeepney to the dirt shoulder on his right since he must have assumed that the bus
driver will return the bus to its own lane upon seeing the jeepney approaching from the opposite
direction. As held by this Court in the case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810, August
31, 1970, 34 SCRA 618, a motorist who is properly proceeding on his own side of the highway is
generally entitled to assume that an approaching vehicle coming towards him on the wrong side,
will return to his proper lane of traffic. There was nothing to indicate to David Ico that the bus
could not return to its own lane or was prevented from returning to the proper lane by anything
beyond the control of its driver. Leo Marantan, an alternate driver of the Pantranco bus who was
seated beside the driver Ramirez at the time of the accident, testified that Ramirez had no choice
but to swerve the steering wheel to the left and encroach on the jeepneys lane because there
was a steep precipice on the right [CA Decision, p. 2; Rollo, p. 45]. However, this is belied by the
evidence on record which clearly shows that there was enough space to swerve the bus back to
its own lane without any danger [CA Decision, p. 7; Rollo, p. 50].

Moreover, both the trial court and the Court of Appeals found that at the time of the accident the
Pantranco bus was speeding towards Manila [CA Decision, p. 2; Rollo, p. 45]. By the time David
Ico must have realized that the bus was not returning to its own lane, it was already too late to
swerve the jeepney to his right to prevent an accident. The speed at which the approaching bus
was running prevented David Ico from swerving the jeepney to the right shoulder of the road in
time to avoid the collision. Thus, even assuming that the jeepney driver perceived the danger a
few seconds before the actual collision, he had no opportunity to avoid it. This Court has held
that the last clear chance doctrine "can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all means at hand after
the peril is or should have been discovered" [Ong v. Metropolitan Water District,
supra].chanrobles.com : virtual law library

Petitioner likewise insists that David Ico was negligent in failing to observe Section 43 (c), Article
III Chapter IV of Republic Act No. 4136 * which provides that the driver of a vehicle entering a
through highway or a stop intersection shall yield the right of way to all vehicles approaching in
either direction on such through highway.

Petitioners misplaced reliance on the aforesaid law is readily apparent in this case. The cited law
itself provides that it applies only to vehicles entering a through highway or a stop intersection.
At the time of the accident, the jeepney had already crossed the intersection and was on its way
to Malalam River. Petitioner itself cited Fe Icos testimony that the accident occurred after the
jeepney had travelled a distance of about two (2) meters from the point of intersection [Petition
p. 10; Rollo, p. 27]. In fact, even the witness for the petitioner, Leo Marantan, testified that both
vehicles were coming from opposite directions [CA Decision, p. 7; Rollo, p. 50], clearly indicating
that the jeepney had already crossed the intersection.
Considering the foregoing, the Court finds that the negligence of petitioners driver in
encroaching into the lane of the incoming jeepney and in failing to return the bus to its own lane
immediately upon seeing the jeepney coming from the opposite direction was the sole and
proximate cause of the accident without which the collision would not have occurred. There was
no supervening or intervening negligence on the part of the jeepney driver which would have
made the prior negligence of petitioners driver a mere remote cause of the accident.
II

On the issue of its liability as an employer, petitioner claims that it had observed the diligence of
a good father of a family to prevent damage, conformably to the last paragraph of Article 2180 of
the Civil Code. Petitioner adduced evidence to show that in hiring its drivers, the latter are
required to have professional drivers license and police clearance. The drivers must also pass
written examinations, interviews and practical driving tests, and are required to undergo a six-
month training period. Rodrigo San Pedro, petitioners Training Coordinator, testified on
petitioners policy of conducting regular and continuing training programs and safety seminars
for its drivers, conductors, inspectors and supervisors at a frequency rate of at least two (2)
seminars a month.

On this point, the Court quotes with approval the following findings of the trial court which was
adopted by the Court of Appeals in its challenged decision:

When an injury is caused by the negligence of an employee, there instantly arises a presumption
that the employer has been negligent either in the selection of his employees or in the
supervision over their acts. Although this presumption is only a disputable presumption which
could be overcome by proof of diligence of a good father of a family, this Court believes that the
evidence submitted by the defendant to show that it exercised the diligence of a good father of a
family in the case of Ramirez, as a company driver is far from sufficient. No support evidence has
been adduced. The professional drivers license of Ramirez has not been produced. There is no
proof that he is between 25 to 38 years old. There is also no proof as to his educational
attainment, his age, his weight and the fact that he is married or not. Neither are the result of
the written test, psychological and physical test, among other tests, have been submitted in
evidence [sic]. His NBI or police clearances and clearances from previous employment were not
marked in evidence. No evidence was presented that Ramirez actually and really attended the
seminars. Vital evidence should have been the certificate of attendance or certificate of
participation or evidence of such participation like a logbook signed by the trainees when they
attended the seminars. If such records are not available, the testimony of the classmates that
Ramirez was their classmate in said seminar (should have been presented) [CA Decision, pp. 8-9;
Rollo, pp. 51-52].

Petitioner contends that the fact that Ambrosio Ramirez was employed and remained as its driver
only means that he underwent the same rigid selection process and was subjected to the same
strict supervision imposed by petitioner on all applicants and employees. It is argued by the
petitioner that unless proven otherwise, it is presumed that petitioner observed its usual
recruitment procedure and company polices on safety and efficiency [Petition, p. 20; Rollo, p.
37].

The Court finds the above contention unmeritorious.

The finding of negligence on the part of its driver Ambrosio Ramirez gave rise to the presumption
of negligence on the part of petitioner and the burden of proving that it exercised due diligence
not only in the selection of its employees but also in adequately supervising their work rests with
the petitioner [Lilius v. Manila Railroad Company, 59 Phil. 758 (1934); Umali v. Bacani, G.R. No. L-
40570, June 30, 1976, 69 SCRA 623]. Contrary to petitioners claim, there is no presumption that
the usual recruitment procedures and safety standards were observed. The mere issuance of
rules and regulations and the formulation of various company policies on safety, without showing
that they are being complied with, are not sufficient to exempt petitioner from liability arising
from the negligence of its employee. 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. Petitioner failed to do this. Hence, the Court finds no cogent reason to
disturb the finding of both the trial court and the Court of Appeals that the evidence presented
by the petitioner, which consists mainly of the uncorroborated testimony of its Training
Coordinator, is insufficient to overcome the presumption of negligence against petitioner.
 III

On the question of damages, petitioner claims that the Court of Appeals erred in fixing the
damages for the loss of earning capacity of the deceased victims. Petitioner assails respondent
courts findings because no documentary evidence in support thereof, such as income tax
returns, pay-rolls, pay slips or invoices obtained in the usual course of business, were presented
[Petition, p. 22; Rollo, p. 39]. Petitioner argues that the "bare and self-serving testimonies of the
wife of the deceased David Ico and the mother of the deceased Marilyn Baesa . . . have no
probative value to sustain in law the Court of Appeals conclusion on the respective earnings of
the deceased victims." [Petition, pp. 21-22; Rollo, pp. 38-39.] It is petitioners contention that the
evidence presented by the private respondent does not meet the requirements of clear and
satisfactory evidence to prove actual and compensatory damages.

The Court finds that the Court of Appeals committed no reversible error in fixing the amount of
damages for the loss of earning capacity of the deceased victims. While it is true that private
respondents should have presented documentary evidence to support their claim for damages
for loss of earning capacity of the deceased victims, the absence thereof does not necessarily
bar the recovery of the damages in question. The testimony of Fe Ico and Francisca Bascos as to
the earning capacity of David Ico, and the spouses Baesa, respectively, are sufficient to establish
a basis from which the court can make a fair and reasonable estimate of the damages for the
loss of earning capacity of the three deceased victims. Moreover, in fixing the damages for loss
of earning capacity of a deceased victim, the court can consider the nature of his occupation, his
educational attainment and the state of his health at the time of death.

In the instant case, David Ico was thirty-eight (38) years old at the time of his death in 1981 and
was driving his own passenger jeepney. The spouses Ceasar and Marilyn Baesa were both thirty
(30) years old at the time of their death. Ceasar Baesa was a commerce degree holder and the
proprietor of the Cauayan Press, printer of the Cauayan Valley Newspaper and the Valley Times
at Cauayan, Isabela. Marilyn Baesa graduated as a nurse in 1976 and at the time of her death,
was the company nurse, personnel manager, treasurer and cashier of the Ilagan Press at Ilagan,
Isabela. Respondent court duly considered these factors, together with the uncontradicted
testimonies of Fe Ico and Francisca Bascos, in fixing the amount of damages for the loss of
earning capacity of David Ico and the spouses Baesa.

However, it should be pointed out that the Court of Appeals committed error in fixing the
compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa. Respondent
court awarded to plaintiff (private respondent) Maricar Baesa Thirty Thousand Pesos
(P30,000.00) as "compensatory damages for the death of Harold Jim Baesa and Marcelino
Baesa." [CA Decision, p. 14; Rollo, 57]. In other words, the Court of Appeals awarded only Fifteen
Thousand Pesos (P15,000.00) as indemnity for the death of Harold Jim Baesa and another Fifteen
Thousand Pesos (P15,000.00) for the death of Marcelino Baesa. This is clearly erroneous. In the
case of People v. de la Fuente, G.R. Nos. 63251-52, December 29, 1983, 126 SCRA 518, the
indemnity for the death of a person was fixed by this Court at Thirty Thousand Pesos
(P30,000.00). Plaintiff Maricar Baesa should therefore be awarded Sixty Thousand Pesos
(P60,000.00) as indemnity for the death of her brothers, Harold Jim Baesa and Marcelino Baesa
or Thirty Thousand Pesos (P30,000.00) for the death of each brother.

The other items of damages awarded by respondent court which were not challenged by the
petitioner are hereby affirmed.

WHEREFORE, premises considered, the petition is DENIED, and the decision of respondent Court
of Appeals is hereby AFFIRMED with the modification that the amount of compensatory damages
for the death of Harold Jim Baesa and Marcelino Baesa are increased to Thirty Thousand Pesos
(P30,000.00) each.
SO ORDERED.
Case No. 4
G.R. No. 97626 March 14, 1997
PHILIPPINE BANK OF COMMERCE, now absorbed by PHILIPPINE COMMERCIAL
INTERNATIONAL BANK, ROGELIO LACSON, DIGNA DE LEON, MARIA ANGELITA PASCUAL,
et al., petitioners, vs.THE COURT OF APPEALS, ROMMEL'S MARKETING CORP.,
represented by ROMEO LIPANA, its President & General Manager, respondents.
HERMOSISIMA, JR., J.:
Challenged in this petition for review is the Decision dated February 28, 1991 1 rendered by
public respondent Court of Appeals which affirmed the Decision dated November 15, 1985 of the
Regional Trial Court, National Capital Judicial Region, Branch CLX (160), Pasig City, in Civil Case
No. 27288 entitled "Rommel's Marketing Corporation, etc. v. Philippine Bank of Commerce, now
absorbed by Philippine Commercial and Industrial Bank."
The case stemmed from a complaint filed by the private respondent Rommel's Marketing
Corporation (RMC for brevity), represented by its President and General Manager Romeo Lipana,
to recover from the former Philippine Bank of Commerce (PBC for brevity), now absorbed by the
Philippine Commercial International Bank, the sum of P304,979.74 representing various deposits
it had made in its current account with said bank but which were not credited to its account, and
were instead deposited to the account of one Bienvenido Cotas, allegedly due to the gross and
inexcusable negligence of the petitioner bank.
RMC maintained two (2) separate current accounts, Current Account Nos. 53-01980-3 and 53-
01748-7, with the Pasig Branch of PBC in connection with its business of selling appliances.
In the ordinary and usual course of banking operations, current account deposits are accepted by
the bank on the basis of deposit slips prepared and signed by the depositor, or the latter's agent
or representative, who indicates therein the current account number to which the deposit is to be
credited, the name of the depositor or current account holder, the date of the deposit, and the
amount of the deposit either in cash or checks. The deposit slip has an upper portion or stub,
which is detached and given to the depositor or his agent; the lower portion is retained by the
bank. In some instances, however, the deposit slips are prepared in duplicate by the depositor.
The original of the deposit slip is retained by the bank, while the duplicate copy is returned or
given to the depositor.
From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims to have entrusted RMC funds
in the form of cash totalling P304,979.74 to his secretary, Irene Yabut, for the purpose of
depositing said funds in the current accounts of RMC with PBC. It turned out, however, that these
deposits, on all occasions, were not credited to RMC's account but were instead deposited to
Account No. 53-01734-7 of Yabut's husband, Bienvenido Cotas who likewise maintains an account
with the same bank. During this period, petitioner bank had, however, been regularly furnishing
private respondent with monthly statements showing its current accounts balances.
Unfortunately, it had never been the practice of Romeo Lipana to check these monthly
statements of account reposing complete trust and confidence on petitioner bank.
Irene Yabut's modus operandi is far from complicated. She would accomplish two (2) copies of
the deposit slip, an original and a duplicate. The original showed the name of her husband as
depositor and his current account number. On the duplicate copy was written the account
number of her husband but the name of the account holder was left blank. PBC's teller, Azucena
Mabayad, would, however, validate and stamp both the original and the duplicate of these
deposit slips retaining only the original copy despite the lack of information on the duplicate slip.
The second copy was kept by Irene Yabut allegedly for record purposes. After validation, Yabut
would then fill up the name of RMC in the space left blank in the duplicate copy and change the
account number written thereon, which is that of her husband's, and make it appear to be RMC's
account number, i.e., C.A. No. 53-01980-3. With the daily remittance records also prepared by
Ms. Yabut and submitted to private respondent RMC together with the validated duplicate slips
with the latter's name and account number, she made her company believe that all the while the
amounts she deposited were being credited to its account when, in truth and in fact, they were
being deposited by her and credited by the petitioner bank in the account of Cotas. This went on
in a span of more than one (1) year without private respondent's knowledge.
Upon discovery of the loss of its funds, RMC demanded from petitioner bank the return of its
money, but as its demand went unheeded, it filed a collection suit before the Regional Trial Court
of Pasig, Branch 160. The trial court found petitioner bank negligent and ruled as follows:
WHEREFORE, judgment is hereby rendered sentencing defendant Philippine Bank of Commerce,
now absorbed by defendant Philippine Commercial & Industrial Bank, and defendant Azucena
Mabayad to pay the plaintiff, jointly and severally, and without prejudice to any criminal action
which may be instituted if found warranted:
1. The sum of P304,979.72, representing plaintiffs lost deposit, plus interest thereon at the legal
rate from the filing of the complaint;
2. A sum equivalent to 14% thereof, as exemplary damages;
3. A sum equivalent to 25% of the total amount due, as and for attorney's fees; and
4. Costs.
Defendants' counterclaim is hereby dismissed for lack of merit. 2
On appeal, the appellate court affirmed the foregoing decision with modifications, viz:
WHEREFORE, the decision appealed from herein is MODIFIED in the sense that the awards of
exemplary damages and attorney's fees specified therein are eliminated and instead, appellants
are ordered to pay plaintiff, in addition to the principal sum of P304,979.74 representing
plaintiff's lost deposit plus legal interest thereon from the filing of the complaint, P25,000.00
attorney's fees and costs in the lower court as well as in this Court. 3
Hence, this petition anchored on the following grounds:
1) The proximate cause of the loss is the negligence of respondent Rommel Marketing
Corporation and Romeo Lipana in entrusting cash to a dishonest employee.
2) The failure of respondent Rommel Marketing Corporation to cross-check the bank's statements
of account with its own records during the entire period of more than one (1) year is the
proximate cause of the commission of subsequent frauds and misappropriation committed by
Ms. Irene Yabut.
3) The duplicate copies of the deposit slips presented by respondent Rommel Marketing
Corporation are falsified and are not proof that the amounts appearing thereon were deposited to
respondent Rommel Marketing Corporation's account with the bank,
4) The duplicate copies of the deposit slips were used by Ms. Irene Yabut to cover up her
fraudulent acts against respondent Rommel Marketing Corporation, and not as records of
deposits she made with the bank. 4
The petition has no merit.
Simply put, the main issue posited before us is: What is the proximate cause of the loss, to the
tune of P304,979.74, suffered by the private respondent RMC petitioner bank's negligence or
that of private respondent's?
Petitioners submit that the proximate cause of the loss is the negligence of respondent RMC and
Romeo Lipana in entrusting cash to a dishonest employee in the person of Ms. Irene
Yabut. 5 According to them, it was impossible for the bank to know that the money deposited by
Ms. Irene Yabut belong to RMC; neither was the bank forewarned by RMC that Yabut will be
depositing cash to its account. Thus, it was impossible for the bank to know the fraudulent
design of Yabut considering that her husband, Bienvenido Cotas, also maintained an account with
the bank. For the bank to inquire into the ownership of the cash deposited by Ms. Irene Yabut
would be irregular. Otherwise stated, it was RMC's negligence in entrusting cash to a dishonest
employee which provided Ms. Irene Yabut the opportunity to defraud RMC. 6
Private respondent, on the other hand, maintains that the proximate cause of the loss was the
negligent act of the bank, thru its teller Ms. Azucena Mabayad, in validating the deposit slips,
both original and duplicate, presented by Ms. Yabut to Ms. Mabayad, notwithstanding the fact
that one of the deposit slips was not completely accomplished.
We sustain the private respondent.
Our law on quasi-delicts states:
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.
There are three elements of a quasi-delict: (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. 7
In the case at bench, there is no dispute as to the damage suffered by the private respondent
(plaintiff in the trial court) RMC in the amount of P304,979.74. It is in ascribing fault or
negligence which caused the damage where the parties point to each other as the culprit.
Negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would do. The seventy-eight (78)-year-old, yet
still relevant, case of Picart v. Smith, 8 provides the test by which to determine the existence of
negligence in a particular case which 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 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.
Applying the above test, it appears that the bank's teller, Ms. Azucena Mabayad, was negligent in
validating, officially stamping and signing all the deposit slips prepared and presented by Ms.
Yabut, despite the glaring fact that the duplicate copy was not completely accomplished contrary
to the self-imposed procedure of the bank with respect to the proper validation of deposit slips,
original or duplicate, as testified to by Ms. Mabayad herself, thus:
Q: Now, as teller of PCIB, Pasig Branch, will you please tell us Mrs. Mabayad your important
duties and functions?
A: I accept current and savings deposits from depositors and encashments.
Q: Now in the handling of current account deposits of bank clients, could you tell us the
procedure you follow?
A: The client or depositor or the authorized representative prepares a deposit slip by filling up
the deposit slip with the name, the account number, the date, the cash breakdown, if it is
deposited for cash, and the check number, the amount and then he signs the deposit slip.
Q: Now, how many deposit slips do you normally require in accomplishing current account
deposit, Mrs. Mabayad?
A: The bank requires only one copy of the deposit although some of our clients prepare the
deposit slip in duplicate.
Q: Now in accomplishing current account deposits from your clients, what do you issue to the
depositor to evidence the deposit made?
A: We issue or we give to the clients the depositor's stub as a receipt of the deposit.
Q: And who prepares the deposit slip?
A: The depositor or the authorized representative sir?
Q: Where does the depositor's stub comes (sic) from Mrs. Mabayad, is it with the deposit slip?
A: The depositor's stub is connected with the deposit slip or the bank's copy. In a deposit slip, the
upper portion is the depositor's stub and the lower portion is the bank's copy, and you can
detach the bank's copy from the depositor's stub by tearing it sir.
Q: Now what do you do upon presentment of the deposit slip by the depositor or the depositor's
authorized representative?
A: We see to it that the deposit slip 9 is properly accomplished and then we count the money and
then we tally it with the deposit slip sir.
Q: Now is the depositor's stub which you issued to your clients validated?
10
A: Yes, sir. [Emphasis ours]
Clearly, Ms. Mabayad failed to observe this very important procedure. The fact that the duplicate
slip was not compulsorily required by the bank in accepting deposits should not relieve the
petitioner bank of responsibility. The odd circumstance alone that such duplicate copy lacked one
vital information that of the name of the account holder should have already put Ms.
Mabayad on guard. Rather than readily validating the incomplete duplicate copy, she should
have proceeded more cautiously by being more probing as to the true reason why the name of
the account holder in the duplicate slip was left blank while that in the original was filled up. She
should not have been so naive in accepting hook, line and sinker the too shallow excuse of Ms.
Irene Yabut to the effect that since the duplicate copy was only for her personal record, she
would simply fill up the blank space later on. 11 A "reasonable man of ordinary
prudence" 12 would not have given credence to such explanation and would have insisted that
the space left blank be filled up as a condition for validation. Unfortunately, this was not how
bank teller Mabayad proceeded thus resulting in huge losses to the private respondent.
Negligence here lies not only on the part of Ms. Mabayad but also on the part of the bank itself in
its lackadaisical selection and supervision of Ms. Mabayad. This was exemplified in the testimony
of Mr. Romeo Bonifacio, then Manager of the Pasig Branch of the petitioner bank and now its
Vice-President, to the effect that, while he ordered the investigation of the incident, he never
came to know that blank deposit slips were validated in total disregard of the bank's validation
procedures, viz:
Q: Did he ever tell you that one of your cashiers affixed the stamp mark of the bank on the
deposit slips and they validated the same with the machine, the fact that those deposit slips
were unfilled up, is there any report similar to that?
A: No, it was not the cashier but the teller.
Q: The teller validated the blank deposit slip?
A: No it was not reported.
Q: You did not know that anyone in the bank tellers or cashiers validated the blank deposit slip?
A: I am not aware of that.
Q: It is only now that you are aware of that?
13
A: Yes, sir.
Prescinding from the above, public respondent Court of Appeals aptly observed:
xxx xxx xxx
It was in fact only when he testified in this case in February, 1983, or after the lapse of more than
seven (7) years counted from the period when the funds in question were deposited in plaintiff's
accounts (May, 1975 to July, 1976) that bank manager Bonifacio admittedly became aware of the
practice of his teller Mabayad of validating blank deposit slips. Undoubtedly, this is gross,
wanton, and inexcusable negligence in the appellant bank's supervision of its employees. 14
It was this negligence of Ms. Azucena Mabayad, coupled by the negligence of the petitioner bank
in the selection and supervision of its bank teller, which was the proximate cause of the loss
suffered by the private respondent, and not the latter's act of entrusting cash to a dishonest
employee, as insisted by the petitioners.
Proximate cause is determined on the facts of each case upon mixed considerations of logic,
common sense, policy and precedent. 15 Vda. de Bataclan v. Medina, 16 reiterated in the case
of Bank of the Phil. Islands v. Court of Appeals, 17 defines proximate cause 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. . . ." In this case, absent the act of
Ms. Mabayad in negligently validating the incomplete duplicate copy of the deposit slip, Ms. Irene
Yabut would not have the facility with which to perpetrate her fraudulent scheme with impunity.
Apropos, once again, is the pronouncement made by the respondent appellate court, to wit:
. . . . Even if Yabut had the fraudulent intention to misappropriate the funds entrusted to her by
plaintiff, she would not have been able to deposit those funds in her husband's current account,
and then make plaintiff believe that it was in the latter's accounts wherein she had deposited
them, had it not been for bank teller Mabayad's aforesaid gross and reckless negligence. The
latter's negligence was thus the proximate, immediate and efficient cause that brought about the
loss claimed by plaintiff in this case, and the failure of plaintiff to discover the same soon enough
by failing to scrutinize the monthly statements of account being sent to it by appellant bank
could not have prevented the fraud and misappropriation which Irene Yabut had already
completed when she deposited plaintiff's money to the account of her husband instead of to the
latter's accounts. 18
Furthermore, under the doctrine of "last clear chance" (also referred to, at times as "supervening
negligence" or as "discovered peril"), petitioner bank was indeed the culpable party. This
doctrine, in essence, states that where both parties are negligent, but the negligent act of one is
appreciably later in time than that of the other, or when it is impossible to determine whose fault
or negligence should be attributed to the incident, the one who had the last clear opportunity to
avoid the impending harm and failed to do so is chargeable with the consequences
thereof. 19Stated differently, the rule would also mean that an antecedent negligence of a person
does not preclude the recovery of damages for the supervening negligence of, or bar a defense
against liability sought by another, if the latter, who had the last fair chance, could have avoided
the impending harm by the exercise of due diligence. 20 Here, assuming that private respondent
RMC was negligent in entrusting cash to a dishonest employee, thus providing the latter with the
opportunity to defraud the company, as advanced by the petitioner, yet it cannot be denied that
the petitioner bank, thru its teller, had the last clear opportunity to avert the injury incurred by
its client, simply by faithfully observing their self-imposed validation procedure.
At this juncture, it is worth to discuss the degree of diligence ought to be exercised by banks in
dealing with their clients.
The New Civil Code provides:
Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is
required by the nature of the obligation and corresponds with the circumstances of the persons,
of the time and of the place. When negligence shows bad faith, the provisions of articles 1171
and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the performance,
that which is expected of a good father of a family shall be required. (1104a)
In the case of banks, however, the degree of diligence required is more than that of a good
father of a family. Considering the fiduciary nature of their relationship with their depositors,
banks are duty bound to treat the accounts of their clients with the highest degree of care. 21
As elucidated in Simex International (Manila), Inc. v. Court of Appeals, 22 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 as he sees fit, confident that the bank will deliver it as and to whomever he directs. A
blunder on the part of the bank, such as the failure to duly credit him his deposits as soon as
they are made, can cause the depositor not a little embarrassment if not 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 case before us, it is
apparent that the petitioner bank was remiss in that duty and violated that relationship.
Petitioners nevertheless aver that the failure of respondent RMC to cross-check the bank's
statements of account with its own records during the entire period of more than one (1) year is
the proximate cause of the commission of subsequent frauds and misappropriation committed by
Ms. Irene Yabut.
We do not agree.
While it is true that had private respondent checked the monthly statements of account sent by
the petitioner bank to RMC, the latter would have discovered the loss early on, such cannot be
used by the petitioners to escape liability. This omission on the part of the private respondent
does not change the fact that were it not for the wanton and reckless negligence of the
petitioners' employee in validating the incomplete duplicate deposit slips presented by Ms. Irene
Yabut, the loss would not have occurred. Considering, however, that the fraud was committed in
a span of more than one (1) year covering various deposits, common human experience dictates
that the same would not have been possible without any form of collusion between Ms. Yabut
and bank teller Mabayad. Ms. Mabayad was negligent in the performance of her duties as bank
teller nonetheless. Thus, the petitioners are entitled to claim reimbursement from her for
whatever they shall be ordered to pay in this case.
The foregoing notwithstanding, it cannot be denied that, indeed, private respondent was likewise
negligent in not checking its monthly statements of account. Had it done so, the company would
have been alerted to the series of frauds being committed against RMC by its secretary. The
damage would definitely not have ballooned to such an amount if only RMC, particularly Romeo
Lipana, had exercised even a little vigilance in their financial affairs. This omission by RMC
amounts to contributory negligence which shall mitigate the damages that may be awarded to
the private respondent 23 under Article 2179 of the New Civil Code, to wit:
. . . When the plaintiff's own negligence was the immediate and proximate cause of his injury, he
cannot recover damages. But if his negligence was only contributory, the immediate and
proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be awarded.
In view of this, we believe that the demands of substantial justice are satisfied by allocating the
damage on a 60-40 ratio. Thus, 40% of the damage awarded by the respondent appellate court,
except the award of P25,000.00 attorney's fees, shall be borne by private respondent RMC; only
the balance of 60% needs to be paid by the petitioners. The award of attorney's fees shall be
borne exclusively by the petitioners.
WHEREFORE, the decision of the respondent Court of Appeals is modified by reducing the
amount of actual damages private respondent is entitled to by 40%. Petitioners may recover
from Ms. Azucena Mabayad the amount they would pay the private respondent. Private
respondent shall have recourse against Ms. Irene Yabut. In all other respects, the appellate
court's decision is AFFIRMED.
Proportionate costs.
SO ORDERED.

