1
G.R. No. L-12219 March 15, 1918
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant,
Frank Smith, jr., the sum of P31,000, as damages alleged to have been
caused by an automobile driven by the defendant. From a judgment of the
Court of First Instance of the Province of La Union absolving the defendant
from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place
on December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union.
It appears that upon the occasion in question the plaintiff was riding on his
pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate
of about ten or twelve miles per hour. As the defendant neared the bridge
he saw a horseman on it and blew his horn to give warning of his approach.
He continued his course and after he had taken the bridge he gave two
more successive blasts, as it appeared to him that the man on horseback
before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning
signals. However, being perturbed by the novelty of the apparition or the
rapidity of the approach, he pulled the pony closely up against the railing
on the right side of the bridge instead of going to the left. He says that the
reason he did this was that he thought he did not have sufficient time to
get over to the other side. The bridge is shown to have a length of about 75
meters and a width of 4.80 meters. As the automobile approached, the
defendant guided it toward his left, that being the proper side of the road
for the machine. In so doing the defendant assumed that the horseman
would move to the other side. The pony had not as yet exhibited fright,
and the rider had made no sign for the automobile to stop. Seeing that the
pony was apparently quiet, the defendant, instead of veering to the right
while yet some distance away or slowing down, continued to approach
directly toward the horse without diminution of speed. When he had
gotten quite near, there being then no possibility of the horse getting
across to the other side, the defendant quickly turned his car sufficiently to
the right to escape hitting the horse alongside of the railing where it as
then standing; but in so doing the automobile passed in such close
proximity to the animal that it became frightened and turned its body
across the bridge with its head toward the railing. In so doing, it as struck
on the hock of the left hind leg by the flange of the car and the limb was
broken. The horse fell and its rider was thrown off with some violence.
From the evidence adduced in the case we believe that when the accident
occurred the free space where the pony stood between the automobile
and the railing of the bridge was probably less than one and one half
meters. As a result of its injuries the horse died. The plaintiff received
contusions which caused temporary unconsciousness and required medical
attention for several days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of
negligence such as gives rise to a civil obligation to repair the damage
done; and we are of the opinion that he is so liable. As the defendant
started across the bridge, he had the right to assume that the horse and
the rider would pass over to the proper side; but as he moved toward the
center of the bridge it was demonstrated to his eyes that this would not be
done; and he must in a moment have perceived that it was too late for the
horse to cross with safety in front of the moving vehicle. In the nature of
things this change of situation occurred while the automobile was yet
some distance away; and from this moment it was not longer within the
power of the plaintiff to escape being run down by going to a place of
greater safety. The control of the situation had then passed entirely to the
defendant; and it was his duty either to bring his car to an immediate stop
or, seeing that there were no other persons on the bridge, to take the
other side and pass sufficiently far away from the horse to avoid the
danger of collision. Instead of doing this, the defendant ran straight on
until he was almost upon the horse. He was, we think, deceived into doing

this by the fact that the horse had not yet exhibited fright. But in view of
the known nature of horses, there was an appreciable risk that, if the
animal in question was unacquainted with automobiles, he might get
exited and jump under the conditions which here confronted him. When
the defendant exposed the horse and rider to this danger he was, in our
opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged
negligent act use that person would have used in the same situation? If
not, then he is guilty of negligence. The law here in effect adopts the
standard supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in
the situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and
prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in
a given situation must of course be always determined in the light of
human experience and in view of the facts involved in the particular case.
Abstract speculations cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the circumstances
which are before them or known to them. They are not, and are not
supposed to be, omniscient of the future. Hence they can be expected to
take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee
harm as a result of the course actually pursued? If so, it was the duty of the
actor to take precautions to guard against that harm. Reasonable foresight
of harm, followed by ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in these
terms, the proper criterion for determining the existence of negligence in a
given case is this: Conduct is said to be negligent when a prudent man in
the position of the tortfeasor would have foreseen that an effect harmful
to another was sufficiently probable to warrant his foregoing conduct or
guarding against its consequences.
2
Applying this test to the conduct of the defendant in the present case we
think that negligence is clearly established. A prudent man, placed in the
position of the defendant, would in our opinion, have recognized that the
course which he was pursuing was fraught with risk, and would therefore
have foreseen harm to the horse and the rider as reasonable consequence
of that course. Under these circumstances the law imposed on the
defendant the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for
he was guilty of antecedent negligence in planting himself on the wrong
side of the road. But as we have already stated, the defendant was also
negligent; and in such case the problem always is to discover which agent
is immediately and directly responsible. It will be noted that the negligent
acts of the two parties were not contemporaneous, since the negligence of
the defendant succeeded the negligence of the plaintiff by an appreciable
interval. Under these circumstances the law is that the person who has the
last fair chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior
negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil.
Rep., 359) should perhaps be mentioned in this connection. This Court
there held that while contributory negligence on the part of the person
injured did not constitute a bar to recovery, it could be received in
evidence to reduce the damages which would otherwise have been
assessed wholly against the other party. The defendant company had there
employed the plaintiff, as a laborer, to assist in transporting iron rails from
a barge in Manila harbor to the company's yards located not far away. The
rails were conveyed upon cars which were hauled along a narrow track. At
certain spot near the water's edge the track gave way by reason of the
combined effect of the weight of the car and the insecurity of the road
bed. The car was in consequence upset; the rails slid off; and the plaintiff's
leg was caught and broken. It appeared in evidence that the accident was
due to the effects of the typhoon which had dislodged one of the supports
of the track. The court found that the defendant company was negligent in
having failed to repair the bed of the track and also that the plaintiff was,
at the moment of the accident, guilty of contributory negligence in walking
at the side of the car instead of being in front or behind. It was held that
 3

while the defendant was liable to the plaintiff by reason of its negligence in
having failed to keep the track in proper repair nevertheless the amount of
the damages should be reduced on account of the contributory negligence
in the plaintiff. As will be seen the defendant's negligence in that case
consisted in an omission only. The liability of the company arose from its
responsibility for the dangerous condition of its track. In a case like the one
now before us, where the defendant was actually present and operating
the automobile which caused the damage, we do not feel constrained to
attempt to weigh the negligence of the respective parties in order to
apportion the damage according to the degree of their relative fault. It is
enough to say that the negligence of the defendant was in this case the
immediate and determining cause of the accident and that the antecedent
negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense

pleaded in the defendant's answer, to the effect that the subject matter of
the action had been previously adjudicated in the court of a justice of the
peace. In this connection it appears that soon after the accident in
question occurred, the plaintiff caused criminal proceedings to be
instituted before a justice of the peace charging the defendant with the
infliction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the
proceedings were dismissed. Conceding that the acquittal of the defendant
at the trial upon the merits in a criminal prosecution for the offense
mentioned would be res adjudicata upon the question of his civil liability
arising from negligence -- a point upon which it is unnecessary to express
an opinion -- the action of the justice of the peace in dismissing the
criminal proceeding upon the preliminary hearing can have no effect. (See
U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court
must be reversed, and judgment is her rendered that the plaintiff recover
of the defendant the sum of two hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated to include the value of the
horse, medical expenses of the plaintiff, the loss or damage occasioned to
articles of his apparel, and lawful interest on the whole to the date of this
recovery. The other damages claimed by the plaintiff are remote or
otherwise of such character as not to be recoverable. So ordered.

G.R. No. 143008 June 10, 2002
SMITH BELL DODWELL SHIPPING AGENCY CORPORATION, petitioner,
vs.
CATALINO BORJA and INTERNATIONAL TO WAGE AND TRANSPORT
CORPORATION, respondents.
PANGANIBAN, J.:
The owner or the person in possession and control of a vessel is liable for
all natural and proximate damages caused to persons and property by
reason of negligence in its management or navigation. The liability for the
loss of the earning capacity of the deceased is fixed by taking into account
the net income of the victim at the time of death -- of the incident in this
case -- and that person's probable life expectancy.1âwphi1.nêt
The Case
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules
of Court, challenging the March 6, 2000 Decision 1 and the April 25, 2000
Resolution2 of the Court of Appeals3 (CA) in CA-GR CV No. 57470. The
assailed Decision disposed as follows:
"WHEREFORE, premises considered, the instant appeal is hereby
DENIED. The questioned decision of the lower court is hereby
AFFIRMED in toto. No pronouncement as to costs."4
Reconsideration was denied in the assailed Resolution.
The Facts
The facts of the case are set forth by the CA as follows:
"It appears that on September 23, 1987, Smith Bell [herein
The trial court6 (RTC) ruled in favor of Respondent Borja and held
petitioner] filed a written request with the Bureau of Customs for
petitioner liable for damages and loss of income. The RTC disposed as
the attendance of the latter's inspection team on vessel M/T King
follows:
4
Family which was due to arrive at the port of Manila on
September 24, 1987.
"Said vessel contained 750 metric tons of alkyl benzene and
methyl methacrylate monomer.
"On the same day, Supervising Customs Inspector Manuel Ma. D.
Nalgan instructed [Respondent Catalino Borja] to board said
vessel and perform his duties as inspector upon the vessel's arrival
until its departure. At that time, [Borja] was a customs inspector
of the Bureau of Customs receiving a salary of P31,188.25 per
annum.
"At about 11 o'clock in the morning on September 24, 1987, while
M/T King Family was unloading chemicals unto two (2) barges [--]
ITTC 101 and CLC-1002 [--] owned by [Respondent] ITTC, a sudden
explosion occurred setting the vessels afire. Upon hearing the
explosion, [Borja], who was at that time inside the cabin preparing
reports, ran outside to check what happened. Again, another
explosion was heard.
"Seeing the fire and fearing for his life, [Borja] hurriedly jumped
over board to save himself. However, the [water] [was] likewise
on fire due mainly to the spilled chemicals. Despite the
tremendous heat, [Borja] swam his way for one (1) hour until he
was rescued by the people living in the squatters' area and sent to
San Juan De Dios Hospital.
"After weeks of intensive care at the hospital, his attending
physician diagnosed [Borja] to be permanently disabled due to the
incident. [Borja] made demands against Smith Bell and ITTC for
the damages caused by the explosion. However, both denied
liabilities and attributed to each other negligence." 5

"WHEREFORE, premises considered, judgment is hereby rendered
ordering [Petitioner] Smith Bell Dodwell [S]hipping Agency
Corporation to pay [Borja]:
1. The amount of P495,360.00 as actual damages for loss
of earning capacity:
2. The amount of P100,000.00 for moral damages; and
3. The amount of P50,000.00 for and as reasonable
attorney's fees.
"The cross-claim of [Petitioner] Smith Bell Dodwell Shipping
Agency Corporation against co-defendant International Towage
and Transport Corporation and the latter's counterclaim against
[Borja] and cross-claim with compulsory counterclaim against
Smith Bell are hereby ordered dismissed."7
Ruling of the Court of Appeals
Affirming the trial court, the CA rejected the plea of petitioner that it be
exonerated from liability for Respondent Borja's injuries. Contrary to the
claim of petitioner that no physical evidence was shown to prove that the
explosion had originated from its vessel, the CA held that the fire had
originated from M/T King Family. This conclusion was amply supported by
the testimonies of Borja and Eulogio Laurente (the eyewitness of
International Towage and Transport Corporation or ITTC) as well as by the
investigation conducted by the Special Board of Marine Inquiry and
affirmed by the secretary of the Department of National Defense. On the
other hand, the RTC, which the CA sustained, had not given probative
value to the evidence of petitioner, whose sole eyewitness had not shown
up for cross-examination.
Hence, this Petition.8
The Issues
5
In its Memorandum,9 petitioner raises the following issues:
"1. Whether petitioner should be held liable for the injuries of
Respondent Catalino Borja.
"2. Whether Respondent ITTC should be held liable for the injuries
of Respondent Catalino Borja.
"3. Assuming without admitting that Respondent Catalino Borja is
entitled to damages, whether Respondent Borja is entitled to the
amount of damages awarded to him by the trial court."10
Simply put, these issues can be summed up in these two questions: (1)
Who, if any, is liable for Borja's injuries? (2) What is the proper amount of
liability?
This Court's Ruling
The Petition is partly meritorious.
First Issue:
Responsibility for Injuries
Petitioner avers that both lower courts labored under a misapprehension
of the facts. It claims that the documents adduced in the RTC conclusively
revealed that the explosion that caused the fire on M/T King Family had
originated from the barge ITTC-101, a conclusion based on three
grounds. First, the Survey Report (Exh. "10") dated October 21, 1987
submitted by the Admiral Surveyors and Adjusters, Inc., showed that no
part of M/T King Family sustained any sharp or violent damage that would
otherwise be observed if indeed an explosion had occurred on it. On the
other hand, the fact that the vessel sustained cracks on its shell plating was
noted in two Survey Reports from Greutzman Divers Underwater
Specialist, dated October 6, 1987 (Exh. "11"), and during the underwater
inspection on the sunken barge ITTC-101.

Second, external fire damage on the hull of M/T King Family indicated that
the fire had started from outside the vessel and from ITTC-101. The port
side of the vessel to which the ITTC barge was tied was completely gutted
by fire, while the starboard side to which the barge CLC-1002 was tied
sustained only slight fire damage.
Third, testimonial evidence proved that the explosion came from the barge
of the ITTC and not from its vessel. Security Guard Vivencio Estrella
testified that he had seen the sudden explosion of monomer on the barge
with fire that went up to about 60 meters. Third Mate Choi Seong Hwan
and Second Mate Nam Bang Choun of M/T King Family narrated that while
they were discharging the chemicals, they saw and heard an explosion
from the barge ITTC-101. Chief Security Guard Reynaldo Patron, in turn,
testified that he was 7 to 10 meters away from the barge when he heard
the explosion from the port side of M/T King Family and saw the barge
already on fire.
We are not persuaded. Both the RTC and the CA ruled that the fire and the
explosion had originated from petitioner's vessel. Said the trial court:
"The attempts of [Petitioner] Smith Bell to shift the blame on x x x
ITTC were all for naught. First, the testimony of its alleged
eyewitness was stricken off the record for his failure to appear for
cross-examination (p. 361, Record). Second, the documents
offered to prove that the fire originated from barge ITTC-101 were
all denied admission by the [c]ourt for being, in effect, hearsay
(pp. 335 and 362). x x x Thus, there is nothing in the record to
support [petitioner's] contention that the fire and explosion
originated from barge ITTC-101."11
We find no cogent reason to overturn these factual findings. Nothing is
more settled in jurisprudence than that this Court is bound by the factual
findings of the Court of Appeals when these are supported by substantial
evidence and are not under any of the exceptions in Fuentes v. Court of
Appeals;12 more so, when such findings affirm those of the trial
court.13 Verily, this Court reviews only issues of law.
6
Negligence is conduct that creates undue risk of harm to another. It is the
failure to observe that degree of care, precaution and vigilance that the
circumstances justly demand, whereby that other person suffers
injury.14Petitioner's vessel was carrying chemical cargo -- alkyl benzene and
methyl methacrylate monomer.15 While knowing that their vessel was
carrying dangerous inflammable chemicals, its officers and crew failed to
take all the necessary precautions to prevent an accident. Petitioner was,
therefore, negligent.
The three elements of quasi delict are: (a) damages suffered by the
plaintiff, (b) fault or negligence of the defendant, and (c) the connection of
cause and effect between the fault or negligence of the defendant and the
damages inflicted on the plaintiff.16 All these elements were established in
this case. Knowing fully well that it was carrying dangerous chemicals,
petitioner was negligent in not taking all the necessary precautions in
transporting the cargo.
As a result of the fire and the explosion during the unloading of the
chemicals from petitioner's vessel, Respondent Borja suffered the
following damage: and injuries: "(1) chemical burns of the face and arms;
(2) inhalation of fumes from burning chemicals; (3) exposure to the
elements [while] floating in sea water for about three (3) hours; (4)
homonymous hemianopsia or blurring of the right eye [which was of]
possible toxic origin; and (5) [c]erebral infract with neo-vascularization, left
occipital region with right sided headache and the blurring of vision of right
eye."17
Hence, the owner or the person in possession and control of a vessel and
the vessel are liable for all natural and proximate damage caused to
persons and property by reason of negligent management or navigation. 18
Second Issue:
Amount of Liability
Petitioner insists that Borja is not entitled to the full amount of damages
awarded by the lower courts. It disputes the use of his gross earning as
basis for the computation of the award for loss of earning capacity. Both

courts, in computing the value of such loss, used the remaining years of
the victim as a government employee and the amount he had been
receiving per annum at the time of the incident.
Counsel for Respondent Borja, on the other hand, claims that petitioner
had no cause to complain, because the miscomputation had ironically been
in its favor. The multiplier used in the computation was erroneously based
on the remaining years in government service, instead of the life
expectancy, of the victim. Borja's counsel also points out that the award
was based on the former's meager salary in 1987, or about 23 years ago
when the foreign exchange was still P14 to $1. Hence, the questioned
award is consistent with the primary purpose of giving what is just, moral
and legally due the victim as the aggrieved party.
Both parties have a point. In determining the reasonableness of the
damages awarded under Article 1764 in conjunction with Article 2206 of
the Civil Code, the factors to be considered are: (1) life expectancy
(considering the health of the victim and the mortality table which is
deemed conclusive) and loss of earning capacity; (b) pecuniary loss, loss of
support and service; and (c) moral and mental sufferings. 19 The loss of
earning capacity is based mainly on the number of years remaining in the
person's expected life span. In turn, this number is the basis of the
damages that shall be computed and the rate at which the loss sustained
by the heirs shall be fixed.20
The formula for the computation of loss of earning capacity is as follows:21
Net earning capacity = Life expectancy x [Gross Annual
Income - Living Expenses (50% of gross annual income)], where
life expectancy = 2/3 (80 - the age of the deceased).22
Petitioner is correct in arguing that it is net income (or gross income less
living expenses) which is to be used in the computation of the award for
loss of income. Villa Rey Transit v. Court of Appeals23 explained that "the
amount recoverable is not the loss of the entire earning, but rather the loss
of that portion of the earnings which the beneficiary would have received."
7
Hence, in fixing the amount of the said damages, the necessary expenses
of the deceased should be deducted from his earnings.
In other words, only net earnings, not gross earnings, are to be considered;
that is, the total of the earnings less expenses necessary in the creation of
such earnings or income, less living and other incidental expenses. When
there is no showing that the living expenses constituted a smaller
percentage of the gross income, we fix the living expenses at half of the
gross income. To hold that one would have used only a small part of the
income, with the larger part going to the support of one's children, would
be conjectural and unreasonable.24
Counsel for Respondent Borja is also correct in saying that life expectancy
should not be based on the retirement age of government employees,
which is pegged at 65. In Negros Navigation Co, Inc. v. CA,25 the Court
resolved that in calculating the life expectancy of an individual for the
purpose of determining loss of earning capacity under Article 2206(1) of
the Civil Code, it is assumed that the deceased would have earned income
even after retirement from a particular job.1âwphi1.nêt
Respondent Borja should not be situated differently just because he was a
government employee. Private employees, given the retirement packages
provided by their companies, usually retire earlier than government
employees; yet, the life expectancy of the former is not pegged at 65
years.
Petitioner avers that Respondent Borja died nine years after the incident
and, hence, his life expectancy of 80 years should yield to the reality that
he was only 59 when he actually died.
We disagree. The Court uses the American Experience/Expectancy Table of
Mortality or the Actuarial or Combined Experience Table of Mortality,
which consistently pegs the life span of the average Filipino at 80 years,
from which it extrapolates the estimated income to be earned by the
deceased had he or she not been killed.26
 8

Respondent Borja's demise earlier than the estimated life span is of no

moment. For purposes of determining loss of earning capacity, life
expectancy remains at 80. Otherwise, the computation of loss of earning
capacity will never become final, being always subject to the eventuality of
the victim's death. The computation should not change even if Borja lived
beyond 80 years. Fair is fair.

Based on the foregoing discussion, the award for loss of earning capacity
should be computed as follows:

Loss of earning capacity = [2 (80-50)] x [(P2,752x12)-16,512]

3

= P330,240

Having been duly proven, the moral damages and attorney's fees awarded
are justified under the Civil Code's Article 2219, paragraph 2; and Article
2208, paragraph 11, respectively.

WHEREFORE, the Petition is PARTLY GRANTED. The assailed Decision

is AFFIRMED with the following MODIFICATIONS: petitioner is ordered to
pay the heirs of the victim damages in the amount of P320,240 as loss of
earning capacity, moral damages in the amount of P100,000, plus
another P50,000 as attorney's fees. Costs against petitioner.