Case No. 5
G.R. No. L-47379 May 16, 1988
NATIONAL POWER CORPORATION, petitioner, vs.HONORABLE COURT OF APPEALS and
ENGINEERING CONSTRUCTION, INC., respondents.
G.R. No. L-47481 May 16, 1988
ENGINEERING CONSTRUCTION, INC., petitioner, vs. COUTRT OF APPEALS and NATIONAL
POWER CORPORATION, respondents.
GUTIERREZ, JR., J.:
These consolidated petitions seek to set aside the decision of the respondent Court of Appeals
which adjudged the National Power Corporation liable for damages against Engineering
Construction, Inc. The appellate court, however, reduced the amount of damages awarded by the
trial court. Hence, both parties filed their respective petitions: the National Power Corporation
(NPC) in G.R. No. 47379, questioning the decision of the Court of Appeals for holding it liable for
damages and the Engineering Construction, Inc. (ECI) in G.R. No. 47481, questioning the same
decision for reducing the consequential damages and attorney's fees and for eliminating the
exemplary damages.
The facts are succinctly summarized by the respondent Court of Appeals, as follows:
On August 4, 1964, plaintiff Engineering Construction, Inc., being a successful bidder, executed a
contract in Manila with the National Waterworks and Sewerage Authority (NAWASA), whereby the
former undertook to furnish all tools, labor, equipment, and materials (not furnished by Owner),
and to construct the proposed 2nd lpo-Bicti Tunnel, Intake and Outlet Structures, and
Appurtenant Structures, and Appurtenant Features, at Norzagaray, Bulacan, and to complete said
works within eight hundred (800) calendar days from the date the Contractor receives the formal
notice to proceed (Exh. A).
The project involved two (2) major phases: the first phase comprising, the tunnel work covering a
distance of seven (7) kilometers, passing through the mountain, from the Ipo river, a part of
Norzagaray, Bulacan, where the Ipo Dam of the defendant National Power Corporation is located,
to Bicti; the other phase consisting of the outworks at both ends of the tunnel.
By September 1967, the plaintiff corporation already had completed the first major phase of the
work, namely, the tunnel excavation work. Some portions of the outworks at the Bicti site were
still under construction. As soon as the plaintiff corporation had finished the tunnel excavation
work at the Bicti site, all the equipment no longer needed there were transferred to the Ipo site
where some projects were yet to be completed.
The record shows that on November 4,1967, typhoon 'Welming' hit Central Luzon, passing
through defendant's Angat Hydro-electric Project and Dam at lpo, Norzagaray, Bulacan. Strong
winds struck the project area, and heavy rains intermittently fell. Due to the heavy downpour,
the water in the reservoir of the Angat Dam was rising perilously at the rate of sixty (60)
centimeters per hour. To prevent an overflow of water from the dam, since the water level had
reached the danger height of 212 meters above sea level, the defendant corporation caused the
opening of the spillway gates." (pp. 45-46, L-47379, Rollo)
The appellate court sustained the findings of the trial court that the evidence preponlderantly
established the fact that due to the negligent manner with which the spillway gates of the Angat
Dam were opened, an extraordinary large volume of water rushed out of the gates, and hit the
installations and construction works of ECI at the lpo site with terrific impact, as a result of which
the latter's stockpile of materials and supplies, camp facilities and permanent structures and
accessories either washed away, lost or destroyed.
The appellate court further found that:
It cannot be pretended that there was no negligence or that the appellant exercised
extraordinary care in the opening of the spillway gates of the Angat Dam. Maintainers of the dam
knew very well that it was far more safe to open them gradually. But the spillway gates were
opened only when typhoon Welming was already at its height, in a vain effort to race against
time and prevent the overflow of water from the dam as it 'was rising dangerously at the rate of
sixty centimeters per hour. 'Action could have been taken as early as November 3, 1967, when
the water in the reservoir was still low. At that time, the gates of the dam could have been
opened in a regulated manner. Let it be stressed that the appellant knew of the coming of the
typhoon four days before it actually hit the project area. (p. 53, L-47379, Rollo)
As to the award of damages, the appellate court held:
We come now to the award of damages. The appellee submitted a list of estimated losses and
damages to the tunnel project (Ipo side) caused by the instant flooding of the Angat River (Exh. J-
1). The damages were itemized in four categories, to wit: Camp Facilities P55,700.00; Equipment,
Parts and Plant P375,659.51; Materials P107,175.80; and Permanent Structures and
accessories P137,250.00, with an aggregate total amount of P675,785.31. The list is supported
by several vouchers which were all submitted as Exhibits K to M-38 a, N to O, P to U-2 and V to X-
60-a (Vide: Folders Nos. 1 to 4). The appellant did not submit proofs to traverse the
aforementioned documentary evidence. We hold that the lower court did not commit any error in
awarding P 675,785.31 as actual or compensatory damages.
However, We cannot sustain the award of P333,200.00 as consequential damages. This amount
is broken down as follows: P213,200.00 as and for the rentals of a crane to temporarily replace
the one "destroyed beyond repair," and P120,000.00 as one month bonus which the appellee
failed to realize in accordance with the contract which the appellee had with NAWASA. Said rental
of the crane allegedly covered the period of one year at the rate of P40.00 an hour for 16 hours a
day. The evidence, however, shows that the appellee bought a crane also a crawler type, on
November 10, 1967, six (6) days after the incident in question (Exh N) And according to the
lower court, which finding was never assailed, the appellee resumed its normal construction work
on the Ipo- Bicti Project after a stoppage of only one month. There is no evidence when the
appellee received the crane from the seller, Asian Enterprise Limited. But there was an
agreement that the shipment of the goods would be effected within 60 days from the opening of
the letter of credit (Exh. N). It appearing that the contract of sale was consummated, We must
conclude or at least assume that the crane was delivered to the appellee within 60 days as
stipulated. The appellee then could have availed of the services of another crane for a period of
only one month (after a work stoppage of one month) at the rate of P 40.00 an hour for 16 hours
a day or a total of P 19,200.00 as rental.
But the value of the new crane cannot be included as part of actual damages because the old
was reactivated after it was repaired. The cost of the repair was P 77,000.00 as shown in item
No. 1 under the Equipment, Parts and Plants category (Exh. J-1), which amount of repair was
already included in the actual or compensatory damages. (pp. 54-56, L-47379, Rollo)
The appellate court likewise rejected the award of unrealized bonus from NAWASA in the amount
of P120,000.00 (computed at P4,000.00 a day in case construction is finished before the
specified time, i.e., within 800 calendar days), considering that the incident occurred after more
than three (3) years or one thousand one hundred seventy (1,170) days. The court also
eliminated the award of exemplary damages as there was no gross negligence on the part of NPC
and reduced the amount of attorney's fees from P50,000.00 to P30,000.00.
In these consolidated petitions, NPC assails the appellate court's decision as being erroneous on
the ground that the destruction and loss of the ECI's equipment and facilities were due to force
majeure. It argues that the rapid rise of the water level in the reservoir of its Angat Dam due to
heavy rains brought about by the typhoon was an extraordinary occurrence that could not have
been foreseen, and thus, the subsequent release of water through the spillway gates and its
resultant effect, if any, on ECI's equipment and facilities may rightly be attributed to force
majeure.
On the other hand, ECI assails the reduction of the consequential damages from P333,200.00 to
P19,000.00 on the grounds that the appellate court had no basis in concluding that ECI acquired
a new Crawler-type crane and therefore, it only can claim rentals for the temporary use of the
leased crane for a period of one month; and that the award of P4,000.00 a day or P120,000.00 a
month bonus is justified since the period limitation on ECI's contract with NAWASA had dual
effects, i.e., bonus for earlier completion and liquidated damages for delayed performance; and
in either case at the rate of P4,000.00 daily. Thus, since NPC's negligence compelled work
stoppage for a period of one month, the said award of P120,000.00 is justified. ECI further assails
the reduction of attorney's fees and the total elimination of exemplary damages.
Both petitions are without merit.
It is clear from the appellate court's decision that based on its findings of fact and that of the trial
court's, petitioner NPC was undoubtedly negligent because it opened the spillway gates of the
Angat Dam only at the height of typhoon "Welming" when it knew very well that it was safer to
have opened the same gradually and earlier, as it was also undeniable that NPC knew of the
coming typhoon at least four days before it actually struck. And even though the typhoon was an
act of God or what we may call force majeure, NPC cannot escape liability because its negligence
was the proximate cause of the loss and damage. As we have ruled in Juan F. Nakpil & Sons v.
Court of Appeals, (144 SCRA 596, 606-607):
Thus, if upon the happening of a fortuitous event or an act of God, there concurs a corresponding
fraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation
as provided for in Article 1170 of the Civil Code, which results in loss or damage, the obligor
cannot escape liability.
The principle embodied in the act of God doctrine strictly requires that the act must be one
occasioned exclusively by the violence of nature and human agencies are to be excluded from
creating or entering into the cause of the mischief. When the effect, the cause of which is to be
considered, is found to be in part the result of the participation of man, whether it be from active
intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it was,
and removed from the rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-1175).
Thus, it has been held that when the negligence of a person concurs with an act of God in
producing a loss, such person is not exempt from liability by showing that the immediate cause
of the damage was the act of God. To be exempt from liability for loss because of an act of God,
he must be free from any previous negligence or misconduct by which the loss or damage may
have been occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan 49 O.G.
4379; Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil.
657).
Furthermore, the question of whether or not there was negligence on the part of NPC is a
question of fact which properly falls within the jurisdiction of the Court of Appeals and will not be
disturbed by this Court unless the same is clearly unfounded. Thus, in Tolentino v. Court of
appeals, (150 SCRA 26, 36) we ruled:
Moreover, the findings of fact of the Court of Appeals are generally final and conclusive upon the
Supreme Court (Leonardo v. Court of Appeals, 120 SCRA 890 [1983]. In fact it is settled that the
Supreme Court is not supposed to weigh evidence but only to determine its substantially (Nuez
v. Sandiganbayan, 100 SCRA 433 [1982] and will generally not disturb said findings of fact when
supported by substantial evidence (Aytona v. Court of Appeals, 113 SCRA 575 [1985]; Collector of
Customs of Manila v. Intermediate Appellate Court, 137 SCRA 3 [1985]. On the other hand
substantial evidence is defined as such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion (Philippine Metal Products, Inc. v. Court of Industrial Relations,
90 SCRA 135 [1979]; Police Commission v. Lood, 127 SCRA 757 [1984]; Canete v. WCC, 136 SCRA
302 [1985])
Therefore, the respondent Court of Appeals did not err in holding the NPC liable for damages.
Likewise, it did not err in reducing the consequential damages from P333,200.00 to P19,000.00.
As shown by the records, while there was no categorical statement or admission on the part of
ECI that it bought a new crane to replace the damaged one, a sales contract was presented to
the effect that the new crane would be delivered to it by Asian Enterprises within 60 days from
the opening of the letter of credit at the cost of P106,336.75. The offer was made by Asian
Enterprises a few days after the flood. As compared to the amount of P106,336.75 for a brand
new crane and paying the alleged amount of P4,000.00 a day as rental for the use of a
temporary crane, which use petitioner ECI alleged to have lasted for a period of one year, thus,
totalling P120,000.00, plus the fact that there was already a sales contract between it and Asian
Enterprises, there is no reason why ECI should opt to rent a temporary crane for a period of one
year. The appellate court also found that the damaged crane was subsequently repaired and
reactivated and the cost of repair was P77,000.00. Therefore, it included the said amount in the
award of of compensatory damages, but not the value of the new crane. We do not find anything
erroneous in the decision of the appellate court that the consequential damages should
represent only the service of the temporary crane for one month. A contrary ruling would result
in the unjust enrichment of ECI.
The P120,000.00 bonus was also properly eliminated as the same was granted by the trial court
on the premise that it represented ECI's lost opportunity "to earn the one month bonus from
NAWASA ... ." As stated earlier, the loss or damage to ECI's equipment and facilities occurred
long after the stipulated deadline to finish the construction. No bonus, therefore, could have
been possibly earned by ECI at that point in time. The supposed liquidated damages for failure to
finish the project within the stipulated period or the opposite of the claim for bonus is not clearly
presented in the records of these petitions. It is not shown that NAWASA imposed them.
As to the question of exemplary damages, we sustain the appellate court in eliminating the same
since it found that there was no bad faith on the part of NPC and that neither can the latter's
negligence be considered gross. In Dee Hua Liong Electrical Equipment Corp. v. Reyes, (145
SCRA 713, 719) we ruled:
Neither may private respondent recover exemplary damages since he is not entitled to moral or
compensatory damages, and again because the petitioner is not shown to have acted in a
wanton, fraudulent, reckless or oppressive manner (Art. 2234, Civil Code; Yutuk v. Manila Electric
Co., 2 SCRA 377; Francisco v. Government Service Insurance System, 7 SCRA 577; Gutierrez v.
Villegas, 8 SCRA 527; Air France v. Carrascoso, 18 SCRA 155; Pan Pacific (Phil.) v. Phil. Advertising
Corp., 23 SCRA 977; Marchan v. Mendoza, 24 SCRA 888).
We also affirm the reduction of attorney's fees from P50,000.00 to P30,000.00. There are no
compelling reasons why we should set aside the appellate court's finding that the latter amount
suffices for the services rendered by ECI's counsel.
WHEREFORE, the petitions in G.R. No. 47379 and G.R. No. 47481 are both DISMISSED for LACK
OF MERIT. The decision appealed from is AFFIRMED.
SO ORDERED.

Case No. 6
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner, vs.RAFAEL CARRASCOSO and the HONORABLE COURT OF
APPEALS, respondents.
SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso
P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing
the difference in fare between first class and tourist class for the portion of the trip Bangkok-
Rome, these various amounts with interest at the legal rate, from the date of the filing of the
complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane
ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects",
with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for
Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines,
Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila
to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant
airline forced plaintiff to vacate the "first class" seat that he was occupying because, in the words
of the witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a
"better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be
expected, refused, and told defendant's Manager that his seat would be taken over his dead
body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino
passengers got nervous in the tourist class; when they found out that Mr. Carrascoso was having
a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and
pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of May 26,
1959); and plaintiff reluctantly gave his "first class" seat in the plane. 3
1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent
Court of Appeals. Petitioner charges that respondent court failed to make complete findings of
fact on all the issues properly laid before it. We are asked to consider facts favorable to
petitioner, and then, to overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any court
of record without expressing therein clearly and distinctly the facts and the law on which it is
based". 5 This is echoed in the statutory demand that a judgment determining the merits of the
case shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that
"Every decision of the Court of Appeals shall contain complete findings of fact on all issues
properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law,
however, solely insists that a decision state the "essential ultimate facts" upon which the court's
conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and
piece of evidence 10 presented by one party and the other upon the issues raised. Neither is it to
be burdened with the obligation "to specify in the sentence the facts" which a party "considered
as proved". 11 This is but a part of the mental process from which the Court draws the essential
ultimate facts. A decision is not to be so clogged with details such that prolixity, if not confusion,
may result. So long as the decision of the Court of Appeals contains the necessary facts to
warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of
facts with respect to the evidence for the defense". Because as this Court well observed, "There
is no law that so requires". 12 Indeed, "the mere failure to specify (in the decision) the contentions
of the appellant and the reasons for refusing to believe them is not sufficient to hold the same
contrary to the requirements of the provisions of law and the Constitution". It is in this setting
that in Manigque, it was held that the mere fact that the findings "were based entirely on the
evidence for the prosecution without taking into consideration or even mentioning the
appellant's side in the controversy as shown by his own testimony", would not vitiate the
judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each
item of evidence presented by, the defeated party, it does not mean that the court has
overlooked such testimony or such item of evidence. 14 At any rate, the legal presumptions are
that official duty has been regularly performed, and that all the matters within an issue in a case
were laid before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written
statement of the ultimate facts as found by the court ... and essential to support the decision and
judgment rendered thereon". 16They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand, has been declared as
"one which does not call for an examination of the probative value of the evidence presented by
the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of
the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the
business of this Court to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of
Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a
first class ticket. But petitioner asserts that said ticket did not represent the true and complete
intent and agreement of the parties; that said respondent knew that he did not have confirmed
reservations for first class on any specific flight, although he had tourist class protection; that,
accordingly, the issuance of a first class ticket was no guarantee that he would have a first class
ride, but that such would depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before the
Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding
that plaintiff had confirmed reservations for, and a right to, first class seats on the "definite"
segments of his journey, particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no
guarantee that the passenger to whom the same had been issued, would be accommodated in
the first-class compartment, for as in the case of plaintiff he had yet to make arrangements upon
arrival at every station for the necessary first-class reservation. We are not impressed by such a
reasoning. We cannot understand how a reputable firm like defendant airplane company could
have the indiscretion to give out tickets it never meant to honor at all. It received the
corresponding amount in payment of first-class tickets and yet it allowed the passenger to be at
the mercy of its employees. It is more in keeping with the ordinary course of business that the
company should know whether or riot the tickets it issues are to be honored or not. 22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's
contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question.
Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and
defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga
that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was
subject to confirmation in Hongkong. The court cannot give credit to the testimony of said
witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l",
"B", "B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show that the plaintiff
was issued, and paid for, a first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the
reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot
believe that after such confirmation defendant had a verbal understanding with plaintiff that the
"first class" ticket issued to him by defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the
amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed
by the Court of Appeals in all other respects. We hold the view that such a judgment of
affirmance has merged the judgment of the lower court. 24Implicit in that affirmance is a
determination by the Court of Appeals that the proceeding in the Court of First Instance was free
from prejudicial error and "all questions raised by the assignments of error and all questions that
might have been raised are to be regarded as finally adjudicated against the appellant". So also,
the judgment affirmed "must be regarded as free from all error". 25 We reached this policy
construction because nothing in the decision of the Court of Appeals on this point would suggest
that its findings of fact are in any way at war with those of the trial court. Nor was said
affirmance by the Court of Appeals upon a ground or grounds different from those which were
made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline. What security then can a passenger
have? It will always be an easy matter for an airline aided by its employees, to strike out the very
stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the
passenger had a schedule to fulfill? We have long learned that, as a rule, a written document
speaks a uniform language; that spoken word could be notoriously unreliable. If only to achieve
stability in the relations between passenger and air carrier, adherence to the ticket so issued is
desirable. Such is the case here. The lower courts refused to believe the oral evidence intended
to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon
which the Court of Appeals predicated the finding that respondent Carrascoso had a first class
ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut
leg of the flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's
statement of its position", as charged by petitioner. 28 Nor do we subscribe to petitioner's
accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an
issue". 29 And this because, as petitioner states, Carrascoso went to see the Manager at his office
in Bangkok "to confirm my seat and because from Saigon I was told again to see the
Manager". 30 Why, then, was he allowed to take a first class seat in the plane at Bangkok, if he
had no seat? Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is
that Carrascoso's action is planted upon breach of contract; that to authorize an award for moral
damages there must be an averment of fraud or bad faith; 31 and that the decision of the Court of
Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on
this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a
valuable consideration, the latter acting as general agents for and in behalf of the defendant,
under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First
Class passage on defendant's plane during the entire duration of plaintiff's tour of Europe with
Hongkong as starting point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to
Bangkok, defendant furnished to the plaintiff First Class accommodation but only after
protestations, arguments and/or insistence were made by the plaintiff with defendant's
employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff
has been compelled by defendant's employees to leave the First Class accommodation berths at
Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and
embarrassments brought by defendant's breach of contract was forced to take a Pan American
World Airways plane on his return trip from Madrid to Manila. 32
xxx xxx xxx
2. That likewise, as a result of defendant's failure to furnish First Class accommodations
aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing
plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and the like injury,
resulting in moral damages in the amount of P30,000.00. 33
xxx xxx xxx
The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish
plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That
said contract was breached when petitioner failed to furnish first class transportation at Bangkok;
and Third, that there was bad faith when petitioner's employee compelled Carrascoso to leave
his first class accommodation berth "after he was already, seated" and to take a seat in the
tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations,
thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation,
resulting in moral damages. It is true that there is no specific mention of the term bad faith in the
complaint. But, the inference of bad faith is there, it may be drawn from the facts and
circumstances set forth therein. 34 The contract was averred to establish the relation between the
parties. But the stress of the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed
petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in
Bangkok, Carrascoso was ousted by petitioner's manager who gave his seat to a white
man; 35 and (b) evidence of bad faith in the fulfillment of the contract was presented without
objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or
not there is sufficient averment in the complaint to justify an award for moral damages.
Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to
conform to the evidence is not even required. 36 On the question of bad faith, the Court of
Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the plane belonging
to the defendant Air France while at Bangkok, and was transferred to the tourist class not only
without his consent but against his will, has been sufficiently established by plaintiff in his
testimony before the court, corroborated by the corresponding entry made by the purser of the
plane in his notebook which notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain
of the plane who was asked by the manager of defendant company at Bangkok to intervene even
refused to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied
this evidence for the plaintiff. It could have been easy for defendant to present its manager at
Bangkok to testify at the trial of the case, or yet to secure his disposition; but defendant did
neither. 37
The Court of appeals further stated
Neither is there evidence as to whether or not a prior reservation was made by the white man.
Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him when all the
seats had already been taken, surely the plaintiff should not have been picked out as the one to
suffer the consequences and to be subjected to the humiliation and indignity of being ejected
from his seat in the presence of others. Instead of explaining to the white man the improvidence
committed by defendant's employees, the manager adopted the more drastic step of ousting the
plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in our belief
that this probably was what happened there, by the testimony of defendant's witness Rafael
Altonaga who, when asked to explain the meaning of the letters "O.K." appearing on the tickets
of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino, another
witness for defendant, who was the chief of the Reservation Office of defendant, testified as
follows:
"Q How does the person in the ticket-issuing office know what reservation the passenger has
arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to
the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove
"any better", nay, any right on the part of the "white man" to the "First class" seat that the
plaintiff was occupying and for which he paid and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in Bangkok, the
defendant could have easily proven it by having taken the testimony of the said Manager by
deposition, but defendant did not do so; the presumption is that evidence willfully suppressed
would be adverse if produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances,
the Court is constrained to find, as it does find, that the Manager of the defendant airline in
Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did not
give up his "first class" seat because the said Manager wanted to accommodate, using the words
of the witness Ernesto G. Cuento, the "white man". 38
It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not
use the term "bad faith". But can it be doubted that the recital of facts therein points to bad
faith? The manager not only prevented Carrascoso from enjoying his right to a first class seat;
worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him suffer the
humiliation of having to go to the tourist class compartment - just to give way to another
passenger whose right thereto has not been established. Certainly, this is bad faith. Unless, of
course, bad faith has assumed a meaning different from what is understood in law. For, "bad
faith" contemplates a "state of mind affirmatively operating with furtive design or with some
motive of self-interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith in the
judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation with plaintiff in bad
faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the
extent of threatening the plaintiff in the presence of many passengers to have him thrown out of
the airplane to give the "first class" seat that he was occupying to, again using the words of the
witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to
accommodate, and the defendant has not proven that this "white man" had any "better right" to
occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by the defendant to him. 40
5. The responsibility of an employer for the tortious act of its employees need not be essayed. It
is well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his
employer, must answer. Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the
provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other
contractual relation. 43And this, because of the relation which an air-carrier sustains with the
public. Its business is mainly with the travelling public. It invites people to avail of the comforts
and advantages it offers. The contract of air carriage, therefore, generates a relation attended
with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give
ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the
carrier's employees with kindness, respect, courtesy and due consideration. They are entitled to
be protected against personal misconduct, injurious language, indignities and abuses from such
employees. So it is, that any rule or discourteous conduct on the part of employees towards a
passenger gives the latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of
contract and a tort, giving a right of action for its agent in the presence of third persons to falsely
notify her that the check was worthless and demand payment under threat of ejection, though
the language used was not insulting and she was not ejected." 46 And this, because, although the
relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act
that breaks the contract may be also a tort". 47 And in another case, "Where a passenger on a
railroad train, when the conductor came to collect his fare tendered him the cash fare to a point
where the train was scheduled not to stop, and told him that as soon as the train reached such
point he would pay the cash fare from that point to destination, there was nothing in the conduct
of the passenger which justified the conductor in using insulting language to him, as by calling
him a lunatic," 48 and the Supreme Court of South Carolina there held the carrier liable for the
mental suffering of said passenger.1awphl.nt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's
action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by
the petitioner air carrier a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already that was already in the trip I could not help it. So one of the flight
attendants approached me and requested from me my ticket and I said, What for? and she said,
"We will note that you transferred to the tourist class". I said, "Nothing of that kind. That is
tantamount to accepting my transfer." And I also said, "You are not going to note anything there
because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg
room, I stood up and I went to the pantry that was next to me and the purser was there. He told
me, "I have recorded the incident in my notebook." He read it and translated it to me because
it was recorded in French "First class passenger was forced to go to the tourist class against
his will, and that the captain refused to intervene."
Mr. VALTE
I move to strike out the last part of the testimony of the witness because the best evidence
would be the notes. Your Honor.
COURT
49
I will allow that as part of his testimony.
Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his
notebook reading "First class passenger was forced to go to the tourist class against his will, and
that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony
above] which is incompetent. We do not think so. The subject of inquiry is not the entry, but the
ouster incident. Testimony on the entry does not come within the proscription of the best
evidence rule. Such testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of
the startling occurrence was still fresh and continued to be felt. The excitement had not as yet
died down. Statements then, in this environment, are admissible as part of the res gestae. 50 For,
they grow "out of the nervous excitement and mental and physical condition of the
declarant". 51 The utterance of the purser regarding his entry in the notebook was spontaneous,
and related to the circumstances of the ouster incident. Its trustworthiness has been
guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It
would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it
were really true that no such entry was made, the deposition of the purser could have cleared up
the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant
exemplary damages in contracts and quasi- contracts. The only condition is that defendant
should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The
manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept.
And this, in addition to moral damages. 54
9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a
similar judgment for attorneys' fees. The least that can be said is that the courts below felt that it
is but just and equitable that attorneys' fees be given. 55 We do not intend to break faith with the
tradition that discretion well exercised as it was here should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and
P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial
court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense suggest
that we give our imprimatur thereto. Because, the facts and circumstances point to the
reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does not suffer from reversible
error. We accordingly vote to affirm the same. Costs against petitioner. So ordered.
Case No. 7
G.R. No. L-12986 March 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA
ONG, petitioners-appellants,
vs.CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-
appellees.
MAKALINTAL., J.:
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.
The first question before Us refers to the admissibility of certain reports on the fire prepared by
the Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the
Philippines. Portions of the first two reports are as follows:
1. Police Department report:
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was
transferring gasoline from a tank truck, plate No. T-5292 into the underground tank of the Caltex
Gasoline Station located at the corner of Rizal Avenue and Antipolo Street, this City, an unknown
Filipino lighted a cigarette and threw the burning match stick near the main valve of the said
underground tank. Due to the gasoline fumes, fire suddenly blazed. Quick action of Leandro
Flores in pulling off the gasoline hose connecting the truck with the underground tank prevented
a terrific explosion. However, the flames scattered due to the hose from which the gasoline was
spouting. It burned the truck and the following accessorias and residences.
2. The Fire Department report:
In connection with their allegation that the premises was (sic) subleased for the installation of a
coca-cola and cigarette stand, the complainants furnished this Office a copy of a photograph
taken during the fire and which is submitted herewith. it appears in this picture that there are in
the premises a coca-cola cooler and a rack which according to information gathered in the
neighborhood contained cigarettes and matches, installed between the gasoline pumps and the
underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales regarding
the history of the gasoline station and what the chief of the fire department had told him on the
same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence
inadmissible. This ruling is now assigned as error. It is contended: first, that said reports were
admitted by the trial court without objection on the part of respondents; secondly, that with
respect to the police report (Exhibit V-Africa) which appears signed by a Detective Zapanta
allegedly "for Salvador Capacillo," the latter was presented as witness but respondents waived
their right to cross-examine him although they had the opportunity to do so; and thirdly, that in
any event the said reports are admissible as an exception to the hearsay rule under section 35 of
Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of September
17, 1953 (pp. 167-170) shows that the reports in question, when offered as evidence, were
objected to by counsel for each of respondents on the ground that they were hearsay and that
they were "irrelevant, immaterial and impertinent." Indeed, in the court's resolution only Exhibits
J, K, K-5 and X-6 were admitted without objection; the admission of the others, including the
disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he was not
examined and he did not testify as to the facts mentioned in his alleged report (signed by
Detective Zapanta). All he said was that he was one of those who investigated "the location of
the fire and, if possible, gather witnesses as to the occurrence, and that he brought the report
with him. There was nothing, therefore, on which he need be cross-examined; and the contents
of the report, as to which he did not testify, did not thereby become competent evidence. And
even if he had testified, his testimony would still have been objectionable as far as information
gathered by him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further testimonial
evidence on their contents, fall within the scope of section 35, Rule 123, which provides that
"entries in official records made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the entry was
made by a public officer, or by another person specially enjoined by law to do so; (b) that it was
made by the public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and (c) that the public officer or other person
had sufficient knowledge of the facts by him stated, which must have been acquired by him
personally or through official information (Moran, Comments on the Rules of Court, Vol. 3 [1957]
p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the material
facts recited in the reports as to the cause and circumstances of the fire were not within the
personal knowledge of the officers who conducted the investigation. Was knowledge of such
facts, however, acquired by them through official information? As to some facts the sources
thereof are not even identified. Others are attributed to Leopoldo Medina, referred to as an
employee at the gas station were the fire occurred; to Leandro Flores, driver of the tank truck
from which gasoline was being transferred at the time to the underground tank of the station;
and to respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any reason
as to the origin of the fire. To qualify their statements as "official information" acquired by the
officers who prepared the reports, the persons who made the statements not only must have
personal knowledge of the facts stated but must have the duty to give such statements for
record.1
The reports in question do not constitute an exception to the hearsay rule; the facts stated
therein were not acquired by the reporting officers through official information, not having been
given by the informants pursuant to any duty to do so.
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 he nothing
definite," and that while the rules do not prohibit its adoption in appropriate cases, "in the case
at bar, 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. (CA-G.R. No. 3240-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
principal 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 he having such control 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. v. Requena, 244, U.S. 89, 56 L. ed. 680.) 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 someone was negligent. (Byrne v. Boadle, 2 H & Co. 722; 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 its 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 highly 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 assess 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 defendant's 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 v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles
Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg,
etc., R. Co., 115 La. 63, 38 So. 892; Bents v. 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 the
gasoline of whatever be the activities of these people 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. These 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 coca-cola (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 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 intention 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
Corporation, 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 state; (4) the delivery truck used in delivering gasoline to the station had the
name of 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 thereby 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. Firemens' 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 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 v. 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 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.
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable
solidarily to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00,
respectively, with interest from the filing of the complaint, and costs.
Case No. 8
Espiritu vs. Philippine Power and Development Co.
(CA-G.R. No. 3240-R, September 20, 1949)
Reyes, JBL:
In the afternoon of May 5, 1946while the plaintiff-appellee and other companions were loading
grass, 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 of the wire. The electric charge coursed through his body and caused
extensive and serious multiple burns from skull to eyes, 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 incident. Defendant disclaimed such liability on the
ground that the plaintiff had failed to show any specific act of negligence.
The appellate court, in overruling this defense, held: While it is the rule, as contended by the
appellant, that in case of non-contractual negligence, or culpa aquiliana, the burden of proof is
on the plaintiff to establish that the proximate cause of injury was the negligence of the
defendant, it is also a recognized principle that where the thing that causes 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 as if he having such control used proper care, it
affords reasonable evidence, in the absence of the explanation, that the injury arose from the
defendants want of care. And the burden of evidence is shifted to him to establish that he had
observed due diligence and care. This rule is known by the name of res ipsa loquitur (the thing or
transaction speaks for itself), and is peculiarly applicable to the case at bar, where it is
unquestioned that the plaintiff had every night to be on the highway, and the electric wire was
under the sole control of the defendant company. In the ordinary course of events, electric wires
do not part suddenly in fair weather and injure people, unless they are subject 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 passers-by, unless someone is
negligent (which is admittedly not present), the fact that the wire snapped suffices to raise a
reasonable presumption of negligence in its 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.
Case No. 9
G.R. No. L-21749 September 29, 1967
REPUBLIC OF THE PHILIPPINES, plaintiff-appellee, vs.LUZON STEVEDORING
CORPORATION, defendant-appellant.
REYES, J.B.L., J.:
The present case comes by direct appeal from a decision of the Court of First Instance of Manila
(Case No. 44572) adjudging the defendant-appellant, Luzon Stevedoring Corporation, liable in
damages to the plaintiff-appellee Republic of the Philippines.
In the early afternoon of August 17, 1960, barge L-1892, owned by the Luzon Stevedoring
Corporation was being towed down the Pasig river by tugboats "Bangus" and "Barbero" 1 also
belonging to the same corporation, when the barge rammed against one of the wooden piles of
the Nagtahan bailey bridge, smashing the posts and causing the bridge to list. The river, at the
time, was swollen and the current swift, on account of the heavy downpour of Manila and the
surrounding provinces on August 15 and 16, 1960.
Sued by the Republic of the Philippines for actual and consequential damage caused by its
employees, amounting to P200,000 (Civil Case No. 44562, CFI of Manila), defendant Luzon
Stevedoring Corporation disclaimed liability therefor, on the grounds that it had exercised due
diligence in the selection and supervision of its employees; that the damages to the bridge were
caused by force majeure; that plaintiff has no capacity to sue; and that the Nagtahan bailey
bridge is an obstruction to navigation.
After due trial, the court rendered judgment on June 11, 1963, holding the defendant liable for
the damage caused by its employees and ordering it to pay to plaintiff the actual cost of the
repair of the Nagtahan bailey bridge which amounted to P192,561.72, with legal interest thereon
from the date of the filing of the complaint.
Defendant appealed directly to this Court assigning the following errors allegedly committed by
the court a quo, to wit:
I The lower court erred in not holding that the herein defendant-appellant had exercised the
diligence required of it in the selection and supervision of its personnel to prevent damage or
injury to others.
II The lower court erred in not holding that the ramming of the Nagtahan bailey bridge by
barge L-1892 was caused by force majeure.
III The lower court erred in not holding that the Nagtahan bailey bridge is an obstruction, if not
a menace, to navigation in the Pasig river.
IV The lower court erred in not blaming the damage sustained by the Nagtahan bailey bridge
to the improper placement of the dolphins.
V The lower court erred in granting plaintiff's motion to adduce further evidence in chief after
it has rested its case.
VI The lower court erred in finding the plaintiff entitled to the amount of P192,561.72 for
damages which is clearly exorbitant and without any factual basis.
However, it must be recalled that the established rule in this jurisdiction is that when a party
appeals directly to the Supreme Court, and submits his case there for decision, he is deemed to
have waived the right to dispute any finding of fact made by the trial Court. The only questions
that may be raised are those of law (Savellano vs. Diaz, L-17441, July 31, 1963; Aballe vs.
Santiago, L-16307, April 30, 1963; G.S.I.S. vs. Cloribel, L-22236, June 22, 1965). A converso, a
party who resorts to the Court of Appeals, and submits his case for decision there, is barred from
contending later that his claim was beyond the jurisdiction of the aforesaid Court. The reason is
that a contrary rule would encourage the undesirable practice of appellants' submitting their
cases for decision to either court in expectation of favorable judgment, but with intent of
attacking its jurisdiction should the decision be unfavorable (Tyson Tan, et al. vs. Filipinas
Compaia de Seguros) et al., L-10096, Res. on Motion to Reconsider, March 23, 1966).
Consequently, we are limited in this appeal to the issues of law raised in the appellant's brief.
Taking the aforesaid rules into account, it can be seen that the only reviewable issues in this
appeal are reduced to two:
1) Whether or not the collision of appellant's barge with the supports or piers of the Nagtahan
bridge was in law caused by fortuitous event or force majeure, and
2) Whether or not it was error for the Court to have permitted the plaintiff-appellee to introduce
additional evidence of damages after said party had rested its case.
As to the first question, considering that the Nagtahan bridge was an immovable and stationary
object and uncontrovertedly provided with adequate openings for the passage of water craft,
including barges like of appellant's, it is undeniable that the unusual event that the barge,
exclusively controlled by appellant, rammed the bridge supports raises a presumption of
negligence on the part of appellant or its employees manning the barge or the tugs that towed it.
For in the ordinary course of events, such a thing does not happen if proper care is used. In Anglo
American Jurisprudence, the inference arises by what is known as the "res ipsa loquitur" rule
(Scott vs. London Docks Co., 2 H & C 596; San Juan Light & Transit Co. vs. Requena, 224 U.S. 89,
56 L. Ed., 680; Whitwell vs. Wolf, 127 Minn. 529, 149 N.W. 299; Bryne vs. Great Atlantic & Pacific
Tea Co., 269 Mass. 130; 168 N.E. 540; Gribsby vs. Smith, 146 S.W. 2d 719).
The appellant strongly stresses the precautions taken by it on the day in question: that it
assigned two of its most powerful tugboats to tow down river its barge L-1892; that it assigned to
the task the more competent and experienced among its patrons, had the towlines, engines and
equipment double-checked and inspected; that it instructed its patrons to take extra precautions;
and concludes that it had done all it was called to do, and that the accident, therefore, should be
held due to force majeure or fortuitous event.
These very precautions, however, completely destroy the appellant's defense. For caso
fortuito or force majeure (which in law are identical in so far as they exempt an obligor from
liability)2 by definition, are extraordinary events not foreseeable or avoidable, "events that could
not be foreseen, or which, though foreseen, were inevitable" (Art. 1174, Civ. Code of the
Philippines). It is, therefore, not enough that the event should not have been foreseen or
anticipated, as is commonly believed, but it must be one impossible to foresee or to avoid. The
mere difficulty to foresee the happening is not impossibility to foresee the same: "un hecho no
constituye caso fortuito por la sola circunstancia de que su existencia haga mas dificil o mas
onerosa la accion diligente del presento ofensor" (Peirano Facio, Responsibilidad Extra-
contractual, p. 465; Mazeaud Trait de la Responsibilite Civil, Vol. 2, sec. 1569). The very
measures adopted by appellant prove that the possibility of danger was not only foreseeable, but
actually foreseen, and was not caso fortuito.
Otherwise stated, the appellant, Luzon Stevedoring Corporation, knowing and appreciating the
perils posed by the swollen stream and its swift current, voluntarily entered into a situation
involving obvious danger; it therefore assured the risk, and cannot shed responsibility merely
because the precautions it adopted turned out to be insufficient. Hence, the lower Court
committed no error in holding it negligent in not suspending operations and in holding it liable for
the damages caused.
It avails the appellant naught to argue that the dolphins, like the bridge, were improperly
located. Even if true, these circumstances would merely emphasize the need of even higher
degree of care on appellant's part in the situation involved in the present case. The appellant,
whose barges and tugs travel up and down the river every day, could not safely ignore the
danger posed by these allegedly improper constructions that had been erected, and in place, for
years.
On the second point: appellant charges the lower court with having abused its discretion in the
admission of plaintiff's additional evidence after the latter had rested its case. There is an
insinuation that the delay was deliberate to enable the manipulation of evidence to prejudice
defendant-appellant.
We find no merit in the contention. Whether or not further evidence will be allowed after a party
offering the evidence has rested his case, lies within the sound discretion of the trial Judge, and
this discretion will not be reviewed except in clear case of abuse. 3
In the present case, no abuse of that discretion is shown. What was allowed to be introduced,
after plaintiff had rested its evidence in chief, were vouchers and papers to support an item of
P1,558.00 allegedly spent for the reinforcement of the panel of the bailey bridge, and which item
already appeared in Exhibit GG. Appellant, in fact, has no reason to charge the trial court of
being unfair, because it was also able to secure, upon written motion, a similar order dated
November 24, 1962, allowing reception of additional evidence for the said defendant-appellant. 4
WHEREFORE, finding no error in the decision of the lower Court appealed from, the same is
hereby affirmed. Costs against the defendant-appellant.

Case No.10
G.R. No. L-68635 May 14, 1987
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY.
WENCESLAO LAURETA, AND OF CONTEMPT PROCEEDINGS AGAINST EVA MARAVILLA-
ILUSTRE in G.R. No. 68635, entitled "EVA MARAVILLA-ILUSTRE, vs. HON.
INTERMEDIATE APPELLATE COURT, ET AL."
PER CURIAM:
Before us are 1) Atty. Wenceslao Laureta's Motion for Reconsideration of the Per Curiam
Resolution of this Court promulgated on March 12, 1987, finding him guilty of grave professional
misconduct and suspending him indefinitely from the practice of law; and 2) Eva Maravilla-
Ilustre's Motion for Reconsideration of the same Resolution holding her in contempt and ordering
her to pay a fine of P1,000.00.
Essentially, Atty. Laureta maintains that the Order of suspension without hearing violated his
right to life and due process of law and by reason thereof the Order is null and void; that the acts
of misconduct imputed to him are without basis; that the charge against him that it was he who
had circulated to the press copies of the Complaint filed before the Tanodbayan is unfounded
such that, even in this Court's Resolution, his having distributed copies to the press is not stated
positively; that the banner headline which appeared In the Daily Express is regrettable but that
he was not responsible for such "misleading headline;" that he "did nothing of the sort" being
fully conscious of his responsibilities as a law practitioner and officer of the Court; that as a
former newspaperman, he would not have been satisfied with merely circulating copies of the
Complaint to the press in envelopes where his name appears; "he himself would have written
stories about the case in a manner that sells newspapers; even a series of juicy articles perhaps,
something that would have further subjected the respondent justices to far worse publicity;"
that, on the contrary, the press conference scheduled by Ilustre was cancelled through his efforts
in order to prevent any further adverse publicity resulting from the filing of the complaint before
the Tanodbayan; that, as a matter of fact, it was this Court's Resolution that was serialized in the
Bulletin Today, which newspaper also made him the subject of a scathing editorial but that he
"understands the cooperation because after all, the Court rendered a favorable judgment in the
Bulletin union case last year;" that he considered it "below his dignity to plead for the chance to
present his side" with the Editor, Mr. Ben Rodriguez, "a long-time personal friend" since he "can
afford to be the sacrificial lamb if only to help the Honorable Court uphold its integrity;" that he
was called by a reporter of DZRH and was asked to comment on the case filed before the
Tanodbayan but that his remarks were confined to the filing of the case by Ilustre herself, and
that the judgment of the trial Court had attained its finality long ago; that he is not Ilustre's
counsel before the Tanodbayan and did not prepare the complaint filed before it, his professional
services having been terminated upon the final dismissal of Ilustre's case before this Court; that
similarities in the language and phraseology used in the Ilustre letters, in pleadings before this
Court and before the Tanodbayan do not prove his authorship since other lawyers "even of a
mediocre caliber" could very easily have reproduced them; that the discussions on the merits in
the Per Curiam Resolution are "more properly addressed to the Tanodbayan, Justice Raul M.
Gonzales being competent to deal with the case before him;" that he takes exception to the
accusation that he has manifested lack of respect for and exposed to public ridicule the two
highest Courts of the land, all he did having been to call attention to errors or injustice
committed in the promulgation of judgments or orders; that he has "not authorized or assisted
and/or abetted and could not have prevented the contemptuous statements, conduct, acts and
malicious charges of Eva Maravilla Ilustre who was no longer his client when these alleged acts
were done; that "he is grateful to this Court for the reminder on the first duty of a lawyer which is
to the Court and not to his client, a duty that he has always impressed upon his law students;"
and finally, that "for the record, he is sorry for the adverse publicity generated by the filing of the
complaint against the Justices before the Tanodbayan."
In her own Motion for Reconsideration, Eva Maravilla-Ilustre also raises as her main ground the
alleged deprivation of her constitutional right to due process. She maintains that as contempt
proceedings are commonly treated as criminal in nature, the mode of procedure and rules of
evidence in criminal prosecution should be assimilated, as far as practicable, in this proceeding,
and that she should be given every opportunity to present her side. Additionally, she states that,
with some sympathetic lawyers, they made an "investigation" and learned that the Resolution of
the First Division was arrived at without any deliberation by its members; that Court personnel
were "tight-lipped about the matter, which is shrouded mystery" thereby prompting her to
pursue a course which she thought was legal and peaceful; that there is nothing wrong in making
public the manner of voting by the Justices, and it was for that reason that she addressed
Identical letters to Associate Justices Andres Narvasa, Ameurfina M. Herrera, Isagani Cruz and
Florentino Feliciano; that "if the lawyers of my opponents were not a Solicitor General, and
member of the Supreme Court and a Division Chairman, respectively, the resolution of May 14,
1986 would not have aroused my suspicion;" that instead of taking the law into her own hands or
joining any violent movement, she took the legitimate step of making a peaceful investigation
into how her case was decided, and brought her grievance to the Tanodbayan "in exasperation"
against those whom she felt had committed injustice against her "in an underhanded manner."
We deny reconsideration in both instances.
The argument premised on lack of hearing and due process, is not impressed with merit. What
due process abhors is absolute lack of opportunity to be heard (Tajonera vs. Lamaroza, et al., 110
SCRA 438 [1981]). The word "hearing" does not necessarily connote a "trial-type" proceeding. In
the show-cause Resolution of this Court, dated January 29, 1987, Atty. Laureta was given
sufficient opportunity to inform this Court of the reasons why he should not be subjected to
dispose action. His Answer, wherein he prayed that the action against him be dismissed,
contained twenty-two (22) pages, double spaced. Eva Maravilla-Ilustre was also given a like
opportunity to explain her statements, conduct, acts and charges against the Court and/or the
official actions of the Justices concerned. Her Compliance Answer, wherein she prayed that the
contempt proceeding against her be dismissed, contained nineteen (19) pages, double spaced.
Both were afforded ample latitude to explain matters fully. Atty. Laureta denied having authored
the letters written by Ilustre, his being her counsel before the Tanodbayan, his having circularized
to the press copies of the complaint filed before said body, and his having committed acts
unworthy of his profession. But the Court believed otherwise and found that those letters and the
charges levelled against the Justices concerned, of themselves and by themselves, betray not
only their malicious and contemptuous character, but also the lack of respect for the two highest
Courts of the land, a complete obliviousness to the fundamental principle of separation of
powers, and a wanton disregard of the cardinal doctrine of independence of the Judiciary. Res
ipsa loquitur. Nothing more needed to have been said or proven. The necessity to conduct any
further evidentially hearing was obviated (See People vs. Hon. Valenzuela, G.R. Nos. 63950-60,
April 19, 1985, 135 SCRA 712). Atty. Laureta and Ilustre were given ample opportunity to be
heard, and were, in fact, heard.
(1)
In his Motion for Reconsideration, Atty. Laureta reiterates his allegations in his Answer to the
show-cause Resolution that his professional services were terminated by Ilustre after the
dismissal of the main petition by this Court; that he had nothing to do with the contemptuous
letters to the individual Justices; and that he is not Ilustre's counsel before the Tanodbayan.
Significantly enough, however, copy of the Tanodbayan Resolution dismissing Ilustre's Complaint
was furnished Atty. Laureta as "counsel for the complainant" at his address of record. Of note,
too, is the fact that it was he who was following up the Complaint before the Tanodbayan and,
after its dismissal, the Motion for Reconsideration of the Order of dismissal.
Of import, as well, is the report of Lorenzo C. Bardel, a process server of this Court, that after
having failed to serve copy of the Per Curiam Resolution of March 12, 1987 of this Court on
Ilustre personally at her address of record, "101 F. Manalo St., Cubao, Quezon City," having been
informed that she is 6 not a resident of the place," he proceeded to the residence of Atty. Laureta
where the latter's wife "voluntarily received the two copies of decision for her husband and for
Ms. Maravina-Ilustre" (p. 670, Rollo, Vol. 11).
That Ilustre subsequently received copy of this Court's Resolution delivered to Mrs. Laureta is
shown by the fact that she filed, as of March 27, 1987, a "Petition for Extension of Time to file
Motion for Reconsideration" and subsequently the Motion for Reconsideration. In that Petition
Ilustre acknowledged receipt of the Resolution on March 12, 1987, the very same date Mrs.
Laureta received copy thereof. If, indeed, the lawyer-client relationship between her husband and
Ilustre had been allegedly completely severed, all Mrs. Laureta had to do was to return to the
Sheriff the copy intended for Ilustre. As it was, however, service on Atty. Laureta proved to be
service on Ilustre as well. The close tie- up between the corespondents is heightened by the fact
that three process servers of this Court failed to serve copy of this Court's Per Curiam Resolution
on Ilustre personally.
Noteworthy, as well, is that by Atty. Laureta's own admission, he was the one called by a
"reporter" of DZRH to comment on the Ilustre charges before the Tanodbayan. If, in fact, he had
nothing to do with the complaint, he would not have been pinpointed at all. And if his disclaimer
were the truth, the logical step for him to have taken was to refer the caller to the lawyer/s
allegedly assisting Ilustre, at the very least, out of elementary courtesy and propriety. But he did
nothing of the sort. " He gave his comment with alacrity.
The impudence and lack of respect of Atty. Laureta for this Court again surfaces when he asserts
in his Motion for Reconsideration that he "understands the cooperation" of the Bulletin Today as
manifested in the serialized publication of the Per Curiam Resolution of this Court and his being
subjected to a scathing editorial by the same newspaper "because after all, the Court rendered a
favorable judgment in the Bulletin union case last year." The malice lurking in that statement is
most unbecoming of an officer of the Court and is an added reason for denying reconsideration.
Further, Atty. Laureta stubbornly contends that discussions on the merits in the Court's Per
Curiam Resolution are more properly addressed to the Tanodbayan, forgetting, however, his own
discourse on the merits in his Answer to this Court's Resolution dated January 29, 1987. He thus
incorrigibly insists on subordinating the Judiciary to the executive notwithstanding the categorical
pronouncement in the Per Curiam Resolution of March 12, 1987, that Article 204 of the Revised
Penal Code has no application to the members of a collegiate Court; that a charge of violation of
the Anti-Graft and Corrupt Practices Act on the ground that a collective decision is "unjust"
cannot prosper; plus the clear and extended dissertation in the same Per Curiam Resolution on
the fundamental principle of separation of powers and of checks and balances, pursuant to which
it is this Court "entrusted exclusively with the judicial power to adjudicate with finality all
justifiable disputes, public and private. No other department or agency may pass upon its
judgments or declare them 'unjust' upon controlling and irresistible reasons of public policy and
of sound practice."
Atty. Laureta's protestations that he has done his best to protect and uphold the dignity of this
Court are belied by environmental facts and circumstances. His apologetic stance for the
"adverse publicity" generated by the filing of the charges against the Justices concerned before
the Tanodbayan rings with insincerity. The complaint was calculated precisely to serve that very
purpose. The threat to bring the case to "another forum of justice" was implemented to the fun.
Besides, he misses the heart of the matter. Exposure to the glare of publicity is an occupational
hazard. If he has been visited with disciplinary sanctions it is because by his conduct, acts and
statements, he has, overall, deliberately sought to destroy the "authenticity, integrity, and
conclusiveness of collegiate acts," to "undermine the role of the Supreme Court as the final
arbiter of all justifiable disputes," and to subvert public confidence in the integrity of the Courts
and the Justices concerned, and in the orderly administration of justice.
In fine, we discern nothing in Atty. Laureta's Motion for Reconsideration that would call for a
modification, much less a reversal, of our finding that he is guilty of grave professional
misconduct that renders him unfit to continue to be entrusted with the duties and responsibilities
pertaining to an attorney and officer of the Court.
(2)
Neither do we find merit in Ilustre's Motion for Reconsideration. She has turned deaf ears to any
reason or clarification. She and her counsel have refused to accept the untenability of their case
and the inevitability of losing in Court. They have allowed suspicion alone to blind their actions
and in so doing degraded the administration of justice. "Investigation" was utterly uncalled for.
All conclusions and judgments of the Court, be they en banc or by Division, are arrived at only
after deliberation. The fact that no dissent was indicated in the Minutes of the proceedings held
on May 14, 1986 showed that the members of the Division voted unanimously. Court personnel
are not in a position to know the voting in any case because all deliberations are held behind
closed doors without any one of them being present. No malicious inferences should have been
drawn from their inability to furnish the information Ilustre and Atty. Laureta desired The
personality of the Solicitor General never came into the picture. It was Justice Abad Santos, and
not Justice Yap, who was Chairman of the First Division when the Resolution of May 14, 1986
denying the Petition was rendered. Thereafter Justice Yap inhibited himself from any
participation. The fact that the Court en banc upheld the challenged Resolutions of the First
Division emphasizes the irrespective of Ilustre's case irrespective of the personalities involved.
Additionally, Ilustre has been trifling with this Court. She has given our process servers the run-
around. Three of them failed to serve on her personally her copy of this Court's Per Curiam
Resolution of March 12, 1987 at her address of record. Mrs. Laureta informed process server
Lorenzo C. Bardel that Ilustre was residing at 17-D, Quezon St., Tondo, Manila. Romeo C. Regala,
another process server, went to that address to serve copy of the Resolution but he reported:
4. That inspite of diligent efforts to locate the address of ms.Eva Maravilla-Ilustre, said address
could not be located;
5. That I even asked the occupants (Cerdan Family) of No. 17 Quezon Street, Tondo, Manila, and
they informed that there is no such Ms. Eva Maravilla-Ilustre in the neighborhood and/or in the
vicinity; ... (p. 672, Rollo, Vol. 11).
The third process server, Nelson C. Cabesuela, was also unable to serve copy of this Court's
Resolution on Ilustre. He reported:
2. On March 17, 1987, at about 9:30 A.M., I arrived at the house in the address furnished at; the
notice of judgment (101 Felix Manalo St., Cubao, Quezon City), and was received by an elderly
woman who admitted to be the owner of the house but vehemently refused to be Identified, and
told me that she does not know the addressee Maravilla, and told me further that she always
meets different persons looking for Miss Maravilla because the latter always gives the address of
her house;
3. That, I was reminded of an incident that I also experienced in the same place trying to serve a
resolution to Miss Maravilla which was returned unserved because she is not known in the
place; ... (p. 674, Rollo, Vol. II).
And yet, in her Petition for Extension of Time and in her Motion for Reconsideration she persists
in giving that address at 101 Felix Manalo St., Cubao, Quezon City, where our process servers
were told that she was not a resident of and that she was unknown thereat. If for her
contumacious elusiveness and lack of candor alone, Ilustre deserves no further standing before
this Court.
ACCORDINGLY, the respective Motions for reconsideration of Atty. Wenceslao G. Laureta for the
setting aside of the order suspending him from the practice of law, and of Eva Maravilla Ilustre
for the lifting of the penalty for contempt are DENIED, and this denial is FINAL. Eva Maravilla
Ilustre shall pay the fine of P1,000.00 imposed on her within ten (10) days from notice, or, suffer
imprisonment for ten (10) days upon failure to pay said fine within the stipulated period.
SO ORDERED.
Case No. 11
[G.R. No. 118141. September 5, 1997]
LEONILA GARCIA-RUEDA, petitioner, vs. WILFREDO L. PASCASIO, RAUL R. ARNAU,
ABELARDO L. APORTADERA JR., Honorable CONDRADO M. VASQUEZ, all of the Office of
the Ombudsman; JESUS F. GUERRERO, PORFIRIO MACARAEG, and GREGORIO A.
ARIZALA, all of the Office of the City Prosecutor, Manila, respondents.
ROMERO, J.:
May this Court review the findings of the Office of the Ombudsman? The general rule has been
enunciated in Ocampo v. Ombudsman [1] which states:
In the exercise of its investigative power, this Court has consistently held that courts will not
interfere with the discretion of the fiscal or the Ombudsman to determine the specificity and
adequacy of the averments of the offense charged. He may dismiss the complaint forthwith if he
finds it to be insufficient in form and substance or if he otherwise finds no ground to continue
with the inquiry; or he may proceed with the investigation of the complaint if, in his view, it is in
due and proper form.
Does the instant case warrant a departure from the foregoing general rule? When a patient dies
soon after surgery under circumstances which indicate that the attending surgeon and
anesthesiologist may have been guilty of negligence but upon their being charged, a series
of nine prosecutors toss the responsibility of conducting a preliminary investigation to each other
with contradictory recommendations, ping-pong style, perhaps the distraught widow is not to be
blamed if she finally decides to accuse the City Prosecutors at the end of the line for partiality
under the Anti-Graft and Corrupt Practices Act. Nor may she be entirely faulted for finally filing a
petition before this Court against the Ombudsman for grave abuse of discretion in dismissing her
complaint against said City Prosecutors on the ground of lack of evidence. Much as we
sympathize with the bereaved widow, however, this Court is of the opinion that the general rule
still finds application in instant case. In other words, the respondent Ombudsman did not commit
grave abuse of discretion in deciding against filing the necessary information against public
respondents of the Office of the City Prosecutor.
The following facts are borne out by the records.
Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical operation at
the UST hospital for the removal of a stone blocking his ureter. He was attended by Dr. Domingo
Antonio, Jr. who was the surgeon, while Dr. Erlinda Balatbat-Reyes was the anesthesiologists. Six
hours after the surgery, however, Florencio died of complications of unknown cause, according to
officials of the UST Hospital.[2]
Not satisfied with the findings of the hospital, petitioner requested the National Bureau of
Investigation (NBI) to conduct an autopsy on her husbands body. Consequently, the NBI ruled
that Florencios death was due to lack of care by the attending physician in administering
anaesthesia. Pursuant to its findings, the NBI recommended that Dr. Domingo Antonio and Dr.
Erlinda Balatbat-Reyes be charged for Homicide through Reckless Imprudence before the Office
of the City Prosecutor.
During the preliminary investigation, what transpired was a confounding series of events which
we shall try to disentangle. The case was initially assigned to Prosecutor Antonio M. Israel, who
had to inhibit himself because he was related to the counsel of one of the doctors. As a result,
the case was re-raffled to Prosecutor Norberto G. Leono who was, however, disqualified on
motion of the petitioner since he disregarded prevailing laws and jurisprudence regarding
preliminary investigation. The case was then referred to Prosecutor Ramon O. Carisma, who
issued a resolution recommending that only Dr. Reyes be held criminally liable and that the
complaint against Dr. Antonio be dismissed.
The case took another perplexing turn when Assistant City Prosecutor Josefina Santos Sioson, in
the interest of justice and peace of mind of the parties, recommended that the case be re-raffled
on the ground that Prosecutor Carisma was partial to the petitioner. Thus, the case was
transferred to Prosecutor Leoncia R. Dimagiba, where a volte face occurred again with the
endorsement that the complaint against Dr. Reyes be dismissed and instead, a corresponding
information be filed against Dr. Antonio. Petitioner filed a motion for reconsideration, questioning
the findings of Prosecutor Dimagiba.
Pending the resolution of petitioners motion for reconsideration regarding Prosecutor Dimagibas
resolution, the investigative pingpong continued when the case was again assigned to another
prosecutor, Eudoxia T. Gualberto, who recommended that Dr. Reyes be included in the criminal
information of Homicide through Reckless Imprudence. While the recommendation of Prosecutor
Gualberto was pending, the case was transferred to Senior State Prosecutor Gregorio A. Arizala,
who resolved to exonerate Dr. Reyes from any wrongdoing, a resolution which was approved by
both City Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus F. Guerrero.
Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) of Republic Act
No. 3019 [3] against Prosecutors Guerrero, Macaraeg, and Arizala for manifest partiality in favor of
Dr. Reyes before the Office of the Ombudsman. However, on July 11, 1994, the Ombudsman
issued the assailed resolution dismissing the complaint for lack of evidence.
In fine, petitioner assails the exercise of the discretionary power of the Ombudsman to review the
recommendations of the government prosecutors and to approve and disapprove the
same. Petitioner faults the Ombudsman for, allegedly in grave abuse of discretion, refusing to
find that there exists probable cause to hold public respondent City Prosecutors liable for
violation of Section 3(e) of R.A. No. 3019.
Preliminarily, the powers and functions of the Ombudsman have generally been categorized into
the following: investigatory powers, prosecutory power, public assistance function, authority to
inquire and obtain information, and function to adopt, institute and implement preventive
measures. [4]
As protector of the people, the Office of the Ombudsman has the power, function and duty to act
promptly on complaints filed in any form or manner against public officials and to investigate any
act or omission of any public official when such act or omission appears to be illegal, unjust,
improper or inefficient.
While the Ombudsman has the full discretion to determine whether or not a criminal case should
be filed, this Court is not precluded from reviewing the Ombudsmans action when there is an
abuse of discretion, in which case Rule 65 of the Rules of Court may exceptionally be invoked
pursuant to Section I, Article VIII of the 1987 Constitution. [6]
In this regard, grave abuse of discretion has been defined as where a power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility so patent and gross as to
amount to evasion of positive duty or virtual refusal to perform a duty enjoined by, or in
contemplation of law. [7]
From a procedural standpoint, it is certainly odd why the successive transfers from one
prosecutor to another were not sufficiently explained in the Resolution of the Ombudsman. Being
the proper investigating authority with respect to misfeasance, non-feasance and malfeasance of
public officials, the Ombudsman should have been more vigilant and assiduous in determining
the reasons behind the buckpassing to ensure that no irregularity took place.
Whether such transfers were due to any outside pressure or ulterior motive is a matter of
evidence. One would have expected the Ombudsman, however, to inquire into what could hardly
qualify as standard operating procedure, given the surrounding circumstances of the case.
While it is true that a preliminary investigation is essentially inquisitorial, and is often the only
means to discover who may be charged with a crime, its function is merely to determine the
existence of probable cause. [8] Probable cause has been defined as the existence of such fact
and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the
knowledge of the prosecution, that the person charged was guilty of the crime for which he was
prosecuted.[9]
Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded,
such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and
prudence to believe, or entertain an honest or strong suspicion, that a thing is so. The term does
not mean actual and positive cause nor does it import absolute certainty. It is merely based on
opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is enough that it is believed that
the act or omission complained of constitutes the offense charged. Precisely, there is a trial for
the reception of evidence of the prosecution in support of the charge. [10]
In the instant case, no less than the NBI pronounced after conducting an autopsy that there was
indeed negligence on the part of the attending physicians in administering the
anaesthesia. [11] The fact of want of competence or diligence is evidentiary in nature, the veracity
of which can best be passed upon after a full-blown trial for it is virtually impossible to ascertain
the merits of a medical negligence case without extensive investigation, research, evaluation
and consultations with medical experts. Clearly, the City Prosecutors are not in a competent
position to pass judgment on such a technical matter, especially when there are conflicting
evidence and findings. The bases of a partys accusation and defenses are better ventilated at
the trial proper than at the preliminary investigation.
A word on medical malpractice or negligence cases.
In its simplest terms, the type of lawsuit which has been called medical malpractice or, more
appropriately, medical negligence, is that type of claim which a victim has available to him or her
to redress a wrong committed by a medical professional which has caused bodily harm.
In order to successfully pursue such a claim, a patient must prove that a health care provider, in
most cases a physician, either failed to do something which a reasonably prudent health care
provider would have done, or that he or she did something that a reasonably prudent provider
would not have done; and that that failure or action caused injury to the patient. [12]
Hence, there are four elements involved in medical negligence cases: duty, breach, injury and
proximate causation.
Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-
patient relationship was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect
represented that, having the needed training and skill possessed by physicians and surgeons
practicing in the same field, they will employ such training, care and skill in the treatment of
their patients.[13] They have a duty to use at least the same level of care that any other
reasonably competent doctor would use to treat a condition under the same circumstances. The
breach of these professional duties of skill and care, or their improper performance, by a
physician surgeon whereby the patient is injured in body or in health, constitutes actionable
malpractice.[14]Consequently, in the event that any injury results to the patient from want of due
care or skill during the operation, the surgeons may be held answerable in damages for
negligence.[15]
Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the
necessity of expert testimony and the availability of the charge of res ipsa loquitur to the
plaintiff, have been applied in actions against anaesthesiologists to hold the defendant liable for
the death or injury of a patient under excessive or improper anaesthesia. [16] Essentially, it
requires two-pronged evidence: evidence as to the recognized standards of the medical
community in the particular kind of case, and a showing that the physician in question
negligently departed from this standard in his treatment. [17]
Another element in medical negligence cases is causation which is divided into two inquiries:
whether the doctors actions in fact caused the harm to the patient and whether these were the
proximate cause of the patients injury. [18] Indeed here, a causal connection is discernible from the
occurrence of the victims death after the negligent act of the anaesthesiologist in administering
the anesthesia, a fact which, if confirmed, should warrant the filing of the appropriate criminal
case. To be sure, the allegation of negligence is not entirely baseless. Moreover, the NBI deduced
that the attending surgeons did not conduct the necessary interview of the patient prior to the
operation. It appears that the cause of the death of the victim could have been averted had the
proper drug been applied to cope with the symptoms of malignant hyperthermia. Also, we cannot
ignore the fact that an antidote was readily available to counteract whatever deleterious effect
the anaesthesia might produce. [19] Why these precautionary measures were disregarded must be
sufficiently explained.
The City Prosecutors were charged with violating Section 3(e) of the Anti-Graft and Corrupt
Practices Act which requires the following facts:
1. The accused is a public officer discharging administrative or official functions or private
persons charged in conspiracy with them;
2. The public officer committed the prohibited act during the performance of his official duty or in
relation to his public position;
3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable
negligence; and
4. His action caused undue injury to the Government or any private party, or gave any party any
unwarranted benefit, advantage or preference to such parties. [20]
Why did the complainant, petitioner in instant case, elect to charge respondents under the above
law?
While a party who feels himself aggrieved is at liberty to choose the appropriate weapon from
the armory, it is with no little surprise that this Court views the choice made by the complainant
widow.
To our mind, the better and more logical remedy under the circumstances would have been to
appeal the resolution of the City Prosecutors dismissing the criminal complaint to the Secretary
of Justice under the Department of Justices Order No. 223, [21] otherwise known as the 1993
Revised Rules on Appeals From Resolutions In Preliminary Investigations/Reinvestigations, as
amended by Department Order No. 359, Section 1 of which provides:
Section 1. What May Be Appealed. - Only resolutions of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an
appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof.
What action may the Secretary of Justice take on the appeal? Section 9 of Order No. 223
states: The Secretary of Justice may reverse, affirm or modify the appealed resolution. On the
other hand, He may motu proprio or on motion of the appellee, dismiss outright the appeal on
specified grounds. [22]
In exercising his discretion under the circumstances, the Ombudsman acted within his power and
authority in dismissing the complaint against the Prosecutors and this Court will not interfere
with the same.
WHEREFORE, in view of the foregoing, the instant petition is DISMISSED, without prejudice to
the filing of an appeal by the petitioner with the Secretary of Justice assailing the dismissal of her
criminal complaint by the respondent City Prosecutors. No costs.
SO ORDERED.
Case No. 12
[G.R. No. 124354. December 29, 1999]
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians
of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND
RAMOS, petitioners, vs. COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR.
ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health and
welfare of their patients. If a doctor fails to live up to this precept, he is made accountable for his
acts. A mistake, through gross negligence or incompetence or plain human error, may spell the
difference between life and death. In this sense, the doctor plays God on his patients fate. [1]
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a
hospital should be made liable for the unfortunate comatose condition of a patient scheduled
for cholecystectomy.[2]
Petitioners seek the reversal of the decision [3] of the Court of Appeals, dated 29 May 1995, which
overturned the decision[4]of the Regional Trial Court, dated 30 January 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.
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 anesthesiologists fee and which
was to be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN,
February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms of the
DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19, 1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the
operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the
College of Nursing at the Capitol Medical Center, was also there for moral support. She reiterated
her previous request for Herminda to be with her even during the operation. After praying, she
was given injections. Her hands were held by Herminda as they went down from her room to the
operating room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN,
October 19, 1989, p. 18). At the operating room, Herminda saw about two or three nurses and Dr.
Perfecta Gutierrez, the other defendant, who was to administer anesthesia. Although not a
member of the hospital staff, Herminda introduced herself as Dean of the College of Nursing at
the Capitol Medical Center who was to provide moral support to the patient, to them. Herminda
was allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not
yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about
the prospect of a delay in the arrival of Dr. Hosaka. Herminda then went back to the patient who
asked, Mindy, wala pa ba ang Doctor?The former replied, Huwag kang mag-alaala, darating na
iyon (ibid.).
Thereafter, Herminda went out of the operating room and informed the patients husband,
Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the operating
room, the patient told her, Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor. So, she
went out again and told Rogelio about what the patient said (id., p. 15). Thereafter, she returned
to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was already dying [and] waiting for the arrival of the
doctor even as he did his best to find somebody who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife,
who was inside the operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon,
he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to
arrive (id., p. 21).While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr.
Hosaka arrived as a nurse remarked, Nandiyan na si Dr. Hosaka, dumating na raw. Upon hearing
those words, he went down to the lobby and waited for the operation to be completed (id., pp.
16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard
somebody say that Dr. Hosaka is already here. She then saw people inside the operating room
moving, doing this and that, [and] preparing the patient for the operation (TSN, January 13,
1988, p. 16). As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the
hapless patient. She thereafter heard Dr. Gutierrez say, ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan (id., p. 17). Because of the remarks of Dra. Gutierrez, she
focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw
this anesthesiologist trying to intubate the patient. The patients 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 patients brain (Id., pp. 19-20). Immediately thereafter, she went out of the
operating room, and she told Rogelio E. Ramos that something wrong was x x x happening
(Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being
rushed towards the door of the operating room. He also saw several doctors rushing towards the
operating room. When informed by Herminda Cruz that something wrong was happening, he told
her (Herminda) to be back with the patient inside the operating room (TSN, October 19, 1989,
pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg
position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the
patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed
the former that something went wrong during the intubation. Reacting to what was told to him,
Rogelio reminded the doctor that the condition of his wife would not have happened, had he (Dr.
Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the
patient. The doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp.
26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15,
1985, the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25
which is the subject of a promissory note and affidavit of undertaking executed by Rogelio E.
Ramos in favor of DLSMC. Since that fateful afternoon of June 17, 1985, she has been in a
comatose condition. She cannot do anything. She cannot move any part of her body. She cannot
see or hear. She is living on mechanical means. She suffered brain damage as a result of the
absence of oxygen in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22). After
being discharged from the hospital, she has been staying in their residence, still needing
constant medical attention, with her husband Rogelio incurring a monthly expense ranging
from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be
suffering from diffuse cerebral parenchymal damage (Exh. G; see also TSN, December 21, 1989,
p. 6).[5]
Thus, on 8 January 1986, petitioners filed a civil case [6] 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 Erlindas
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 Erlindas allergic reaction to
the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment in
favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the
aforecited provisions of law and jurisprudence to the case at bar, this Court finds and so holds
that defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very
least, negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable
care in not only intubating the patient, but also in not repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10), without due regard to the fact that the patient was inside the
operating room for almost three (3) hours. For after she committed a mistake in intubating [the]
patient, the patient's nailbed became bluish and the patient, thereafter, was placed in
trendelenburg position, because of the decrease of blood supply to the patient's brain. The
evidence further shows that the hapless patient suffered brain damage because of the absence
of oxygen in her (patient's) brain for approximately four to five minutes which, in turn, caused
the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta
Gutierrez whom he had chosen to administer anesthesia on the patient as part of his obligation
to provide the patient a `good anesthesiologist', and for arriving for the scheduled operation
almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of
the doctors in their `practice of medicine' in the operating room. Moreover, the hospital is liable
for failing through its responsible officials, to cancel the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have acted
with due care and prudence in rendering medical services to plaintiff-patient. For if the patient
was properly intubated as claimed by them, the patient would not have become comatose. And,
the fact that another anesthesiologist was called to try to intubate the patient after her (the
patient's) nailbed turned bluish, belie their claim. Furthermore, the defendants should have
rescheduled the operation to a later date. This, they should have done, if defendants acted with
due care and prudence as the patient's case was an elective, not an emergency case.
xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and
against the defendants. Accordingly, the latter are ordered to pay, jointly and severally, the
former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned
from November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to its
being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000.00 by way
of exemplary damages; and,
4) the costs of the suit.
SO ORDERED.[7]
Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate
court rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The
decretal portion of the decision of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the
complaint below against the appellants is hereby ordered DISMISSED.The counterclaim of
appellant De Los Santos Medical Center is GRANTED but only insofar as appellees are hereby
ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal interest for justice
must be tempered with mercy.
SO ORDERED.[8]
The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos
who was mistakenly addressed as Atty. Rogelio Ramos. No copy of the decision, however, was
sent nor received by the Coronel Law Office, then counsel on record of petitioners. Rogelio
referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995,
or four (4) days before the expiration of the reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for
extension of time to file a motion for reconsideration. The motion for reconsideration was
submitted on 4 July 1995. However, the appellate court denied the motion for extension of time
in its Resolution dated 25 July 1995. [9] Meanwhile petitioners engaged the services of another
counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the appropriate pleading
on the assailed decision had not yet commenced to run as the Division Clerk of Court of the
Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this
explanation, the appellate court still denied the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day
(15) period for filing a motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot
be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other
hand, admitted in the latter Motion that plaintiffs/appellees received a copy of the decision as
early as June 9, 1995. Computation wise, the period to file a Motion for Reconsideration expired
on June 24. The Motion for Reconsideration, in turn, was received by the Court of Appeals already
on July 4, necessarily, the 15-day period already passed. For that alone, the latter should be
denied.
Even assuming admissibility of the Motion for Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.
SO ORDERED.[10]
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on
12 April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the
present petition for certiorari under Rule 45. The Court granted the motion for extension of time
and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period
counted from the receipt of the resolution of the Court of Appeals within which to submit the
petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within the
extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA.
CALDERON AND DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;
II\IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. [11]
Before we discuss the merits of the case, we shall first dispose of the procedural issue on the
timeliness of the petition in relation to the motion for reconsideration filed by petitioners with the
Court of Appeals. In their Comment,[12] private respondents contend that the petition should not
be given due course since the motion for reconsideration of the petitioners on the decision of the
Court of Appeals was validly dismissed by the appellate court for having been filed beyond the
reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent
to then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of
the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995
wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the appellate court apparently mistook
him for the counsel on record. Thus, no copy of the decision of the appellate court was furnished
to the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period
for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent to the
partys lawyer at his given address. With a few exceptions, notice to a litigant without notice to
his counsel on record is no notice at all. In the present case, since a copy of the decision of the
appellate court was not sent to the counsel on record of petitioner, there can be no sufficient
notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be
taken against petitioner. Moreover, since the Court of Appeals already issued a second
Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995,
and denied the motion for reconsideration of petitioner, we believe that the receipt of the former
should be considered in determining the timeliness of the filing of the present petition. Based on
this, the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a
more logical presentation of the discussion we shall first consider the issue on the applicability of
the doctrine of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors shall
be tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for
itself. The phrase res ipsa loquitur is a maxim for the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiffs prima facie case, and present a question of
fact for defendant to meet with an explanation. [13] 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 defendants
want of care.[14]
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of
common knowledge and experience, the very nature of certain types of occurrences may justify
an inference of negligence on the part of the person who controls the instrumentality causing the
injury in the absence of some explanation by the defendant who is charged with negligence. [15] 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.[16] Hence, res ipsa loquitur is applied in conjunction with the doctrine of common
knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such,
does not create or constitute an independent or separate ground of liability. [17] Instead, it is
considered as merely evidentiary or in the nature of a procedural rule. [18] It is regarded as a mode
of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves a
plaintiff of, the burden of producing specific proof of negligence. [19] 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. [20] Still, before resort to the doctrine may
be allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of someones
negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or defendants;
and
3. The possibility of contributing conduct which would make the plaintiff responsible is
eliminated.[21]
In the above requisites, the fundamental element is the control of the instrumentality which
caused the damage.[22] 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. [23]
Medical malpractice[24]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. [25] 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.[26]
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure,
when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the proof of negligence. [27] 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. [28] 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.
[29]
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.[30] 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.[31] 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, [32]injuries sustained on a healthy
part of the body which was not under, or in the area, of treatment, [33] removal of the wrong part
of the body when another part was intended, [34] knocking out a tooth while a patients jaw was
under anesthetic for the removal of his tonsils, [35] and loss of an eye while the patient plaintiff
was under the influence of anesthetic, during or following an operation for appendicitis, [36] 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. [37] 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.[38] 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.[39] 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. [40] The real question,
therefore, is whether or not in the process of the operation any extraordinary incident or unusual
event outside of the routine performance occurred 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.[41] If there was such extraneous interventions, the doctrine of res ipsa loquitur may
be utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if
he could.[42]
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be
explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder
operation presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell,[43] 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.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of
action is stated under the doctrine of res ipsa loquitur.[44]
Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the
present case, Erlinda submitted herself for cholecystectomy and expected a routine general
surgery to be performed on her gall bladder. On that fateful day she delivered her person over to
the care, custody and control of private respondents who exercised complete and exclusive
control over her. At the time of submission, Erlinda was neurologically sound and, except for a
few minor discomforts, was likewise physically fit in mind and body. However, during the
administration of anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she went out of the
operating room already decerebrate and totally incapacitated. Obviously, brain damage, which
Erlinda sustained, is an injury which does not normally occur in the process of a gall bladder
operation. In fact, this kind of situation does not 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-in-charge. Likewise,
petitioner Erlinda could not have been guilty of contributory negligence because she was under
the influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed
while the patient is unconscious and under the immediate and exclusive control of the
physicians, we hold that a practical administration of justice dictates the application of res ipsa
loquitur. Upon these facts and under these circumstances the Court would be able to say, as a
matter of common knowledge and observation, if negligence attended the management and
care of the patient.Moreover, the liability of the physicians and the hospital in this case is not
predicated upon an alleged failure to secure the desired results of an operation nor on an alleged
lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever
performed on Erlinda. Thus, upon all these initial determination a case is made out for the
application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying
that the doctrine is applicable in any and all cases where injury occurs to a patient while under
anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light and
scrutinized in order to be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of
negligence allowed therein, the Court now comes to the issue of whether the Court of Appeals
erred in finding that private respondents were not negligent in the care of Erlinda during the
anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was
the proximate cause of Erlindas comatose condition. Corollary thereto, we shall also determine if
the Court of Appeals erred in relying on the testimonies of the witnesses for the private
respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the testimonies
of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra.
Gutierrez, the Court of Appeals rationalized that she was candid enough to admit that she
experienced some difficulty in the endotracheal intubation [45]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.
We disagree with the findings of the Court of Appeals. We hold that private respondents were
unable to disprove the presumption of negligence on their part in the care of Erlinda and their
negligence was the proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of
the pathogenesis of the injury but also in providing the Court the legal nexus upon which liability
is based. As will be shown hereinafter, private respondents own testimonies which are reflected
in the transcript of stenographic notes are replete of signposts indicative of their negligence in
the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia
phase. As borne by the records, respondent Dra. Gutierrez failed to properly intubate the
patient. This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center
School of Nursing and petitioner's sister-in-law, who was in the operating room right beside the
patient when the tragic event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As 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
ATTY. PAJARES:
Q: From whom did you hear those words lumalaki ang tiyan?
A: From Dra. Perfecta Gutierrez.
xxx
After hearing the phrase lumalaki ang tiyan, what did you notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while the patients nailbed became
bluish and I saw the patient was placed in trendelenburg position.
xxx
Q: Do you know the reason why the patient was placed in that trendelenburg position?
A: As far as I know, when a patient is in that position, there is a decrease of blood supply to the
brain.[46]
xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring
that:
A perusal of the standard nursing curriculum in our country will show that intubation is not
taught as part of nursing procedures and techniques. Indeed, we take judicial notice of the fact
that nurses do not, and cannot, intubate. Even on the assumption that she is fully capable of
determining whether or not a patient is properly intubated, witness Herminda Cruz, admittedly,
did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is
no evidence that she ever auscultated the patient or that she conducted any type of examination
to check if the endotracheal tube was in its proper place, and to determine the condition of the
heart, lungs, and other organs. Thus, witness Cruz's categorical statements that appellant Dra.
Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who
succeeded in doing so clearly suffer from lack of sufficient factual bases. [47]
In other words, what the Court of Appeals is trying to impress is that being a nurse, and
considered a layman in the process of intubation, witness Cruz is not competent to testify on
whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing
such as, the statements and acts of the physician and surgeon, external appearances, and
manifest conditions which are observable by any one. [48] 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. [49] 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 FEU-NRMF; Dean of the Laguna College of Nursing in
San Pablo City; and then Dean of the Capitol Medical Center School of Nursing. [50]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 Erlindas trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did
not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the ...
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said mahirap yata ito, what were you referring to?
A: Mahirap yata itong i-intubate, that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away. [51]
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the trachea of Erlinda because it was
positioned more anteriorly (slightly deviated from the normal anatomy of a person) [52] 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 Erlindas
airway, prior to the induction of anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the observation was made only as an
afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is universally
observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation and
preparation for anesthesia begins when the anesthesiologist reviews the patients medical
records and visits with the patient, traditionally, the day before elective surgery. [53] It includes
taking the patients medical history, review of current drug therapy, physical examination and
interpretation of laboratory data.[54] The physical examination performed by the anesthesiologist
is directed primarily toward the central nervous system, cardiovascular system, lungs and upper
airway.[55] 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. [56] Thus,
physical characteristics of the patients upper airway that could make tracheal intubation difficult
should be studied.[57] 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 patients 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 physicians centuries-old Hippocratic Oath. Her
failure to follow this medical procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with
the trial court's ignorance of clinical procedure, hoping that she could get away with
it. Respondent Dra. Gutierrez tried to muddle the difference between an elective surgery and an
emergency surgery just so her failure to perform the required pre-operative evaluation would
escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so
you can introduce yourself to establish good doctor-patient relationship and gain the trust and
confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure of the
anesthesiologist and in my case, with elective cases and normal cardio-pulmonary clearance like
that, I usually don't do it except on emergency and on cases that have an abnormalities (sic). [58]
However, the exact opposite is true. In an emergency procedure, there is hardly enough time
available for the fastidious demands of pre-operative procedure so that an anesthesiologist is
able to see the patient only a few minutes before surgery, if at all. Elective procedures, on the
other hand, are operative procedures that can wait for days, weeks or even months. Hence, in
these cases, the anesthesiologist possesses the luxury of time to 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.
Erlindas case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all
the time to make a thorough evaluation of Erlindas case prior to the operation and prepare her
for anesthesia. However, she never saw the patient at the bedside. She herself admitted that she
had seen petitioner only in the operating room, and only on the actual date of
the cholecystectomy. She negligently failed to take advantage of this important opportunity. As
such, her attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of
the patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty
intubation is truly the proximate cause of Erlindas comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to
Erlindas coma was due to bronchospasm [59] 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,[60] 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 allergic-mediated processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamoras testimony as an expert witness in
the anesthetic practice of Pentothal administration is further supported by his own admission
that he formulated his opinions on the drug not from the practical experience gained by a
specialist or expert in the administration and use of Sodium Pentothal on patients, but only from
reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a
method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you have read from
books and not by your own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.
Q: And because they have used it on you and on account of your own personal experience you
feel that you can testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims. [61]
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the
fields of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic
encephalopathy belongs to the field of neurology. While admittedly, many bronchospastic-
mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr. Jamora's field,
the anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within the
disciplines of anesthesiology, allergology and pharmacology. On the basis of the foregoing
transcript, in which the pulmonologist himself admitted that he could not testify about the drug
with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamoras
testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence [62]regarding expert witnesses states:
Sec. 49. Opinion of expert witness. - The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he is shown to possess, may be received in
evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the
subject matter about which he or she is to testify, either by the study of recognized authorities
on the subject or by practical experience. [63] Clearly, Dr. Jamora does not qualify as an expert
witness based on the above standard since he lacks the necessary knowledge, skill, and training
in the field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the
wrong field, private respondents intentionally avoided providing testimony by competent and
independent experts in the proper areas.
Moreover, private respondents theory, that Thiopental Sodium may have produced Erlinda's
coma by triggering an allergic mediated response, has no support in evidence. No evidence of
stridor, skin reactions, or wheezing - some of the more common accompanying signs of an
allergic reaction - appears on record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis
without supporting medical proof, and against the weight of available evidence, then every
anesthetic accident would be an act of God.Evidently, the Thiopental-allergy theory vigorously
asserted by private respondents was a mere afterthought. Such an explanation was advanced in
order to absolve them of any and all responsibility for the patients 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 Erlindas 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.[64] 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. [65] 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 Erlindas 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. [66] 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. [67] 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. [68]
The above conclusion is not without basis. Scientific studies point out that intubation problems
are responsible for one-third (1/3) of deaths and serious injuries associated with anesthesia.
[69]
Nevertheless, ninety-eight percent (98%) or the vast majority of difficult intubations may be
anticipated by performing a thorough evaluation of the patients airway prior to the operation.
[70]
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 patients neck and oral area, defects which would have been easily overcome by
a prior knowledge of those variations together with a change in technique. [71] 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. [72] 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,[73] it is the surgeons responsibility to see to it that
those under him perform their task in the proper manner. Respondent Dr. Hosakas negligence
can be found in his failure to exercise the proper authority (as the captain of the operative team)
in not determining if his anesthesiologist observed proper anesthesia protocols. 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
Erlindas cholecystectomy, and was in fact over three hours late for the latters
operation. Because of this, he had little or no time to confer with his anesthesiologist regarding
the anesthesia delivery. This indicates that he was remiss in his professional duties towards his
patient. Thus, he shares equal responsibility for the events which resulted in Erlindas condition.
We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting consultants,
[74]
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. [75] 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 physicians 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 patients 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 petitioners condition. [76]
The basis for holding an employer solidarily responsible for the negligence of its employee is
found in Article 2180 of the Civil Code which considers a person accountable not only for his own
acts but also for those of others based on the formers responsibility under a relationship of patria
potestas.[77] 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. [78] 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 Erlindas 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[79] 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:
Art. 2199. - Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved.Such
compensation is referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time of litigation, the
injury suffered as a consequence of an act of negligence has been completed and that the cost
can be liquidated. However, these provisions neglect to take into account those situations, as in
this case, where the resulting injury might be continuing and possible future complications
directly arising from the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and
correctly respond to the injury caused, should be one which compensates for pecuniary loss
incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to
be suffered but which could not, from the nature of the case, be made with certainty. [80] 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. [81]
In Valenzuela vs. Court of Appeals,[82] 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 changes in bone resulting from a
precipitate decrease in calcium levels observed in the bones of all post-menopausal women. In
other words, the damage done to her would not only be permanent and lasting, it would also be
permanently changing and adjusting to the physiologic changes which her body
would normally undergo through the years. The replacements, changes, and adjustments will
require corresponding adjustive physical and occupational therapy. All of these adjustments, it
has been documented, are painful.
x x x.
A prosthetic devise, however technologically advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the lower limb. The sensory functions are forever
lost. The resultant anxiety, sleeplessness, psychological injury, mental and physical pain are
inestimable.[83]
The injury suffered by Erlinda as a consequence of private respondents negligence is certainly
much more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a
comatose state for over fourteen years now. The burden of care has so far been heroically
shouldered by her husband and children, who, in the intervening years have been deprived of
the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be
virtually impossible to quantify. Even the temperate damages herein awarded would be
inadequate if petitioners condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victims 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 victims condition. [84] The husband and the children,
all petitioners in this case, will have to live with the day to day uncertainty of the patients 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 familys moral injury and suffering in this case is clearly a real one. For the
foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby
awarded. Considering the length and nature of the instant suit we are of the opinion that
attorneys fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because physicians are
not insurers of life and, they rarely set out to intentionally cause injury or death to their
patients. However, intent is immaterial in negligence cases because where negligence exists and
is proven, the same automatically gives the injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are devised for the
purpose of preventing complications. A physicians 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 attorneys fees; and, 5) the
costs of the suit.
SO ORDERED.
Case No. 13
DR. RUBI LI, G.R. No. 165279
Petitioner,
- versus -