SO ORDERED.

G.R. No. 156034 October 1, 2003
DELSAN TRANSPORT LINES, INC., petitioner,
vs.
C & A construction, inc., respondent.
DECISION
YNARES-SANTIAGO, J.:
Assailed in this petition for review under Rule 45 of the Revised Rules of
Court are the June 14, 2002 decision1 of the Court of Appeals in CA-G.R. CV
No. 59034, which reversed the decision2 of the Regional Trial Court of
Manila, Branch 46, in Civil Case No. 95-75565, and its November 7, 2002
resolution3 denying petitioner’s motion for reconsideration.
The undisputed facts reveal that respondent C & A Construction, Inc. was
engaged by the National Housing Authority (NHA) to construct a deflector
wall at the Vitas Reclamation Area in Vitas, Tondo, Manila.4 The project
was completed in 1994 but it was not formally turned over to NHA.
On October 9, 1994, M/V Delsan Express, a ship owned and operated by
petitioner Delsan Transport Lines, Inc., anchored at the Navotas Fish Port
for the purpose of installing a cargo pump and clearing the cargo oil tank.
At around 12:00 midnight of October 20, 1994, Captain Demetrio T. Jusep
of M/V Delsan Express received a report from his radio head operator in
Japan5 that a typhoon was going to hit Manila6 in about eight (8) hours.7 At
approximately 8:35 in the morning of October 21, 1994, Capt. Jusep tried
to seek shelter at the North Harbor but could not enter the area because it
was already congested.8 At 10:00 a.m., Capt. Jusep decided to drop anchor
at the vicinity of Vitas mouth, 4 miles away from a Napocor power barge.
At that time, the waves were already reaching 8 to 10 feet high. Capt.
Jusep ordered his crew to go full ahead to counter the wind which was
dragging the ship towards the Napocor power barge. To avoid collision,
Capt. Jusep ordered a full stop of the vessel.9 He succeeded in avoiding the
power barge, but when the engine was re-started and the ship was
maneuvered full astern, it hit the deflector wall constructed by
9
respondent.10 The damage caused by the incident amounted to
P456,198.24.11
Respondent demanded payment of the damage from petitioner but the
latter refused to pay. Consequently, respondent filed a complaint for
damages with the Regional Trial Court of Manila, Branch 46, which was
docketed as Civil Case No. 95-75565. In its answer, petitioner claimed that
the damage was caused by a fortuitous event. 12
On February 13, 1998, the complaint filed by respondent was dismissed.
The trial court ruled that petitioner was not guilty of negligence because it
had taken all the necessary precautions to avoid the accident. Applying the
"emergency rule", it absolved petitioner of liability because the latter had
no opportunity to adequately weigh the best solution to a threatening
situation. It further held that even if the maneuver chosen by petitioner
was a wrong move, it cannot be held liable as the cause of the damage
sustained by respondent was typhoon "Katring", which is an act of God. 13
On appeal to the Court of Appeals, the decision of the trial court was
reversed and set aside.14 It found Capt. Jusep guilty of negligence in
deciding to transfer the vessel to the North Harbor only at 8:35 a.m. of
October 21, 1994 and thus held petitioner liable for damages.
Hence, petitioner filed the instant petition contending that Capt. Jusep was
not negligent in waiting until 8:35 in the morning of October 21, 1994
before transferring the vessel to the North Harbor inasmuch as it was not
shown that had the transfer been made earlier, the vessel could have
sought shelter.15 It further claimed that it cannot be held vicariously liable
under Article 2180 of the Civil Code because respondent failed to allege in
the complaint that petitioner was negligent in the selection and
supervision of its employees.16 Granting that Capt. Jusep was indeed guilty
of negligence, petitioner is not liable because it exercised due diligence in
the selection of Capt. Jusep who is a duly licensed and competent Master
Mariner.17
The issues to be resolved in this petition are as follows – (1) Whether or
not Capt. Jusep was negligent; (2) If yes, whether or not petitioner is

solidarily liable under Article 2180 of the Civil Code for the quasi-
delict committed by Capt. Jusep?
Article 2176 of the Civil Code provides that whoever by act or omission
causes damage to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict.
The test for determining the existence of negligence in a particular case
may be stated as follows: Did the defendant in doing the alleged negligent
act use the reasonable care and caution which an ordinary prudent person
would have used in the same situation? If not, then he is guilty of
negligence.18
In the case at bar, the Court of Appeals was correct in holding that Capt.
Jusep was negligent in deciding to transfer the vessel only at 8:35 in the
morning of October 21, 1994. As early as 12:00 midnight of October 20,
1994, he received a report from his radio head operator in Japan 19 that a
typhoon was going to hit Manila20 after 8 hours.21 This, notwithstanding, he
did nothing, until 8:35 in the morning of October 21, 1994, when he
decided to seek shelter at the North Harbor, which unfortunately was
already congested. The finding of negligence cannot be rebutted upon
proof that the ship could not have sought refuge at the North Harbor even
if the transfer was done earlier. It is not the speculative success or failure
of a decision that determines the existence of negligence in the present
case, but the failure to take immediate and appropriate action under the
circumstances. Capt. Jusep, despite knowledge that the typhoon was to hit
Manila in 8 hours, complacently waited for the lapse of more than 8 hours
thinking that the typhoon might change direction.22 He cannot claim that
he waited for the sun to rise instead of moving the vessel at midnight
immediately after receiving the report because of the difficulty of traveling
at night. The hour of 8:35 a.m. is way past sunrise. Furthermore, he did not
transfer as soon as the sun rose because, according to him, it was not very
cloudy23 and there was no weather disturbance yet.24
When he ignored the weather report notwithstanding reasonable foresight
of harm, Capt. Jusep showed an inexcusable lack of care and caution which
an ordinary prudent person would have observed in the same
10
situation.25 Had he moved the vessel earlier, he could have had greater
chances of finding a space at the North Harbor considering that the
Navotas Port where they docked was very near North Harbor.26 Even if the
latter was already congested, he would still have time to seek refuge in
other ports.
The trial court erred in applying the emergency rule. Under this rule, one
who suddenly finds himself in a place of danger, and is required to act
without time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence, if he fails to adopt what
subsequently and upon reflection may appear to have been a better
method, unless the danger in which he finds himself is brought about by
his own negligence.27 Clearly, the emergency rule is not applicable to the
instant case because the danger where Capt. Jusep found himself was
caused by his own negligence.
Anent the second issue, we find petitioner vicariously liable for the
negligent act of Capt. Jusep.1awphi1.nét Under Article 2180 of the Civil
Code an employer may be held solidarily liable for the negligent act of his
employee. Thus –
Art. 2180. The obligation imposed in Article 2176 is demandable not only
for one’s own acts or omissions, but also for those of persons for whom
one is responsible.
xxxxxxxxx
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.
xxxxxxxxx
The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good
father of a family to prevent damage.

Whenever an employee’s negligence causes damage or injury to another,
there instantly arises a presumption juris tantum that the employer failed
to exercise diligentissimi patris families in the selection (culpa in eligiendo)
or supervision (culpa in vigilando) of its employees. To avoid liability for
a quasi-delict committed by his employee, an employer must overcome
the presumption by presenting convincing proof that he exercised the care
and diligence of a good father of a family in the selection and supervision
of his employee. 28
There is no question that petitioner, who is the owner/operator of M/V
Delsan Express, is also the employer of Capt. Jusep who at the time of the
incident acted within the scope of his duty. The defense raised by
petitioner was that it exercised due diligence in the selection of Capt. Jusep
because the latter is a licensed and competent Master Mariner. It should
be stressed, however, that the required diligence of a good father of a
family pertains not only to the selection, but also to the supervision of
employees. It is not enough that the employees chosen be competent and
qualified, inasmuch as the employer is still required to exercise due
diligence in supervising its employees.
In Fabre, Jr. v. Court of Appeals,29 it was held that due diligence in
supervision requires the formulation of rules and regulations for the
guidance of employees and the issuance of proper instructions as well as
actual implementation and monitoring of consistent compliance with the
rules. Corollarily, in Ramos v. Court of Appeals,30the Court stressed that
once negligence on the part of the employees is shown, the burden of
proving that he observed the diligence in the selection and supervision of
its employees shifts to the employer.
In the case at bar, however, petitioner presented no evidence that it
formulated rules/guidelines for the proper performance of functions of its
employees and that it strictly implemented and monitored compliance
therewith. Failing to discharge the burden, petitioner should therefore be
held liable for the negligent act of Capt. Jusep.
So also, petitioner cannot disclaim liability on the basis of respondent’s
failure to allege in its complaint that the former did not exercise due
11
diligence in the selection and supervision of its employees. In Viron
Transportation Co., Inc. v. Delos Santos,31 it was held that it is not necessary
to state that petitioner was negligent in the supervision or selection of its
employees, inasmuch as its negligence is presumed by operation of law.
Allegations of negligence against the employee and that of an employer-
employee relation in the complaint are enough to make out a case
of quasi-delict under Article 2180 of the Civil Code.32
Considering that petitioner did not assail the damages awarded by the trial
court, we find no reason to alter the same. The interest imposed should,
however, be modified. In Eastern Shipping Lines, Inc. v. Court of
Appeals,33 it was held that the rate of interest on obligations not
constituting a loan or forbearance of money is six percent (6%) per annum.
If the purchase price can be established with certainty at the time of the
filing of the complaint, the six percent (6%) interest should be computed
from the date the complaint was filed until finality of the decision. After
the judgment becomes final and executory until the obligation is satisfied,
the amount due shall earn interest at 12% per year, the interim period
being deemed equivalent to a forbearance of credit.34
Accordingly, the amount of P456,198.27 due the respondent shall earn 6%
interest per annum from October 3, 1995 until the finality of this decision.
If the adjudged principal and the interest (or any part thereof) remain
unpaid thereafter, the interest rate shall be twelve percent (12%) per
annum computed from the time the judgment becomes final and
executory until it is fully satisfied.
WHEREFORE, in view of all the foregoing, the instant petition is
DENIED.1awphi1.nét The June 14, 2002 decision of the Court of Appeals in
CA-G.R. CV No. 59034 ordering petitioner Delsan Transport Lines, Inc., to
pay respondent C & A Construction, Inc., damages in the amount of
P456,198.27, plus P30,000.00 as attorney’s fees, is AFFIRMED with the
MODIFICATION that the award of P456,198.27 shall earn interest at the
rate of 6% per annum from October 3, 1995, until finality of this decision,
and 12% per annum thereafter on the principal and interest (or any part
thereof) until full payment.

G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,
vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.
Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for
appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a government-owned
corporation, the sum of P50,000 as damages, P5,000 as funeral expenses,
and P11,000 as attorneys' fees, for the death of their son Dominador Ong
in one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of its
swimming pools but avers that his death was caused by his own negligence
or by unavoidable accident. Defendant also avers that it had exercised due
diligence in the selection of, and supervision over, its employees and that it
had observed the diligence required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is untenable
and dismissed the complaint without pronouncement as to costs. Plaintiffs
took the case on appeal directly to this Court because the amount involved
exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its
Balara filters, Diliman, Quezon City, to which people are invited and for
which a nominal fee of P0.50 for adults and P0.20 for children is charged.
The main pool it between two small pools of oval shape known as the
"Wading pool" and the "Beginners Pool." There are diving boards in the big
pools and the depths of the water at different parts are indicated by
appropriate marks on the wall. The care and supervision of the pools and
the users thereof is entrusted to a recreational section composed of
Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards
12
who had taken the life-saving course given by the Philippine Red Cross at
the YMCA in Manila. For the safety of its patrons, defendant has provided
the pools with a ring buoy, toy roof, towing line, saving kit and a
resuscitator. There is also a sanitary inspector who is in charge of a clinic
established for the benefit of the patrons. Defendant has also on display in
a conspicuous place certain rules and regulations governing the use of the
pools, one of which prohibits the swimming in the pool alone or without
any attendant. Although defendant does not maintain a full-time physician
in the swimming pool compound, it has however a nurse and a sanitary
inspector ready to administer injections or operate the oxygen resuscitator
if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a
14-year old high school student and boy scout, and his brothers Ruben and
Eusebio, went to defendant's swimming pools. This was not the first time
that the three brothers had gone to said natatorium for they had already
been there four or five times before. They arrived at the natatorium at
about 1:45 p.m. After paying the requisite admission fee, they immediately
went to one of the small pools where the water was shallow. At about 4:35
p.m., Dominador Ong told his brothers that he was going to the locker
room in an adjoining building to drink a bottle of coke. Upon hearing this,
Ruben and Eusebio went to the bigger pool leaving Dominador in the small
pool and so they did not see the latter when he left the pool to get a bottle
of coke. In that afternoon, there were two lifeguards on duty in the pool
compound, namely, Manuel Abaño and Mario Villanueva. The tour of duty
of Abaño was from 8:00 to 12:00 in the morning and from 2:00 to 6:00 in
the afternoon, and of Villanueva from 7:30 to 11:30 a.m. and from 12:30 to
4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty
bathers inside the pool area and Manuel Abaño was going around the
pools to observe the bathers in compliance with the instructions of his
chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed
a bather by the name of Andres Hagad, Jr., that somebody was swimming
under water for quite a long time. Another boy informed lifeguard Manuel
Abaño of the same happening and Abaño immediately jumped into the big
swimming pool and retrieved the apparently lifeless body of Dominador
Ong from the bottom. The body was placed at the edge of the pool and

Abaño immediately applied manual artificial respiration. Soon after, male
nurse Armando Rule came to render assistance, followed by sanitary
inspector Iluminado Vicente who, after being called by phone from the
clinic by one of the security guards, boarded a jeep carrying with him the
resuscitator and a medicine kit, and upon arriving he injected the boy with
camphorated oil. After the injection, Vicente left on a jeep in order to fetch
Dr. Ayuyao from the University of the Philippines. Meanwhile, Abaño
continued the artificial manual respiration, and when this failed to revive
him, they applied the resuscitator until the two oxygen tanks were
exhausted. Not long thereafter, Dr. Ayuyao arrived with another
resuscitator, but the same became of no use because he found the boy
already dead. The doctor ordered that the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was investigated
by the Police Department of Quezon City and in the investigation boys
Ruben Ong and Andres Hagad, Jr. gave written statements. On the
following day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de
los Santos, Chief, Medico Legal Division, National Bureau of Investigation,
who found in the body of the deceased the following: an abrasion on the
right elbow lateral aspect; contusion on the right forehead; hematoma on
the scalp, frontal region, right side; a congestion in the brain with petechial
subcortical hemorrhage, frontal lobe; cyanosis on the face and on the nails;
the lung was soggy with fine froth in the bronchioles; dark fluid blood in
the heart; congestion in the visceral organs, and brownish fluid in the
stomach. The death was due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of minor Dominador
Ong can be attributed to the negligence of defendant and/or its employees
so as to entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article 2080 of
the new Civil Code. The first article provides that "whoever by act or
omission causes damage to another, there being fault or negligence, is
obliged to pay for the damages done." Such fault or negligence is called
quasi-delict. Under the second article, this obligation is demandable not
only for one's own acts or omissions but also for those of persons for
13
whom one is responsible. In addition, we may quote the following
authorities cited in the decision of the trial court:
"The rule is well settled that the owners of resorts to which
people generally are expressly or by implication invited are legally
bound to exercise ordinary care and prudence in the management
and maintenance of such resorts, to the end of making them
reasonably safe for visitors" (Larkin vs. Saltair Beach Co., 30 Utah
86, 83 Pac. 686).
"Although the proprietor of a natatorium is liable for injuries to a
patron, resulting from lack of ordinary care in providing for his
safety, without the fault of the patron, he is not, however, in any
sense deemed to be the insurer of the safety of patrons. And the
death of a patron within his premises does not cast upon him the
burden of excusing himself from any presumption of negligence"
(Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs.
Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs.
Kinnare, supra, it was held that there could be no recovery for the
death by drowning of a fifteen-year boy in defendant's
natatorium, where it appeared merely that he was lastly seen
alive in water at the shallow end of the pool, and some ten or
fifteen minutes later was discovered unconscious, and perhaps
lifeless, at the bottom of the pool, all efforts to resuscitate him
being without avail.
Since the present action is one for damages founded on culpable
negligence, the principle to be observed is that the person claiming
damages has the burden of proving that the damage is caused by the fault
or negligence of the person from whom the damage is claimed, or of one
of his employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber
Co., 55 Phil., 517). The question then that arises is: Have appellants
established by sufficient evidence the existence of fault or negligence on
the part of appellee so as to render it liable for damages for the death of
Dominador Ong?

There is no question that appellants had striven to prove that appellee
failed to take the necessary precaution to protect the lives of its patrons by
not placing at the swimming pools efficient and competent employees who
may render help at a moment's notice, and they ascribed such negligence
to appellee because the lifeguard it had on the occasion minor Ong was
drowning was not available or was attending to something else with the
result that his help came late. Thus, appellants tried to prove through the
testimony of Andres Hagad, Jr. and Ruben Ong that when Eusebio Ong and
Hagad, Jr. detected that there was a drowning person in the bottom of the
big swimming pool and shouted to the lifeguard for help, lifeguard Manuel
Abaño did not immediately respond to the alarm and it was only upon the
third call that he threw away the magazine he was reading and allowed
three or four minutes to elapse before retrieving the body from the water.
This negligence of Abaño, they contend, is attributable to appellee.
But the claim of these two witnesses not only was vehemently denied by
lifeguard Abaño, but is belied by the written statements given by them in
the investigation conducted by the Police Department of Quezon City
approximately three hours after the happening of the accident. Thus, these
two boys admitted in the investigation that they narrated in their
statements everything they knew of the accident, but, as found by the
trial, nowhere in said statements do they state that the lifeguard was
chatting with the security guard at the gate of the swimming pool or was
reading a comic magazine when the alarm was given for which reason he
failed to immediately respond to the alarm. On the contrary, what Ruben
Ong particularly emphasized therein was that after the lifeguard heard the
shouts for help, the latter immediately dived into the pool to retrieve the
person under water who turned out to be his brother. For this reason, the
trial court made this conclusion: "The testimony of Ruben Ong and Andres
Hagad, Jr. as to the alleged failure of the lifeguard Abaño to immediately
respond to their call may therefore be disregarded because they are belied
by their written statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show that appellee has
taken all necessary precautions to avoid danger to the lives of its patrons
or prevent accident which may cause their death. Thus, it has been shown
that the swimming pools of appellee are provided with a ring buoy, toy
roof, towing line, oxygen resuscitator and a first aid medicine kit. The
14
bottom of the pools is painted with black colors so as to insure clear
visibility. There is on display in a conspicuous place within the area certain
rules and regulations governing the use of the pools. Appellee employs six
lifeguards who are all trained as they had taken a course for that purpose
and were issued certificates of proficiency. These lifeguards work on
schedule prepared by their chief and arranged in such a way as to have
two guards at a time on duty to look after the safety of the bathers. There
is a male nurse and a sanitary inspector with a clinic provided with oxygen
resuscitator. And there are security guards who are available always in
case of emergency.
The record also shows that when the body of minor Ong was retrieved
from the bottom of the pool, the employees of appellee did everything
possible to bring him back to life. Thus, after he was placed at the edge of
the pool, lifeguard Abaño immediately gave him manual artificial
respiration. Soon thereafter, nurse Armando Rule arrived, followed by
sanitary inspector Iluminado Vicente who brought with him an oxygen
resuscitator. When they found that the pulse of the boy was abnormal, the
inspector immediately injected him with camphorated oil. When the
manual artificial respiration proved ineffective they applied the oxygen
resuscitator until its contents were exhausted. And while all these efforts
were being made, they sent for Dr. Ayuyao from the University of the
Philippines who however came late because upon examining the body he
found him to be already dead. All of the foregoing shows that appellee has
done what is humanly possible under the circumstances to restore life to
minor Ong and for that reason it is unfair to hold it liable for his death.
Sensing that their former theory as regards the liability of appellee may not
be of much help, appellants now switch to the theory that even if it be
assumed that the deceased is partly to be blamed for the unfortunate
incident, still appellee may be held liable under the doctrine of "last clear
chance" for the reason that, having the last opportunity to save the victim,
it failed to do so.
We do not see how this doctrine may apply considering that the record
does not show how minor Ong came into the big swimming pool. The only
thing the record discloses is that minor Ong informed his elder brothers
 15

that he was going to the locker room to drink a bottle of coke but that
from that time on nobody knew what happened to him until his lifeless
body was retrieved. The doctrine of 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. Or, "As the doctrine usually is
stated, a person who has the last clear chance or opportunity of avoiding
an accident, notwithstanding the negligent acts of his opponent or the
negligence of a third person which is imputed to his opponent, is
considered in law solely responsible for the consequences of the accident."
(38 Am. Jur. pp. 900-902)
It goes without saying that the plaintiff himself was not free from
fault, for he was guilty of antecedent negligence in planting
himself in the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the
problem always is to discover which agent is immediately and
directly responsible. It will be noted that the negligent acts of the
two parties were not contemporaneous, since the negligence of
the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances, the law is that a
person who has the last clear chance to avoid the impending harm
and fails to do so is chargeable with the consequences, without
reference to the prior negligence of the other party. (Picart vs.
Smith, 37 Phil., 809)
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; at least in cases in which any
previous negligence of the party charged cannot be said to have
contributed to the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo.
233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)
Before closing, we wish to quote the following observation of the trial
court, which we find supported by the evidence: "There is (also) a strong
suggestion coming from the expert evidence presented by both parties
that Dominador Ong might have dived where the water was only 5.5 feet
deep, and in so doing he might have hit or bumped his forehead against
the bottom of the pool, as a consequence of which he was stunned, and
which to his drowning. As a boy scout he must have received instructions
in swimming. He knew, or have known that it was dangerous for him to
dive in that part of the pool."
Wherefore, the decision appealed from being in accordance with law and
the evidence, we hereby affirm the same, without pronouncement as to
costs.