SPOUSES REYNALDO and LINA Promulgated:

SOLIMAN, as parents/heirs of
deceased Angelica Soliman,
June 7, 2011
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the Decision [1] dated June 15, 2004 as well
as the Resolution[2] dated September 1, 2004of the Court of Appeals (CA) in CA-G.R. CV No.
58013 which modified the Decision[3] dated September 5, 1997 of
the Regional Trial Courtof Legazpi City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a biopsy of the
mass located in her lower extremity at the St. Lukes Medical Center (SLMC). Results showed that
Angelica was suffering from osteosarcoma, osteoblastic type,[4] a high-grade (highly malignant)
cancer of the bone which usually afflicts teenage children. Following this diagnosis and as
primary intervention, Angelicas right leg was amputated by Dr. Jaime Tamayo in order to remove
the tumor. As adjuvant treatment to eliminate any remaining cancer cells, and hence minimize
the chances of recurrence and prevent the disease from spreading to other parts of the patients
body (metastasis), chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to
another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993,
just eleven (11) days after the (intravenous) administration of the first cycle of the chemotherapy
regimen. Because SLMC refused to release a death certificate without full payment of their
hospital bill, respondents brought the cadaver of Angelica to the Philippine National Police (PNP)
Crime Laboratory at Camp Crame for post-mortem examination. The Medico-Legal Report issued
by said institution indicated the cause of death as Hypovolemic shock secondary to multiple
organ hemorrhages and Disseminated Intravascular Coagulation. [5]
On the other hand, the Certificate of Death [6] issued by SLMC stated the cause of death as
follows:
Immediate cause : a. Osteosarcoma, Status Post AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy
On February 21, 1994, respondents filed a damage suit [7] against petitioner, Dr. Leo Marbella, Mr.
Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged them with negligence and
disregard of Angelicas safety, health and welfare by their careless administration of the
chemotherapy drugs, their failure to observe the essential precautions in detecting early the
symptoms of fatal blood platelet decrease and stopping early on the chemotherapy, which
bleeding led to hypovolemic shock that caused Angelicas untimely demise. Further, it was
specifically averred that petitioner assured the respondents that Angelica would recover in view
of 95% chance of healing with chemotherapy (Magiging normal na ang anak nyo basta ma-
chemo. 95% ang healing) and when asked regarding the side effects, petitioner mentioned only
slight vomiting, hair loss and weakness (Magsusuka ng kaunti. Malulugas ang buhok.
Manghihina). Respondents thus claimed that they would not have given their consent to
chemotherapy had petitioner not falsely assured them of its side effects.
In her answer,[8] petitioner denied having been negligent in administering the chemotherapy
drugs to Angelica and asserted that she had fully explained to respondents how the
chemotherapy will affect not only the cancer cells but also the patients normal body parts,
including the lowering of white and red blood cells and platelets. She claimed that what
happened to Angelica can be attributed to malignant tumor cells possibly left behind after
surgery. Few as they may be, these have the capacity to compete for nutrients such that the
body becomes so weak structurally (cachexia) and functionally in the form of lower resistance of
the body to combat infection. Such infection becomes uncontrollable and triggers a chain of
events (sepsis or septicemia) that may lead to bleeding in the form of Disseminated
Intravascular Coagulation (DIC), as what the autopsy report showed in the case of Angelica.
Since the medical records of Angelica were not produced in court, the trial and appellate courts
had to rely on testimonial evidence, principally the declarations of petitioner and respondents
themselves. The following chronology of events was gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery and
discussed with them Angelicas condition.Petitioner told respondents that Angelica should be
given two to three weeks to recover from the operation before starting
chemotherapy.Respondents were apprehensive due to financial constraints as Reynaldo earns
only from P70,000.00 to P150,000.00 a year from his jewelry and watch repairing business.
[9]
Petitioner, however, assured them not to worry about her professional fee and told them to just
save up for the medicines to be used.
Petitioner claimed that she explained to respondents that even when a tumor is removed, there
are still small lesions undetectable to the naked eye, and that adjuvant chemotherapy is needed
to clean out the small lesions in order to lessen the chance of the cancer to recur. She did not
give the respondents any assurance that chemotherapy will cure Angelicas cancer. During these
consultations with respondents, she explained the following side effects of chemotherapy
treatment to respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low
count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible sterility due to
the effects on Angelicas ovary; (6) damage to the heart and kidneys; and (7) darkening of the
skin especially when exposed to sunlight. She actually talked with respondents four times, once
at the hospital after the surgery, twice at her clinic and the fourth time when Angelicas mother
called her through long distance. [10]This was disputed by respondents who countered that
petitioner gave them assurance that there is 95% chance of healing for Angelica if she
undergoes chemotherapy and that the only side effects were nausea, vomiting and hair loss.
[11]
Those were the only side-effects of chemotherapy treatment mentioned by petitioner. [12]
On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be
readmitted after two or three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with
them the results of the laboratory tests requested by petitioner: Angelicas chest x-ray,
ultrasound of the liver, creatinine and complete liver function tests. [13] Petitioner proceeded with
the chemotherapy by first administering hydration fluids to Angelica. [14]
The following day, August 19, petitioner began administering three chemotherapy drugs
Cisplatin,[15] Doxorubicin[16] and Cosmegen[17] intravenously. Petitioner was supposedly assisted by
her trainees Dr. Leo Marbella[18] and Dr. Grace Arriete.[19] In his testimony, Dr. Marbella denied
having any participation in administering the said chemotherapy drugs. [20]
On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on
Angelicas face.[21] They asked petitioner about it, but she merely quipped, Wala yan. Epekto ng
gamot.[22] Petitioner recalled noticing the skin rashes on the nose and cheek area of Angelica. At
that moment, she entertained the possibility that Angelica also had systemic lupus and consulted
Dr. Victoria Abesamis on the matter.[23]
On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus
provided with oxygen inhalation apparatus. This time, the reddish discoloration on Angelicas face
had extended to her neck, but petitioner dismissed it again as merely the effect of medicines.
[24]
Petitioner testified that she did not see any discoloration on Angelicas face, nor did she notice
any difficulty in the childs breathing. She claimed that Angelica merely complained of nausea
and was given ice chips. [25]
On August 22, 1993, at around ten oclock in the morning, upon seeing that their child could not
anymore bear the pain, respondents pleaded with petitioner to stop the chemotherapy. Petitioner
supposedly replied: Dapat 15 Cosmegen pa iyan. Okay, lets observe. If pwede na, bigyan uli ng
chemo. At this point, respondents asked petitioners permission to bring their child home. Later in
the evening, Angelica passed black stool and reddish urine. [26] Petitioner countered that there
was no record of blackening of stools but only an episode of loose bowel movement
(LBM). Petitioner also testified that what Angelica complained of was carpo-pedal spasm, not
convulsion or epileptic attack, as respondents call it (petitioner described it in the vernacular
as naninigas ang kamay at paa). She then requested for a serum calcium determination and
stopped the chemotherapy. When Angelica was given calcium gluconate, the spasm and
numbness subsided.[27]
The following day, August 23, petitioner yielded to respondents request to take Angelica home.
But prior to discharging Angelica, petitioner requested for a repeat serum calcium determination
and explained to respondents that the chemotherapy will be temporarily stopped while she
observes Angelicas muscle twitching and serum calcium level. Take-home medicines were also
prescribed for Angelica, with instructions to respondents that the serum calcium test will have to
be repeated after seven days. Petitioner told respondents that she will see Angelica again after
two weeks, but respondents can see her anytime if any immediate problem arises. [28]
However, Angelica remained in confinement because while still in the premises of SLMC, her
convulsions returned and she also had LBM. Angelica was given oxygen and administration of
calcium continued.[29]
The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They
also noticed that she had a fever and had difficulty breathing. [30] Petitioner insisted it was carpo-
pedal spasm, not convulsions. She verified that at around 4:50 that afternoon, Angelica
developed difficulty in breathing and had fever. She then requested for an electrocardiogram
analysis, and infused calcium gluconate on the patient at a stat dose. She further ordered that
Angelica be given Bactrim,[31] a synthetic antibacterial combination drug, [32] to combat any
infection on the childs body.[33]
By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her
anus and urine. When Lina asked petitioner what was happening to her daughter, petitioner
replied, Bagsak ang platelets ng anak mo. Four units of platelet concentrates were then
transfused to Angelica. Petitioner prescribed Solucortef. Considering that Angelicas fever was
high and her white blood cell count was low, petitioner prescribed Leucomax. About four to eight
bags of blood, consisting of packed red blood cells, fresh whole blood, or platelet concentrate,
were transfused to Angelica. For two days (August 27 to 28), Angelica continued bleeding, but
petitioner claimed it was lesser in amount and in frequency. Petitioner also denied that there
were gadgets attached to Angelica at that time. [34]
On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots
that should not be removed. Respondents claimed that Angelica passed about half a liter of
blood through her anus at around seven oclock that evening, which petitioner likewise denied.
On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric
tubes were inserted into her weakened body. An aspiration of the nasogastric tube inserted to
Angelica also revealed a bloody content. Angelica was given more platelet concentrate and fresh
whole blood, which petitioner claimed improved her condition. Petitioner told Angelica not to
remove the endotracheal tube because this may induce further bleeding. [35] She was also
transferred to the intensive care unit to avoid infection.
The next day, respondents claimed that Angelica became hysterical, vomited blood and her body
turned black. Part of Angelicas skin was also noted to be shredding by just rubbing cotton on
it. Angelica was so restless she removed those gadgets attached to her, saying Ayaw ko na;
there were tears in her eyes and she kept turning her head. Observing her daughter to be at the
point of death, Lina asked for a doctor but the latter could not answer her anymore. [36] At this
time, the attending physician was Dr. Marbella who was shaking his head saying that Angelicas
platelets were down and respondents should pray for their daughter. Reynaldo claimed that he
was introduced to a pediatrician who took over his daughters case, Dr. Abesamis who also told
him to pray for his daughter. Angelica continued to have difficulty in her breathing and blood was
being suctioned from her stomach. A nurse was posted inside Angelicas room to assist her
breathing and at one point they had to revive Angelica by pumping her chest. Thereafter,
Reynaldo claimed that Angelica already experienced difficulty in urinating and her bowel
consisted of blood-like fluid. Angelica requested for an electric fan as she was in pain. Hospital
staff attempted to take blood samples from Angelica but were unsuccessful because they could
not even locate her vein. Angelica asked for a fruit but when it was given to her, she only
smelled it. At this time, Reynaldo claimed he could not find either petitioner or Dr. Marbella. That
night, Angelica became hysterical and started removing those gadgets attached to her. At three
oclock in the morning of September 1, a priest came and they prayed before Angelica
expired.Petitioner finally came back and supposedly told respondents that there was malfunction
or bogged-down machine.[37]
By petitioners own account, Angelica was merely irritable that day (August 31). Petitioner noted
though that Angelicas skin was indeed sloughing off. [38] She stressed that at 9:30 in the evening,
Angelica pulled out her endotracheal tube. [39] On September 1, exactly two weeks after being
admitted at SLMC for chemotherapy, Angelica died. [40] The cause of death, according to
petitioner, was septicemia, or overwhelming infection, which caused Angelicas other organs to
fail.[41] Petitioner attributed this to the patients poor defense mechanism brought about by the
cancer itself.[42]
While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed that
petitioner acted arrogantly and called him names. He was asked to sign a promissory note as he
did not have cash to pay the hospital bill. [43]
Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the
PNP-Crime Laboratory who conducted the autopsy on Angelicas cadaver, and Dr. Melinda Vergara
Balmaceda who is a Medical Specialist employed at the Department of Health (DOH) Operations
and Management Services.
Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1)
there were fluids recovered from the abdominal cavity, which is not normal, and was due to
hemorrhagic shock secondary to bleeding; (2) there was hemorrhage at the left side of the heart;
(3) bleeding at the upper portion of and areas adjacent to, the esophagus; (4) lungs were heavy
with bleeding at the back and lower portion, due to accumulation of fluids; (4) yellowish
discoloration of the liver; (5) kidneys showed appearance of facial shock on account of
hemorrhages; and (6) reddishness on external surface of the spleen. All these were the end
result of hypovolemic shock secondary to multiple organ hemorrhages and disseminated
intravascular coagulation. Dr. Vergara opined that this can be attributed to the chemical agents
in the drugs given to the victim, which caused platelet reduction resulting to bleeding sufficient
to cause the victims death. The time lapse for the production of DIC in the case of Angelica (from
the time of diagnosis of sarcoma) was too short, considering the survival rate of about 3
years. The witness conceded that the victim will also die of osteosarcoma even with amputation
or chemotherapy, but in this case Angelicas death was not caused by osteosarcoma. Dr. Vergara
admitted that she is not a pathologist but her statements were based on the opinion of an
oncologist whom she had interviewed. This oncologist supposedly said that if the victim already
had DIC prior to the chemotherapy, the hospital staff could have detected it. [44]
On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain to the
patient or his relatives every known side effect of the procedure or therapeutic agents to be
administered, before securing the consent of the patient or his relatives to such procedure or
therapy. The physician thus bases his assurance to the patient on his personal assessment of the
patients condition and his knowledge of the general effects of the agents or procedure that will
be allowed on the patient. Dr. Balmaceda stressed that the patient or relatives must be informed
of all known side effects based on studies and observations, even if such will aggravate the
patients condition.[45]
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity, testified
for the defendants. He explained that in case of malignant tumors, there is no guarantee that the
ablation or removal of the amputated part will completely cure the cancer. Thus, surgery is not
enough. The mortality rate of osteosarcoma at the time of modern chemotherapy and early
diagnosis still remains at 80% to 90%.Usually, deaths occur from metastasis, or spread of the
cancer to other vital organs like the liver, causing systemic complications. The modes of therapy
available are the removal of the primary source of the cancerous growth and then the residual
cancer cells or metastasis should be treated with chemotherapy. Dr. Tamayo further explained
that patients with osteosarcoma have poor defense mechanism due to the cancer cells in the
blood stream. In the case of Angelica, he had previously explained to her parents that after the
surgical procedure, chemotherapy is imperative so that metastasis of these cancer cells will
hopefully be addressed. He referred the patient to petitioner because he felt that petitioner is a
competent oncologist. Considering that this type of cancer is very aggressive and will
metastasize early, it will cause the demise of the patient should there be no early
intervention (in this case, the patient developed sepsis which caused her death). Cancer
cells in the blood cannot be seen by the naked eye nor detected through bone scan. On cross-
examination, Dr. Tamayo stated that of the more than 50 child patients who had osteogenic
sarcoma he had handled, he thought that probably all of them died within six months from
amputation because he did not see them anymore after follow-up; it is either they died or had
seen another doctor.[46]
In dismissing the complaint, the trial court held that petitioner was not liable for damages as she
observed the best known procedures and employed her highest skill and knowledge in the
administration of chemotherapy drugs on Angelica but despite all efforts said patient died. It
cited the testimony of Dr. Tamayo who testified that he considered petitioner one of the most
proficient in the treatment of cancer and that the patient in this case was afflicted with a very
aggressive type of cancer necessitating chemotherapy as adjuvant treatment. Using the
standard of negligence laid down in Picart v. Smith,[47] the trial court declared that petitioner has
taken the necessary precaution against the adverse effect of chemotherapy on the patient,
adding that a wrong decision is not by itself negligence. Respondents were ordered to pay their
unpaid hospital bill in the amount of P139,064.43.[48]
Respondents appealed to the CA which, while concurring with the trial courts finding that there
was no negligence committed by the petitioner in the administration of chemotherapy treatment
to Angelica, found that petitioner as her attending physician failed to fully explain to the
respondents all the known side effects of chemotherapy. The appellate court stressed that since
the respondents have been told of only three side effects of chemotherapy, they readily
consented thereto. Had petitioner made known to respondents those other side effects which
gravely affected their child -- such as carpo-pedal spasm, sepsis, decrease in the blood platelet
count, bleeding, infections and eventual death -- respondents could have decided differently or
adopted a different course of action which could have delayed or prevented the early death of
their child.
The CA thus declared:
Plaintiffs-appellants child was suffering from a malignant disease. The attending physician
recommended that she undergo chemotherapy treatment after surgery in order to increase her
chances of survival. Appellants consented to the chemotherapy treatment because they believed
in Dr. Rubi Lis representation that the deceased would have a strong chance of survival after
chemotherapy and also because of the representation of appellee Dr. Rubi Li that there were only
three possible side-effects of the treatment. However, all sorts of painful side-effects resulted
from the treatment including the premature death of Angelica. The appellants were clearly
and totally unaware of these other side-effects which manifested only during the
chemotherapy treatment. This was shown by the fact that every time a problem would
take place regarding Angelicas condition (like an unexpected side-effect manifesting
itself), they would immediately seek explanation from Dr. Rubi Li. Surely, those
unexpected side-effects culminating in the loss of a love[d] one caused the appellants so much
trouble, pain and suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would entitle
plaintiffs-appellants to their claim for damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is hereby
modified to the extent that defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-
appellants the following amounts:
1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;
2. Moral damages of P200,000.00;
3. Exemplary damages of P50,000.00;
4. Attorneys fee of P30,000.00.
SO ORDERED.[49] (Emphasis supplied.)
Petitioner filed a motion for partial reconsideration which the appellate court denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in not explaining to the respondents
all the possible side effects of the chemotherapy on their child, and in holding her liable for
actual, moral and exemplary damages and attorneys fees. Petitioner emphasized that she was
not negligent in the pre-chemotherapy procedures and in the administration of chemotherapy
treatment to Angelica.
On her supposed non-disclosure of all possible side effects of chemotherapy, including death,
petitioner argues that it was foolhardy to imagine her to be all-knowing/omnipotent. While the
theoretical side effects of chemotherapy were explained by her to the respondents, as these
should be known to a competent doctor, petitioner cannot possibly predict how a particular
patients genetic make-up, state of mind, general health and body constitution would respond to
the treatment. These are obviously dependent on too many known, unknown and immeasurable
variables, thus requiring that Angelica be, as she was, constantly and closely monitored during
the treatment. Petitioner asserts that she did everything within her professional competence to
attend to the medical needs of Angelica.
Citing numerous trainings, distinctions and achievements in her field and her current position as
co-director for clinical affairs of the Medical Oncology, Department of Medicine of SLMC,
petitioner contends that in the absence of any clear showing or proof, she cannot be charged
with negligence in not informing the respondents all the side effects of chemotherapy or in the
pre-treatment procedures done on Angelica.
As to the cause of death, petitioner insists that Angelica did not die of platelet depletion but of
sepsis which is a complication of the cancer itself. Sepsis itself leads to bleeding and death. She
explains that the response rate to chemotherapy of patients with osteosarcoma is high, so much
so that survival rate is favorable to the patient. Petitioner then points to some probable
consequences if Angelica had not undergone chemotherapy. Thus, without chemotherapy, other
medicines and supportive treatment, the patient might have died the next day because of
massive infection, or the cancer cells might have spread to the brain and brought the patient into
a coma, or into the lungs that the patient could have been hooked to a respirator, or into her
kidneys that she would have to undergo dialysis. Indeed, respondents could have spent as much
because of these complications. The patient would have been deprived of the chance to survive
the ailment, of any hope for life and her quality of life surely compromised. Since she had not
been shown to be at fault, petitioner maintains that the CA erred in holding her liable for the
damages suffered by the respondents. [50]
The issue to be resolved is whether the petitioner can be held liable for failure to fully disclose
serious side effects to the parents of the child patient who died while undergoing chemotherapy,
despite the absence of finding that petitioner was negligent in administering the said treatment.
The petition is meritorious.
The type of lawsuit which has been called medical malpractice or, more appropriately, medical
negligence, is that type of claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has caused bodily harm. In order to successfully
pursue such a claim, a patient must prove that a health care provider, in most cases a physician,
either failed to do something which a reasonably prudent health care provider would have done,
or that he or she did something that a reasonably prudent provider would not have done; and
that that failure or action caused injury to the patient. [51]
This Court has recognized 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 stems from the formers realization that the latter possess unusual technical skills
which laymen in most instances are incapable of intelligently evaluating, hence the
indispensability of expert testimonies. [52]
In this case, both the trial and appellate courts concurred in finding that the alleged negligence
of petitioner in the administration of chemotherapy drugs to respondents child was not proven
considering that Drs. Vergara and Balmaceda, not being oncologists or cancer specialists, were
not qualified to give expert opinion as to whether petitioners lack of skill, knowledge and
professional competence in failing to observe the standard of care in her line of practice was the
proximate cause of the patients death. Furthermore, respondents case was not at all helped by
the non-production of medical records by the hospital (only the biopsy result and medical bills
were submitted to the court). Nevertheless, the CA found petitioner liable for her failure to inform
the respondents on all possible side effects of chemotherapy before securing their consent to the
said treatment.
The doctrine of informed consent within the context of physician-patient relationships goes far
back into English common law. As early as 1767, doctors were charged with the tort of battery
(i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their
patients prior to performing a surgery or procedure. In the United States, the seminal case
was Schoendorff v. Society of New York Hospital [53] which involved unwanted treatment
performed by a doctor. Justice Benjamin Cardozos oft-quoted opinion upheld the basic right of a
patient to give consent to any medical procedure or treatment: Every human being of adult years
and sound mind has a right to determine what shall be done with his own body; and a surgeon
who performs an operation without his patients consent, commits an assault, for which he is
liable in damages.[54] From a purely ethical norm, informed consent evolved into a general
principle of law that a physician has a duty to disclose what a reasonably prudent physician in
the medical community in the exercise of reasonable care would disclose to his patient as to
whatever grave risks of injury might be incurred from a proposed course of treatment, so that a
patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the
proposed treatment, or alternative treatment, or none at all, may intelligently exercise his
judgment by reasonably balancing the probable risks against the probable benefits. [55]
Subsequently, in Canterbury v. Spence[56] the court observed that the duty to disclose should not
be limited to medical usage as to arrogate the decision on revelation to the physician alone.
Thus, respect for the patients right of self-determination on particular therapy demands a
standard set by law for physicians rather than one which physicians may or may not impose
upon themselves.[57] The scope of disclosure is premised on the fact that patients ordinarily are
persons unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the full
measure of a physicians responsibility. It is also his duty to warn of the dangers lurking in the
proposed treatment and to impart information which the patient has every right to
expect. Indeed, the patients reliance upon the physician is a trust of the kind which traditionally
has exacted obligations beyond those associated with armslength transactions. [58] The physician
is not expected to give the patient a short medical education, the disclosure rule only requires of
him a reasonable explanation, which means generally informing the patient in nontechnical
terms as to what is at stake; the therapy alternatives open to him, the goals expectably to be
achieved, and the risks that may ensue from particular treatment or no treatment. [59] As to the
issue of demonstrating what risks are considered material necessitating disclosure, it was held
that experts are unnecessary to a showing of the materiality of a risk to a patients decision on
treatment, or to the reasonably, expectable effect of risk disclosure on the decision. Such
unrevealed risk that should have been made known must further materialize, for otherwise the
omission, however unpardonable, is without legal consequence. And, as in malpractice actions
generally, there must be a causal relationship between the physicians failure to divulge and
damage to the patient.[60]
Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral part of
physicians overall obligation to patient, the duty of reasonable disclosure of available choices
with respect to proposed therapy and of dangers inherently and potentially involved in
each.However, the physician is not obliged to discuss relatively minor risks inherent in common
procedures when it is common knowledge that such risks inherent in procedure of very low
incidence. Cited as exceptions to the rule that the patient should not be denied the opportunity
to weigh the risks of surgery or treatment are emergency cases where it is evident he cannot
evaluate data, and where the patient is a child or incompetent. [62] The court thus concluded that
the patients right of self-decision can only be effectively exercised if the patient possesses
adequate information to enable him in making an intelligent choice. The scope of the physicians
communications to the patient, then must be measured by the patients need, and that need is
whatever information is material to the decision. The test therefore for determining whether a
potential peril must be divulged is its materiality to the patients decision. [63]
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of
the physician for failure to inform patient, there must be causal relationship between physicians
failure to inform and the injury to patient and such connection arises only if it is established that,
had revelation been made, consent to treatment would not have been given.
There are four essential elements a plaintiff must prove in a malpractice action based upon the
doctrine of informed consent: (1) the physician had a duty to disclose material risks; (2) he failed
to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the
failure to disclose, the patient consented to treatment she otherwise would not have consented
to; and (4) plaintiff was injured by the proposed treatment. The gravamen in an informed consent
case requires the plaintiff to point to significant undisclosed information relating to the treatment
which would have altered her decision to undergo it. [64]
Examining the evidence on record, we hold that there was adequate disclosure of material risks
inherent in the chemotherapy procedure performed with the consent of Angelicas
parents. Respondents could not have been unaware in the course of initial treatment and
amputation of Angelicas lower extremity, that her immune system was already weak on account
of the malignant tumor in her knee. When petitioner informed the respondents beforehand of the
side effects of chemotherapy which includes lowered counts of white and red blood cells,
decrease in blood platelets, possible kidney or heart damage and skin darkening, there is
reasonable expectation on the part of the doctor that the respondents understood very well that
the severity of these side effects will not be the same for all patients undergoing the
procedure. In other words, by the nature of the disease itself, each patients reaction to the
chemical agents even with pre-treatment laboratory tests cannot be precisely determined by the
physician. That death can possibly result from complications of the treatment or the underlying
cancer itself, immediately or sometime after the administration of chemotherapy drugs, is a risk
that cannot be ruled out, as with most other major medical procedures, but such conclusion can
be reasonably drawn from the general side effects of chemotherapy already disclosed.
As a physician, petitioner can reasonably expect the respondents to have considered the
variables in the recommended treatment for their daughter afflicted with a life-threatening
illness. On the other hand, it is difficult to give credence to respondents claim that petitioner told
them of 95% chance of recovery for their daughter, as it was unlikely for doctors like petitioner
who were dealing with grave conditions such as cancer to have falsely assured patients of
chemotherapys success rate. Besides, informed consent laws in other countries generally require
only a reasonable explanation of potential harms, so specific disclosures such as statistical data,
may not be legally necessary.[65]
The element of ethical duty to disclose material risks in the proposed medical treatment cannot
thus be reduced to one simplistic formula applicable in all instances. Further, in a medical
malpractice action based on lack of informed consent, the plaintiff must prove both the duty and
the breach of that duty through expert testimony. [66] Such expert testimony must show the
customary standard of care of physicians in the same practice as that of the defendant doctor. [67]
In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of
the DOHs Operational and Management Services charged with receiving complaints against
hospitals, does not qualify as expert testimony to establish the standard of care in obtaining
consent for chemotherapy treatment. In the absence of expert testimony in this regard, the
Court feels hesitant in defining the scope of mandatory disclosure in cases of malpractice based
on lack of informed consent, much less set a standard of disclosure that, even in foreign
jurisdictions, has been noted to be an evolving one.
As society has grappled with the juxtaposition between personal autonomy and the medical
profession's intrinsic impetus to cure, the law defining adequate disclosure has undergone a
dynamic evolution. A standard once guided solely by the ruminations of physicians is now
dependent on what a reasonable person in the patients position regards as significant. This
change in perspective is especially important as medical breakthroughs move practitioners to
the cutting edge of technology, ever encountering new and heretofore unimagined treatments
for currently incurable diseases or ailments. An adaptable standard is needed to account for this
constant progression. Reasonableness analyses permeate our legal system for the very reason
that they are determined by social norms, expanding and contracting with the ebb and flow of
societal evolution.