Since it is not known how minor Ong came into the big swimming pool and
it being apparent that he went there without any companion in violation of
one of the regulations of appellee as regards the use of the pools, and it
appearing that lifeguard Aba_¤_o responded to the call for help as soon as
his attention was called to it and immediately after retrieving the body all
efforts at the disposal of appellee had been put into play in order to bring
him back to life, it is clear that there is no room for the application of the
doctrine now invoked by appellants to impute liability to appellee..

G.R. No. 152040 March 31, 2006
MARIKINA AUTO LINE TRANSPORT CORPORATION and FREDDIE L.
SUELTO, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES and ERLINDA V. VALDELLON, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is a Petition for Review on Certiorari of the Decision1 of
the Court of Appeals (CA) in CA-G.R. CR No. 16739 affirming the Joint
Decision of the Regional Trial Court (RTC) in Criminal Case No. Q-93-42629
and Civil Case No. Q-93-16051, where Freddie Suelto was convicted of
reckless imprudence resulting in damages to property.
Erlinda V. Valdellon is the owner of a two-door commercial apartment
located at No. 31 Kamias Road, Quezon City. The Marikina Auto Line
Transport Corporation (MALTC) is the owner-operator of a passenger bus
with Plate Number NCV-849. Suelto, its employee, was assigned as the
regular driver of the bus.2
At around 2:00 p.m. on October 3, 1992, Suelto was driving the
aforementioned passenger bus along Kamias Road, Kamuning, Quezon
City, going towards Epifanio de los Santos Avenue (EDSA). The bus
suddenly swerved to the right and struck the terrace of the commercial
apartment owned by Valdellon located along Kamuning Road.3 Upon
Valdellon’s request, the court ordered Sergio Pontiveros, the Senior
Building Inspection Officer of the City Engineer’s Office, to inspect the
damaged terrace. Pontiveros submitted a report enumerating and
describing the damages:
(1) The front exterior and the right side concrete columns of the
covered terrace were vertically displaced from its original position
causing exposure of the vertical reinforcement.
16
(2) The beams supporting the roof and parapet walls are found
with cracks on top of the displaced columns.
(3) The 6″ CHB walls at [the] right side of the covered terrace were
found with cracks caused by this accident.
(4) The front iron grills and concrete balusters were found totally
damaged and the later [sic] beyond repair.4
He recommended that since the structural members made of concrete had
been displaced, the terrace would have to be demolished "to keep its
monolithicness, and to insure the safety and stability of the building."5
Photographs6 of the damaged terrace were taken. Valdellon commissioned
Engr. Jesus R. Regal, Jr. to estimate the cost of repairs, inclusive of labor
and painting, and the latter pegged the cost at P171,088.46.7
In a letter dated October 19, 1992 addressed to the bus company and
Suelto, Valdellon demanded payment of P148,440.00, within 10 days from
receipt thereof, to cover the cost of the damage to the terrace. 8 The bus
company and Suelto offered a P30,000.00 settlement which Valdellon
refused.9
Valdellon filed a criminal complaint for reckless imprudence resulting in
damage to property against Suelto. After the requisite preliminary
investigation, an Information was filed with the RTC of Quezon City. The
accusatory portion of the Information reads:
That on or about the 3rd day of October 1992, in Quezon City, Philippines,
the said accused, being then the driver and/or person in charge of a
Marikina Auto Line bus bearing Plate No. NVC-849, did then and there
unlawfully, and feloniously drive, manage, and operate the same along
Kamias Road, in said City, in a careless, reckless, negligent, and imprudent
manner, by then and there making the said vehicle run at a speed greater
than was reasonable and proper without taking the necessary precaution
to avoid accident to person/s and damage to property, and considering the
condition of the traffic at said place at the time, causing as a consequence

of his said carelessness, negligence, imprudence and lack of precaution,
the said vehicle so driven, managed and operated by him to hit and bump,
as in fact it hit and bump a commercial apartment belonging to ERLINDA V.
VALDELLON located at No. 31 Kamias Road, this City, thereby causing
damages to said apartment in the total amount of P171,088.46, Philippine
Currency, to her damage and prejudice in the total amount
aforementioned.
CONTRARY TO LAW.10
Valdellon also filed a separate civil complaint against Suelto and the bus
company for damages. She prayed that after due proceedings, judgment
be rendered in her favor, thus:
WHEREFORE, it is respectfully prayed of this Honorable Court to issue a
writ of preliminary attachment against the defendants upon approval of
plaintiff’s bond, and after trial on the merits, to render a decision in favor
of the plaintiff, ordering the defendants, jointly and severally, to pay –
a) the total sum of P171,088.46 constituting the expenses for the
repair of the damaged apartment of plaintiff, with interests to be
charged thereon at the legal rate from the date of the formal
demand until the whole obligation is fully paid;
b) the sum of not less than P20,000.00 each as compensatory and
exemplary damages;
c) the sum of P20,000.00 as attorney’s fees and the sum
of P1,000.00 for each appearance of plaintiff’s counsel; and costs
of suit;
PLAINTIFF further prays for such other reliefs as may be just and equitable
in the premises.11
A joint trial of the two cases was ordered by the trial court.12
17
The trial court conducted an ocular inspection of the damaged terrace,
where defendants offered to have it repaired and restored to its original
state. Valdellon, however, disagreed because she wanted the building
demolished to give way for the construction of a new one. 13
During the trial, Valdellon testified on the damage caused to the terrace of
her apartment, and, in support thereof, adduced in evidence a receipt
for P35,000.00, dated October 20, 1993, issued by the BB Construction and
Steel Fabricator for "carpentry, masonry, welding job and electrical
[work]."14
Pontiveros of the Office of the City Engineer testified that there was a need
to change the column of the terrace, but that the building should also be
demolished because "if concrete is destroyed, [one] cannot have it
restored to its original position."15
Engr. Jesus Regal, Jr., the proprietor of the SSP Construction, declared that
he inspected the terrace and estimated the cost of repairs, including labor,
at P171,088.46.
Suelto testified that at 2:00 p.m. on October 3, 1992, he was driving the
bus on its way to Ayala Avenue, Makati, Metro Manila. When he reached
the corner of K-H Street at Kamias Road, Quezon City, a passenger jeepney
suddenly crossed from EDSA going to V. Luna and swerved to the lane
occupied by the bus. Suelto had to swerve the bus to the right upon which
it hit the side front of the terrace of Valdellon’s two-door
apartment.16 Based on his estimate, the cost to the damage on the terrace
of the apartment amounted to P40,000.00.17 On cross-examination, Suelto
declared that he saw the passenger jeepney when it was a meter away
from the bus. Before then, he had seen some passenger jeepneys on the
right trying to overtake one another.18
Architect Arnulfo Galapate testified that the cost of the repair of the
damaged terrace amounted to P55,000.00.19
On April 28, 1994, the trial court rendered judgment finding Suelto guilty
beyond reasonable doubt of reckless imprudence resulting in damage to

property, and ordered MALTC and Suelto to pay, jointly and
severally, P150,000.00 to Valdellon, by way of actual and compensatory
damages, as well as attorney’s fees and costs of suit. The fallo of the
decision reads:
WHEREFORE, finding the accused FREDDIE SUELTO Y LIWAG guilty beyond
reasonable doubt of the crime of Reckless Imprudence Resulting in
Damage to Property, said accused is hereby sentenced to suffer
imprisonment of ONE (1) YEAR.
With respect to the civil liability, judgment is hereby rendered in favor of
plaintiff Erlinda Valdellon and against defendant Marikina Auto Line
Transport Corporation and accused Freddie Suelto, where both are
ordered, jointly and severally, to pay plaintiff:
a. the sum of P150,000.00, as reasonable compensation sustained
by plaintiff for her damaged apartment;
b. the sum of P20,000.00, as compensatory and exemplary
damages;
c. the sum of P20,000.00, as attorney’s fees; and,
d. the costs of suit.
SO ORDERED.20
MALTC and Suelto, now appellants, appealed the decision to the CA,
alleging that the prosecution failed to prove Suelto’s guilt beyond
reasonable doubt. They averred that the prosecution merely relied on
Valdellon, who testified only on the damage caused to the terrace of her
apartment which appellants also alleged was excessive. Appellant Suelto
further alleged that he should be acquitted in the criminal case for the
prosecution’s failure to prove his guilt beyond reasonable doubt. He
maintained that, in an emergency case, he was not, in law, negligent. Even
if the appellate court affirmed his conviction, the penalty of imprisonment
imposed on him by the trial court is contrary to law.
18
In its Brief for the People of the Philippines, the Office of the Solicitor
General (OSG) submitted that the appealed decision should be affirmed
with modification. On Suelto’s claim that the prosecution failed to prove
his guilt for the crime of reckless imprudence resulting in damage to
property, the OSG contended that, applying the principle of res ipsa
loquitur, the prosecution was able to prove that he drove the bus with
negligence and recklessness. The OSG averred that the prosecution was
able to prove that Suelto’s act of swerving the bus to the right was the
cause of damage to the terrace of Valdellon’s apartment, and in the
absence of an explanation to the contrary, the accident was evidently due
to appellant’s want of care. Consequently, the OSG posited, the burden
was on the appellant to prove that, in swerving the bus to the right, he
acted on an emergency, and failed to discharge this burden. However, the
OSG averred that the trial court erred in sentencing appellant to a straight
penalty of one year, and recommended a penalty of fine.
On June 20, 2000, the CA rendered judgment affirming the decision of the
trial court, but the award for actual damages was reduced to P100,000.00.
The fallo of the decision reads:
WHEREFORE, premises considered, the decision dated April 28, 1994,
rendered by the court a quo is AFFIRMED with the modification that the
sum of P150,000.00 as compensation sustained by the plaintiff-appellee
for her damaged apartment be reduced to P100,000.00 without
pronouncement as to costs.
SO ORDERED.21
Appellants filed a Motion for Reconsideration, but the CA denied the
same.22
MALTC and Suelto, now petitioners, filed the instant petition reiterating its
submissions in the CA: (a) the prosecution failed to prove the crime
charged against petitioner Suelto; (b) the prosecution failed to adduce
evidence to prove that respondent suffered actual damages in the amount
of P100,000.00; and (c) the trial court erred in sentencing petitioner Suelto
to one (1) year prison term.

On the first issue, petitioners aver that the prosecution was mandated to
prove that petitioner Suelto acted with recklessness in swerving the bus to
the right thereby hitting the terrace of private respondent’s apartment.
However, the prosecution failed to discharge its burden. On the other
hand, petitioner Suelto was able to prove that he acted in an emergency
when a passenger jeepney coming from EDSA towards the direction of the
bus overtook another vehicle and, in the process, intruded into the lane of
the bus.
On the second issue, petitioners insist that private respondent was able to
prove only the amount of P35,000.00 by way of actual damages; hence,
the award of P100,000.00 is barren of factual basis.
On the third issue, petitioner Suelto posits that the straight penalty of
imprisonment recommended by the trial court, and affirmed by the CA, is
contrary to Article 365 of the Revised Penal Code.
The petition is partially granted.
On the first issue, we find and so resolve that respondent People of the
Philippines was able to prove beyond reasonable doubt that petitioner
Suelto swerved the bus to the right with recklessness, thereby causing
damage to the terrace of private respondent’s apartment. Although she
did not testify to seeing the incident as it happened, petitioner Suelto
himself admitted this in his answer to the complaint in Civil Case No. Q-93-
16051, and when he testified in the trial court.
Suelto narrated that he suddenly swerved the bus to the right of the road
causing it to hit the column of the terrace of private respondent.
Petitioners were burdened to prove that the damage to the terrace of
private respondent was not the fault of petitioner Suelto.
We have reviewed the evidence on record and find that, as ruled by the
trial court and the appellate court, petitioners failed to prove that
petitioner acted on an emergency caused by the sudden intrusion of a
passenger jeepney into the lane of the bus he was driving.
19
It was the burden of petitioners herein to prove petitioner Suelto’s defense
that he acted on an emergency, that is, he had to swerve the bus to the
right to avoid colliding with a passenger jeep coming from EDSA that had
overtaken another vehicle and intruded into the lane of the bus. The
sudden emergency rule was enunciated by this Court in Gan v. Court of
Appeals,23 thus:
[O]ne 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.
Under Section 37 of Republic Act No. 4136, as amended, otherwise known
as the Land Transportation and Traffic Code, motorists are mandated to
drive and operate vehicles on the right side of the road or highway:
SEC. 37. Driving on right side of highway. – Unless a different course of
action is required in the interest of the safety and the security of life,
person or property, or because of unreasonable difficulty of operation in
compliance herewith, every person operating a motor vehicle or an
animal-drawn vehicle on a highway shall pass to the right when meeting
persons or vehicles coming toward him, and to the left when overtaking
persons or vehicles going the same direction, and when turning to the left
in going from one highway to another, every vehicle shall be conducted to
the right of the center of the intersection of the highway.
Section 35 of the law provides, thus:
Sec. 35. Restriction as to speed.—(a) Any person driving a motor vehicle on
a highway shall drive the same at a careful and prudent speed, not greater
nor less than is reasonable and proper, having due regard for the traffic,
the width of the highway, and of any other condition then and there
existing; and no person shall drive any motor vehicle upon a highway at
such a speed as to endanger the life, limb and property of any person, nor

at a speed greater than will permit him to bring the vehicle to a stop within
the assured clear distance ahead (emphasis supplied).
In relation thereto, Article 2185 of the New Civil Code provides that "unless
there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent, if at the time of mishap, he was violating any
traffic regulation." By his own admission, petitioner Suelto violated the
Land Transportation and Traffic Code when he suddenly swerved the bus
to the right, thereby causing damage to the property of private
respondent.
However, the trial court correctly rejected petitioner Suelto’s defense, in
light of his contradictory testimony vis-à-vis his Counter-Affidavit
submitted during the preliminary investigation:
It is clear from the photographs submitted by the prosecution (Exhs. C, D,
G, H & I) that the commercial apartment of Dr. Valdellon sustained heavy
damage caused by the bus being driven by Suelto. "It seems highly
improbable that the said damages were not caused by a strong impact.
And, it is quite reasonable to conclude that, at the time of the impact, the
bus was traveling at a high speed when Suelto tried to avoid the passenger
jeepney." Such a conclusion finds support in the decision of the Supreme
Court in People vs. Ison, 173 SCRA 118, where the Court stated that
"physical evidence is of the highest order. It speaks more eloquently than a
hundred witnesses." The pictures submitted do not lie, having been taken
immediately after the incident. The damages could not have been caused
except by a speeding bus. Had the accused not been speeding, he could
have easily reduced his speed and come to a full stop when he noticed the
jeep. Were he more prudent in driving, he could have avoided the incident
or even if he could not avoid the incident, the damages would have been
less severe.
In addition to this, the accused has made conflicting statements in his
counter-affidavit and his testimony in court. In the former, he stated that
the reason why he swerved to the right was because he wanted to avoid
the passenger jeepney in front of him that made a sudden stop. But, in his
testimony in court, he said that it was to avoid a passenger jeepney coming
20
from EDSA that was overtaking by occupying his lane. Such glaring
inconsistencies on material points render the testimony of the witness
doubtful and shatter his credibility. Furthermore, the variance between
testimony and prior statements renders the witness unreliable. Such
inconsistency results in the loss in the credibility of the witness and his
testimony as to his prudence and diligence.
As already maintained and concluded, the severe damages sustained could
not have resulted had the accused acted as a reasonable and prudent man
would. The accused was not diligent as he claims to be. What is more
probable is that the accused had to swerve to the right and hit the
commercial apartment of the plaintiff because he could not make a full
stop as he was driving too fast in a usually crowded street. 24
Moreover, if the claim of petitioners were true, they should have filed a
third-party complaint against the driver of the offending passenger
jeepney and the owner/operator thereof.
Petitioner Suelto’s reliance on the sudden emergency rule to escape
conviction for the crime charged and his civil liabilities based thereon is,
thus, futile.
On the second issue, we agree with the contention of petitioners that
respondents failed to prove that the damages to the terrace caused by the
incident amounted to P100,000.00. The only evidence adduced by
respondents to prove actual damages claimed by private respondent were
the summary computation of damage made by Engr. Jesus R. Regal, Jr.
amounting to P171,088.46 and the receipt issued by the BB Construction
and Steel Fabricator to private respondent for P35,000.00 representing
cost for carpentry works, masonry, welding, and electrical works.
Respondents failed to present Regal to testify on his estimation. In its five-
page decision, the trial court awarded P150,000.00 as actual damages to
private respondent but failed to state the factual basis for such award.
Indeed, the trial court merely declared in the decretal portion of its
decision that the "sum of P150,000.00 as reasonable compensation
sustained by plaintiff for her damaged apartment." The appellate court, for

its part, failed to explain how it arrived at the amount of P100,000.00 in its
three-page decision. Thus, the appellate court merely declared:
With respect to the civil liability of the appellants, they contend that there
was no urgent necessity to completely demolish the apartment in question
considering the nature of the damages sustained as a result of the
accident. Consequently, appellants continue, the award of P150,000.00 as
compensation sustained by the plaintiff-appellee for her damaged
apartment is an unconscionable amount.
The damaged portions of the apartment in question are not disputed.
Considering the aforesaid damages which are the direct result of the
accident, the reasonable, and adequate compensation due is hereby fixed
at P100,000.00.25
Under Article 2199 of the New Civil Code, actual damages include all the
natural and probable consequences of the act or omission complained of,
classified as one for the loss of what a person already possesses (daño
emergente) and the other, for the failure to receive, as a benefit, that
which would have pertained to him (lucro cesante). As expostulated by the
Court in PNOC Shipping and Transport Corporation v. Court of Appeals: 26
Under Article 2199 of the Civil Code, actual or compensatory damages are
those awarded in satisfaction of, or in recompense for, loss or injury
sustained. They proceed from a sense of natural justice and are designed
to repair the wrong that has been done, to compensate for the injury
inflicted and not to impose a penalty. In actions based on torts or quasi-
delicts, actual damages include all the natural and probable consequences
of the act or omission complained of. There are two kinds of actual or
compensatory damages: one is the loss of what a person already possesses
(daño emergente), and the other is the failure to receive as a benefit that
which would have pertained to him (lucro cesante). 27
The burden of proof is on the party who would be defeated if no evidence
would be presented on either side. The burden is to establish one’s case by
a preponderance of evidence which means that the evidence, as a whole,
21
adduced by one side, is superior to that of the other. Actual damages are
not presumed. The claimant must prove the actual amount of loss with a
reasonable degree of certainty premised upon competent proof and on the
best evidence obtainable. Specific facts that could afford a basis for
measuring whatever compensatory or actual damages are borne must be
pointed out. Actual damages cannot be anchored on mere surmises,
speculations or conjectures. As the Court declared:
As stated at the outset, to enable an injured party to recover actual or
compensatory damages, he is required to prove the actual amount of loss
with reasonable degree of certainty premised upon competent proof and
on the best evidence available. The burden of proof is on the party who
would be defeated if no evidence would be presented on either side. He
must establish his case by a preponderance of evidence which means that
the evidence, as a whole, adduced by one side is superior to that of the
other. In other words, damages cannot be presumed and courts, in making
an award, must point out specific facts that could afford a basis for
measuring whatever compensatory or actual damages are borne.28
The Court further declared that "where goods are destroyed by the
wrongful act of defendant, the plaintiff is entitled to their value at the time
of the destruction, that is, normally, the sum of money which he would
have to pay in the market for identical or essentially similar goods, plus in a
proper case, damages for the loss of the use during the period before
replacement.29
While claimants’ bare testimonial assertions in support of their claims for
damages should not be discarded altogether, however, the same should be
admitted with extreme caution. Their testimonies should be viewed in light
of claimants’ self-interest, hence, should not be taken as gospel truth. Such
assertion should be buttressed by independent evidence. In the language
of the Court:
For this reason, Del Rosario’s claim that private respondent incurred losses
in the total amount of P6,438,048.00 should be admitted with extreme
caution considering that, because it was a bare assertion, it should be
supported by independent evidence. Moreover, because he was the owner

of private respondent corporation whatever testimony he would give with
regard to the value of the lost vessel, its equipment and cargoes should be
viewed in the light of his self-interest therein. We agree with the Court of
Appeals that his testimony as to the equipment installed and the cargoes
loaded on the vessel should be given credence considering his familiarity
thereto. However, we do not subscribe to the conclusion that his valuation
of such equipment, cargo, and the vessel itself should be accepted as
gospel truth. We must, therefore, examine the documentary evidence
presented to support Del Rosario’s claim as regards the amount of losses. 30
An estimate of the damage cost will not suffice:
Private respondents failed to adduce adequate and competent proof of the
pecuniary loss they actually incurred. It is not enough that the damage be
capable of proof but must be actually proved with a reasonable degree of
certainty, pointing out specific facts that afford a basis for measuring
whatever compensatory damages are borne. Private respondents merely
sustained an estimated amount needed for the repair of the roof of their
subject building. What is more, whether the necessary repairs were caused
only by petitioner’s alleged negligence in the maintenance of its school
building, or included the ordinary wear and tear of the house itself, is an
essential question that remains indeterminable.31
We note, however, that petitioners adduced evidence that, in their view,
the cost of the damage to the terrace of private respondent would amount
to P55,000.00.32 Accordingly, private respondent is entitled to P55,000.00
actual damages.
We also agree with petitioner Suelto’s contention that the trial court erred
in sentencing him to suffer a straight penalty of one (1) year. This is so
because under the third paragraph of Article 365 of the Revised Penal
Code, the offender must be sentenced to pay a fine when the execution of
the act shall have only resulted in damage to property. The said provision
reads in full:
ART. 365. Imprudence and negligence. – Any person who, by reckless
imprudence, shall commit any act which, had it been intentional, would
22
constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period, to prision correccional in its medium period; if it would
have constituted a less grave felony, the penalty of arresto mayor in its
minimum and medium periods shall be imposed; if it would have
constituted a light felony, the penalty of arresto menor in its maximum
period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act
which would, otherwise, constitute a grave felony, shall suffer the penalty
of arresto mayor in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed.
When the execution of the act covered by this article shall have only
resulted in damage to the property of another, the offender shall be
punished by a fine ranging from an amount equal to the value of said
damages to three times such value, but which shall in no case be less than
25 pesos.
A fine not exceeding two hundred pesos and censure shall be imposed
upon any person who, by simple imprudence or negligence, shall cause
some wrong which, if done maliciously, would have constituted a light
felony.
In the imposition of these penalties, the courts shall exercise their sound
discretion, without regard to the rules prescribed in Article 64 (Emphasis
supplied).
In the present case, the only damage caused by petitioner Suelto’s act was
to the terrace of private respondent’s apartment, costing P55,000.00.
Consequently, petitioner’s contention that the CA erred in
awarding P100,000.00 by way of actual damages to private respondent is
correct. We agree that private respondent is entitled to exemplary
damages, and find that the award given by the trial court, as affirmed by
the CA, is reasonable. Considering the attendant circumstances, we rule
that private respondent Valdellon is entitled to only P20,000.00 by way of
exemplary damages.
 23

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The

joint decision of the Regional Trial Court of Quezon City is AFFIRMED WITH
THE MODIFICATION that petitioner Suelto is sentenced to pay a fine
of P55,000.00 with subsidiary imprisonment in case of insolvency.
Petitioners are ORDERED to pay to Erlinda V. Valdellon, jointly and
severally, the total amount of P55,000.00 by way of actual damages,
and P20,000.00 by way of exemplary damages.

No pronouncement as to costs.

SO ORDERED.

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.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
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:
24
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
25
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
26
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 some
one 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.1äwphï1.ñët
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.
27
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 t
until
gasoline
tever be theWactjvities of these peopleor 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
28
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
29
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).
30
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.
 31

G.R. No. 121964 June 17, 1997 (b) Exemplary damages of P75,000;

DRA. ABDULIA RODRIGUEZ, LEONOR PRIETOS, LEONORA RODRIGUEZ (c) Attorney's fees of P30,000
NOLASCO, LUZVIMINDA ANTIG and JUANITA RODRIGUEZ, petitioners,
vs. (3) Ordering plaintiffs to pay, jointly and severally, the
COURT OF APPEALS, HARRY VILORIA, MARGARITA MILAGROS VILORIA costs.
and JOHN P. YOUNG, respondents.
SO ORDERED.4

Plaintiffs, herein petitioners, appealed from the judgment to respondent

DAVIDE, JR. J.: Court of Appeals which docketed the appeal as CA-G.R. CV No. 36247. In
asking for the reversal of the judgment they imputed upon the trial court
In this petition for review under Rule 45 of the Rules of Court, petitioners the commission of the following errors:
seek reversal of that portion of the 14 March 1995 decision1 of
respondent Court of Appeals in CA-G.R. CV No. 362472 dismissing I
petitioners' complaint in Civil Case No. CEB-8095 of the Cebu Regional
Trial Court, Branch 21. The latter was an action for damages based on THE LOWER COURT GRAVELY ERRED IN EVALUATING THE
quasi-delict filed by petitioners against private respondents due to a fire TESTIMONY OF EYEWITNESSES.
which allegedly started in private respondents' construction site and
damaged petitioners' building.
II

After trial on the merits, the trial court found that the fire was not caused
THE TRIAL COURT ERRED IN NOT ADMITTING IN
by an instrumentality within the exclusive control of defendants (private
EVIDENCE THE FIRE INVESTIGATION REPORT DONE BY
respondents) and rendered a decisions3 against petitioners. The
THE FIRE DEPARTMENT OFFICIAL.
dispositive portion of the decision reads as follows:
III
WHEREFORE, in view of all the foregoing, judgment is
hereby rendered:
THE TRIAL COURT ERRED IN AWARDING DAMAGES TO
DEFENDANTS-APPELLEES (PRIVATE RESPONDENTS
(1) Dismissing plaintiff's complaint;
HEREIN).

(2) Condemning plaintiffs to pay defendants,

IV

(a) Moral damages of P500,000 for

ASSUMING ARGUENDO THAT DEFENDANTS-APPELLEES
defendants Vilorias, and moral
COULD LAWFULLY PRESENT EVIDENCE ON THEIR
damages of P200,000 for defendant
John P. Young;

COUNTERCLAIM, THE TRIAL COURT SERIOUSLY ERRED IN
AWARDING ASTRONOMICAL DAMAGES.
V against him. As counterclaim, defendant-appellee Young
THE TRIAL COURT ERRED IN NOT FINDING A CASE FOR
DAMAGES IN FAVOR OF PLAINTIFFS (HEREIN
PETITIONERS).5
Respondent Court of Appeals summarized the antecedents in this
case as follows:
On March 15, 1989, a fire broke out which razed two
apartment buildings, owned by plaintiffs-appellants
Abdulia Rodriguez, Leonora Rodriguez Nolasco and
Juanita Rodriguez, and partially destroying a commercial
building.
Plaintiffs-appellants, with co-plaintiffs-appellants
Leonora Prietos and Luzviminda Antig who were lessees
of the apartment units, filed a case for damages against
defendants-appellees Harry John Viloriam [sic], Margarita
Milagros Viloria, and John P. Young. The complaint
alleged that by reason of the gross negligence and want
of care of the construction workers and employees of the
defendants-appellees, the bunkhouse or workers'
quarters in the construction site caught fire spreading
rapidly, burning the adjacent buildings owned by
plaintiffs-appellants. Due to the negligence of
defendants-appellees which resulted in the fire,
plaintiffs-appellants suffered actual damages
representing the value of the buildings and other
personal properties.
Defendant-appellee John Young, the building contractor,
in his answer, contended that he can not be held
responsible even if there was negligence on the part of
32
the employees for he had exercised the diligence of a
good father of a family in the selection and supervision of
his workers. Plaintiffs-appellants had no cause of action
sought for moral damages in the amount of P200,000.00,
and exemplary damages of P50,000.00 and attorney's
fees of P10,000.00.
Defendants-appell[ees] Harry and Margarita Viloria also
alleged that plaintiffs-appellants had no cause of action
against them. The fire court not have been caused by
gross negligence of their workers for they did not have
any worker in the construction of their building. The said
construction was being undertaken by the independent
contractor, John Young, who hired and supervised his
own workers. The newly constructed building was
partially destroyed by the fire. As counterclaim,
defendants-appell[ees] prayed for moral damages in the
sum of P2,500,000.00, exemplary damages of
P100,000.00 and attorney's fees of P20,000.00.
After trial and reception of evidence, the court a
quo resolved that the fire was not caused by an
instrumentality within the exclusive control of the
defendants-appellants. The decision stated that
plaintiffs-appellants failed to establish that the fire was
the result of defendants-appellees' or their workers'
negligence.6
Respondent Court of Appeals sustained petitioners only on the third
assigned error. Its discussion on the assigned errors was as follows:
As to the first assigned error, the trial court did not err in
the evaluation of the testimonies of the witnesses,
specially in the testimony of applicants' witness, Noel
Villarin. It seemed unbelievable that witness Villarin was
able to see Paner pour gasoline on the generator through

a five-inch wide hole which was four meters away from
where the former was eating. As pointed out by the
appellees how could Villarin see what was going on at
the ground floor which is about ten or eleven feet below.
No other witness had testified having seen the same. No
one had even pinpointed the real source of the fire. As it
is, the conclusions reached by the trial court which has
the opportunity to observe the witnesses when they
testified as to what transpired [is] entitled to full
respect7 is applied. Where the issue is on the credibility
of witnesses, generally the findings of a court a quo will
not be disturbed on appeal.8
As to the second assigned error stating that the report
was an exception to the hearsay rule is [sic] untenable.
The report was not obtained from informants who had
the duty to do so. Even the reporting officer had no
personal knowledge of what actually took place.
Admittedly, the said report was merely hearsay as it
failed to comply with the third requisite of admissibility
pursuant to Sec. 35, Rule 123, to the effect that a 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.9 To qualify
the 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 [the] record. 10
We find the third assigned error to be meritorious. In the
absence of a wrongful act or omission or of fraud or bad
faith, moral damages cannot be awarded and that the
The Court of Appeals thus decreed:
adverse result of an action does not per se make the
action wrongful and subject the actor to the payment of
damages for the law could not have meant to impose a
penalty on the right to litigate. 11 Neither may exemplary
damages be awarded where there is no evidence of the
33
other party having acted in [a] wanton, fraudulent or
reckless or oppressive manner. 12 Since the award of
exemplary damages is unwarranted, the award of
attorney's fees must necessarily be disallowed. 13 We find
the award of damages to be without adequate evidential
[sic] basis.
And more, appellants failed to establish that the
proximate cause of their loss was due to defendants-
appellees' negligence. Strangely however, it was not even
ascertained with definiteness the actual cause or even
source of the fire. In sum, appellants failed to prove that
the fire which damaged their apartment buildings was
due to the fault of the appellees.
Considering the foregoing premises, We find as proper
the dismissal of the complaint, however, as to the
damages awarded to defendants-appellees, We find no
legal basis to grant the same.
In Dela Paz vs. Intermediate Appellate Court, [G.R. No. L-
71537, 17 September 1987] it was held that —
The questioned decision, however, is
silent as to how the court arrived at
these damages. Nowhere in the
decision did the trial court discuss the
merit of the damages prayed for by the
petitioners. There should be clear
factual and legal bases for any award of
considerable damages. 14
ACCORDINGLY, the decision dated September 19, 1991 is
hereby AFFIRMED. The award of damages in favor of

defendants-appellees including the award of attorney's
fees are hereby DELETED and SET ASIDE. 15
Rebuffed in their bid for reconsideration of the decision, petitioners filed
the instant petition, and as grounds therefor allege that:
I observing Villarin, could only sense the spitful tone in his
THE COURT OF APPEALS ERRED IN MISAPPLYING FACTS
OF WEIGHT AND SUBSTANCE AFFECTING THE CASE AT
BAR.
II
THE COURT OF APPEALS ERRED IN RULING THAT THE FIRE
INVESTIGATION REPORT IS INADMISSIBLE IN EVIDENCE.
III
THE COURT OF APPEALS ERRED IN RULING THAT SECTION
44, RULE 130 OF THE RULES OF COURT IS NOT
APPLICABLE TO THE CASE AT BAR.
After private respondents filed their respective comments to the petition
as required, we resolved to give due course to the petition and required
the parties to submit their respective memoranda, which they
subsequently did.
Under the first assigned error petitioners want us to give full credit to the
testimony of Noel Villarin, their principal witness, who, they claimed,
"maintained his straight-forward and undisguised manner of answering the
questions" despite the "intense cross-examination." The trial court,
however, refused to believe Villarin, not only because he had an ulterior
motive to testify against private respondent Young, for which reason the
trial court observed:
34
It may be worth recalling that principal and lone
plaintiff's witness Noel Villarin did testify that only during
the hearing did he tell his story about the fire because all
his tools were burned, and John Young neither had
replenish [sic] those tools with sympathy on [sic] him nor
had visited him in the hospital (supra, p. 4). The Court,
voice, manifesting released pent-up'ill-will against
defendant Young. 16
but more importantly, because the trial court found that
"defendants" witnesses have belied Villarin's word," thus:
"Talino" Reville told the Court that it was impossible to
see the generator when one was upstairs of the
bunkhouse — "it could not be seen because it was under
the floor of the bunkhouse; it was not possible for Villarin
to see it." He was with Villarin eating their supper then,
and they were "already through eating but we were still
sitting down" and so, how could Villarin have "peeped"
through that "hole on the wall" high above them? All
defendants's [sic] witnesses testified that the generator
never caught fire, and no one at all had heard any
explosion anywhere before the fire was discerned.
Exhibit 1 (a photograph of the fire while it was raging)
reveals that the bunkhouse was intact.
And Paner — who, said Villarin, brought the gasoline
which caught fire from a stove as it was poured by
Villarin to [sic] the generator — was neither impleaded as
another defendant nor called as a witness, or charged as
an accused in a criminal action. Which omission also
strikes the Court as strange. Such suppression of
evidence gives rise to the presumption that if presented
Paner would prove to be adverse to the plaintiffs (by
analogy: People v. Camalog, G.R. 77116, 31 January
1989). 17
 35

The trial court explained why it had to accept the version of defendants' Sec. 44. Entries in official records. — Entries in official
witnesses in this wise: records made in the performance of his duty by a public
officer of the Philippines, or by a person in the
The Court needs [sic] not suffer a paralysis of analysis as performance of a duty specially enjoined by law,
it compares the two conflicting claims. Plaintiffs have are prima facie evidence of the facts therein stated. 20
relied so much on their own assessment of the integrity
and weight of Villarin's testimony. But the court has Petitioners assert that the Fire Investigation Report 21 by an
found the same to be, under close scrutiny, not only less official of the Cebu City Fire Station should have been admitted in
weighty but also a piece of evidence that taxes belief. evidence as an exception to the hearsay rule. The trial and
Villarin said he saw Paner pour the gasoline, this while he appellate courts rejected this applying Africa v. Caltex (Phil.)
and three other fellow-workers were sitting on the Inc., 22 wherein this Court laid down the three requisites for
second floor of the bunkhouse and eating their supper, admissibility under the aforesaid section, viz.:
and Villarin elaborated by adding that he saw Paner
doing this through a hole on the wall. What wall? Paner (1) that the entry was made by a police officer, or by
said the hole on the wall was at least four (4) meters another person especially enjoined by law to do so;
from the floor of the bunkhouse on which they were
eating, and he could "peep" through that hole which was (2) that it was made by the police officer in the
higher than by more than double his height! And he did performance of his duties, or by such other person in the
not reveal all this to the firemen who investigated him. performance of a duty especially enjoined by law; and
The credibility of the witness may be affected where he
tends to exaggerate, or displays propensity for needlessly
(3) that the public officer or other person had sufficient
detailed observation (People v. Wong, 23 SCRA 146). 18
knowledge of the facts by him stated, which must have
been acquired by him personally or through official
One of the highly revered dicta in our jurisprudence is that this Court will information. 23
not interfere with the judgment of the trial court in passing on the
credibility of opposing witnesses unless there appears in the record some
Elaborating on the third requisite, this Court further stated that
facts or circumstances of weight and influence which have been
for the statements acquired by the public officer under the third
overlooked, which, if considered, could affect the result of the case. The
requisite to qualify as "official information," it is necessary that
reason therefor is founded on practical and empirical considerations. The
the persons who gave the statements "not only must have
trial judge is in a better position to decide the question of credibility since
personal knowledge of the facts stated but must have the duty to
he personally heard the witnesses and observed their deportment and
give such statements for record." 24
manner of testifying. 19 Petitioners have offered no convincing arguments
to accommodate their case within the exception; they did not even dare to
The Court of Appeals ruled here that the reporting officer who prepared
refute the above observations and findings of the trial court.
the Fire Investigation Report "had no personal knowledge of what actually
took place;" besides, the information he received did not qualify as "official
The second and third assigned error are interrelated, involving the
information" since those who gave the statements to the reporting officer
application of Section 44 of Rule 130, which reads as follows:

had no personal knowledge of the facts stated and no duty to give such
statements for the record.
Some confusion surrounds the issue of admissibility of the Fire
Investigation Report (Exhibits "A," "A-1" to "A-4" inclusive). The record
discloses that the officer who signed the report, Fire Major Eduardo P.
Enriquez, was subpoenaed at the request of and testified in open court for
petitioners. He identified the Report, which petitioners offered in their
Offer of Exhibits 25 as:
(1) Part of the testimony of Major Eduardo P. Enriquez;
(2) To prove that an impartial investigation has
determined that the "fire started at the generator . . .
within the construction site" (Exhibit "A-3").
Private respondents objected to Exhibits "A," "A-1" to "A-4,"
inclusive, for being "hearsay and incompetent evidence." 26 The
trial court then denied their admission "for being hearsay, this
fact admitted by witness himself, F/Maj. Eduardo Enriquez, as part
of whose testimony said exhibits were offered." 27
In light of the purposes for which the exhibits in question were offered, as
aforestated, the trial court erred in rejecting all of them as hearsay. Since
Major Enriquez himself took the witness stand and was available for cross-
examination, the portions of the report which were of his personal
knowledge or which consisted of his perceptions and conclusions were not
hearsay. The rest of the report, such as the summary of the statements of
the parties based on their sworn statements (which were annexed to the
Report) as well as the latter, having been included in the first purpose of
the offer, may then be considered as independently relevant
statements which were gathered in the course of the investigation and
may thus be admitted as such, but not necessarily to prove the truth
thereof. It has been said that:
Where, regardless of the truth or falsity of a statement,
the fact that it has been made is relevant, the hearsay
36
rule does not apply, but the statement may be shown.
Evidence as to the making of such statement is not
secondary but primary, for the statement itself may
constitute a fact in issue, or be circumstantially relevant
as to the existence of such a fact. 28
When Major Enriquez took the witness stand, testified for petitioners on
his Report and made himself available for cross-examination by the
adverse party, the Report, insofar as it proved that certain utterances were
made (but not their truth), was effectively removed from the ambit of the
aforementioned Section 44 of Rule 130. Properly understood, this section
does away with the testimony in open court of the officer who made the
official record, considers the matter as an exception to the hearsay rule
and makes the entries in said official record admissible in evidence
as prima facie evidence of the facts therein stated. The underlying reasons
for this exceptionary rule are necessity and trustworthiness, as explained
in Antillon v. Barcelon. 29
The litigation is unlimited in which testimony by officials
is daily needed; the occasions in which the officials would
be summoned from his ordinary duties to declare as a
witness are numberless. The public officers are few in
whose daily work something is not done in which
testimony is not needed from official sources. Were
there no exception for official statements, hosts of
officials would be found devoting the greater part of
their time to attending as witnesses in court or delivering
their deposition before an officer. The work of
administration of government and the interest of the
public having business with officials would alike suffer in
consequence. For these reasons, and for many others, a
certain verity is accorded such documents, which is not
extended to private documents. (3 Wigmore on
Evidence, sec. 1631).
The law reposes a particular confidence in public officers
that it presumes they will discharge their several trusts