As we progress toward the twenty-first century, we now realize that the legal standard of
disclosure is not subject to construction as a categorical imperative. Whatever formulae
or processes we adopt are only useful as a foundational starting point; the particular quality
or quantity of disclosure will remain inextricably bound by the facts of each
case. Nevertheless, juries that ultimately determine whether a physician properly informed a
patient are inevitably guided by what they perceive as the common expectation of the medical
consumera reasonable person in the patients position when deciding to accept or reject a
recommended medical procedure.[68] (Emphasis supplied.)
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15,
2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R. CV No.
58013 are SET ASIDE.
The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in
Civil Case No. 8904 is REINSTATED and UPHELD.
No costs.
SO ORDERED.
Case No. 14
[G.R. No. 116100. February 9, 1996]
SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO and MARIA CRISTINA
SANTOS, petitioners, vs. COURT OF APPEALS, HEIRS OF PACIFICO C. MABASA and
REGIONAL TRIAL COURT OF PASIG, METRO MANILA, BRANCH 181, respondents.
REGALADO, J.:
This petition for review on certiorari assails the decision of respondent Court of Appeals in CA-
G.R. CV No. 29115, promulgated on November 10, 1993, which affirmed with modification the
decision of the trial court, as well as its resolution dated July 8, 1994 denying petitioners motion
for reconsideration.[1]
On August 26, 1982, Civil Case No. 47466 for the grant of an easement of right of way was filed
by Pacifico Mabasa against Cristino Custodio, Brigida R. Custodio, Rosalina R. Morato, Lito Santos
and Maria Cristina C. Santos before the Regional Trial Court of Pasig and assigned to Branch 22
thereof.[2]
The generative facts of the case, as synthesized by the trial court and adopted by the Court of
Appeals, are as follows:
Perusing the record, this Court finds that the original plaintiff Pacifico Mabasa died during the
pendency of this case and was substituted by Ofelia Mabasa, his surviving spouse [and children].
The plaintiff owns a parcel of land with a two-door apartment erected thereon situated at Interior
P. Burgos St., Palingon, Tipas, Taguig, Metro Manila. The plaintiff was able to acquire said property
through a contract of sale with spouses Mamerto Rayos and Teodora Quintero as vendors last
September 1981. Said property may be described to be surrounded by other immovables
pertaining to defendants herein. Taking P. Burgos Street as the point of reference, on the left side,
going to plaintiffs property, the row of houses will be as follows: That of defendants Cristino and
Brigido Custodio, then that of Lito and Maria Cristina Santos and then that of Ofelia Mabasa. On
the right side (is) that of defendant Rosalina Morato and then a Septic Tank (Exhibit D). As an
access to P. Burgos Street from plaintiffs property, there are two possible passageways. The first
passageway is approximately one meter wide and is about 20 meters distan(t) from Mabasas
residence to P. Burgos Street. Such path is passing in between the previously mentioned row of
houses. The second passageway is about 3 meters in width and length from plaintiff Mabasas
residence to P. Burgos Street; it is about 26 meters. In passing thru said passageway, a less than
a meter wide path through the septic tank and with 5-6 meters in length has to be traversed.
When said property was purchased by Mabasa, there were tenants occupying the premises and
who were acknowledged by plaintiff Mabasa as tenants. However, sometime in February, 1982.
one of said tenants vacated the apartment and when plaintiff Mabasa went to see the premises,
he saw that there had been built an adobe fence in the first passageway making it narrower in
width. Said adobe fence was first constructed by defendants Santoses along their property which
is also along the first passageway. Defendant Morato constructed her adobe fence and even
extended said fence in such a way that the entire passageway was enclosed (Exhibit 1-Santoses
and Custodios, Exh. D for plaintiff, Exhs. 1-C, 1-D and I -E) And it was then that the remaining
tenants of said apartment vacated the area. Defendant Ma. Cristina Santos testified that she
constructed said fence because there was an incident when her daughter was dragged by a
bicycle pedalled by a son of one of the tenants in said apartment along the first passageway. She
also mentioned some other inconveniences of having (at) the front of her house a pathway such
as when some of the tenants were drunk and would bang their doors and windows. Some of their
footwear were even lost. x x x[3] (Italics in original text; corrections in parentheses supplied)
On February 27, 1990, a decision was rendered by the trial court, with this dispositive part:
Accordingly, judgment is hereby rendered as follows:
1) Ordering defendants Custodios and Santoses to give plaintiff permanent access - ingress and
egress, to the public street;
2) Ordering the plaintiff to pay defendants Custodios and Santoses the sum of Eight Thousand
Pesos (P8,000) as indemnity for the permanent use of the passageway.
The parties to shoulder their respective litigation expenses. [4]
Not satisfied therewith, therein plaintiff represented by his heirs, herein private respondents,
went to the Court of Appeals raising the sole issue of whether or not the lower court erred in not
awarding damages in their favor. On November 10, 1993, as earlier stated, the Court of Appeals
rendered its decision affirming the judgment of the trial court with modification, the decretal
portion of which disposes as follows:
WHEREFORE, the appealed decision of the lower court is hereby AFFIRMED WITH MODIFICATION
only insofar as the herein grant of damages to plaintiffs-appellants. The Court hereby orders
defendants-appellees to pay plaintiffs-appellants the sum of Sixty Five Thousand (P65,000) Pesos
as Actual Damages, Thirty Thousand (P30,000) Pesos as Moral Damages, and Ten Thousand
(P10,000) Pesos as Exemplary Damages. The rest of the appealed decision is affirmed to all
respects.[5]
On July 8, 1994, the Court of Appeals denied petitioners motion for reconsideration. [6] Petitioners
then took the present recourse to us, raising two issues, namely, whether or not the grant of
right of way to herein private respondents is proper, and whether or not the award of damages is
in order.
With respect to the first issue, herein petitioners are already barred from raising the same.
Petitioners did not appeal from the decision of the court a quo granting private respondents the
right of way, hence they are presumed to be satisfied with the adjudication therein. With the
finality of the judgment of the trial court as to petitioners, the issue of propriety of the grant of
right of way has already been laid to rest.
For failure to appeal the decision of the trial court to the Court of Appeals, petitioners cannot
obtain any affirmative relief other than those granted in the decision of the trial court. That
decision of the court below has become final as against them and can no longer be reviewed,
much less reversed, by this Court. The rule in this jurisdiction is that whenever an appeal is taken
in a civil case, an appellee who has not himself appealed may not obtain from the appellate court
any affirmative relief other than what was granted in the decision of the lower court. The
appellee can only advance any argument that he may deem necessary to defeat the appellants
claim or to uphold the decision that is being disputed, and he can assign errors in his brief if such
is required to strengthen the views expressed by the court a quo. These assigned errors, in turn,
may be considered by the appellate court solely to maintain the appealed decision on other
grounds, but not for the purpose of reversing or modifying the judgment in the appellees favor
and giving him other affirmative reliefs.[7]
However, with respect to the second issue, we agree with petitioners that the Court of Appeals
erred in awarding damages in favor of private respondents. The award of damages has no
substantial legal basis. A reading of the decision of the Court of Appeals will show that the award
of damages was based solely on the fact that the original plaintiff, Pacifico Mabasa, incurred
losses in the form of unrealized rentals when the tenants vacated the leased premises by reason
of the closure of the passageway.
However, the mere fact that the plaintiff suffered losses does not give rise to a right to recover
damages. To warrant the recovery of damages, there must be both a right of action for a legal
wrong inflicted by the defendant, and damage resulting to the plaintiff therefrom. Wrong without
damage, or damage without wrong, does not constitute a cause of action, since damages are
merely part of the remedy allowed for the injury caused by a breach or wrong. [8]
There is a material distinction between damages and injury. Injury is the illegal invasion of a legal
right; damage is the loss, hurt, or harm which results from the injury; and damages are the
recompense or compensation awarded for the damage suffered. Thus, there can be damage
without injury in those instances in which the loss or harm was not the result of a violation of a
legal duty. These situations are often called damnum absque injuria.[9]in order that a plaintiff may
maintain an action for the injuries of which he complains, he must establish that such injuries
resulted from a breach of duty which the defendant owed to the plaintiff - a concurrence of injury
to the plaintiff and legal responsibility by the person causing it. [10] The underlying basis for the
award of tort damages is the premise that an individual was injured in contemplation of
law. Thus, there must first be the breach of some duty and the imposition of liability for that
breach before damages may be awarded; it is not sufficient to state that there should be tort
liability merely because the plaintiff suffered some pain and suffering) [11]
Many accidents occur and many injuries are inflicted by acts or omissions which cause damage
or loss to another but which violate no legal duty to such other person, and consequently create
no cause of action in his favor. In such cases, the consequences must be borne by the injured
person alone. The law affords no remedy for damages resulting from an act which does not
amount to a legal injury or wrong. [12]
In other words, in order that the law will give redress for an act causing damage, that act must
be not only hurtful, but wrongful. There must be damnum et injuria.[13] If, as may happen in many
cases, a person sustains actual damage, that is, harm or loss to his person or property, without
sustaining any legal injury, that is, an act or omission which the law does not deem an injury, the
damage is regarded as damnum absque injuria.[14]
In the case at bar, although there was damage, there was no legal injury. Contrary to the claim of
private respondents, petitioners could not be said to have violated the principle of abuse of right.
In order that the principle of abuse of right provided in Article 21 of the Civil Code can be applied,
it is essential that the following requisites concur: (1) The defendant should have acted in a
manner that is contrary to morals, good customs or public policy; (2) The acts should be willful;
and (3) There was damage or injury to the plaintiff. [15]
The act of petitioners in constructing a fence within their lot is a valid exercise of their right as
owners, hence not contrary to morals, good customs or public policy. The law recognizes in the
owner the right to enjoy and dispose of a thing, without other limitations than those established
by law.[16] It is within the right of petitioners, as owners, to enclose and fence their property.
Article 430 of the Civil Code provides that (e)very owner may enclose or fence his land or
tenements by means of walls, ditches, live or dead hedges, or by any other means without
detriment to servitudes constituted thereon.
At the time of the construction of the fence, the lot was not subject to any servitudes. There was
no easement of way existing in favor of private respondents, either by law or by contract. The
fact that private respondents had no existing right over the said passageway is confirmed by the
very decision of the trial court granting a compulsory right of way in their favor after payment of
just compensation. It was only that decision which gave private respondents the right to use the
said passageway after payment of the compensation and imposed a corresponding duty on
petitioners not to interfere in the exercise of said right.
Hence, prior to said decision, petitioners had an absolute right over their property and their act
of fencing and enclosing the same was an act which they may lawfully perform in the
employment and exercise of said right. To repeat, whatever injury or damage may have been
sustained by private respondents by reason of the rightful use of the said land by petitioners
is damnum absque injuria.[17]
A person has a right to the natural use and enjoyment of his own property, according to his
pleasure, for all the purposes to which such property is usually applied. As a general rule,
therefore, there is no cause of action for acts done by one person upon his own property in a
lawful and proper manner, although such acts incidentally cause damage or an unavoidable loss
to another, as such damage or loss is damnum absque injuria.[18] When the owner of property
makes use thereof in the general and ordinary manner in which the property is used, such as
fencing or enclosing the same as in this case, nobody can complain of having been injured,
because the inconvenience arising from said use can be considered as a mere consequence of
community life.[19]
The proper exercise of a lawful right cannot constitute a legal wrong for which an action will lie,
[20]
although the act may result in damage to another, for no legal right has been invaded [21] One
may use any lawful means to accomplish a lawful purpose and though the means adopted may
cause damage to another, no cause of action arises in the latters favor. Any injury or damage
occasioned thereby is damnum absque injuria. The courts can give no redress for hardship to an
individual resulting from action reasonably calculated to achieve a lawful end by lawful means. [22]
WHEREFORE, under the compulsion of the foregoing premises, the appealed decision of
respondent Court of Appeals is hereby REVERSED and SET ASIDE and the judgment of the trial
court is correspondingly REINSTATED.
SO ORDERED.