with accuracy and fidelity; and, therefore, whatever acts
they do in discharge of their duty may be given in
evidence and shall be taken to be true under such a
degree of caution as the nature and circumstances of
each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not
presented to testify on his report. In that case the applicability of Section
44 of Rule 130 would have been ripe for determination, and this Court
would have agreed with the Court of Appeals that said report was
inadmissible since the aforementioned third requisite was not satisfied.
The statements given by the sources of information of Major Enriquez
failed to qualify as "official information," there being no showing that, at
the very least, they were under a duty to give the statements for record.
What appears to us to be the underlying purpose of petitioners in soliciting
affirmance of their thesis that the Report of Major Enriquez should be
admitted as an exception to the hearsay rule, is to shift the burden of
evidence to private respondents under the doctrine of res ipsa loquitur in
negligence cases. They claim, as stated in their offer of Exhibits, that "the
fire started at the generator. . . within the construction site." This
quotation is based on the penultimate paragraph of page 4 of the Report
of Major Enriquez and is obviously misleading as there is nothing in said
paragraph that unequivocally asserts that the generator was located within
the construction site. The paragraph reads:
After analyzing the evidences [sic] and the circumstances
underlying the situation, one can easily came [sic] to the
conclusion that the fire started at the generator and
extended to the bunkhouse and spread among the
combustible stored materials within the construction
site. Among the combustible materials were the plastic
(PVC) pipes and plywoods [sic].
Clearly, the phrase within the construction site could only refer to
the immediately preceding term "combustible stored materials."
37
The trial court itself concluded that the fire could not have started at the
generator and that the bunkhouse was not burned, thus:
All the defendants's witness testified that the generator
never caught fire, and no one at all had heard any
explosion anywhere before the fire was discerned.
Exhibit 1 (a photograph of the fire while it was raging
reveals that the bunkhouse was intact. 30 (emphasis
supplied)
It then declared that "the fire was not caused by an
instrumentality within the exclusive control of
defendants," 31 which is one of the requisites for the application
of the doctrine of res ipsa loquitur in the law of negligence. 32 It
may further be emphasized that this doctrine is not intended to
and does not dispense with the requirement of proof of culpable
negligence on the party charged. It merely determines and
regulates what shall be prima facie evidence thereof and
facilitates the burden of plaintiff of proving a breach of the duty of
due care. The doctrine can be invoked when and only when,
under the circumstances involved, direct evidence is absent or not
readily available. 33
More damaging to petitioners, which could have been enough reason for
them to desist from insisting that the Report of Major Enriquez be
admitted as an exception to the hearsay rule, are the officer's conclusion
and recommendation in his report, viz.:
V. CONCLUSION:
From the foregoing facts and all other evidences [sic] on
hand, the investigator discerned that the cause of the fire
was ACCIDENTAL in nature.
VI. RECOMMENDATION:
 38

It is hereby recommended that the investigation of the

case shall be closed.

Obviously then, the second and third assigned errors are likewise
without merit.

IN VIEW OF THE FOREGOING, the instant petition is DENIED and the

challenged decision of respondent Court of Appeals in CA-G.R CV No.
36247 is AFFIRMED in toto.

Cost against petitioners.

SO ORDERED.

G.R. No. 141910 August 6, 2002
FGU INSURANCE CORPORATION, petitioner,
vs.
G.P. SARMIENTO TRUCKING CORPORATION and LAMBERT M.
EROLES, respondents.
VITUG, J.:
G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver on 18 June
1994 thirty (30) units of Condura S.D. white refrigerators aboard one of its
Isuzu truck, driven by Lambert Eroles, from the plant site of Concepcion
Industries, Inc., along South Superhighway in Alabang, Metro Manila, to
the Central Luzon Appliances in Dagupan City. While the truck was
traversing the north diversion road along McArthur highway in Barangay
Anupol, Bamban, Tarlac, it collided with an unidentified truck, causing it to
fall into a deep canal, resulting in damage to the cargoes.
FGU Insurance Corporation (FGU), an insurer of the shipment, paid to
Concepcion Industries, Inc., the value of the covered cargoes in the sum of
P204,450.00. FGU, in turn, being the subrogee of the rights and interests of
Concepcion Industries, Inc., sought reimbursement of the amount it had
paid to the latter from GPS. Since the trucking company failed to heed the
claim, FGU filed a complaint for damages and breach of contract of
carriage against GPS and its driver Lambert Eroles with the Regional Trial
Court, Branch 66, of Makati City. In its answer, respondents asserted that
GPS was the exclusive hauler only of Concepcion Industries, Inc., since
1988, and it was not so engaged in business as a common carrier.
Respondents further claimed that the cause of damage was purely
accidental.1âwphi1.nêt
The issues having thus been joined, FGU presented its evidence,
establishing the extent of damage to the cargoes and the amount it had
paid to the assured. GPS, instead of submitting its evidence, filed with
leave of court a motion to dismiss the complaint by way of demurrer to
evidence on the ground that petitioner had failed to prove that it was a
common carrier.
39
The trial court, in its order of 30 April 1996,1 granted the motion to dismiss,
explaining thusly:
"Under Section 1 of Rule 131 of the Rules of Court, it is provided
that ‘Each party must prove his own affirmative allegation, xxx.’
"In the instant case, plaintiff did not present any single evidence
that would prove that defendant is a common carrier.
"x x x xxx xxx
"Accordingly, the application of the law on common carriers is not
warranted and the presumption of fault or negligence on the part
of a common carrier in case of loss, damage or deterioration of
goods during transport under 1735 of the Civil Code is not
availing.
"Thus, the laws governing the contract between the owner of the
cargo to whom the plaintiff was subrogated and the owner of the
vehicle which transports the cargo are the laws on obligation and
contract of the Civil Code as well as the law on quasi delicts.
"Under the law on obligation and contract, negligence or fault is
not presumed. The law on quasi delict provides for some
presumption of negligence but only upon the attendance of some
circumstances. Thus, Article 2185 provides:
‘Art. 2185. Unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating
any traffic regulation.’
"Evidence for the plaintiff shows no proof that defendant was
violating any traffic regulation. Hence, the presumption of
negligence is not obtaining.

"Considering that plaintiff failed to adduce evidence that
defendant is a common carrier and defendant’s driver was the
one negligent, defendant cannot be made liable for the damages
of the subject cargoes."2
The subsequent motion for reconsideration having been denied,3 plaintiff
interposed an appeal to the Court of Appeals, contending that the trial
court had erred (a) in holding that the appellee corporation was not a
common carrier defined under the law and existing jurisprudence; and (b)
in dismissing the complaint on a demurrer to evidence.
The Court of Appeals rejected the appeal of petitioner and ruled in favor of
GPS. The appellate court, in its decision of 10 June 1999, 4 discoursed,
among other things, that -
"x x x in order for the presumption of negligence provided for
under the law governing common carrier (Article 1735, Civil Code)
to arise, the appellant must first prove that the appellee is a
common carrier. Should the appellant fail to prove that the
appellee is a common carrier, the presumption would not arise;
consequently, the appellant would have to prove that the carrier
was negligent.
"x x x xxx xxx
"Because it is the appellant who insists that the appellees can still
be considered as a common carrier, despite its `limited clientele,’
(assuming it was really a common carrier), it follows that it
(appellant) has the burden of proving the same. It (plaintiff-
appellant) `must establish his case by a preponderance of
evidence, which means that the evidence as a whole adduced by
one side is superior to that of the other.’ (Summa Insurance
Corporation vs. Court of Appeals, 243 SCRA 175). This,
unfortunately, the appellant failed to do -- hence, the dismissal of
the plaintiff’s complaint by the trial court is justified.
"x x x xxx xxx
40
"Based on the foregoing disquisitions and considering the
circumstances that the appellee trucking corporation has been `its
exclusive contractor, hauler since 1970, defendant has no choice
but to comply with the directive of its principal,’ the inevitable
conclusion is that the appellee is a private carrier.
"x x x xxx xxx
"x x x the lower court correctly ruled that 'the application of the
law on common carriers is not warranted and the presumption of
fault or negligence on the part of a common carrier in case of loss,
damage or deterioration of good[s] during transport under
[article] 1735 of the Civil Code is not availing.' x x x.
"Finally, We advert to the long established rule that conclusions
and findings of fact of a trial court are entitled to great weight on
appeal and should not be disturbed unless for strong and valid
reasons."5
Petitioner's motion for reconsideration was likewise denied;6 hence, the
instant petition,7 raising the following issues:
I
WHETHER RESPONDENT GPS MAY BE CONSIDERED AS A
COMMON CARRIER AS DEFINED UNDER THE LAW AND EXISTING
JURISPRUDENCE.
II
WHETHER RESPONDENT GPS, EITHER AS A COMMON CARRIER OR
A PRIVATE CARRIER, MAY BE PRESUMED TO HAVE BEEN
NEGLIGENT WHEN THE GOODS IT UNDERTOOK TO TRANSPORT
SAFELY WERE SUBSEQUENTLY DAMAGED WHILE IN ITS
PROTECTIVE CUSTODY AND POSSESSION.
III

WHETHER THE DOCTRINE OF RES IPSA LOQUITUR IS APPLICABLE
IN THE INSTANT CASE.
On the first issue, the Court finds the conclusion of the trial court and the
Court of Appeals to be amply justified. GPS, being an exclusive contractor
and hauler of Concepcion Industries, Inc., rendering or offering its services
to no other individual or entity, cannot be considered a common carrier.
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 hire or compensation, offering their services to
the public,8 whether to the public in general or to a limited clientele in
particular, but never on an exclusive basis.9 The true test of a common
carrier is the carriage of passengers or goods, providing space for those
who opt to avail themselves of its transportation service for a fee. 10 Given
accepted standards, GPS scarcely falls within the term "common carrier."
The above conclusion nothwithstanding, GPS cannot escape from liability.
In culpa contractual, upon which the action of petitioner rests as being the
subrogee of Concepcion Industries, Inc., the mere proof of the existence of
the contract and the failure of its compliance justify, prima facie, a
corresponding right of relief.11 The law, recognizing the obligatory force of
contracts,12 will not permit a party to be set free from liability for any kind
of misperformance of the contractual undertaking or a contravention of
the tenor thereof.13 A breach upon the contract confers upon the injured
party a valid cause for recovering that which may have been lost or
suffered. The remedy serves to preserve the interests of the promisee that
may include his "expectation interest," which is his interest in having the
benefit of his bargain by being put in as good a position as he would have
been in had the contract been performed, or his "reliance interest," which
is his interest in being reimbursed for loss caused by reliance on the
contract by being put in as good a position as he would have been in had
the contract not been made; or his "restitution interest," which is his
interest in having restored to him any benefit that he has conferred on the
other party.14 Indeed, agreements can accomplish little, either for their
makers or for society, unless they are made the basis for action.15 The
effect of every infraction is to create a new duty, that is, to make
41
recompense to the one who has been injured by the failure of another to
observe his contractual obligation16 unless he can show extenuating
circumstances, like proof of his exercise of due diligence (normally that of
the diligence of a good father of a family or, exceptionally by stipulation or
by law such as in the case of common carriers, that of extraordinary
diligence) or of the attendance of fortuitous event, to excuse him from his
ensuing liability.
Respondent trucking corporation recognizes the existence of a contract of
carriage between it and petitioner’s assured, and admits that the cargoes it
has assumed to deliver have been lost or damaged while in its custody. In
such a situation, a default on, or failure of compliance with, the obligation
– in this case, the delivery of the goods in its custody to the place of
destination - gives rise to a presumption of lack of care and corresponding
liability on the part of the contractual obligor the burden being on him to
establish otherwise. GPS has failed to do so.
Respondent driver, on the other hand, without concrete proof of his
negligence or fault, may not himself be ordered to pay petitioner. The
driver, not being a party to the contract of carriage between petitioner’s
principal and defendant, may not be held liable under the agreement. A
contract can only bind the parties who have entered into it or their
successors who have assumed their personality or their juridical
position.17 Consonantly with the axiom res inter alios acta aliis neque nocet
prodest, such contract can neither favor nor prejudice a third person.
Petitioner’s civil action against the driver can only be based on culpa
aquiliana, which, unlike culpa contractual, would require the claimant for
damages to prove negligence or fault on the part of the defendant.18
A word in passing. Res ipsa loquitur, a doctrine being invoked by petitioner,
holds a defendant liable where the thing which caused the injury
complained of is shown to be under the latter’s management and the
accident is such that, in the ordinary course of things, cannot be expected
to happen if those who have its management or control use proper care. It
affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from want of care.19 It is not a rule of
substantive law and, as such, it does not create an independent ground of
 42

liability. Instead, it is regarded as a mode of proof, or a mere procedural
convenience since it furnishes a substitute for, and relieves the plaintiff of,
the burden of producing specific proof of negligence. The maxim simply
places on the defendant the burden of going forward with the
proof.20 Resort to the doctrine, however, may be allowed only when (a) the
event is of a kind which does not ordinarily occur in the absence of
negligence; (b) other responsible causes, including the conduct of the
plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant's duty to
the plaintiff.21 Thus, it is not applicable when an unexplained accident may
be attributable to one of several causes, for some of which the defendant
could not be responsible.22
WHEREFORE, the order, dated 30 April 1996, of the Regional Trial Court,
Branch 66, of Makati City, and the decision, dated 10 June 1999, of the
Court of Appeals, are AFFIRMED only insofar as respondent Lambert M.
Eroles is concerned, but said assailed order of the trial court and decision
of the appellate court are REVERSED as regards G.P. Sarmiento Trucking
Corporation which, instead, is hereby ordered to pay FGU Insurance
Corporation the value of the damaged and lost cargoes in the amount of
P204,450.00. No costs.
SO ORDERED.

Res ipsa loquitur generally finds relevance whether or not a contractual

relationship exists between the plaintiff and the defendant, for the
inference of negligence arises from the circumstances and nature of the
occurrence and not from the nature of the relation of the
parties.23 Nevertheless, the requirement that responsible causes other
than those due to defendant’s conduct must first be eliminated, for the
doctrine to apply, should be understood as being confined only to cases of
pure (non-contractual) tort since obviously the presumption of negligence
in culpa contractual, as previously so pointed out, immediately attaches by
a failure of the covenant or its tenor. In the case of the truck driver, whose
liability in a civil action is predicated on culpa acquiliana, while he
admittedly can be said to have been in control and management of the
vehicle which figured in the accident, it is not equally shown, however, that
the accident could have been exclusively due to his negligence, a matter
that can allow, forthwith, res ipsa loquitur to work against him.

If a demurrer to evidence is granted but on appeal the order of dismissal is

reversed, the movant shall be deemed to have waived the right to present
evidence.24 Thus, respondent corporation may no longer offer proof to
establish that it has exercised due care in transporting the cargoes of the
assured so as to still warrant a remand of the case to the trial
court.1âwphi1.nêt

G.R. No. 147746 October 25, 2005
PERLA COMPANIA DE SEGUROS, INC. and BIENVENIDO S.
PASCUAL, Petitioners,
vs.
SPS. GAUDENCIO SARANGAYA III and PRIMITIVA B.
SARANGAYA, Respondents.
DECISION
CORONA, J.:
This is an appeal by certiorari under Rule 45 of the 1997 Rules of Civil
Procedure seeking to annul the decisions of the Court of Appeals (CA)
dated June 29, 2000 and March 31, 2001, respectively, which affirmed the
decision of the Regional Trial Court (RTC), Branch 21 of Santiago, Isabela.
In 1986, respondent spouses Gaudencio Sarangaya III and Primitiva
Sarangaya erected a semi-concrete, semi-narra, one-storey commercial
building fronting the provincial road of Santiago, Isabela. The building was
known as "Super A Building" and was subdivided into three doors, each of
which was leased out. The two-storey residence of the Sarangayas was
behind the second and third doors of the building. On the left side of the
commercial building stood the office of the Matsushita Electric Philippine
Corporation (Matsushita).
In 1988, petitioner Perla Compania de Seguros, Inc. (petitioner-
corporation), through its branch manager and co-petitioner Bienvenido
Pascual, entered into a contract of lease of the first door of the "Super A
Building," abutting the office of Matsushita. Petitioner-corporation
renovated its rented space and divided it into two. The left side was
converted into an office while the right was used by Pascual as a garage for
a 1981 model 4-door Ford Cortina, a company-provided vehicle he used in
covering the different towns within his area of supervision.
On July 7, 1988, Pascual left for San Fernando, Pampanga but did not bring
the car with him. Three days later, he returned to Santiago and, after
43
checking his appointments the next day, decided to "warm up" the car.
When he pulled up the handbrake and switched on the ignition key, the
engine made an "odd" sound and did not start. Thinking it was just the
gasoline percolating into the engine, he again stepped on the accelerator
and started the car. This revved the engine but petitioner again heard an
unusual sound. He then saw a small flame coming out of the engine.
Startled, he turned it off, alighted from the vehicle and started to push it
out of the garage when suddenly, fire spewed out of its rear compartment
and engulfed the whole garage. Pascual was trapped inside and suffered
burns on his face, legs and arms.
Meanwhile, respondents were busy watching television when they heard
two loud explosions. The smell of gasoline permeated the air and, in no
time, fire spread inside their house, destroying all their belongings,
furniture and appliances.
The city fire marshall conducted an investigation and thereafter submitted
a report to the provincial fire marshall. He concluded that the fire was
"accidental." The report also disclosed that petitioner-corporation had no
fire permit as required by law.
Based on the same report, a criminal complaint for "Reckless Imprudence
Resulting to (sic) Damage in (sic) Property"1 was filed against petitioner
Pascual. On the other hand, petitioner-corporation was asked to pay the
amount of ₱7,992,350, inclusive of the value of the commercial building. At
the prosecutor’s office, petitioner Pascual moved for the withdrawal of the
complaint, which was granted.
Respondents later on filed a civil complaint based on quasi-delict against
petitioners for a "sum of money and damages," alleging that Pascual acted
with gross negligence while petitioner-corporation lacked the required
diligence in the selection and supervision of Pascual as its employee. They
prayed for payment of the following damages:
1. ₱2,070,000.00 - representing the value of the 2-storey residential
building and the 3-door apartment;

2. ₱5,922,350.00 - representing the value of the jewelries, appliances,
[furniture], fixtures and cash;
3. ₱8,300.00 – a month for [lost rental] income from July 1995 until such
time that the premises is restored to its former condition or payment for
its value, whichever comes first;
4. ₱2,000,000.00 – for moral damages;
5. ₱1,000,000.00 – for exemplary damages, and
6. Attorney’s fees equivalent to 15% of the total amount to be awarded to
the plaintiffs.2
During the trial, respondents presented witnesses who testified that a few
days before the incident, Pascual was seen buying gasoline in a container
from a nearby gas station. He then placed the container in the rear
compartment of the car.
In his answer, Pascual insisted that the fire was purely an accident, a caso
fortuito, hence, he was not liable for damages. He also denied putting a
container of gasoline in the car’s rear compartment. For its part,
petitioner-corporation refused liability for the accident on the ground that
it exercised due diligence of a good father of a family in the selection and
supervision of Pascual as its branch manager.
After the trial, the court a quo ruled in favor of respondents. The decretal
portion of the decision read:
WHEREFORE, in the light of the foregoing considerations judgment is
hereby rendered ORDERING the defendants, Bienvenido Pascual and Perla
Compania de Seguros, Inc. to pay jointly and solidarily to the plaintiffs
spouses Gaudencio and Primitiva Sarangaya the total sum of Two Million
Nine Hundred Four Thousand Eight Hundred and Eighty Pesos
([₱]2,904,880.00) as actual damages with legal interest thereon from
December 12, 1995 until fully paid.3 (emphasis supplied)
44
The court a quo declared that, although the respondents failed to prove
the precise cause of the fire that engulfed the garage, Pascual was
nevertheless negligent based on the doctrine of res ipsa loquitur.4 It did
not, however, categorically rule that the gasoline container allegedly
placed in the rear compartment of the car caused the fire. The trial court
instead declared that both petitioners failed to adduce sufficient evidence
to prove that they employed the necessary care and diligence in the
upkeep of the car.5 Contrary to the claims of petitioner-corporation, the
trial court also found that it failed to employ the diligence of a good father
of a family, as required by law, in the selection and supervision of Pascual.
With respect to the amount of damages, the trial court awarded to
respondents no more than their claim for actual damages covering the cost
of the 2-storey residential building and the commercial building, including
their personal properties. It explained:
According to the plaintiff Gaudencio Sarangaya III, he made a list of what
was lost. His list includes the commercial building that was burned which
he valued at ₱2,070,000.00. The defendants take exception to the value
given by the plaintiff and for this purpose they submitted the tax
declaration of the building which states that the market value is
₱183,770.00. The Court takes judicial notice that the valuation appearing
on the tax declaration of property is always lower [than] the correct value
thereof. Considering that the building that was burned was a two-storey
residential house with a commercial building annex with a total floor area
of 241 square meters as stated in the tax declaration, mostly concrete
mixed with narra and other lumber materials, the value given by the
plaintiffs of ₱2,070,000.00 is reasonable and credible and it shall be
awarded to the plaintiffs.
The other items listed are assorted [furniture] and fixtures totaling
₱307,000.00 assorted appliances worth ₱358,350.00; two filing cabinets
worth ₱7,000.00 and clothing and other personal effects costing
₱350,000.00, household utensils costing ₱15,000.00. The Court finds them
reasonable and credible considering the social and financial stature of the
plaintiffs who are businessmen. There could be no question that they were
able to acquire and own quite a lot of home furnishings and personal

belongings. The costing however is high considering that these belongings
were already used for quite some time so a 20% depreciation should be
equitably deducted from the cost of acquisition submitted by plaintiffs.
Thus, the total amount recoverable would be ₱1,037,350.00 less 20% or a
total of ₱829,880.00. The ₱5,000.00 representing foodstock can also be
ordered paid to the plaintiffs. x x x.6
On appeal to the Court of Appeals, the appellate court again ruled in favor
of respondents but modified the amount of damages awarded by the trial
court. It held:
x x x the Decision of the Court a quo is AFFIRMED, with the modification
that the Appellants are hereby ordered to pay the Appellees, jointly and
severally, the total amount of ₱600,000.00 by way of nominal damages
under Articles 2222 and 2223 of the New Civil Code, with interest thereon,
at the rate of 6% per annum from the date of the Decision of this Court. 7
The appellate court was in accord with the trial court’s findings that the
doctrine of res ipsa loquitur was correctly applied in determining the
liability of Pascual and that petitioner-corporation, as the employer, was
vicariously liable to respondents. Nonetheless, for respondents’ failure to
substantiate their actual loss, the appellate court granted nominal
damages of ₱600,000 to them.
Petitioners and respondents filed their respective motions for
reconsideration.
In their MR, petitioners contested the findings of fact of the appellate
court. They denied any liability whatsoever to respondents but this was
rejected by the CA for lack of merit. Thus, the present appeal.
Respondents, on the other hand, argued in their MR that the award of
nominal damages was erroneous. They prayed that, in lieu of the award of
nominal damages, the case should instead be remanded to the trial court
for reception of additional evidence on their claim for actual damages. The
CA granted respondents’ MR. Hence they did not appeal the CA’s decision
to us. According to the CA:
45
Anent Plaintiffs-Appellees’ plea that, in lieu of the Court’s award of
nominal damages, the case be remanded to the Court a quo, in the interest
of justice, to enable them to adduce evidence to prove their claim for
actual damages, we find the same meritorious.
Accordingly, the Decision of the Court is hereby amended to read as
follows:
IN THE LIGHT OF ALL THE FOREGOING, the Decision of the Court a quo
appealed from is AFFIRMED. The award of nominal damages is set aside.
Let the records be remanded to the Court a quo for the reception of
additional evidence by the Plaintiffs-Appellees and the Defendants-
Appellants anent Plaintiffs-Appellees’ claim for actual
damages.8 (emphasis supplied)
Via this petition, petitioners ascribe the following errors to the appellate
court:
(a) THE COURT OF APPEALS ERRED IN APPLYING THE DOCTRINE OF ["RES
IPSA LOQUITUR"] IN THE PRESENT CASE;
(b) THE COURT OF APPEALS ERRED WHEN IT FOUND PERLA NEGLIGENT IN
THE SUPERVISION OF PASCUAL, AND CONSEQUENTLY, VICARIOUSLY LIABLE
FOR THE FIRE BECAUSE PERLA FAILED TO ADDUCE EVIDENCE OF
SUPERVISION OF EMPLOYEE’S CARE AND UPKEEP OF COMPANY VEHICLES
REQUIRED BY THE SUPREME COURT ON TRANSPORTATION COMPANIES;
AND
(c) THE COURT OF APPEALS ERRED WHEN IT ORDERED THE REMAND OF
THE CASE TO RTC ISABELA FOR RECEPTION OF ADDITIONAL EVIDENCE BY
THE SARANGAYA SPOUSES ON THEIR CLAIM FOR ACTUAL DAMAGES.9
Res ipsa loquitur is a Latin phrase which literally means "the thing or the
transaction speaks for itself."10 It relates to the fact of an injury that sets
out an inference to the cause thereof or establishes the plaintiff’s prima
facie case.11 The doctrine rests on inference and not on presumption. 12 The
facts of the occurrence warrant the supposition of negligence and they

furnish circumstantial evidence of negligence when direct evidence is
lacking.13
The doctrine is based on the theory that the defendant either knows the
cause of the accident or has the best opportunity of ascertaining it and the
plaintiff, having no knowledge thereof, is compelled to allege negligence in
general terms.14 In such instance, the plaintiff relies on proof of the
happening of the accident alone to establish negligence. 15
The doctrine provides a means by which a plaintiff can pin liability on a
defendant who, if innocent, should be able to explain the care he exercised
to prevent the incident complained of. Thus, it is the defendant’s
responsibility to show that there was no negligence on his part.16
To sustain the allegation of negligence based on the doctrine of res ipsa
loquitur, the following requisites must concur:
1) the accident is of a kind which does not ordinarily occur unless someone
is negligent;
2) the cause of the injury was under the exclusive control of the person in
charge and
3) the injury suffered must not have been due to any voluntary action or
contribution on the part of the person injured.17
Under the first requisite, the occurrence must be one that does not
ordinarily occur unless there is negligence. "Ordinary" refers to the usual
course of events.18 Flames spewing out of a car engine, when it is switched
on, is obviously not a normal event. Neither does an explosion usually
occur when a car engine is revved. Hence, in this case, without any direct
evidence as to the cause of the accident, the doctrine of res ipsa
loquitur comes into play and, from it, we draw the inference that based on
the evidence at hand, someone was in fact negligent and responsible for
the accident.
46
The test to determine the existence of negligence in a particular case may
be stated as follows: did the defendant in committing the alleged negligent
act, use reasonable care and caution which an ordinarily prudent person in
the same situation would have employed?19 If not, then he is guilty of
negligence.
Here, the fact that Pascual, as the caretaker of the car, failed to submit any
proof that he had it periodically checked (as its year-model and condition
required) revealed his negligence. A prudent man should have known that
a 14-year-old car, constantly used in provincial trips, was definitely prone
to damage and other defects. For failing to prove care and diligence in the
maintenance of the vehicle, the necessary inference was that Pascual had
been negligent in the upkeep of the car.
Pascual attempted to exculpate himself from liability by insisting that the
incident was a caso fortuito. We disagree.
The exempting circumstance of caso fortuito may be availed only when: (a)
the cause of the unforeseen and unexpected occurrence was independent
of the human will; (b) it was impossible to foresee the event which
constituted the caso fortuito or, if it could be foreseen, it was impossible to
avoid; (c) the occurrence must be such as to render it impossible to
perform an obligation in a normal manner and (d) the person tasked to
perform the obligation must not have participated in any course of
conduct that aggravated the accident.20
In fine, human agency must be entirely excluded as the proximate cause or
contributory cause of the injury or loss.21 In a vehicular accident, for
example, a mechanical defect will not release the defendant from liability if
it is shown that the accident could have been prevented had he properly
maintained and taken good care of the vehicle. 22
The circumstances on record do not support the defense of Pascual.
Clearly, there was no caso fortuito because of his want of care and
prudence in maintaining the car.

Under the second requisite, the instrumentality or agency that triggered
the occurrence must be one that falls under the exclusive control of the
person in charge thereof. In this case, the car where the fire originated was
under the control of Pascual. Being its caretaker, he alone had the
responsibility to maintain it and ensure its proper functioning. No other
person, not even the respondents, was charged with that obligation except
him.
Where the circumstances which caused the accident are shown to have
been under the management or control of a certain person and, in the
normal course of events, the incident would not have happened had that
person used proper care, the inference is that it occurred because of lack
of such care.23 The burden of evidence is thus shifted to defendant to
establish that he observed all that was necessary to prevent the accident
from happening. In this aspect, Pascual utterly failed.
Under the third requisite, there is nothing in the records to show that
respondents contributed to the incident. They had no access to the car and
had no responsibility regarding its maintenance even if it was parked in a
building they owned.
On the second assigned error, we find no reason to reverse the decision of
the Court of Appeals. The relationship between the two petitioners was
based on the principle of pater familias according to which the employer
becomes liable to the party aggrieved by its employee if he fails to prove
due diligence of a good father of a family in the selection and supervision
of his employees.24 The burden of proof that such diligence was observed
devolves on the employer who formulated the rules and procedures for
the selection and hiring of his employees.
In the selection of prospective employees, employers are required to
examine them as to their qualifications, experience and service
records.25 While the petitioner-corporation does not appear to have erred
in considering Pascual for his position, its lack of supervision over him
made it jointly and solidarily liable for the fire.
47
In the supervision of employees, the employer must formulate standard
operating procedures, monitor their implementation and impose
disciplinary measures for the breach thereof. 26 To fend off vicarious
liability, employers must submit concrete proof, including documentary
evidence, that they complied with everything that was incumbent on
them.27 Here, petitioner-corporation’s evidence hardly included any rule or
regulation that Pascual should have observed in performing his functions.
It also did not have any guidelines for the maintenance and upkeep of
company property like the vehicle that caught fire. Petitioner-corporation
did not require periodic reports on or inventories of its properties either.
Based on these circumstances, petitioner-corporation clearly did not exert
effort to be apprised of the condition of Pascual’s car or its serviceability.
Petitioner-corporation’s argument that the liability attached to employers
only applies in cases involving the supervision of employees in the
transportation business is incorrect. Article 2180 of the Civil Code states
that employers shall be liable for the damage caused by their employees.
The liability is imposed on all those who by their industry, profession or
other enterprise have other persons in their service or
supervision.28 Nowhere does it state that the liability is limited to
employers in the transportation business.
WHEREFORE, the petition is hereby DENIED and the
decision29 of the Court of Appeals affirmed in toto.
Costs against petitioners.
SO ORDERED.

G.R. No. L-22533 February 9, 1967
PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners,
vs.
PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES
BONIFACIO, respondents.
Placido B. Ramos and Renato L. Ramos for petitioners.
Trinidad & Borromeo for respondents.
BENGZON, J.P., J.:
On June 30, 1958 Placido and Augusto Ramos sued Pepsi-Cola Bottling Co.
of the P.I.1 and Andres Bonifacio in the Court of First Instance of Manila as
a consequence of a collision, on May 10, 1958, involving the car of Placido
Ramos and a tractor-truck and trailer of PEPESI-COLA. Said car was at the
time of the collision driven by Augusto Ramos, son and co-plaintiff of
Placido. PEPSI-COLA's tractor-truck was then driven by its driver and co-
defendant Andres Bonifacio.
After trial the Court of First Instance rendered judgment on April 15, 1961,
finding Bonifacio negligent and declaring that PEPSI-COLA had not
sufficiently proved its having exercised the due diligence of a good father
of a family to prevent the damage. PEPSI-COLA and Bonifacio, solidarily,
were ordered to pay the plaintiffs P2,638.50 actual damages; P2,000.00
moral damages; P2,000.00 as exemplary damages; and, P1,000.00
attorney's fees, with costs.
Not satisfied with this decision, the defendants appellee to the Court of
Appeals.
Said Court, on January 15, 1964, affirmed the trial court's judgment insofar
as it found defendant Bonifacio negligent, but modified it by absolving
defendant PEPSI-COLA from liability, finding that, contrary to the plaintiffs'
contention, PEPSI-COLA sufficiently proved due diligence in the selection of
its driver Bonifacio.
48
Plaintiffs thereupon appealed to Us through this petition for review of the
Court of Appeals' decision. And appellants would argue before this Court
that defendant PEPSI-COLA's evidence failed to show that it had exercised
due diligence in the selection of its driver in question.
Said point, as stated, was resolved by the Court of Appeals in PEPSI-COLA's
favor, thus:
The uncontradicted testimony of Juan T. Anasco, personnel
manager of defendant company, was to the effect that defendant
driver was first hired as a member of the bottle crop in the
production department; that when he was hired as a driver, 'we
had size [sic] him by looking into his background, asking him to
submit clearances, previous experience, physical examination and
later on, he was sent to the pool house to take the usual driver's
examination, consisting of: First, theoretical examination and
second, the practical driving examination, all of which he had
undergone, and that the defendant company was a member of
the Safety Council. In view hereof, we are of the sense that
defendant company had exercised the diligence of a good father
of a family in the choice or selection of defendant driver'. In the
case of Campo vs. Camarote No. L-9147 (1956), 53 O.G. 2794,
cited in appellee's brief, our Supreme Court had occasion to put it
down as a rule that "In order that the defendant may be
considered as having exercised all the diligence of a good father of
a family, he should not have been satisfied with the mere
possession of a professional driver's license; he should have
carefully examined the applicant for employment as to his
qualifications, his experiences and record of service." Defendant
Company has taken all these steps.2
Appellants herein seek to assail the foregoing portion of the decision under
review by taking issue with the testimony of Anasco upon which the
findings of due diligence aforestated are rested. Thus, it is now contended
that Añasco being PEPSI-COLA's employee, is a biased and interested
witness; and that his testimony is not believable.

It is rather clear, therefore, that appellants would raise herein an issue of
fact and credibility, something as to which this Court has consistently
respected the findings of the Court of Appeals, with some few exceptions,
which do not obtain herein.3
Stated differently, Añascos credibility is not for this Court now to re-
examine. And said witness having been found credible by the Court of
Appeals, his testimony, as accepted by said Court, cannot at this stage be
assailed. As We said in Co Tao vs. Court of Appeals, L-9194, April 25, 1957,
assignments of error involving the credibility of witnesses and which in
effect dispute the findings of fact of the Court of Appeals, cannot be
reviewed in these proceedings. For a question to be one of law it must
involve no examination of the probative value of the evidence presented
by the litigants or any of them. 4 And the distinction is well-known: There
is a question of law in a given case when the doubt or difference arises as
to what the law is on a certain state of facts; there is a question of fact
when the doubt or difference arises as to the truth or the falsehood of
alleged facts.5
From all this it follows that for the purposes of this appeal, it must be taken
as established that, as testified to by Añasco, PEPSI-COLA did in fact
carefully examine the driver-applicant Bonifacio as to his qualifications,
experiences and record of service, taking all steps mentioned by the Court
of Appeals in its decision already quoted.1äwphï1.ñët
Such being the case, there can be no doubt that PEPSI-COLA exercised the
required due diligence in the selection of its driver. As ruled by this Court
in Campo vs. Camarote 53 O.G. 2794, 2797: "In order that the defendant
may be considered as having exercised all diligence of a good father of a
family, he should not be satisfied with the mere possession of a
professional driver's license; he should have carefully examined the
applicant for employment as to his qualifications, his experience and
record of service."
It should perhaps be stated that in the instant case no question is raised as
to due diligence in the supervision by PEPSI-COLA of its driver. Article 2180
of the Civil Code provides inter alia:
49
... The owners and managers of an establishment or enterprise
are likewise responsible for damages caused by their employees
in the service of the branches in which the latter are employed or
on the occasion of their functions.
xxx 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.
And construing a similar provision of the old Civil Code, this Court
said in Bahia vs. Litonjua, 30 Phil. 624, 627:
From this article two things are apparent: (1) That when an injury
is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on
the part of the master or employer either in the selection of the
servant or employee, or in supervision over him after the
selection, or both; and (2) that the presumption is juris
tantum and not juris et de jure, and consequently may be
rebutted. It follows necessarily that if the employer shows to the
satisfaction of the court that in selection and supervision he has
exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability.
As pointed out, what appellants here contend as not duly proved by PEPSI-
COLA is only due diligence in the selection of its driver. And,
parenthetically, it is not surprising that appellants thus confine their
arguments to this aspect of due diligence, since the record — as even
appellants' brief (pp. 13-17) reflects in quoting in part the testimony of
PEPSI-COLA's witness — would show sufficient evidence to establish due
diligence in the supervision by PEPSI-COLA of its drivers, including
Bonifacio.
Appellants' other assignment of errors are likewise outside the purview of
this Court's reviewing power. Thus, the question of whether PEPSI- COLA

violated the Revised Motor Vehicle Law and rules and regulations related
thereto, not having been raised and argued in the Court of Appeals, cannot
be ventilated herein for the first time. 6 And the matter of whether or not
PEPSI-COLA did acts to ratify the negligent act of its driver is a factual issue
not proper herein.
Wherefore, the decision of the Court of Appeals is hereby affirmed, with
costs against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez
and Castro, JJ., concur.
RESOLUTION ON MOTION FOR RECONSIDERATION
May 16, 1967
BENGZON, J.P., J.:
Petitioners seek a reconsideration1 of Our decision2 in the instant case
affirming in toto the challenged decision of the Court of Appeals absolving
respondent PEPSI-COLA from liability. In Our decision, We refrained from
passing on the merits of the question whether PEPSI-COLA, in operating
the tractor-truck and trailer, violated the Rev. Motor Vehicle Law3 and the
rules and regulations related thereto, for the procedural reason that it did
not appear to have been raised before the Court of Appeals.
It now appears, however, that said question was raised in a motion to
reconsider filed with the Court of Appeals which resolved the same against
petitioners. Due consideration of the matter on its merits, convinces Us
that the decision of the Court of Appeals should still be affirmed in toto.
Petitioners impute to PEPSI-COLA the violation of subpars. 1 and 4(d), par.
(a), Sec. 27 of M.V.O. Administrative Order No. 1, dated Sept. 1, 1951, in
that at the time of the collision, the trailer-truck, which had a total weight
of 30,000 kgms., was (a) being driven at a speed of about 30 k.p.h. or
beyond the 15 k.p.h. limit set and (b) was not equipped with a rear-vision
mirror nor provided with a helper for the driver.
50
The cited provisions read:
SECTION 27. Registration, operation, and inspection of truck-
trailer combinations, semi-trailers, and tractors.
(a) No trailer or semi-trailer having a gross weight of more than
2,000 kilograms and is not equipped with effective brakes on at
least two opposite wheels of the rear axle and are so controlled
that the brakes will act in unison with or preceding the effective
action of the brakes of the tractor-truck shall be registered for
operation on public highways of the Philippines; provided, that
the trialers without brakes may be registered from year to year
for operation under the following conditions:
1. No such trailer shall be operated at any time at a speed in
excess of 15 kilometers per hour in conjunction with a tractor-
truck, the actual gross weight of which is less than twice the
weight of the trailer.
xxx xxx xxx
4(d) Tractor-trucks shall be either equipped with rear-vision
mirror to enable the driver to see vehicles approaching mirror the
rear or shall carry a helper who shall be so stationed on the truck
or trailer that he will constantly have a view of the rear. He shall
be provided with means of effectively signalling to the driver to
give way to overtaking vehicles.
4(e) No truck and trailer combination shall be operated at a speed
greater than 30 kilometers per hour.
It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refers
only to trailers or semi-trailers having a gross weight of more than
2,000 kgms., AND which are "not equipped with effective brakes
on at least two opposite wheels, of the rear axle and are so
controlled that the brakes will act in unison with or preceding the
effective action of the brakes of the tractor-truck..." This is the