Case No. 15
G.R. No. 85691 July 31, 1990
BACHELOR EXPRESS, INCORPORATED, and CRESENCIO RIVERA, petitioners, vs.THE
HONORABLE COURT OF APPEALS (Sixth Division), RICARDO BETER, SERGIA BETER,
TEOFILO RAUTRAUT and ZOETERA RAUTRAUT, respondents.
GUTIERREZ, JR., J.:
This is a petition for review of the decision of the Court of Appeals which reversed and set aside
the order of the Regional Trial Court, Branch I, Butuan City dismissing the private respondents'
complaint for collection of "a sum of money" and finding the petitioners solidarily liable for
damages in the total amount of One Hundred Twenty Thousand Pesos (P120,000.00). The
petitioners also question the appellate court's resolution denying a motion for reconsideration.
On August 1, 1980, Bus No. 800 owned by Bachelor Express, Inc. and driven by Cresencio Rivera
was the situs of a stampede which resulted in the death of passengers Ornominio Beter and
Narcisa Rautraut.
The evidence shows that the bus came from Davao City on its way to Cagayan de Oro City
passing Butuan City; that while at Tabon-Tabon, Butuan City, the bus picked up a passenger; that
about fifteen (15) minutes later, a passenger at the rear portion suddenly stabbed a PC soldier
which caused commotion and panic among the passengers; that when the bus stopped,
passengers Ornominio Beter and Narcisa Rautraut were found lying down the road, the former
already dead as a result of head injuries and the latter also suffering from severe injuries which
caused her death later. The passenger assailant alighted from the bus and ran toward the bushes
but was killed by the police. Thereafter, the heirs of Ornominio Beter and Narcisa Rautraut,
private respondents herein (Ricardo Beter and Sergia Beter are the parents of Ornominio while
Teofilo Rautraut and Zoetera [should be Zotera] Rautraut are the parents of Narcisa) filed a
complaint for "sum of money" against Bachelor Express, Inc. its alleged owner Samson Yasay and
the driver Rivera.
In their answer, the petitioners denied liability for the death of Ornominio Beter and Narcisa
Rautraut. They alleged that ... the driver was able to transport his passengers safely to their
respective places of destination except Ornominio Beter and Narcisa Rautraut who jumped off
the bus without the knowledge and consent, much less, the fault of the driver and conductor and
the defendants in this case; the defendant corporation had exercised due diligence in the choice
of its employees to avoid as much as possible accidents; the incident on August 1, 1980 was not
a traffic accident or vehicular accident; it was an incident or event very much beyond the control
of the defendants; defendants were not parties to the incident complained of as it was an act of
a third party who is not in any way connected with the defendants and of which the latter have
no control and supervision; ..." (Rollo, pp. 112-113).
After due trial, the trial court issued an order dated August 8, 1985 dismissing the complaint.
Upon appeal however, the trial court's decision was reversed and set aside. The dispositive
portion of the decision of the Court of Appeals states:
WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE and a new one entered
finding the appellees jointly and solidarily liable to pay the plaintiffs-appellants the following
amounts:
1) To the heirs of Ornominio Beter, the amount of Seventy Five Thousand Pesos (P75,000.00) in
loss of earnings and support, moral damages, straight death indemnity and attorney's fees; and,
2) To the heirs of Narcisa Rautraut, the amount of Forty Five Thousand Pesos (P45,000.00) for
straight death indemnity, moral damages and attorney's fees. Costs against appellees. (Rollo, pp.
71-72)
The petitioners now pose the following questions
What was the proximate cause of the whole incident? Why were the passengers on board the bus
panicked (sic) and why were they shoving one another? Why did Narcisa Rautraut and Ornominio
Beter jump off from the running bus?
The petitioners opine that answers to these questions are material to arrive at "a fair, just and
equitable judgment." (Rollo, p. 5) They claim that the assailed decision is based on a
misapprehension of facts and its conclusion is grounded on speculation, surmises or conjectures.
As regards the proximate cause of the death of Ornominio Beter and Narcisa Rautraut, the
petitioners maintain that it was the act of the passenger who ran amuck and stabbed another
passenger of the bus. They contend that the stabbing incident triggered off the commotion and
panic among the passengers who pushed one another and that presumably out of fear and
moved by that human instinct of self-preservation Beter and Rautraut jumped off the bus while
the bus was still running resulting in their untimely death." (Rollo, p. 6) Under these
circumstances, the petitioners asseverate that they were not negligent in the performance of
their duties and that the incident was completely and absolutely attributable to a third person,
the passenger who ran amuck, for without his criminal act, Beter and Rautraut could not have
been subjected to fear and shock which compelled them to jump off the running bus. They argue
that they should not be made liable for damages arising from acts of third persons over whom
they have no control or supervision.
Furthermore, the petitioners maintain that the driver of the bus, before, during and after the
incident was driving cautiously giving due regard to traffic rules, laws and regulations. The
petitioners also argue that they are not insurers of their passengers as ruled by the trial court.
The liability, if any, of the petitioners is anchored on culpa contractual or breach of contract of
carriage. The applicable provisions of law under the New Civil Code are as follows:
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.
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.
xxx xxx xxx
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.
There is no question that Bachelor Express, Inc. is a common carrier. Hence, from the nature of
its business and for reasons of public policy Bachelor Express, Inc. is bound to carry its
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.
In the case at bar, Ornominio Beter and Narcisa Rautraut were passengers of a bus belonging to
petitioner Bachelor Express, Inc. and, while passengers of the bus, suffered injuries which caused
their death. Consequently, pursuant to Article 1756 of the Civil Code, petitioner Bachelor
Express, Inc. is presumed to have acted negligently unless it can prove that it had observed
extraordinary diligence in accordance with Articles 1733 and 1755 of the New Civil Code.
Bachelor Express, Inc. denies liability for the death of Beter and Rautraut on its posture that the
death of the said passengers was caused by a third person who was beyond its control and
supervision. In effect, the petitioner, in order to overcome the presumption of fault or negligence
under the law, states that the vehicular incident resulting in the death of passengers Beter and
Rautraut was caused by force majeure or caso fortuito over which the common carrier did not
have any control.
Article 1174 of the present Civil Code states:
Except in cases expressly specified by law, or when it is otherwise declared by stipulations, or
when the nature of the obligation requires the assumption of risk, no person shall be responsible
for those events which could not be foreseen, or which though foreseen, were inevitable.
The above-mentioned provision was substantially copied from Article 1105 of the old Civil Code
which states"
No one shall be liable for events which could not be foreseen or which, even if foreseen, were
inevitable, with the exception of the cases in which the law expressly provides otherwise and
those in which the obligation itself imposes liability.
In the case of Lasam v. Smith (45 Phil. 657 [1924]), we defined "events" which cannot be
foreseen and which, having been foreseen, are inevitable in the following manner:
... The Spanish authorities regard the language employed as an effort to define the term 'caso
fortuito' and hold that the two expressions are synonymous. (Manresa Comentarios al Codigo
Civil Espaol, vol. 8, pp. 88 et seq.; Scaevola, Codigo Civil, vol. 19, pp. 526 et seq.)
The antecedent to Article 1105 is found in Law II, Title 33, Partida 7, which defines caso fortuito
as 'occasion que acaese por aventura de que non se puede ante ver. E son estos, derrivamientos
de casas e fuego que enciende a so ora, e quebrantamiento de navio, fuerca de ladrones' (An
event that takes place by incident and could not have been foreseen. Examples of this are
destruction of houses, unexpected fire, shipwreck, violence of robbers ...)
Escriche defines caso fortuito as an unexpected event or act of God which could neither be
foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning, compulsion,
insurrections, destruction of buildings by unforeseen accidents and other occurrences of a similar
nature.
In discussing and analyzing the term caso fortuito the Enciclopedia Juridica Espaola says: 'In a
legal sense and, consequently, also in relation to contracts, a caso fortuito presents the following
essential characteristics: (1) The cause of the unforeseen and unexpected occurrence, or of the
failure of the debtor to comply with his obligation, must be independent of the human will. (2) It
must be impossible to foresee the event which constitutes the caso fortuito, or if it can be
foreseen, it must be impossible to avoid. (3) The occurrence must be such as to render it
impossible for the debtor to fulfill his obligation in a normal manner. And (4) the obligor (debtor)
must be free from any participation in the aggravation of the injury resulting to the creditor. (5)
Enciclopedia Juridica Espaola, 309)
As will be seen, these authorities agree that some extraordinary circumstance independent of
the will of the obligor or of his employees, is an essential element of a caso fortuito. ...
The running amuck of the passenger was the proximate cause of the incident as it triggered off a
commotion and panic among the passengers such that the passengers started running to the
sole exit shoving each other resulting in the falling off the bus by passengers Beter and Rautraut
causing them fatal injuries. The sudden act of the passenger who stabbed another passenger in
the bus is within the context of force majeure.
However, in order that a common carrier may be absolved from liability in case of force majeure,
it is not enough that the accident was caused by force majeure. The common carrier must still
prove that it was not negligent in causing the injuries resulting from such accident. Thus, as early
as 1912, we ruled:
From all the foregoing, it is concluded that the defendant is not liable for the loss and damage of
the goods shipped on the lorcha Pilar by the Chinaman, Ong Bien Sip, inasmuch as such loss and
damage were the result of a fortuitous event or force majeure, and there was no negligence or
lack of care and diligence on the part of the defendant company or its agents . (Tan Chiong Sian
v. Inchausti & Co., 22 Phil. 152 [1912]; Emphasis supplied).
This principle was reiterated in a more recent case, Batangas Laguna Tayabas Co. v.
Intermediate Appellate Court (167 SCRA 379 [1988]), wherein we ruled:
... [F]or their defense of force majeure or act of God to prosper the accident must be due to
natural causes and exclusively without human intervention. (Emphasis supplied)
Therefore, the next question to be determined is whether or not the petitioner's common carrier
observed extraordinary diligence to safeguard the lives of its passengers.
In this regard the trial court and the appellate court arrived at conflicting factual findings.
The trial court found the following facts:
The parties presented conflicting evidence as to how the two deceased Narcisa Rautruat and
Ornominio Beter met their deaths.
However, from the evidence adduced by the plaintiffs, the Court could not see why the two
deceased could have fallen off the bus when their own witnesses testified that when the
commotion ensued inside the bus, the passengers pushed and shoved each other towards the
door apparently in order to get off from the bus through the door. But the passengers also could
not pass through the door because according to the evidence the door was locked.
On the other hand, the Court is inclined to give credence to the evidence adduced by the
defendants that when the commotion ensued inside the bus, the two deceased panicked and, in
state of shock and fear, they jumped off from the bus by passing through the window.
It is the prevailing rule and settled jurisprudence that transportation companies are not insurers
of their passengers. The evidence on record does not show that defendants' personnel were
negligent in their duties. The defendants' personnel have every right to accept passengers
absent any manifestation of violence or drunkenness. If and when such passengers harm other
passengers without the knowledge of the transportation company's personnel, the latter should
not be faulted. (Rollo, pp. 46-47)
A thorough examination of the records, however, show that there are material facts ignored by
the trial court which were discussed by the appellate court to arrive at a different conclusion.
These circumstances show that the petitioner common carrier was negligent in the provision of
safety precautions so that its passengers may be transported safely to their destinations. The
appellate court states:
A critical eye must be accorded the lower court's conclusions of fact in its tersely written ratio
decidendi. The lower court concluded that the door of the bus was closed; secondly, the
passengers, specifically the two deceased, jumped out of the window. The lower court therefore
concluded that the defendant common carrier is not liable for the death of the said passengers
which it implicitly attributed to the unforeseen acts of the unidentified passenger who went
amuck.
There is nothing in the record to support the conclusion that the solitary door of the bus was
locked as to prevent the passengers from passing through. Leonila Cullano, testifying for the
defense, clearly stated that the conductor opened the door when the passengers were shouting
that the bus stop while they were in a state of panic. Sergia Beter categorically stated that she
actually saw her son fall from the bus as the door was forced open by the force of the onrushing
passengers.
Pedro Collango, on the other hand, testified that he shut the door after the last passenger had
boarded the bus. But he had quite conveniently neglected to say that when the passengers had
panicked, he himself panicked and had gone to open the door. Portions of the testimony of
Leonila Cullano, quoted below, are illuminating:
xxx xxx xxx
Q When you said the conductor opened the door, the door at the front or rear portion of the bus?
A Front door.
Q And these two persons whom you said alighted, where did they pass, the fron(t) door or rear
door?
A Front door.
xxx xxx xxx
(Tsn., p. 4, Aug. 8, 1984)
xxx xxx xxx
Q What happened after there was a commotion at the rear portion of the bus?
A When the commotion occurred, I stood up and I noticed that there was a passenger who was
sounded (sic). The conductor panicked because the passengers were shouting 'stop, stop'. The
conductor opened the bus.'
(Tsn. p. 3, August 8, 1984).
Accordingly, there is no reason to believe that the deceased passengers jumped from the window
when it was entirely possible for them to have alighted through the door. The lower court's
reliance on the testimony of Pedro Collango, as the conductor and employee of the common
carrier, is unjustified, in the light of the clear testimony of Leonila Cullano as the sole
uninterested eyewitness of the entire episode. Instead we find Pedro Collango's testimony to be
infused by bias and fraught with inconsistencies, if not notably unreliable for lack of veracity. On
direct examination, he testified:
xxx xxx xxx
Q So what happened to the passengers inside your bus?
A Some of the passengers jumped out of the window.
COURT:
Q While the bus was in motion?
A Yes, your Honor, but the speed was slow because we have just picked up a passenger.
Atty. Gambe:
Q You said that at the time of the incident the bus was running slow because you have just
picked up a passenger. Can you estimate what was your speed at that time?
Atty. Calo:
No basis, your Honor, he is neither a driver nor a conductor.
COURT:
Let the witness answer. Estimate only, the conductor experienced.
Witness:
Not less than 30 to 40 miles.
COURT:
Kilometers or miles?
A Miles.
Atty. Gambe:
Q That is only your estimate by your experience?
A Yes, sir, estimate.
(Tsn., pp. 4-5, Oct. 17, 1983).
At such speed of not less than 30 to 40 miles ..., or about 48 to 65 kilometers per hour, the speed
of the bus could scarcely be considered slow considering that according to Collango himself, the
bus had just come from a full stop after picking a passenger (Tsn, p. 4, Id.) and that the bus was
still on its second or third gear (Tsn., p. 12, Id.).
In the light of the foregoing, the negligence of the common carrier, through its employees,
consisted of the lack of extraordinary diligence required of common carriers, in exercising
vigilance and utmost care of the safety of its passengers, exemplified by the driver's belated stop
and the reckless opening of the doors of the bus while the same was travelling at an appreciably
fast speed. At the same time, the common carrier itself acknowledged, through its administrative
officer, Benjamin Granada, that the bus was commissioned to travel and take on passengers and
the public at large, while equipped with only a solitary door for a bus its size and loading
capacity, in contravention of rules and regulations provided for under the Land Transportation
and Traffic Code (RA 4136 as amended.) (Rollo, pp. 23-26)
Considering the factual findings of the Court of Appeals-the bus driver did not immediately stop
the bus at the height of the commotion; the bus was speeding from a full stop; the victims fell
from the bus door when it was opened or gave way while the bus was still running; the conductor
panicked and blew his whistle after people had already fallen off the bus; and the bus was not
properly equipped with doors in accordance with law-it is clear that the petitioners have failed to
overcome the presumption of fault and negligence found in the law governing common carriers.
The petitioners' argument that the petitioners "are not insurers of their passengers" deserves no
merit in view of the failure of the petitioners to prove that the deaths of the two passengers were
exclusively due to force majeure and not to the failure of the petitioners to observe extraordinary
diligence in transporting safely the passengers to their destinations as warranted by law. (See
Batangas Laguna Tayabas Co. v. Intermediate Appellate Court, supra).
The petitioners also contend that the private respondents failed to show to the court that they
are the parents of Ornominio Beter and Narcisa Rautraut respectively and therefore have no legal
personality to sue the petitioners. This argument deserves scant consideration. We find this
argument a belated attempt on the part of the petitioners to avoid liability for the deaths of
Beter and Rautraut. The private respondents were Identified as the parents of the victims by
witnesses during the trial and the trial court recognized them as such. The trial court dismissed
the complaint solely on the ground that the petitioners were not negligent.
Finally, the amount of damages awarded to the heirs of Beter and Rautraut by the appellate
court is supported by the evidence. The appellate court stated:
Ornominio Beter was 32 years of age at the time of his death, single, in good health and
rendering support and service to his mother. As far as Narcisa Rautraut is concerned, the only
evidence adduced is to the effect that at her death, she was 23 years of age, in good health and
without visible means of support.
In accordance with Art. 1764 in conjunction with Art. 2206 of the Civil Code, and established
jurisprudence, several factors may be considered in determining the award of damages, namely:
1) life expectancy (considering the state of health of the deceased and the mortality tables are
deemed conclusive) and loss of earning capacity; (2) pecuniary loss, loss of support and service;
and (3) moral and mental suffering (Alcantara, et al. v. Surro, et al., 93 Phil. 470).
In the case of People v. Daniel (No. L-66551, April 25, 1985, 136 SCRA 92, at page 104), the High
Tribunal, reiterating the rule in Villa Rey Transit, Inc. v. Court of Appeals (31 SCRA 511), stated
that the amount of loss of earring capacity is based mainly on two factors, namely, (1) the
number of years on the basis of which the damages shall be computed; and (2) the rate at which
the losses sustained by the heirs should be fixed.
As the formula adopted in the case of Davila v. Philippine Air Lines, 49 SCRA 497, at the age of 30
one's normal life expectancy is 33-1/3 years based on the American Expectancy Table of
Mortality (2/3 x 80-32).itc-asl By taking into account the pace and nature of the life of a
carpenter, it is reasonable to make allowances for these circumstances and reduce the life
expectancy of the deceased Ornominio Beter to 25 years (People v. Daniel, supra). To fix the rate
of losses it must be noted that Art. 2206 refers to gross earnings less necessary living expenses
of the deceased, in other words, only net earnings are to be considered (People v. Daniel, supra;
Villa Rey Transit, Inc. v. Court of Appeals, supra).
Applying the foregoing rules with respect to Ornominio Beter, it is both just and reasonable,
considering his social standing and position, to fix the deductible, living and incidental expenses
at the sum of Four Hundred Pesos (P400.00) a month, or Four Thousand Eight Hundred Pesos
(P4,800.00) annually. As to his income, considering the irregular nature of the work of a daily
wage carpenter which is seasonal, it is safe to assume that he shall have work for twenty (20)
days a month at Twenty Five Pesos (P150,000.00) for twenty five years. Deducting therefrom his
necessary expenses, his heirs would be entitled to Thirty Thousand Pesos (P30,000.00)
representing loss of support and service (P150,000.00 less P120,000.00). In addition, his heirs
are entitled to Thirty Thousand Pesos (P30,000.00) as straight death indemnity pursuant to
Article 2206 (People v. Daniel, supra). For damages for their moral and mental anguish, his heirs
are entitled to the reasonable sum of P10,000.00 as an exception to the general rule against
moral damages in case of breach of contract rule Art. 2200 (Necesito v. Paras, 104 Phil. 75). As
attorney's fees, Beter's heirs are entitled to P5,000.00. All in all, the plaintiff-appellants Ricardo
and Sergia Beter as heirs of their son Ornominio are entitled to an indemnity of Seventy Five
Thousand Pesos (P75,000.00).
In the case of Narcisa Rautraut, her heirs are entitled to a straight death indemnity of Thirty
Thousand Pesos (P30,000.00), to moral damages in the amount of Ten Thousand Pesos
(P10,000.00) and Five Thousand Pesos (P5,000.00) as attorney's fees, or a total of Forty Five
Thousand Pesos (P45,000.00) as total indemnity for her death in the absence of any evidence
that she had visible means of support. (Rollo, pp. 30-31)
WHEREFORE, the instant petition is DISMISSED. The questioned decision dated May 19, 1988 and
the resolution dated August 1, 1988 of the Court of Appeals are AFFIRMED.
SO ORDERED.
Case No. 16
G.R. No. L-29640 June 10, 1971
GUILLERMO AUSTRIA, petitioner, vs.THE COURT OF APPEALS (Second Division),
PACIFICO ABAD and MARIA G. ABAD, respondents.
REYES, J.B.L., J.:
Guillermo Austria petitions for the review of the decision rendered by the Court of Appeal (in CA-
G.R. No. 33572-R), on the sole issue of whether in a contract of agency (consignment of goods
for sale) it is necessary that there be prior conviction for robbery before the loss of the article
shall exempt the consignee from liability for such loss.
In a receipt dated 30 January 1961, Maria G. Abad acknowledged having received from Guillermo
Austria one (1) pendant with diamonds valued at P4,500.00, to be sold on commission basis or to
be returned on demand. On 1 February 1961, however, while walking home to her residence in
Mandaluyong, Rizal, Abad was said to have been accosted by two men, one of whom hit her on
the face, while the other snatched her purse containing jewelry and cash, and ran away. Among
the pieces of jewelry allegedly taken by the robbers was the consigned pendant. The incident
became the subject of a criminal case filed in the Court of First Instance of Rizal against certain
persons (Criminal Case No. 10649, People vs. Rene Garcia, et al.).
As Abad failed to return the jewelry or pay for its value notwithstanding demands, Austria
brought in the Court of First Instance of Manila an action against her and her husband for
recovery of the pendant or of its value, and damages. Answering the allegations of the
complaint, defendants spouses set up the defense that the alleged robbery had extinguished
their obligation.
After due hearing, the trial court rendered judgment for the plaintiff, and ordered defendants
spouses, jointly and severally, to pay to the former the sum of P4,500.00, with legal interest
thereon, plus the amount of P450.00 as reasonable attorneys' fees, and the costs. It was held
that defendants failed to prove the fact of robbery, or, if indeed it was committed, that defendant
Maria Abad was guilty of negligence when she went home without any companion, although it
was already getting dark and she was carrying a large amount of cash and valuables on the day
in question, and such negligence did not free her from liability for damages for the loss of the
jewelry.
Not satisfied with his decision, the defendants went to the Court of Appeals, and there secured a
reversal of the judgment. The appellate court overruling the finding of the trial court on the lack
of credibility of the two defense witnesses who testified on the occurrence of the robbery, and
holding that the facts of robbery and defendant Maria Abad's possesion of the pendant on that
unfortunate day have been duly published, declared respondents not responsible for the loss of
the jewelry on account of a fortuitous event, and relieved them from liability for damages to the
owner. Plaintiff thereupon instituted the present proceeding.
It is now contended by herein petitioner that the Court of Appeals erred in finding that there was
robbery in the case, although nobody has been found guilty of the supposed crime. It is
petitioner's theory that for robbery to fall under the category of a fortuitous event and relieve the
obligor from his obligation under a contract, pursuant to Article 1174 of the new Civil Code, there
ought to be prior finding on the guilt of the persons responsible therefor. In short, that the
occurrence of the robbery should be proved by a final judgment of conviction in the criminal
case. To adopt a different view, petitioner argues, would be to encourage persons accountable for
goods or properties received in trust or consignment to connive with others, who would be willing
to be accused in court for the robbery, in order to be absolved from civil liability for the loss or
disappearance of the entrusted articles.
We find no merit in the contention of petitioner.
It is recognized in this jurisdiction that to constitute a caso fortuito that would exempt a person
from responsibility, it is necessary that (1) the event must be independent of the human will (or
rather, of the debtor's or obligor's); (2) the occurrence must render it impossible for the debtor to
fulfill the obligation in a normal manner; and that (3) the obligor must be free of participation in
or aggravation of the injury to the creditor. 1 A fortuitous event, therefore, can be produced by
nature, e.g., earthquakes, storms, floods, etc., or by the act of man, such as war, attack by
bandits, robbery, 2 etc., provided that the event has all the characteristics enumerated above.
It is not here disputed that if respondent Maria Abad were indeed the victim of robbery, and if it
were really true that the pendant, which she was obliged either to sell on commission or to return
to petitioner, were taken during the robbery, then the occurrence of that fortuitous event would
have extinguished her liability. The point at issue in this proceeding is how the fact of robbery is
to be established in order that a person may avail of the exempting provision of Article 1174 of
the new Civil Code, which reads as follows:
ART. 1174. Except in cases expressly specified by law, or when it is otherwise declared by
stipulation, or when the nature of the obligation requires the assumption of risk, no person shall
be responsible for those events which could not be foreseen, or which, though foreseen, were
inevitable.
It may be noted the reform that the emphasis of the provision is on the events, not on the agents
or factors responsible for them. To avail of the exemption granted in the law, it is not necessary
that the persons responsible for the occurrence should be found or punished; it would only be
sufficient to established that the enforceable event, the robbery in this case did take place
without any concurrent fault on the debtor's part, and this can be done by preponderant
evidence. To require in the present action for recovery the prior conviction of the culprits in the
criminal case, in order to establish the robbery as a fact, would be to demand proof beyond
reasonable doubt to prove a fact in a civil case.
It is undeniable that in order to completely exonerate the debtor for reason of a fortutious event,
such debtor must, in addition to the cams itself, be free of any concurrent or contributory fault or
negligence. 3 This is apparent from Article 1170 of the Civil Code of the Philippines, providing
that:
ART. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or
delay, and those who in any manner contravene the tenor thereof, are liable for damages.
It is clear that under the circumstances prevailing at present in the City of Manila and its suburbs,
with their high incidence of crimes against persons and property that renders travel after
nightfall a matter to be sedulously avoided without suitable precaution and protection, the
conduct of respondent Maria G. Abad, in returning alone to her house in the evening, carrying
jewelry of considerable value would be negligent per se and would not exempt her from
responsibility in the case of a robbery. We are not persuaded, however, that the same rule should
obtain ten years previously, in 1961, when the robbery in question did take place, for at that time
criminality had not by far reached the levels attained in the present day.
There is likewise no merit in petitioner's argument that to allow the fact of robbery to be
recognized in the civil case before conviction is secured in the criminal action, would prejudice
the latter case, or would result in inconsistency should the accused obtain an acquittal or should
the criminal case be dismissed. It must be realized that a court finding that a robbery has
happened would not necessarily mean that those accused in the criminal action should be found
guilty of the crime; nor would a ruling that those actually accused did not commit the robbery be
inconsistent with a finding that a robbery did take place. The evidence to establish these facts
would not necessarily be the same.
WHEREFORE, finding no error in the decision of the Court of Appeals under review, the petition in
this case is hereby dismissed with costs against the petitioner.
Case No. 17
G.R. No. L-55300 March 15, 1990
FRANKLIN G. GACAL and CORAZON M. GACAL, the latter assisted by her husband,
FRANKLIN G. GACAL, petitioners,
vs. PHILIPPINE AIR LINES, INC., and THE HONORABLE PEDRO SAMSON C. ANIMAS, in
his capacity as PRESIDING JUDGE of the COURT OF FIRST INSTANCE OF SOUTH
COTABATO, BRANCH I, respondents.
PARAS, J.:
This is a, petition for review on certiorari of the decision of the Court of First Instance of South
Cotabato, Branch 1, * promulgated on August 26, 1980 dismissing three (3) consolidated cases
for damages: Civil Case No. 1701, Civil Case No. 1773 and Civil Case No. 1797 (Rollo, p. 35).
The facts, as found by respondent court, are as follows:
Plaintiffs Franklin G. Gacal and his wife, Corazon M. Gacal, Bonifacio S. Anislag and his wife,
Mansueta L. Anislag, and the late Elma de Guzman, were then passengers boarding defendant's
BAC 1-11 at Davao Airport for a flight to Manila, not knowing that on the same flight, Macalinog,
Taurac Pendatum known as Commander Zapata, Nasser Omar, Liling Pusuan Radia, Dimantong
Dimarosing and Mike Randa, all of Marawi City and members of the Moro National Liberation
Front (MNLF), were their co-passengers, three (3) armed with grenades, two (2) with .45 caliber
pistols, and one with a .22 caliber pistol. Ten (10) minutes after take off at about 2:30 in the
afternoon, the hijackers brandishing their respective firearms announced the hijacking of the
aircraft and directed its pilot to fly to Libya. With the pilot explaining to them especially to its
leader, Commander Zapata, of the inherent fuel limitations of the plane and that they are not
rated for international flights, the hijackers directed the pilot to fly to Sabah. With the same
explanation, they relented and directed the aircraft to land at Zamboanga Airport, Zamboanga
City for refueling. The aircraft landed at 3:00 o'clock in the afternoon of May 21, 1976 at
Zamboanga Airport. When the plane began to taxi at the runway, it was met by two armored
cars of the military with machine guns pointed at the plane, and it stopped there. The rebels thru
its commander demanded that a DC-aircraft take them to Libya with the President of the
defendant company as hostage and that they be given $375,000 and six (6) armalites, otherwise
they will blow up the plane if their demands will not be met by the government and Philippine Air
Lines. Meanwhile, the passengers were not served any food nor water and it was only on May 23,
a Sunday, at about 1:00 o'clock in the afternoon that they were served 1/4 slice of a sandwich
and 1/10 cup of PAL water. After that, relatives of the hijackers were allowed to board the plane
but immediately after they alighted therefrom, an armored car bumped the stairs. That
commenced the battle between the military and the hijackers which led ultimately to the
liberation of the surviving crew and the passengers, with the final score of ten (10) passengers
and three (3) hijackers dead on the spot and three (3) hijackers captured.
City Fiscal Franklin G. Gacal was unhurt. Mrs. Corazon M. Gacal suffered injuries in the course of
her jumping out of the plane when it was peppered with bullets by the army and after two (2)
hand grenades exploded inside the plane. She was hospitalized at General Santos Doctors
Hospital, General Santos City, for two (2) days, spending P245.60 for hospital and medical
expenses, Assistant City Fiscal Bonifacio S. Anislag also escaped unhurt but Mrs. Anislag suffered
a fracture at the radial bone of her left elbow for which she was hospitalized and operated on at
the San Pedro Hospital, Davao City, and therefore, at Davao Regional Hospital, Davao City,
spending P4,500.00. Elma de Guzman died because of that battle. Hence, the action of damages
instituted by the plaintiffs demanding the following damages, to wit:
Civil Case No. 1701
City Fiscal Franklin G. Gacal and Mrs. Corazon M. Gacal actual damages: P245.60 for hospital
and medical expenses of Mrs Gacal; P8,995.00 for their personal belongings which were lost and
not recovered; P50,000.00 each for moral damages; and P5,000.00 for attorney's fees, apart
from the prayer for an award of exemplary damages (Record, pp. 4-6, Civil Case No. 1701).
Civil Case No. 1773
xxx xxx xxx
Civil Case No. 1797
xxx xxx xxx
The trial court, on August 26, 1980, dismissed the complaints finding that all the damages
sustained in the premises were attributed to force majeure.
On September 12, 1980 the spouses Franklin G. Gacal and Corazon M. Gacal, plaintiffs in Civil
Case No. 1701, filed a notice of appeal with the lower court on pure questions of law (Rollo, p.
55) and the petition for review on certiorari was filed with this Court on October 20, 1980 (Rollo,
p. 30).
The Court gave due course to the petition (Rollo, p. 147) and both parties filed their respective
briefs but petitioner failed to file reply brief which was noted by the Court in the resolution dated
May 3, 1982 (Rollo, p. 183).
Petitioners alleged that the main cause of the unfortunate incident is the gross, wanton and
inexcusable negligence of respondent Airline personnel in their failure to frisk the passengers
adequately in order to discover hidden weapons in the bodies of the six (6) hijackers. They
claimed that despite the prevalence of skyjacking, PAL did not use a metal detector which is the
most effective means of discovering potential skyjackers among the passengers (Rollo, pp. 6-7).
Respondent Airline averred that in the performance of its obligation to safely transport
passengers as far as human care and foresight can provide, it has exercised the utmost diligence
of a very cautious person with due regard to all circumstances, but the security checks and
measures and surveillance precautions in all flights, including the inspection of baggages and
cargo and frisking of passengers at the Davao Airport were performed and rendered solely by
military personnel who under appropriate authority had assumed exclusive jurisdiction over the
same in all airports in the Philippines.
Similarly, the negotiations with the hijackers were a purely government matter and a military
operation, handled by and subject to the absolute and exclusive jurisdiction of the military
authorities. Hence, it concluded that the accident that befell RP-C1161 was caused by fortuitous
event, force majeure and other causes beyond the control of the respondent Airline.
The determinative issue in this case is whether or not hijacking or air piracy during martial law
and under the circumstances obtaining herein, is a caso fortuito or force majeure which would
exempt an aircraft from payment of damages to its passengers whose lives were put in jeopardy
and whose personal belongings were lost during the incident.
Under the Civil Code, common carriers are required to exercise extraordinary diligence in their
vigilance over the goods and for the safety of passengers transported by them, according to all
the circumstances of each case (Article 1733). They are presumed at fault or to have acted
negligently whenever a passenger dies or is injured (Philippine Airlines, Inc. v. National Labor
Relations Commission, 124 SCRA 583 [1983]) or for the loss, destruction or deterioration of
goods in cases other than those enumerated in Article 1734 of the Civil Code (Eastern Shipping
Lines, Inc. v. Intermediate Appellate Court, 150 SCRA 463 [1987]).
The source of a common carrier's legal liability is the contract of carriage, and by entering into
said contract, it binds itself to carry the passengers safely as far as human care and foresight can
provide. There is breach of this obligation if it fails to exert extraordinary diligence according to
all the circumstances of the case in exercise of the utmost diligence of a very cautious person
(Isaac v. Ammen Transportation Co., 101 Phil. 1046 [1957]; Juntilla v. Fontanar, 136 SCRA 624
[1985]).
It is the duty of a common carrier to overcome the presumption of negligence (Philippine
National Railways v. Court of Appeals, 139 SCRA 87 [1985]) and it must be shown that the carrier
had observed the required extraordinary diligence of a very cautious person as far as human
care and foresight can provide or that the accident was caused by a fortuitous event (Estrada v.
Consolacion, 71 SCRA 523 [1976]). Thus, as ruled by this Court, no person shall be responsible
for those "events which could not be foreseen or which though foreseen were inevitable. (Article
1174, Civil Code). The term is synonymous with caso fortuito (Lasam v. Smith, 45 Phil. 657
[1924]) which is of the same sense as "force majeure" (Words and Phrases Permanent Edition,
Vol. 17, p. 362).
In order to constitute a caso fortuito or force majeure that would exempt a person from liability
under Article 1174 of the Civil Code, it is necessary that the following elements must concur: (a)
the cause of the breach of the obligation must be independent of the human will (the will of the
debtor or the obligor); (b) the event must be either unforeseeable or unavoidable; (c) the event
must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner;
and (d) the debtor must be free from any participation in, or aggravation of the injury to the
creditor (Lasam v. Smith, 45 Phil. 657 [1924]; Austria v. Court of Appeals, 39 SCRA 527 [1971];
Estrada v. Consolacion, supra; Vasquez v. Court of Appeals, 138 SCRA 553 [1985]; Juan F. Nakpil
& Sons v. Court of Appeals, 144 SCRA 596 [1986]). Caso fortuito or force majeure, by definition,
are extraordinary events not foreseeable or avoidable, events that could not be foreseen, or
which, though foreseen, are inevitable. It is, therefore, not enough that the event should not
have been foreseen or anticipated, as is commonly believed, but it must be one impossible to
foresee or to avoid. The mere difficulty to foresee the happening is not impossibility to foresee
the same (Republic v. Luzon Stevedoring Corporation, 21 SCRA 279 [1967]).
Applying the above guidelines to the case at bar, the failure to transport petitioners safely from
Davao to Manila was due to the skyjacking incident staged by six (6) passengers of the same
plane, all members of the Moro National Liberation Front (MNLF), without any connection with
private respondent, hence, independent of the will of either the PAL or of its passengers.
Under normal circumstances, PAL might have foreseen the skyjacking incident which could have
been avoided had there been a more thorough frisking of passengers and inspection of baggages
as authorized by R.A. No. 6235. But the incident in question occurred during Martial Law where
there was a military take-over of airport security including the frisking of passengers and the
inspection of their luggage preparatory to boarding domestic and international flights. In fact
military take-over was specifically announced on October 20, 1973 by General Jose L. Rancudo,
Commanding General of the Philippine Air Force in a letter to Brig. Gen. Jesus Singson, then
Director of the Civil Aeronautics Administration (Rollo, pp. 71-72) later confirmed shortly before
the hijacking incident of May 21, 1976 by Letter of Instruction No. 399 issued on April 28, 1976
(Rollo, p. 72).
Otherwise stated, these events rendered it impossible for PAL to perform its obligations in a
nominal manner and obviously it cannot be faulted with negligence in the performance of duty
taken over by the Armed Forces of the Philippines to the exclusion of the former.
Finally, there is no dispute that the fourth element has also been satisfied. Consequently the
existence of force majeure has been established exempting respondent PAL from the payment of
damages to its passengers who suffered death or injuries in their persons and for loss of their
baggages.
PREMISES CONSIDERED, the petition is hereby DISMISSED for lack of merit and the decision of
the Court of First Instance of South Cotabato, Branch I is hereby AFFIRMED.
SO ORDERED.
Case No. 18
G.R. No. 115024 February 7, 1996
MA. LOURDES VALENZUELA, petitioner, vs.COURT OF APPEALS, RICHARD LI and
ALEXANDER COMMERCIAL, INC., respondents.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x
G.R. No. 117944 February 7, 1996
RICHARD LI, petitioner, vs.COURT OF APPEALS and LOURDES VALENZUELA, respondents.
KAPUNAN, J.:
These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court stem
from an action to recover damages by petitioner Lourdes Valenzuela in the Regional Trial Court of
Quezon City for injuries sustained by her in a vehicular accident in the early morning of June 24,
1990. The facts found by the trial court are succinctly summarized by the Court of Appeals
below:
This is an action to recover damages based on quasi-delict, for serious physical injuries sustained
in a vehicular accident.
Plaintiff's version of the accident is as follows: At around 2:00 in the morning of June 24, 1990,
plaintiff Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No. FFU 542 from
her restaurant at Marcos highway to her home at Palanza Street, Araneta Avenue. She was
travelling along Aurora Blvd. with a companion, Cecilia Ramon, heading towards the direction of
Manila. Before reaching A. Lake Street, she noticed something wrong with her tires; she stopped
at a lighted place where there were people, to verify whether she had a flat tire and to solicit
help if needed. Having been told by the people present that her rear right tire was flat and that
she cannot reach her home in that car's condition, she parked along the sidewalk, about 1-1/2
feet away, put on her emergency lights, alighted from the car, and went to the rear to open the
trunk. She was standing at the left side of the rear of her car pointing to the tools to a man who
will help her fix the tire when she was suddenly bumped by a 1987 Mitsubishi Lancer driven by
defendant Richard Li and registered in the name of defendant Alexander Commercial, Inc.
Because of the impact plaintiff was thrown against the windshield of the car of the defendant,
which was destroyed, and then fell to the ground. She was pulled out from under defendant's car.
Plaintiff's left leg was severed up to the middle of her thigh, with only some skin and sucle
connected to the rest of the body. She was brought to the UERM Medical Memorial Center where
she was found to have a "traumatic amputation, leg, left up to distal thigh (above knee)". She
was confined in the hospital for twenty (20) days and was eventually fitted with an artificial leg.
The expenses for the hospital confinement (P120,000.00) and the cost of the artificial leg
(P27,000.00) were paid by defendants from the car insurance.
In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary
damages in the amount of P100,000.00 and other medical and related expenses amounting to a
total of P180,000.00, including loss of expected earnings.
Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55
kph; considering that it was raining, visibility was affected and the road was wet. Traffic was light.
He testified that he was driving along the inner portion of the right lane of Aurora Blvd. towards
the direction of Araneta Avenue, when he was suddenly confronted, in the vicinity of A. Lake
Street, San Juan, with a car coming from the opposite direction, travelling at 80 kph, with "full
bright lights". Temporarily blinded, he instinctively swerved to the right to avoid colliding with the
oncoming vehicle, and bumped plaintiff's car, which he did not see because it was midnight blue
in color, with no parking lights or early warning device, and the area was poorly lighted. He
alleged in his defense that the left rear portion of plaintiff's car was protruding as it was then "at
a standstill diagonally" on the outer portion of the right lane towards Araneta Avenue (par. 18,
Answer). He confirmed the testimony of plaintiff's witness that after being bumped the car of the
plaintiff swerved to the right and hit another car parked on the sidewalk. Defendants
counterclaimed for damages, alleging that plaintiff was reckless or negligent, as she was not a
licensed driver.
The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the
sketch of the three cars involved in the accident, testified that the plaintiff's car was "near the
sidewalk"; this witness did not remember whether the hazard lights of plaintiff's car were on, and
did not notice if there was an early warning device; there was a street light at the corner of
Aurora Blvd. and F. Roman, about 100 meters away. It was not mostly dark, i.e. "things can be
seen" (p. 16, tsn, Oct. 28, 1991).
A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her car
and opened the trunk compartment, defendant's car came approaching very fast ten meters
from the scene; the car was "zigzagging". The rear left side of plaintiff's car was bumped by the
front right portion of defendant's car; as a consequence, the plaintiff's car swerved to the right
and hit the parked car on the sidewalk. Plaintiff was thrown to the windshield of defendant's car,
which was destroyed, and landed under the car. He stated that defendant was under the
influence of liquor as he could "smell it very well" (pp. 43, 79, tsn, June 17, 1991).
After trial, the lower court sustained the plaintiff's submissions and found defendant Richard Li
guilty of gross negligence and liable for damages under Article 2176 of the Civil Code. The trial
court likewise held Alexander Commercial, Inc., Li's employer, jointly and severally liable for
damages pursuant to Article 2180. It ordered the defendants to jointly and severally pay the
following amounts:
1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff as a
result of her severed left leg;
2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of plaintiff's
Bistro La Conga restaurant three (3) weeks after the accident on June 24, 1990; (b) P20,000.00, a
month, as unrealized profits of the plaintiff in her Bistro La Conga restaurant, from August, 1990
until the date of this judgment and (c) P30,000.00, a month for unrealized profits in plaintiff's two
(2) beauty salons from July, 1990 until the date of this decision;
3. P1,000,000.00, in moral damages;
4. P50,000.00, as exemplary damages;
5. P60,000.00, as reasonable attorney's fees; and
6. Costs.
As a result of the trial court's decision, defendants filed an Omnibus Motion for New Trial and for
Reconsideration, citing testimony in Criminal Case O.C. No. 804367 (People vs. Richard Li),
tending to show that the point of impact, as depicted by the pieces of glass/debris from the
parties' cars, appeared to be at the center of the right lane of Aurora Blvd. The trial court denied
the motion. Defendants forthwith filed an appeal with the respondent Court of Appeals. In a
Decision rendered March 30, 1994, the Court of Appeals found that there was "ample basis from
the evidence of record for the trial court's finding that the plaintiff's car was properly parked at
the right, beside the sidewalk when it was bumped by defendant's car." 1 Dismissing the
defendants' argument that the plaintiff's car was improperly parked, almost at the center of the
road, the respondent court noted that evidence which was supposed to prove that the car was at
or near center of the right lane was never presented during the trial of the case. 2 The respondent
court furthermore observed that:
Defendant Li's testimony that he was driving at a safe speed of 55 km./hour is self serving; it was
not corroborated. It was in fact contradicted by eyewitness Rodriguez who stated that he was
outside his beerhouse located at Aurora Boulevard after A. Lake Street, at or about 2:00 a.m. of
June 24, 1990 when his attention was caught by a beautiful lady (referring to the plaintiff)
alighting from her car and opening the trunk compartment; he noticed the car of Richard Li
"approaching very fast ten (10) meters away from the scene"; defendant's car was zigzagging",
although there were no holes and hazards on the street, and "bumped the leg of the plaintiff"
who was thrown against the windshield of defendant's care, causing its destruction. He came to
the rescue of the plaintiff, who was pulled out from under defendant's car and was able to say
"hurting words" to Richard Li because he noticed that the latter was under the influence of liquor,
because he "could smell it very well" (p. 36, et. seq., tsn, June 17, 1991). He knew that plaintiff
owned a beerhouse in Sta. Mesa in the 1970's, but did not know either plaintiff or defendant Li
before the accident.
In agreeing with the trial court that the defendant Li was liable for the injuries sustained by the
plaintiff, the Court of Appeals, in its decision, however, absolved the Li's employer, Alexander
Commercial, Inc. from any liability towards petitioner Lourdes Valenzuela and reduced the
amount of moral damages to P500,000.00. Finding justification for exemplary damages, the
respondent court allowed an award of P50,000.00 for the same, in addition to costs, attorney's
fees and the other damages. The Court of Appeals, likewise, dismissed the defendants'
counterclaims.3
Consequently, both parties assail the respondent court's decision by filing two separate petitions
before this Court. Richard Li, in G.R. No. 117944, contends that he should not be held liable for
damages because the proximate cause of the accident was Ma. Lourdes Valenzuela's own
negligence. Alternatively, he argues that in the event that this Court finds him negligent, such
negligence ought to be mitigated by the contributory negligence of Valenzuela.
On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent court's
decision insofar as it absolves Alexander Commercial, Inc. from liability as the owner of the car
driven by Richard Li and insofar as it reduces the amount of the actual and moral damages
awarded by the trial court.4
As the issues are intimately related, both petitions are hereby consolidated.
It is plainly evident that the petition for review in G.R. No. 117944 raises no substantial questions
of law. What it, in effect, attempts to have this Court review are factual findings of the trial court,
as sustained by the Court of Appeals finding Richard Li grossly negligent in driving the Mitsubishi
Lancer provided by his company in the early morning hours of June 24, 1990. This we will not do.
As a general rule, findings of fact of the Court of Appeals are binding and conclusive upon us,
and this Court will not normally disturb such factual findings unless the findings of fact of the
said court are palpably unsupported by the evidence on record or unless the judgment itself is
based on a misapprehension of facts. 5
In the first place, Valenzuela's version of the incident was fully corroborated by an uninterested
witness, Rogelio Rodriguez, the owner-operator of an establishment located just across the scene
of the accident. On trial, he testified that he observed a car being driven at a "very fast" speed,
racing towards the general direction of Araneta Avenue. 6 Rodriguez further added that he was
standing in front of his establishment, just ten to twenty feet away from the scene of the
accident, when he saw the car hit Valenzuela, hurtling her against the windshield of the
defendant's Mitsubishi Lancer, from where she eventually fell under the defendant's car.
Spontaneously reacting to the incident, he crossed the street, noting that a man reeking with the
smell of liquor had alighted from the offending vehicle in order to survey the incident. 7 Equally
important, Rodriguez declared that he observed Valenzuela's car parked parallel and very near
the sidewalk,8 contrary to Li's allegation that Valenzuela's car was close to the center of the right
lane. We agree that as between Li's "self-serving" asseverations and the observations of a
witness who did not even know the accident victim personally and who immediately gave a
statement of the incident similar to his testimony to the investigator immediately after the
incident, the latter's testimony deserves greater weight. As the court emphasized:
The issue is one of credibility and from Our own examination of the transcript, We are not
prepared to set aside the trial court's reliance on the testimony of Rodriguez negating
defendant's assertion that he was driving at a safe speed. While Rodriguez drives only a
motorcycle, his perception of speed is not necessarily impaired. He was subjected to cross-
examination and no attempt was made to question .his competence or the accuracy of his
statement that defendant was driving "very fast". This was the same statement he gave to the
police investigator after the incident, as told to a newspaper report (Exh. "P"). We see no
compelling basis for disregarding his testimony.
The alleged inconsistencies in Rodriguez' testimony are not borne out by an examination of the
testimony. Rodriguez testified that the scene of the accident was across the street where his
beerhouse is located about ten to twenty feet away (pp. 35-36, tsn, June 17, 1991). He did not
state that the accident transpired immediately in front of his establishment. The ownership of the
Lambingan se Kambingan is not material; the business is registered in the name of his mother,
but he explained that he owns the establishment (p. 5, tsn, June 20, 1991). Moreover, the
testimony that the streetlights on his side of Aurora Boulevard were on the night the accident
transpired (p. 8) is not necessarily contradictory to the testimony of Pfc. Ramos that there was a
streetlight at the corner of Aurora Boulevard and F. Roman Street (p. 45, tsn, Oct. 20, 1991).
With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a
heavy rain and the rain has stopped and he was outside his establishment at the time the
accident transpired (pp. 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. 10-11, tsn, April 29, 1991). It was
defendant Li who stated that it was raining all the way in an attempt to explain why he was
travelling at only 50-55 kph. (p. 11, tsn, Oct. 14, 1991). As to the testimony of Pfc. Ramos that it
was raining, he arrived at the scene only in response to a telephone call after the accident had
transpired (pp. 9-10, tsn, Oct. 28, 1991). We find no substantial inconsistencies in Rodriguez's
testimony that would impair the essential integrity of his testimony or reflect on his honesty. We
are compelled to affirm the trial court's acceptance of the testimony of said eyewitness.
Against the unassailable testimony of witness Rodriguez we note that Li's testimony was
peppered with so many inconsistencies leading us to conclude that his version of the accident
was merely adroitly crafted to provide a version, obviously self-serving, which would exculpate
him from any and all liability in the incident. Against Valenzuela's corroborated claims, his
allegations were neither backed up by other witnesses nor by the circumstances proven in the
course of trial. He claimed that he was driving merely at a speed of 55 kph. when "out of
nowhere he saw a dark maroon lancer right in front of him, which was (the) plaintiff's car". He
alleged that upon seeing this sudden "apparition" he put on his brakes to no avail as the road
was slippery.9
One will have to suspend disbelief in order to give credence to Li's disingenuous and patently
self-serving asseverations. The average motorist alert to road conditions will have no difficulty
applying the brakes to a car traveling at the speed claimed by Li. Given a light rainfall, the
visibility of the street, and the road conditions on a principal metropolitan thoroughfare like
Aurora Boulevard, Li would have had ample time to react to the changing conditions of the road
if he were alert - as every driver should be - to those conditions. Driving exacts a more than
usual toll on the senses. Physiological "fight or flight" 10 mechanisms are at work, provided such
mechanisms were not dulled by drugs, alcohol, exhaustion, drowsiness, etc. 11 Li's failure to react
in a manner which would have avoided the accident could therefore have been only due to either
or both of the two factors: 1) that he was driving at a "very fast" speed as testified by Rodriguez;
and 2) that he was under the influence of alcohol. 12 Either factor working independently would
have diminished his responsiveness to road conditions, since normally he would have slowed
down prior to reaching Valenzuela's car, rather than be in a situation forcing him to suddenly
apply his brakes. As the trial court noted (quoted with approval by respondent court):
Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the
incident, he said that while driving along Aurora Blvd., out of nowhere he saw a dark maroon
lancer right in front of him which was plaintiff's car, indicating, again, thereby that, indeed, he
was driving very fast, oblivious of his surroundings and the road ahead of him, because if he was
not, then he could not have missed noticing at a still far distance the parked car of the plaintiff at
the right side near the sidewalk which had its emergency lights on, thereby avoiding forcefully
bumping at the plaintiff who was then standing at the left rear edge of her car.
Since, according to him, in his narration to the San Juan Police, he put on his brakes when he saw
the plaintiff's car in front of him, but that it failed as the road was wet and slippery, this goes to
show again, that, contrary to his claim, he was, indeed, running very fast. For, were it otherwise,
he could have easily completely stopped his car, thereby avoiding the bumping of the plaintiff,
notwithstanding that the road was wet and slippery. Verily, since, if, indeed, he was running slow,
as he claimed, at only about 55 kilometers per hour, then, inspite of the wet and slippery road,
he could have avoided hitting the plaintiff by the mere expedient or applying his brakes at the
proper time and distance.
It could not be true, therefore, as he now claims during his testimony, which is contrary to what
he told the police immediately after the accident and is, therefore, more believable, that he did
not actually step on his brakes but simply swerved a little to the right when he saw the on-
coming car with glaring headlights, from the opposite direction, in order to avoid it.
For, had this been what he did, he would not have bumped the car of the plaintiff which was
properly parked at the right beside the sidewalk. And, it was not even necessary for him to
swerve a little to the right in order to safely avoid a collision with the on-coming car, considering
that Aurora Blvd. is a double lane avenue separated at the center by a dotted white paint, and
there is plenty of space for both cars, since her car was running at the right lane going towards
Manila on the on-coming car was also on its right lane going to Cubao. 13
Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi
Lancer, the next question for us to determine is whether or not Valenzuela was likewise guilty of
contributory negligence in parking her car alongside Aurora Boulevard, which entire area Li
points out, is a no parking zone.
We agree with the respondent court that Valenzuela was not guilty of contributory negligence.
Contributory negligence is conduct on the part of the injured party, contributing as a legal cause
to the harm he has suffered, which falls below the standard to which he is required to conform for
his own protection.14 Based on the foregoing definition, the standard or act to which, according to
petitioner Li, Valenzuela ought to have conformed for her own protection was not to park at all at
any point of Aurora Boulevard, a no parking zone. We cannot agree.
Courts have traditionally been compelled to recognize that an actor who is confronted with an
emergency is not to be held up to the standard of conduct normally applied to an individual who
is in no such situation. The law takes stock of impulses of humanity when placed in threatening
or dangerous situations and does not require the same standard of thoughtful and reflective care
from persons confronted by unusual and oftentimes threatening conditions. 15
Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,16 an individual
who suddenly finds himself in a situation of danger and is required to act without much time to
consider the best means that may be adopted to avoid the impending danger, is not guilty of
negligence if he fails to undertake what subsequently and upon reflection may appear to be a
better solution, unless the emergency was brought by his own negligence. 17
Applying this principle to a case in which the victims in a vehicular accident swerved to the
wrong lane to avoid hitting two children suddenly darting into the street, we held, in Mc Kee
vs. Intermediate Appellate Court,18 that the driver therein, Jose Koh, "adopted the best means
possible in the given situation" to avoid hitting the children. Using the "emergency rule" the
Court concluded that Koh, in spite of the fact that he was in the wrong lane when the collision
with an oncoming truck occurred, was not guilty of negligence. 19
While the emergency rule applies to those cases in which reflective thought, or the opportunity
to adequately weigh a threatening situation is absent, the conduct which is required of an
individual in such cases is dictated not exclusively by the suddenness of the event which
absolutely negates thoroughful care, but by the over-all nature of the circumstances. A woman
driving a vehicle suddenly crippled by a flat tire on a rainy night will not be faulted for stopping
at a point which is both convenient for her to do so and which is not a hazard to other motorists.
She is not expected to run the entire boulevard in search for a parking zone or turn on a dark
street or alley where she would likely find no one to help her. It would be hazardous for her not to
stop and assess the emergency (simply because the entire length of Aurora Boulevard is a no-
parking zone) because the hobbling vehicle would be both a threat to her safety and to other
motorists. In the instant case, Valenzuela, upon reaching that portion of Aurora Boulevard close
to A. Lake St., noticed that she had a flat tire. To avoid putting herself and other motorists in
danger, she did what was best under the situation. As narrated by respondent court: "She
stopped at a lighted place where there were people, to verify whether she had a flat tire and to
solicit help if needed. Having been told by the people present that her rear right tire was flat and
that she cannot reach her home she parked along the sidewalk, about 1 1/2 feet away, behind a
Toyota Corona Car."20 In fact, respondent court noted, Pfc. Felix Ramos, the investigator on the
scene of the accident confirmed that Valenzuela's car was parked very close to the
sidewalk.21 The sketch which he prepared after the incident showed Valenzuela's car partly
straddling the sidewalk, clear and at a convenient distance from motorists passing the right lane
of Aurora Boulevard. This fact was itself corroborated by the testimony of witness Rodriguez. 22
Under the circumstances described, Valenzuela did exercise the standard reasonably dictated by
the emergency and could not be considered to have contributed to the unfortunate
circumstances which eventually led to the amputation of one of her lower extremities. The
emergency which led her to park her car on a sidewalk in Aurora Boulevard was not of her own
making, and it was evident that she had taken all reasonable precautions.
Obviously in the case at bench, the only negligence ascribable was the negligence of Li on the
night of the accident. "Negligence, as it is commonly understood is conduct which creates an
undue risk of harm to others." 23It is the failure to observe that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such other person suffers injury. 24 We
stressed, in Corliss vs. Manila Railroad Company,25 that negligence is the want of care required
by the circumstances.
The circumstances established by the evidence adduced in the court below plainly demonstrate
that Li was grossly negligent in driving his Mitsubishi Lancer. It bears emphasis that he was
driving at a fast speed at about 2:00 A.M. after a heavy downpour had settled into a drizzle
rendering the street slippery. There is ample testimonial evidence on record to show that he was
under the influence of liquor. Under these conditions, his chances of effectively dealing with
changing conditions on the road were significantly lessened. As Presser and Keaton emphasize:
[U]nder present day traffic conditions, any driver of an automobile must be prepared for the
sudden appearance of obstacles and persons on the highway, and of other vehicles at
intersections, such as one who sees a child on the curb may be required to anticipate its sudden
dash into the street, and his failure to act properly when they appear may be found to amount to
negligence.26
Li's obvious unpreparedness to cope with the situation confronting him on the night of the
accident was clearly of his own making.
We now come to the question of the liability of Alexander Commercial, Inc. Li's employer. In
denying liability on the part of Alexander Commercial, the respondent court held that:
There is no evidence, not even defendant Li's testimony, that the visit was in connection with
official matters. His functions as assistant manager sometimes required him to perform work
outside the office as he has to visit buyers and company clients, but he admitted that on the
night of the accident he came from BF Homes Paranaque he did not have "business from the
company" (pp. 25-26, ten, Sept. 23, 1991). The use of the company car was partly required by
the nature of his work, but the privilege of using it for non-official business is a "benefit",
apparently referring to the fringe benefits attaching to his position.
Under the civil law, an employer is liable for the negligence of his employees in the discharge of
their respective duties, the basis of which liability is not respondeat superior, but the relationship
of pater familias, which theory bases the liability of the master ultimately on his own negligence
and not on that of his servant (Cuison v. Norton and Harrison Co., 55 Phil. 18). Before an
employer may be held liable for the negligence of his employee, the act or omission which
caused damage must have occurred while an employee was in the actual performance of his
assigned tasks or duties (Francis High School vs. Court of Appeals, 194 SCRA 341). In defining an
employer's liability for the acts done within the scope of the employee's assigned tasks, the
Supreme Court has held that this includes any act done by an employee, in furtherance of the
interests of the employer or for the account of the employer at the time of the infliction of the
injury or damage (Filamer Christian Institute vs. Intermediate Appellate Court, 212 SCRA 637). An
employer is expected to impose upon its employees the necessary discipline called for in the
performance of any act "indispensable to the business and beneficial to their employer" (at p.
645).
In light of the foregoing, We are unable to sustain the trial court's finding that since defendant Li
was authorized by the company to use the company car "either officially or socially or even bring
it home", he can be considered as using the company car in the service of his employer or on the
occasion of his functions. Driving the company car was not among his functions as assistant
manager; using it for 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. 27
We agree with the respondent court that the relationship in question is not based on the principle
of respondeat superior, which holds the master liable for acts of the servant, but that of pater
familias, in which the liability ultimately falls upon the employer, for his failure to exercise the
diligence of a good father of the family in the selection and supervision of his employees. It is up
to this point, however, that our agreement with the respondent court ends. Utilizing the bonus
pater familias standard expressed in Article 2180 of the Civil Code, 28 we are of the opinion that
Li's employer, Alexander Commercial, Inc. is jointly and solidarily liable for the damage caused
by the accident of June 24, 1990.
First, the case of St. Francis High School vs. Court of Appeals29 upon which respondent court has
placed undue reliance, dealt with the subject of a school and its teacher's supervision of students
during an extracurricular activity. These cases now fall under the provision on special parental
authority found in Art. 218 of the Family Code which generally encompasses all authorized school
activities, whether inside or outside school premises.
Second, the employer's primary liability under the concept of pater familias embodied by Art
2180 (in relation to Art. 2176) of the Civil Code is quasi-delictual or tortious in character. His
liability is relieved on a showing that he exercised the diligence of a good father of the family in
the selection and supervision of its employees. Once evidence is introduced showing that the
employer exercised the required amount of care in selecting its employees, half of the
employer's burden is overcome. The question of diligent supervision, however, depends on the
circumstances of employment.
Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its
employee during the performance of the latter's assigned tasks would be enough to relieve him
of the liability imposed by Article 2180 in relation to Article 2176 of the Civil Code. The employer
is not expected to exercise supervision over either the employee's private activities or during the
performance of tasks either unsanctioned by the former or unrelated to the employee's tasks.
The case at bench presents a situation of a different character, involving a practice utilized by
large companies with either their employees of managerial rank or their representatives.
It is customary for large companies to provide certain classes of their employees with courtesy
vehicles. These company cars are either wholly owned and maintained by the company itself or
are subject to various plans through which employees eventually acquire their vehicles after a
given period of service, or after paying a token amount. Many companies provide liberal "car
plans" to enable their managerial or other employees of rank to purchase cars, which, given the
cost of vehicles these days, they would not otherwise be able to purchase on their own.
Under the first example, the company actually owns and maintains the car up to the point of
turnover of ownership to the employee; in the second example, the car is really owned and
maintained by the employee himself. In furnishing vehicles to such employees, are companies
totally absolved of responsibility when an accident involving a company-issued car occurs during
private use after normal office hours?
Most pharmaceutical companies, for instance, which provide cars under the first plan, require
rigorous tests of road worthiness from their agents prior to turning over the car (subject of
company maintenance) to their representatives. In other words, like a good father of a family,
they entrust the company vehicle only after they are satisfied that the employee to whom the
car has been given full use of the said company car for company or private purposes will not be a
threat or menace to himself, the company or to others. When a company gives full use and
enjoyment of a company car to its employee, it in effect guarantees that it is, like every good
father, satisfied that its employee will use the privilege reasonably and responsively.
In the ordinary course of business, not all company employees are given the privilege of using a
company-issued car. For large companies other than those cited in the example of the preceding
paragraph, the privilege serves important business purposes either related to the image of
success an entity intends to present to its clients and to the public in general, or - for practical
and utilitarian reasons - to enable its managerial and other employees of rank or its sales agents
to reach clients conveniently. In most cases, providing a company car serves both purposes.
Since important business transactions and decisions may occur at all hours in all sorts of
situations and under all kinds of guises, the provision for the unlimited use of a company car
therefore principally serves the business and goodwill of a company and only incidentally the
private purposes of the individual who actually uses the car, the managerial employee or
company sales agent. As such, in providing for a company car for business use and/or for the
purpose of furthering the company's image, a company owes a responsibility to the public to see
to it that the managerial or other employees to whom it entrusts virtually unlimited use of a
company issued car are able to use the company issue capably and responsibly.
In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his testimony
before the trial court, he admitted that his functions as Assistant Manager did not require him to
scrupulously keep normal office hours as he was required quite often to perform work outside the
office, visiting prospective buyers and contacting and meeting with company clients. 30 These
meetings, clearly, were not strictly confined to routine hours because, as a managerial employee
tasked with the job of representing his company with its clients, meetings with clients were both
social as well as work-related functions. The service car assigned to Li by Alexander Commercial,
Inc. therefore enabled both Li - as well as the corporation - to put up the front of a highly
successful entity, increasing the latter's goodwill before its clientele. It also facilitated meeting
between Li and its clients by providing the former with a convenient mode of travel.
Moreover, Li's claim that he happened to be on the road on the night of the accident because he
was coming from a social visit with an officemate in Paranaque was a bare allegation which was
never corroborated in the court below. It was obviously self-serving. Assuming he really came
from his officemate's place, the same could give rise to speculation that he and his officemate
had just been from a work-related function, or they were together to discuss sales and other
work related strategies.
In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it exercised
the care and diligence of a good father of the family in entrusting its company car to Li. No
allegations were made as to whether or not the company took the steps necessary to determine
or ascertain the driving proficiency and history of Li, to whom it gave full and unlimited use of a
company car.31 Not having been able to overcome the burden of demonstrating that it should be
absolved of liability for entrusting its company car to Li, said company, based on the principle
of bonus pater familias, ought to be jointly and severally liable with the former for the injuries
sustained by Ma. Lourdes Valenzuela during the accident.
Finally, we find no reason to overturn the amount of damages awarded by the respondent court,
except as to the amount of moral damages. In the case of moral damages, while the said
damages are not intended to enrich the plaintiff at the expense of a defendant, the award should
nonetheless be commensurate to the suffering inflicted. In the instant case we are of the opinion
that the reduction in moral damages from an amount of P1,000,000.00 to P800,000,00 by the
Court of Appeals was not justified considering the nature of the resulting damage and the
predictable sequelae of the injury.
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left
lower extremity at the distal left thigh just above the knee. Because of this, Valenzuela will
forever be deprived of the full ambulatory functions of her left extremity, even with the use of
state of the art prosthetic technology. Well beyond the period of hospitalization (which was paid
for by Li), she will be required to undergo adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During her lifetime, the prosthetic devise will have to be
replaced and re-adjusted to changes in the size of her lower limb effected by the biological
changes of middle-age, menopause and aging. Assuming she reaches menopause, for example,
the prosthetic will have to be adjusted to respond to the changes in bone resulting from a
precipitate decrease in calcium levels observed in the bones of all post-menopausal women. In
other words, the damage done to her would not only be permanent and lasting, it would also be
permanently changing and adjusting to the physiologic changes which her body
would normally undergo through the years. The replacements, changes, and adjustments will
require corresponding adjustive physical and occupational therapy. All of these adjustments, it
has been documented, are painful.
The foregoing discussion does not even scratch the surface of the nature of the resulting damage
because it would be highly speculative to estimate the amount of psychological pain, damage
and injury which goes with the sudden severing of a vital portion of the human body. A prosthetic
device, however technologically advanced, will only allow a reasonable amount of functional
restoration of the motor functions of the lower limb. The sensory functions are forever lost. The
resultant anxiety, sleeplessness, psychological injury, mental and physical pain are inestimable.
As the amount of moral damages are subject to this Court's discretion, we are of the opinion that
the amount of P1,000,000.00 granted by the trial court is in greater accord with the extent and
nature of the injury - physical and psychological - suffered by Valenzuela as a result of Li's grossly
negligent driving of his Mitsubishi Lancer in the early morning hours of the accident.
WHEREFORE, PREMISES CONSIDERED, the decision of the Court of Appeals is modified with the
effect of REINSTATING the judgment of the Regional Trial Court.
SO ORDERED.