condition set in the proviso in par. (a), supra, wherein "trailers
without [such] brakes may be registered from year to year for
operation ..." i.e., they should not "be operated at any time at a
speed in excess of 15 kilometers per hour in conjunction with a
tractor-truck ...". But there was no finding by the Court of Appeals
that the truck-trailer here did not have such brakes. In the
absence of such fact, it is subpar. 4(e), supra, that will apply. And
petitioners admit that the truck-trailer was being driven at about
30 k.p.h.
It is a fact that driver Bonifacio was not accompanied by a helper on the
night of the collision since he was found to be driving alone. However,
there is no finding that the tractor-truck did not have a rear-vision mirror.
To be sure, the records disclose that Pat. Rodolfo Pahate, the traffic
policeman who went to the collision scene, testified that he saw the
tractor-truck there but he does not remember if it had any rear vision
mirror.4 This cannot prove lack of rear-vision mirror. And the cited
provision — subpar. 4(d) — is complied if either of the two alternatives,
i.e., having a rear-vision mirror or a helper, is present. Stated otherwise,
said provision is violated only where there is a positive finding that the
tractor-truck did not have both rear-vision mirror and a helper for the
driver.
Petitioners also charge PEPSI-COLA with having violated par. (b) of Sec. 8-A
of the Rev. Motor Vehicle Law, providing that:
No motor vehicle operating as a single unit shall exceed the
following dimensions:
Overall width ................ 2.5 meters.
xxx xxx xxx
since there was an express finding that the truck-trailer was 3
meters wide. However, Sec. 9 (d) of the same law, as amended,
providing that —
51
SEC. 9. Special permits, fees for.-The chief of the Motor Vehicles
Office with the approval of the Secretary of Public Works and
Communications shall establish regulations and a tariff of
additional fees under which special permits may be issued in the
discretion of the Chief of the Motor Vehicles Office or his
deputies, for each of the following special cases, and without such
special permit, no such motor vehicles shall be operated on the
public highways.
xxx xxx xxx
(d) For registration or use of a motor vehicle exceeding the limit of
permissible dimensions specified in subsections (b) and (c) of
section eight-A hereof. (Emphasis supplied)
xxx xxx xxx
expressly allows the registration, or use of motor vehicles
exceeding the limits of permissible dimensions specified in subsec.
(b) of Sec. 8-A. So, to conclude that there was a violation of law —
which undisputably constitutes negligence, at the very least — it is
not enough that the width of the tractor-truck exceed the limit in
Sec. 8-A; in addition, it must also appear that there was no special
permit granted under Sec. 9. Unfortunately for petitioners, that
vital factual link is missing. There was no proof much less any
finding to that effect. And it was incumbent upon petitioners-
appellants to have proved lack of such permit since the tractor-
truck and the trailer were registered. 5 Compliance with law and
regularity in the performance of official duty — in this case, the
issuance of proper registration papers — are presumed6 and
prevail over mere surmises. Having charged a violation of law, the
onus of substantiating the same fell upon petitioners-appellants.
Hence, the conclusion that there was a violation of the law lacks
factual basis.
Petitioners would also have Us abandon the Bahia ruling.7 In its stead, We
are urged to apply the Anglo-American doctrine of respondent superior.
 52

We cannot however, abandon the Bahia ruling without going against the
explicit mandate of the law. A motor vehicle owner is not an absolute
insurer against all damages caused by its driver. Article 2180 of our Civil
Code is very explicit that the owner's responsibility shall cease once it
proves that it has observed the diligence of a good father of a family to
prevent damage. The Bahia case merely clarified what that diligence
consists of, namely, diligence in the selection and supervision of the driver-
employee.

Neither could We apply the respondent superior principle. Under Article

2180 of the Civil Code, the basis of an employer's liability is his own
negligence, not that of his employees. The former is made responsible for
failing to properly and diligently select and supervise his erring employees.
We do not — and have never — followed the respondent superior
rule.8 So, the American rulings cited by petitioners, based as they are on
said doctrine, are not authoritative here.

In view of the foregoing, the motion for reconsideration is hereby denied.


G.R. No. 118231 July 5, 1996
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G.
VILLEGAS, respondents.
DAVIDE, JR., J.:p
Throughout history, patients have consigned their fates and lives to the
skill of their doctors. For a breach of this trust, men have been quick to
demand retribution. Some 4,000 years ago, the Code of Hammurabi1 then
already provided: "If a physician make a deep incision upon a man with his
bronze lancet and cause the man's death, or operate on the eye socket of a
man with his bronze lancet and destroy the man's eyes, they shall cut off
his hand." 2Subsequently, Hippocrates3 wrote what was to become part of
the healer's oath: "I will follow that method of treatment which according
to my ability and judgment, I consider for the benefit of my patients, and
abstain from whatever is deleterious and mischievous. . . . While I continue
to keep this oath unviolated may it be granted me to enjoy life and practice
the art, respected by all men at all times but should I trespass and violate
this oath, may the reverse be my lot." At present, the primary objective of
the medical profession if the preservation of life and maintenance of the
health of the people.4
Needless to say then, when a physician strays from his sacred duty and
endangers instead the life of his patient, he must be made to answer
therefor. Although society today cannot and will not tolerate the
punishment meted out by the ancients, neither will it and this Court, as
this case would show, let the act go uncondemned.
The petitioners appeal from the decision 5 of the Court of Appeals of 11
May 1994 in CA-G.R. CV No. 30851, which reversed the decision6 of 21
December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros
Oriental in Civil Case No. 9492.
53
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros
Oriental Provincial Hospital, Dumaguete City from
January 9, 1978 to September 1989. Between 1987 and
September, 1989 she was also the Actg. Head of the
Department of Obstetrics and Gynecology at the said
Hospital.
Mrs. Villegas is a married woman who submitted to Dr.
Batiquin for prenatal care as the latter's private patient
sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with
the assistance of Dr. Doris Teresita Sy who was also a
Resident Physician at the same Hospital, C.I. and O.R.
Nurse Arlene Diones and some student nurses performed
a simple caesarean section on Mrs. Villegas at the Negros
Oriental Provincial Hospital and after 45 minutes Mrs.
Villegas delivered her first child, Rachel Acogido, at about
11:45 that morning. Thereafter, Plaintiff remained
confined at the Hospital until September 27, 1988 during
which period of confinement she was regularly visited by
Dr. Batiquin. On September 28, 1988 Mrs. Villegas
checked out of the Hospital. . . and on that same day she
paid Dr. Batiquin, thru the latter's secretary, the amount
of P1,500.00 as "professional fee". . . .
Soon after leaving the Hospital Mrs. Villegas began to
suffer abdominal pains and complained of being feverish.
She also gradually lost her appetite, so she consulted Dr.
Batiquin at the latter's polyclinic who prescribed for her
certain medicines. . . which she had been taking up to
December, 1988.
In the meantime, Mrs. Villegas was given a Medical
Certificate by Dr. Batiquin on October 31, 1988. . .

certifying to her physical fitness to return to her work on
November 7, 1988. So, on the second week of
November, 1988 Mrs. Villegas returned to her work at
the Rural Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and
bothered Mrs. Villegas no end despite the medications
administered by Dr. Batiquin. When the pains became
unbearable and she was rapidly losing weight she
consulted Dr. Ma. Salud Kho at the Holy Child's Hospital
in Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud
Kho examined Mrs. Villegas at the Holy Child's Hospital
on January 20, 1989 she found Mrs. Villegas to be
feverish, pale and was breathing fast. Upon examination
she felt an abdominal mass one finger below the
umbilicus which she suspected to be either a tumor of
the uterus or an ovarian cyst, either of which could be
cancerous. She had an x-ray taken of Mrs. Villegas' chest,
abdomen and kidney. She also took blood tests of
Plaintiff. A blood count showed that Mrs. Villegas had
[an] infection inside her abdominal cavity. The results of
all those examinations impelled Dr. Kho to suggest that
Mrs. Villegas submit to another surgery to which the
latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she
found whitish-yellow discharge inside, an ovarian cyst on
each of the left and right ovaries which gave out pus, dirt
and pus behind the uterus, and a piece of rubber
material on the right side of the uterus embedded on
[sic] the ovarian cyst, 2 inches by 3/4 inch in size. This
piece of rubber material which Dr. Kho described as a
"foreign body" looked like a piece of a "rubber glove". . .
and which is [sic] also "rubber-drain like". . . . It could
have been a torn section of a surgeon's gloves or could
54
have come from other sources. And this foreign body
was the cause of the infection of the ovaries and
consequently of all the discomfort suffered by Mrs.
Villegas after her delivery on September 21, 1988.7
The piece of rubber allegedly found near private respondent Flotilde
Villegas's uterus was not presented in court, and although Dr. Ma. Salud
Kho Testified that she sent it to a pathologist in Cebu City for
examination,8 it was not mentioned in the pathologist's Surgical Pathology
Report.9
Aside from Dr. Kho's testimony, the evidence which mentioned the piece
of rubber are a Medical Certificate,10 a Progress Record,11 an Anesthesia
Record,12 a Nurse's Record,13 and a Physician's Discharge Summary.14 The
trial court, however, regarded these documentary evidence as mere
hearsay, "there being no showing that the person or persons who
prepared them are deceased or unable to testify on the facts therein
stated. . . . Except for the Medical Certificate (Exhibit "F"), all the above
documents were allegedly prepared by persons other than Dr. Kho, and
she merely affixed her signature on some of them to express her
agreement thereto. . . ."15 The trial court also refused to give weight to Dr.
Kho's testimony regarding the subject piece of rubber as Dr. Kho "may not
have had first-hand knowledge" thereof,16 as could be gleaned from her
statement, thus:
A . . . I have heard somebody that [sic]
says [sic] there is [sic] a foreign body
that goes with the tissues but unluckily
I don't know where the rubber was. 17
The trial court deemed vital Dr. Victoria Batiquin's testimony that when
she confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered
that there was rubber indeed but that she threw it away."18 This
statement, the trial court noted, was never denied nor disputed by Dr.
Kho, leading it to conclude:

There are now two different versions on the
whereabouts of that offending "rubber" — (1) that it was
sent to the Pathologist in Cebu as testified to in Court by
Dr. Kho and (2) that Dr. Kho threw it away as told by her
to Defendant. The failure of the Plaintiffs to reconcile
these two different versions serve only to weaken their
claim against Defendant Batiquin.19
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and,
even without admitting the private respondents' documentary evidence,
deemed Dr. Kho's positive testimony to definitely establish that a piece of
rubber was found near private respondent Villegas's uterus. Thus, the
Court of Appeals reversed the decision of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is
established by preponderance of evidence. The trial
court itself had narrated what happened to appellant
Flotilde after the caesarean operation made by appellee
doctor. . . . After the second operation, appellant Flotilde
became well and healthy. Appellant Flotilde's troubles
were caused by the infection due to the "rubber" that
was left inside her abdomen. Both appellant; testified
that after the operation made by appellee doctor, they
did not go to any other doctor until they finally decided
to see another doctor in January, 1989 when she was not
getting any better under the care of appellee Dr.
Batiquin. . . . Appellee Dr. Batiquin admitted on the
witness stand that she alone decided when to close the
operating area; that she examined the portion she
operated on before closing the same. . . Had she
exercised due diligence, appellee Dr. Batiquin would have
found the rubber and removed it before closing the
operating area.20
The appellate court then ruled:
55
Appellants' evidence show[s] that they paid a total of
P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus
hospital and medical expenses together with doctor's
fees in the total amount P9,900.00 (Exhs. G and G-2)] for
the second operation that saved her life.
For the miseries appellants endured for more than three
(3) months, due to the negligence of appellee Dr.
Batiquin they are entitled to moral damages in the
amount of P100,000.00; exemplary damages in the
amount of P20,000.00 and attorney's fees in the amount
of P25,000.00.
The fact that appellant Flotilde can no longer bear
children because her uterus and ovaries were removed
by Dr. Kho is not taken into consideration as it is not
shown that the removal of said organs were the direct
result of the rubber left by appellee Dr. Batiquin near the
uterus. What is established is that the rubber left by
appellee caused infection, placed the life of appellant
Flotilde in jeopardy and caused appellant fear, worry and
anxiety. . . .
WHEREFORE, the appealed judgment, dismissing the
complaint for damages is REVERSED and SET ASIDE.
Another judgment is hereby entered ordering
defendants-appellees to pay plaintiffs-appellants the
amounts of P17,000.00 as and for actual damages;
P100,000.00 as and for moral damages; P20,000.00 as
and for exemplary damages; and P25,000.00 as and for
attorney's fees plus the costs of litigation.
SO ORDERED.21
From the above judgment, the petitioners appealed to this Court claiming
that the appellate court: (1) committed grave abuse of discretion by
resorting to findings of fact not supported by the evidence on record, and

(2) exceeded its discretion, amounting to lack or excess of jurisdiction,
when it gave credence to testimonies punctured with contradictions and
falsities.
The private respondents commented that the petition raised only
questions of fact, which were not proper for review by this Court.
While the rule is that only questions of law may be raised in a petition for
review on certiorari, there are exceptions, among which are when the
factual findings of the trial court and the appellate court conflict, when the
appealed decision is clearly contradicted by the evidence on record, or
when the appellate court misapprehended the facts. 22
After deciphering the cryptic petition, we find that the focal point of the
instant appeal is the appreciation of Dr. Kho's testimony. The petitioners
contend that the Court of Appeals misappreciated the following portion of
Dr. Kho's testimony:
Q What is the purpose of the
examination?
A Just in case, I was just thinking at the
back of my mind, just in case this would
turn out to be a medico-legal
case, I have heard somebody that [sic] s
ays [sic] there is [sic] a
foreign body that goes with the tissues
but unluckily I don't know where the ru
bber was. It was not in the Lab, it was
not in Cebu. 23 (emphasis supplied)
The petitioners prefer the trial court's interpretation of the above
testimony, i.e., that Dr. Kho's knowledge of the piece of rubber
was based on hearsay. The Court of Appeals, on the other hand,
concluded that the underscored phrase was taken out of context
by the trial court. According to the Court of Appeals, the trial
56
court should have likewise considered the other portions of Dr.
Kho's testimony, especially the following:
Q So you did actually conduct the
operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was
whitish-yellow discharge inside the
abdomen, there was an ovarian cyst on
the left and side and there was also an
ovarian cyst on the right which, on
opening up or freeing it up from the
uterus, turned out to be pus. Both
ovaries turned out. . . to have pus. And
then, cleaning up the uterus, at the
back of the uterus it was very dirty, it
was full of pus. And there was a [piece
of] rubber, we found a [piece of]
rubber on the right
side. 24
We agree with the Court of Appeals. The phrase relied upon by the trial
court does not negate the fact that Dr. Kho saw a piece of rubber in private
respondent Villegas's abdomen, and that she sent it to a laboratory and
then to Cebu City for examination by a pathologist.25 Not even the
Pathologist's Report, although devoid of any mention of a piece of rubber,
could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the
piece of rubber could not be based on other than first-hand knowledge for,
as she asserted before the trial court:
Q But you are sure you have seen [the
piece of rubber]?

A Oh yes. I was not the only one who
saw it. 26
The petitioners emphasize that the private respondents never reconciled
Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that
when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter
said that there was a piece of rubber but that she threw it away. Although
hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is
admissible27 but it carries no probative value.28 Nevertheless, assuming
otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho
found a piece of rubber near private respondent Villegas's uterus. And
even if we were to doubt Dr. Kho as to what she did to the piece of
rubber, i.e., whether she threw it away or sent it to Cebu City, we are not
justified in distrusting her as to her recovery of a piece of rubber from
private respondent Villegas's abdomen. On this score, it is perfectly
reasonable to believe the testimony of a witness with respect to some
facts and disbelieve his testimony with respect to other facts. And it has
been aptly said that even when a witness is found to have deliberately
falsified in some material particulars, it is not required that the whole of
his uncorroborated testimony be rejected, but such portions thereof
deemed worthy of belief may be credited.29
It is here worth noting that the trial court paid heed to the following
portions of Dr. Batiquin's testimony: that no rubber drain was used in the
operation,30 and that there was neither any tear on Dr. Batiquin's gloves
after the operation nor blood smears on her hands upon removing her
gloves.31 Moreover, the trial court pointed out that the absence of a
rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant
during the operation on private respondent Villegas.32 But the trial court
failed to recognize that the assertions of Drs. Batiquin and Sy were denials
or negative testimonies. Well-settled is the rule that positive testimony is
stronger than negative testimony.33 Of course, as the petitioners advocate,
such positive testimony must come from a credible source, which leads us
to the second assigned error.
While the petitioners claim that contradictions and falsities punctured Dr.
Kho's testimony, a regarding of the said testimony reveals no such infirmity
57
and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout
her turn on the witness stand. Furthermore, no motive to state any
untruth was ever imputed against Dr. Kho, leaving her trustworthiness
unimpaired.34 The trial court's following declaration shows that while it
was critical of the lack of care with which Dr. Kho handled the piece of
rubber, it was not prepared to doubt Dr. Kho's credibility, thus only
supporting our appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she
testified about her findings, but it can also be said that
she did not take the most appropriate precaution to
preserve that "piece of rubber" as an eloquent evidence
of what she would reveal should there be a "legal
problem" which she claim[s] to have anticipated.35
Considering that we have assessed Dr. Kho to be a credible witness, her
positive testimony [that a piece of rubber was indeed found in private
respondent Villega's abdomen] prevails over the negative testimony in
favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had
occasion to delve into the nature and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where
the thing which causes injury is shown to be under the
management of the defendant, and the accident is such
as in the ordinary course of things does not happen in
those who have the management use proper care, it
affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose
from want of care." Or as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for
itself. Rebuctable presumption or
inference that defendant was
negligent, which arises upon proof that
[the] instrumentality causing injury was

in defendant's exclusive control, and
that the accident was one which
ordinary does not happen in absence of
negligence. Res ipsa loquitur is [a] rule
of evidence whereby negligence of
[the] alleged wrongdoer may be
inferred from [the] mere fact that [the]
accident happened provided [the]
character of [the] accident and
circumstances attending it lead
reasonably to belief that in [the]
absence of negligence it would not
have occurred and that thing which
caused injury is shown to have been
under [the] management and control of
[the] alleged wrongdoer. . . . Under
[this] doctrine
. . . the happening of an injury permits
an inference of negligence where
plaintiff produces substantial evidence
that [the] injury was caused by an
agency or instrumentality under [the]
exclusive control and management of
defendant, and that the occurrence
[sic] was such that in the ordinary
course of things would not happen if
reasonable care had been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a
rule of evidence is peculiar to the law
of negligence which recognizes
that prima facie negligence may be
established without direct proof and
furnishes a substitute for specific proof
of negligence. The doctrine is not a rule
of substantive law, but merely a mode
58
of proof or a mere procedural
convenience. The rule, when applicable
to the facts and circumstances of a
particular case, is not intended to and
does not dispense with the
requirement of proof of culpable
negligence on the party charged. It
merely determines and regulates what
shall be prima facie evidence thereof
and facilitates the burden of plaintiff of
proving a breach of the duty of due
care. The doctrine can be invoked when
and only when, under the
circumstances involved, direct evidence
is absent and not readily available.36
In the instant case, all the requisites for recourse to the doctrine are
present. First, the entire proceedings of the caesarean section were under
the exclusive control of Dr. Batiquin. In this light, the private respondents
were bereft of direct evidence as to the actual culprit or the exact cause of
the foreign object finding its way into private respondent Villegas's body,
which, needless to say, does not occur unless through the intersection of
negligence. Second, since aside from the caesarean section, private
respondent Villegas underwent no other operation which could have
caused the offending piece of rubber to appear in her uterus, it stands to
reason that such could only have been a by-product of the caesarean
section performed by Dr. Batiquin. The petitioners, in this regard, failed to
overcome the presumption of negligence arising from resort to the
doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently
leaving behind a piece of rubber in private respondent Villegas's abdomen
and for all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role the
medical profession plays in the lives of the people,3 7 and the State's
compelling interest to enact measures to protect the public from "the
potentially deadly effects of incompetence and ignorance in those who
would undertake to treat our bodies and minds for disease or
trauma."38 Indeed, a physician is bound to serve the interest of his patients
 59

"with the greatest of solicitude, giving them always his best talent and
skill."39 Through her tortious conduct, the petitioner endangered the life of
Flotilde Villegas, in violation of her profession's rigid ethical code and in
contravention of the legal standards set forth for professionals, in
general,40 and members of the medical profession,41 in particular.