Case No. 19
[G.R. No. 111127. July 26, 1996]
MR. & MRS. ENGRACIO FABRE, JR.* and PORFIRIO CABIL, petitioners, vs. COURT OF
APPEALS, THE WORD FOR THE WORLD CHRISTIAN FELLOWSHIP, INC., AMYLINE
ANTONIO, JOHN RICHARDS, GONZALO GONZALES, VICENTE V. QUE, JR., ICLI CORDOVA,
ARLENE GOJOCCO, ALBERTO ROXAS CORDERO, RICHARD BAUTISTA, JOCELYN GARCIA,
YOLANDA CORDOVA, NOEL ROQUE, EDWARD TAN, ERNESTO NARCISO, ENRIQUETA
LOCSIN, FRANCIS NORMAN O. LOPEZ, JULIUS CAESAR GARCIA, ROSARIO MA. V. ORTIZ,
MARIETTA C. CLAVO, ELVIE SENIEL, ROSARIO MARA-MARA, TERESITA REGALA,
MELINDA TORRES, MARELLA MIJARES, JOSEFA CABATINGAN, MARA NADOC, DIANE
MAYO, TESS PLATA, MAYETTE JOCSON, ARLENE Y. MORTIZ, LIZA MAYO, CARLOS
RANARIO, ROSAMARIA T. RADOC and BERNADETTE FERRER, respondents.
MENDOZA, J.:
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, 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. Scholasticas 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 oclock 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 oclock 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 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 latters fence. On the basis of Escanos 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:
No convincing evidence was shown that the minibus was properly checked for travel to a long
distance trip and that the driver was properly screened and tested before being admitted for
employment. Indeed, all the evidence presented have shown the negligent act of the defendants
which ultimately resulted to the accident subject of this case.
Accordingly, it gave judgment for private respondents holding:
Considering that plaintiffs Word for the World Christian Fellowship, Inc. and Ms. Amyline Antonio
were the only ones who adduced evidence in support of their claim for damages, the Court is
therefore not in a position to award damages to the other plaintiffs.
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:
1) P93,657.11 as compensatory and actual damages;
2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff Amyline Antonio;
3) P20,000.00 as moral damages;
4) P20,000.00 as exemplary damages; and
5) 25% of the recoverable amount as attorneys fees;
6) Costs of suit.
SO ORDERED.
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:
1) P93,657.11 as actual damages;
2) P600,000.00 as compensatory damages;
3) P50,000.00 as moral damages;
4) P20,000.00 as exemplary damages;
5) P10,000.00 as attorneys fees; and
6) Costs of suit.
The Court of Appeals sustained the trial courts finding that petitioner Cabil failed to exercise due
care and precaution in the operation of his vehicle considering the time and the place of the
accident. The Court of Appeals held that the Fabres were themselves presumptively
negligent. Hence, this petition. Petitioners raise the following issues:
I. WHETHER OR NOT PETITIONERS WERE NEGLIGENT.
II. WHETHER OR NOT PETITIONERS WERE LIABLE FOR THE INJURIES SUFFERED BY PRIVATE
RESPONDENTS.
III. WHETHER OR NOT DAMAGES CAN BE AWARDED AND IN THE POSITIVE, UP TO WHAT EXTENT.
Petitioners challenge the propriety of the award of compensatory damages in the amount of
P600,000.00. It is insisted that, on the assumption that petitioners are liable, an award of
P600,000.00 is unconscionable and highly speculative. Amyline Antonio testified that she was a
casual employee of a company called Suaco, earning P1,650.00 a month, and a dealer of Avon
products, earning an average of P1,000.00 monthly. Petitioners contend that as casual
employees do not have security of tenure, the award of P600,000.00, considering Amyline
Antonios earnings, is without factual basis as there is no assurance that she would be regularly
earning these amounts.
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. [2] 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.[3] 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 Cabils first one outside of Manila, Cabil should have driven
his vehicle at a moderate speed. There is testimony[4] 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 drivers license. The employer should also examine the applicant for his
qualifications, experience and record of service. [5] 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.[6]
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.
Scholasticas College in Metro Manila.[7] They had hired him only after a two-week
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. [8]
Petitioners argue that they are not liable because (1) an earlier departure (made impossible by
the congregations 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. [9]
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:[10]
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 supervision of
their employee.As Art. 1759 of the Code provides:
Common carriers are liable for the death of or injuries to passengers through the negligence or
wilful acts of the formers 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.
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. [11] 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 Cabils gross negligence amounted to bad faith. [12] Amyline Antonios 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 attorneys 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 attorneys fees, inasmuch as private respondents, in whose favor the awards
were made, have not appealed.[13]
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,[14] 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[15] 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,[16] Batangas Laguna Tayabas Bus
Co. v. Intermediate Appellate Court,[17] and Metro Manila Transit Corporation v. Court of Appeals,
[18]
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 latters heirs. The basis of
this allocation of liability was explained in Viluan v. Court of Appeals,[19] thus:
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.[20]
It is true that in Philippine Rabbit Bus Lines, Inc. v. Court of Appeals [21] 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) . . . [22]
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 [23] 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:
1) P93,657.11 as actual damages;
2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff Amyline Antonio;
3) P20,000.00 as moral damages;
4) P20,000.00 as exemplary damages;
5) 25% of the recoverable amount as attorneys fees; and
6) costs of suit.
SO ORDERED.

Case No. 20
G.R. No. 78911-25 December 11, 1987
CHARMINA B. BANAL, petitioner, vs. THE HON. TOMAS V. TADEO, JR., Presiding Judge,
RTC-Quezon City, Branch 105 and Rosario Claudia respondents.
GUTIERREZ, JR., J.:
This is a petition for certiorari to review and set aside the orders of the respondent Regional Trial
Court, Branch 105, Quezon City dated (1) 8 January 1987 which rejected the appearance of Atty.
Nicolito L. Bustos as private prosecutor in Criminal Cases Nos. Q-40909 to Q-40913 where
respondent Rosario Claudio is the accused for violation of Batas Pambansa Blg. 22; and (2) 31
March 1987 which denied the petitioner's motion for reconsideration of the order dated 8 January
1987; and for mandamus to allow Atty. Bustos to enter his appearance as private prosecutor in
the aforestated criminal cases.
It appears that fifteen (15) separate informations for violation of Batas Pambansa Blg. 22 or the
Bouncing Checks Law, docketed as Criminal Cases Nos. 40909-40913, were filed against
respondent Claudio before the Regional Trial Court of Quezon City and originally assigned to
Branch 84.
The presiding judge of Branch 84 inhibited himself when respondent Claudio, through counsel,
filed a petition for recuse dated May 19,1986.
The cases were re-raffled and consequently assigned on June 25, 1986 to Branch 105 which was
then presided over by Judge Johnico G. Serquina
During these proceedings, respondent Claudio was finally arraigned on November 20, 1986
where she pleaded not guilty to the charges. Pre-trial was then set on January 8, 1987.
In the meantime Judge Tomas V. Tadeo, Jr. replaced Judge Serquina as presiding judge of Branch
105.
On January 8, 1987, the respondent court issued an order rejecting the appearance of Atty.
Nicolito L. Bustos as private prosecutor on the ground that the charge is for the violation of Batas
Pambansa Blg. 22 which does not provide for any civil liability or indemnity and hence, "it is not a
crime against property but public order."
The petitioner, through counsel filed a motion for reconsideration of the order dated 8 January
1987 on March 10, 1987.
Respondent Claudio filed her opposition to the motion for reconsideration on March 25, 1987.
In an order dated 31 March 1987, the respondent court denied petitioner's motion for
reconsideration.
Hence, this petition questioning the orders of the respondent Court.
The issue to be resolved is whether or not the respondent Court acted with grave abuse of
discretion or in excess of its jurisdiction in rejecting the appearance of a private prosecutor.
The respondents make capital of the fact that Batas Pambansa Blg. 22 punishes the act of
knowingly issuing worthless checks as an offense against public order. As such, it is argued that
it is the State and the public that are the principal complainants and, therefore, no civil
indemnity is provided for by Batas Pambansa Blg. 22 for which a private party or prosecutor may
intervene.
On the other hand, the petitioner, relying on the legal axiom that "Every man criminally liable is
also civilly liable," contends that indemnity may be recovered from the offender regardless of
whether or not Batas Pambansa Blg. 22 so provides.
A careful study of the concept of civil liability allows a solution to the issue in the case at bar.
Generally, the basis of civil liability arising from crime is the fundamental postulate of our law
that "Every man criminally liable is also civilly liable" (Art. 100, The Revised Penal Code).
Underlying this legal principle is the traditional theory that when a person commits a crime he
offends two entities namely ( 1) the society in which he lives in or the political entity called the
State whose law he had violated; and (2) the individual member of that society whose person,
right, honor, chastity or property was actually or directly injured or damaged by the same
punishable act or omission. However, this rather broad and general provision is among the most
complex and controversial topics in criminal procedure. It can be misleading in its implications
especially where the same act or omission may be treated as a crime in one instance and as a
tort in another or where the law allows a separate civil action to proceed independently of the
course of the criminal prosecution with which it is intimately intertwined. Many legal scholars
treat as a misconception or fallacy the generally accepted notion that, the civil liability actually
arises from the crime when, in the ultimate analysis, it does not. While an act or omission is
felonious because it is punishable by law, it gives rise to civil liability not so much because it is a
crime but because it caused damage to another. Viewing things pragmatically, we can readily
see that what gives rise to the civil liability is really the obligation and the moral duty of
everyone to repair or make whole the damage caused to another by reason of his own act or
omission, done intentionally or negligently, whether or not the same be punishable by law. In
other words, criminal liability will give rise to civil liability only if the same felonious act or
omission results in damage or injury to another and is the direct and proximate cause thereof.
Damage or injury to another is evidently the foundation of the civil action. Such is not the case in
criminal actions for, to be criminally liable, it is enough that the act or omission complained of is
punishable, regardless of whether or not it also causes material damage to another. (See Sangco,
Philippine Law on Torts and Damages, 1978, Revised Edition, pp. 246-247).
Article 20 of the New Civil Code provides:
Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.
Regardless, therefore, of whether or not a special law so provides, indemnification of the
offended party may be had on account of the damage, loss or injury directly suffered as a
consequence of the wrongful act of another. The indemnity which a person is sentenced to pay
forms an integral part of the penalty imposed by law for the commission of a crime (Quemel v.
Court of Appeals, 22 SCRA 44, citing Bagtas v. Director of Prisons, 84 Phil. 692). Every crime
gives rise to a penal or criminal action for the punishment of the guilty party, and also to civil
action for the restitution of the thing, repair of the damage, and indemnification for the losses.
(United States v. Bernardo, 19 Phil. 265).
Indeed one cannot disregard the private party in the case at bar who suffered the offenses
committed against her. Not only the State but the petitioner too is entitled to relief as a member
of the public which the law seeks to protect. She was assured that the checks were good when
she parted with money, property or services. She suffered with the State when the checks
bounced.
In Lozano v. Hon. Martinez (G.R. No. 63419, December 18, 1986) and the cases consolidated
therewith, we held that "The effects of a worthless check transcend the private interests of the
parties directly involved in the transaction and touch the interests of the community at large."
Yet, we too recognized the wrong done to the private party defrauded when we stated therein
that "The mischief it creates is not only a wrong to the payee or the holder, but also an injury to
the public."
Civil liability to the offended private party cannot thus be denied, The payee of the check is
entitled to receive the payment of money for which the worthless check was issued. Having been
caused the damage, she is entitled to recompense.
Surely, it could not have been the intendment of the framers of Batas Pambansa Big. 22 to leave
the offended private party defrauded and empty- handed by excluding the civil liability of the
offender, giving her only the remedy, which in many cases results in a Pyrrhic victory, of having
to file a separate civil suit. To do so, may leave the offended party unable to recover even the
face value of the check due her, thereby unjustly enriching the errant drawer at the expense of
the payee. The protection which the law seeks to provide would, therefore, be brought to naught.
The petitioner's intervention in the prosecution of Criminal Cases 40909 to 40913 is justified not
only for the protection of her interests but also in the interest of the speedy and inexpensive
administration of justice mandated by the Constitution (Section 16, Article III, Bill of Rights,
Constitution of 1987). A separate civil action for the purpose would only prove to be costly,
burdensome, and time-consuming for both parties and further delay the final disposition of the
case. This multiplicity of suits must be avoided. Where petitioner's rights may be fulIy
adjudicated in the proceedings before the trial court, resort t o a separate action to recover civil
liability is clearly unwarranted.
WHEREFORE the petition is hereby GRANTED. The respondent court is ordered to permit the
intervention of a private prosecutor in behalf of petitioner Charmina B. Banal, in the prosecution
of the civil aspect of Criminasl Cases Nos. 40909 to 40913. The temporary restraining order
issued by this court a quo for further proceedings. This decision is immediately executory.
SO ORDERED.