WHEREFORE, the challenged decision of 11 May 1994 of the Court of

Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.

Costs against the petitioners.

SO ORDERED.

G.R. No. 118141 September 5, 1997
LEONILA GARCIA-RUEDA, petitioner,
vs.
WILFRED L. PASCASIO, RAUL R. ARNAU, ABELARDO L. APORTADERA JR.,
Honorable CONRADO 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. Ombudsman1 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 anaesthesiologist 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
60
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
anaesthesiologist. 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
husband's body. Consequently, the NBI ruled that Florencio's 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 petitioner's motion for reconsideration regarding
Prosecutor Dimagiba's 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. 30193 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
61
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."5
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 Ombudsman's 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 Ombudsmans 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 party's 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.
62
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 doctor's actions in fact caused the harm to

the patient and whether these were the proximate cause of the patient's
injury. 18 Indeed here, a causal connection is discernible from the
occurrence of the victim's 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?
63
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 Justice's 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:
Sec. 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.

G.R. No. 124354 December 29, 1999
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as
natural guardians of the minors, ROMMEL RAMOS, ROY RODERICK
RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO
HOSAKA and DRA. PERFECTA GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration
to the health and welfare of their patients. If a doctor fails to live up to this
precept, he is made accountable for his acts. A mistake, through gross
negligence or incompetence or plain human error, may spell the difference
between life and death. In this sense, the doctor plays God on his patient's
fate. 1
In the case at bar, the Court is called upon to rule whether a surgeon, an
anesthesiologist and a hospital should be made liable for the unfortunate
comatose condition of a patient scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 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
64
complaints of discomfort due to pains allegedly caused
by the presence of a stone in her gall bladder (TSN,
January 13, 1988, pp. 4-5), she was as normal as any
other woman. Married to Rogelio E. Ramos, an executive
of Philippine Long Distance Telephone Company, she has
three children whose names are Rommel Ramos, Roy
Roderick Ramos and Ron Raymond Ramos (TSN, October
19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her
normal ways, she sought professional advice. She was
advised to undergo an operation for the removal of a
stone in her gall bladder (TSN, January 13, 1988, p. 5).
She underwent a series of examinations which included
blood and urine tests (Exhs. "A" and "C") which indicated
she was fit for surgery.
Through the intercession of a mutual friend, Dr.
Buenviaje (TSN, January 13, 1988, p. 7), she and her
husband Rogelio met for the first time Dr. Orlino Hozaka
(should be Hosaka; see TSN, February 20, 1990, p. 3), one
of the defendants in this case, on June 10, 1985. They
agreed that their date at the operating table at the
DLSMC (another defendant), would be on June 17, 1985
at 9:00 A.M.. Dr. Hosaka decided that she should
undergo a "cholecystectomy" operation after examining
the documents (findings from the Capitol Medical Center,
FEU Hospital and DLSMC) presented to him. Rogelio E.
Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio
that he will get a good anesthesiologist. Dr. Hosaka
charged a fee of P16,000.00, which was to include the
anesthesiologist's fee and which was to be paid after the
operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-
33; TSN, February 27, 1990, p. 13; and TSN, November 9,
1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was
admitted at one of the rooms of the DLSMC, located
along E. Rodriguez Avenue, Quezon City (TSN, October
19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in
her room, she was prepared for the operation by the
hospital staff. Her sister-in-law, Herminda Cruz, who was
the Dean of the College of Nursing at the Capitol Medical
Center, was also there for moral support. She reiterated
her previous request for Herminda to be with her even
during the operation. After praying, she was given
injections. Her hands were held by Herminda as they
went down from her room to the operating room (TSN,
January 13, 1988, pp. 9-11). Her husband, Rogelio, was
also with her (TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about two or three
nurses and Dr. Perfecta Gutierrez, the other defendant,
who was to administer anesthesia. Although not a
member of the hospital staff, Herminda introduced
herself as Dean of the College of Nursing at the Capitol
Medical Center who was to provide moral support to the
patient, to them. Herminda was allowed to stay inside
the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby
phone to look for Dr. Hosaka who was not yet in (TSN,
January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter
informed Herminda Cruz about the prospect of a delay in
the arrival of Dr. Hosaka. Herminda then went back to
the patient who asked, "Mindy, wala pa ba ang Doctor"?
The former replied, "Huwag kang mag-alaala, darating na
iyon" (Ibid.).
Thereafter, Herminda went out of the operating room
and informed the patient's husband, Rogelio, that the
doctor was not yet around (id., p. 13). When she
65
returned to the operating room, the patient told her,
"Mindy, inip na inip na ako, ikuha mo ako ng ibang
Doctor." So, she went out again and told Rogelio about
what the patient said (id., p. 15). Thereafter, she
returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already
dying [and] waiting for the arrival of the doctor" even as
he did his best to find somebody who will allow him to
pull out his wife from the operating room (TSN, October
19, 1989, pp. 19-20). He also thought of the feeling of his
wife, who was inside the operating room waiting for the
doctor to arrive (ibid.). At almost 12:00 noon, he met Dr.
Garcia who remarked that he (Dr. Garcia) was also tired
of waiting for Dr. Hosaka to arrive (id., p. 21). While
talking to Dr. Garcia at around 12:10 P.M., he came to
know that Dr. Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon
hearing those words, he went down to the lobby and
waited for the operation to be completed (id., pp. 16, 29-
30).
At about 12:15 P.M., Herminda Cruz, who was inside the
operating room with the patient, heard somebody say
that "Dr. Hosaka is already here." She then saw people
inside the operating room "moving, doing this and that,
[and] preparing the patient for the operation" (TSN,
January 13, 1988, p. 16). As she held the hand of Erlinda
Ramos, she then saw Dr. Gutierrez intubating the hapless
patient. She thereafter heard Dr. Gutierrez say, "ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan" (id., p. 17). Because of the remarks of
Dra. Gutierrez, she focused her attention on what Dr.
Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the
hapless Erlinda even as Dr. Hosaka approached her. She
then heard Dr. Hosaka issue an order for someone to call
Dr. Calderon, another anesthesiologist (id., p. 19). After

Dr. Calderon arrived at the operating room, she saw this
anesthesiologist trying to intubate the patient. The
patient's nailbed became bluish and the patient was
placed in a trendelenburg position — a position where
the head of the patient is placed in a position lower than
her feet which is an indication that there is a decrease of
blood supply to the patient's brain (Id., pp. 19-20).
Immediately thereafter, she went out of the operating
room, and she told Rogelio E. Ramos "that something
wrong was . . . happening" (Ibid.). Dr. Calderon was then
able to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating
room, saw a respiratory machine being rushed towards
the door of the operating room. He also saw several
doctors rushing towards the operating room. When
informed by Herminda Cruz that something wrong was
happening, he told her (Herminda) to be back with the
patient inside the operating room (TSN, October 19,
1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that
the patient was still in trendelenburg position (TSN,
January 13, 1988, p. 20). At almost 3:00 P.M. of that
fateful day, she saw the patient taken to the Intensive
Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to
talk to Dr. Hosaka. The latter informed the former that
something went wrong during the intubation. Reacting to
what was told to him, Rogelio reminded the doctor that
the condition of his wife would not have happened, had
he (Dr. Hosaka) looked for a good anesthesiologist (TSN,
October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the
hospital to explain what happened to the patient. The
66
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 Erlinda's injury. Plaintiff presented the testimonies of Dean Herminda
Cruz and Dr. Mariano Gavino to prove that the sustained by Erlinda was
due to lack of oxygen in her brain caused by the faulty management of her
airway by private respondents during the anesthesia phase. On the other
hand, private respondents primarily relied on the expert testimony of Dr.

Eduardo Jamora, a pulmonologist, to the effect that the cause of brain
damage was Erlinda's allergic reaction to the anesthetic agent, Thiopental
Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court
rendered judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of
facts set forth earlier, and applying the aforecited
provisions of law and jurisprudence to the case at bar,
this Court finds and so holds that defendants are liable to
plaintiffs for damages. The defendants were guilty of, at
the very least, negligence in the performance of their
duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that
she omitted to exercise reasonable care in not only
intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-
10), without due regard to the fact that the patient was
inside the operating room for almost three (3) hours. For
after she committed a mistake in intubating [the] patient,
the patient's nailbed became bluish and the patient,
thereafter, was placed in trendelenburg position,
because of the decrease of blood supply to the patient's
brain. The evidence further shows that the hapless
patient suffered brain damage because of the absence of
oxygen in her (patient's) brain for approximately four to
five minutes which, in turn, caused the patient to
become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he
is liable for the acts of Dr. Perfecta Gutierrez whom he
had chosen to administer anesthesia on the patient as
part of his obligation to provide the patient a good
anesthesiologist', and for arriving for the scheduled
operation almost three (3) hours late.
67
On the part of DLSMC (the hospital), this Court finds that
it is liable for the acts of negligence of the doctors in their
"practice of medicine" in the operating room. Moreover,
the hospital is liable for failing through its responsible
officials, to cancel the scheduled operation after Dr.
Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised
by defendants that they have acted with due care and
prudence in rendering medical services to plaintiff-
patient. For if the patient was properly intubated as
claimed by them, the patient would not have become
comatose. And, the fact that another anesthesiologist
was called to try to intubate the patient after her (the
patient's) nailbed turned bluish, belie their claim.
Furthermore, the defendants should have rescheduled
the operation to a later date. This, they should have
done, if defendants acted with due care and prudence as
the patient's case was an elective, not an emergency
case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing, judgment is
rendered in favor of the plaintiffs and against the
defendants. Accordingly, the latter are ordered to pay,
jointly and severally, the former the following sums of
money, to wit:
1) the sum of P8,000.00 as actual
monthly expenses for the plaintiff
Erlinda Ramos reckoned from
November 15, 1985 or in the total sum
of P632,000.00 as of April 15, 1992,
subject to its being updated;

2) the sum of P100,000.00 as
reasonable attorney's fees;
3) the sum of P800,000.00 by way of
moral damages and the further sum of
P200,000,00 by way of exemplary
damages; and,
4) the costs of the suit.
SO ORDERED. 7
Private respondents seasonably interposed an appeal to the Court of
Appeals. The appellate court rendered a Decision, dated 29 May 1995,
reversing the findings of the trial court. The decretal portion of the
decision of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed
decision is hereby REVERSED, and the complaint below
against the appellants is hereby ordered DISMISSED. The
counterclaim of appellant De Los Santos Medical Center
is GRANTED but only insofar as appellees are hereby
ordered to pay the unpaid hospital bills amounting to
P93,542.25, plus legal interest for justice must be
tempered with mercy.
SO ORDERED. 8
The decision of the Court of Appeals was received on 9 June 1995 by
petitioner Rogelio Ramos who was mistakenly addressed as "Atty. Rogelio
Ramos." No copy of the decision, however, was sent nor received by the
Coronel Law Office, then counsel on record of petitioners. Rogelio referred
the decision of the appellate 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
68
on 4 July 1995. However, the appellate court denied the motion for
extension of time in its Resolution dated 25 July 1995. 9Meanwhile,
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 the
Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is
hereby DENIED.
SO ORDERED. 10
A copy of the above resolution was received by Atty. Sillano on 11 April
1996. The next day, or on 12 April 1996, Atty. Sillano filed before this Court
a motion for extension of time to file the present petition
for certiorari under Rule 45. The Court granted the motion for extension of
time and gave petitioners additional thirty (30) days after the expiration of

the fifteen-day (15) period counted from the receipt of the resolution of
the Court of Appeals within which to submit the petition. The due date fell
on 27 May 1996. The petition was filed on 9 May 1996, well within the
extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following
grounds:
I filing a motion for reconsideration, referred the same to a legal counsel
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF
RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND
DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE
RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA
RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA
LOQUITUR. 11
Before we discuss the merits of the case, we shall first dispose of the
procedural issue on the timeliness of the petition in relation to the motion
for reconsideration filed by petitioners with the Court of Appeals. In their
Comment, 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
69
decision of the Court of Appeals was not sent to then counsel on record of
petitioners, the Coronel Law Office. In fact, a copy of the decision of the
appellate court was instead sent to and received by petitioner Rogelio
Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty.
Rogelio Ramos. Based on the other communications received by petitioner
Rogelio Ramos, the appellate court apparently mistook him for the counsel
on record. Thus, no copy of the decision of the counsel on record.
Petitioner, not being a lawyer and unaware of the prescriptive period for
only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices
should be sent to the party's lawyer at his given address. With a few
exceptions, notice to a litigant without notice to his counsel on record is no
notice at all. In the present case, since a copy of the decision of the
appellate court was not sent to the counsel on record of petitioner, there
can be no sufficient notice to speak of. Hence, the delay in the filing of the
motion for reconsideration cannot be taken against petitioner. Moreover,
since the Court of Appeals already issued a second Resolution, dated 29
March 1996, which superseded the earlier resolution issued on 25 July
1995, and denied the motion for reconsideration of petitioner, we believed
that the receipt of the former should be considered in determining the
timeliness of the filing of the present petition. Based on this, the petition
before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the
merits of the case. For a more logical presentation of the discussion we
shall first consider the issue on the applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter, the first two assigned errors shall
be tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the
transaction speaks for itself." The phrase "res ipsa loquitur'' is a maxim for
the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff's prima facie case, and
present a question of fact for defendant to meet with an

explanation. 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 defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the postulate
that, as a matter of common knowledge and experience, the very nature of
certain types of occurrences may justify an inference of negligence on the
part of the person who controls the instrumentality causing the injury in
the absence of some explanation by the defendant who is charged with
negligence. 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 of 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 someone's negligence;
70
2. It is caused by an instrumentality
within the exclusive control of the
defendant or defendants; and
3. The possibility of contributing
conduct which would make the plaintiff
responsible is eliminated. 21
In the above requisites, the fundamental element is the "control of
instrumentality" which caused the damage. 22Such 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. 30Where 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, 34knocking out a tooth while a
patient's 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, 36among 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
71
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. 40The 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
72
of a gall bladder operation. In fact, this kind of situation does not in the
absence of negligence of someone in the administration of anesthesia and
in the use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of administering
such anesthesia if the proper procedure was followed. Furthermore, the
instruments used in the administration of anesthesia, including the
endotracheal tube, were all under the exclusive control of private
respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda
could not have been guilty of contributory negligence because she was
under the influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is
injured or destroyed while the patient is unconscious and under the
immediate and exclusive control of the physicians, we hold that a practical
administration of justice dictates the application of res ipsa loquitur. Upon
these facts and under these circumstances the Court would be able to say,
as a matter of common knowledge and observation, if negligence attended
the management and care of the patient. Moreover, the liability of the
physicians and the hospital in this case is not predicated upon an alleged
failure to secure the desired results of an operation nor on an alleged lack
of skill in the diagnosis or treatment as in fact no operation or treatment
was ever performed on Erlinda. Thus, upon all these initial determination a
case is made out for the application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present
case we are not saying that the doctrine is applicable in any and all cases
where injury occurs to a patient while under anesthesia, or to any and all
anesthesia cases. Each case must be viewed in its own light and scrutinized
in order to be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the
presumption of negligence allowed therein, the Court now comes to the
issue of whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda during the
anesthesia phase of the operation and, if in the affirmative, whether the
alleged negligence was the proximate cause of Erlinda's comatose
condition. Corollary thereto, we shall also determine if the Court of
 73

Appeals erred in relying on the testimonies of the witnesses for the private Nursing and petitioner's sister-in-law, who was in the operating room right
respondents. beside the patient when the tragic event occurred. Witness Cruz testified
to this effect:
In sustaining the position of private respondents, the Court of Appeals
relied on the testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. ATTY. PAJARES:
In giving weight to the testimony of Dra. Gutierrez, the Court of Appeals
rationalized that she was candid enough to admit that she experienced Q: In particular, what did Dra. Perfecta
some difficulty in the endotracheal intubation 45 of the patient and thus, Gutierrez do, if any on the patient?
cannot be said to be covering her negligence with falsehood. The appellate
court likewise opined that private respondents were able to show that the A: In particular, I could see that she was
brain damage sustained by Erlinda was not caused by the alleged faulty intubating the patient.
intubation but was due to the allergic reaction of the patient to the drug
Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on
Q: Do you know what happened to that
by their expert witness, Dr. Jamora. On the other hand, the appellate court
intubation process administered by
rejected the testimony of Dean Herminda Cruz offered in favor of
Dra. Gutierrez?
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
ATTY. ALCERA:
knowledgeable in the process of intubation. In so holding, the appellate
court returned a verdict in favor of respondents physicians and hospital
and absolved them of any liability towards Erlinda and her family. She will be incompetent Your Honor.

We disagree with the findings of the Court of Appeals. We hold that COURT:
private respondents were unable to disprove the presumption of
negligence on their part in the care of Erlinda and their negligence was the Witness may answer if she knows.
proximate cause of her piteous condition.
A: As have said, I was with the patient, I
In the instant case, the records are helpful in furnishing not only the logical was beside the stretcher holding the
scientific evidence of the pathogenesis of the injury but also in providing left hand of the patient and all of a
the Court the legal nexus upon which liability is based. As will be shown sudden heard some remarks coming
hereinafter, private respondents' own testimonies which are reflected in from Dra. Perfecta Gutierrez herself.
the transcript of stenographic notes are replete of signposts indicative of She was saying "Ang hirap ma-intubate
their negligence in the care and management of Erlinda. nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan.
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. xxx xxx xxx
Gutierrez failed to properly intubate the patient. This fact was attested to
by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of ATTY. PAJARES:

Q: From whom did you hear those
words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki
ang tiyan," what did you notice on the
person of the patient?
A: I notice (sic) some bluish
discoloration on the nailbeds of the left
hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then
at that particular time?
A: I saw him approaching the patient
during that time.
Q: When he approached the patient,
what did he do, if any?
A: He made an order to call on the
anesthesiologist in the person of Dr.
Calderon.
Q: Did Dr. Calderon, upon being called,
arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
74
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to
intubate the patient, after a while the
patient's nailbed became bluish and I
saw the patient was placed in
trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the
patient was placed in that
trendelenburg position?
A: As far as I know, when a patient is in
that position, there is a decrease of
blood supply to the brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the
trial court by declaring that:
A perusal of the standard nursing curriculum in our
country will show that intubation is not taught as part of
nursing procedures and techniques. Indeed, we take
judicial notice of the fact that nurses do not, and cannot,
intubate. Even on the assumption that she is fully
capable of 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.
 75

Gutierrez failed to intubate the appellee Erlinda Ramos Most of all, her testimony was affirmed by no less than respondent Dra.
and that it was Dra. Calderon who succeeded in doing so Gutierrez who admitted that she experienced difficulty in inserting the
clearly suffer from lack of sufficient factual bases. 47 tube into Erlinda's trachea, to wit:

In other words, what the Court of Appeals is trying to impress is that being ATTY. LIGSAY:
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. Q: In this particular case, Doctora, while
you were intubating at your first
We do not agree with the above reasoning of the appellate court. Although attempt (sic), you did not immediately
witness Cruz is not an anesthesiologist, she can very well testify upon see the trachea?
matters on which she is capable of observing such as, the statements and
acts of the physician and surgeon, external appearances, and manifest DRA. GUTIERREZ:
conditions which are observable by any one. 48 This is precisely allowed
under the doctrine of res ipsa loquitur where the testimony of expert A: Yes sir.
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
Q: Did you pull away the tube
of which an ordinary person may be expected to have knowledge, or
immediately?
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
A: You do not pull the . . .
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, Q: Did you or did you not?
we believe, does not require a medical degree to be acceptable.
A: I did not pull the tube.
At any rate, without doubt, petitioner's witness, an experienced clinical
nurse whose long experience and scholarship led to her appointment as Q: When you said "mahirap yata ito,"
Dean of the Capitol Medical Center School at Nursing, was fully capable of what were you referring to?
determining whether or not the intubation was a success. She had
extensive clinical experience starting as a staff nurse in Chicago, Illinois; A: "Mahirap yata itong i-intubate," that
staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; was the patient.
Dean of the Laguna College of Nursing in San Pablo City; and then Dean of
the Capitol Medical Center School of Nursing. 50Reviewing witness Cruz' Q: So, you found some difficulty in
statements, we find that the same were delivered in a straightforward inserting the tube?
manner, with the kind of detail, clarity, consistency and spontaneity which
would have been difficult to fabricate. With her clinical background as a A: Yes, because of (sic) my first
nurse, the Court is satisfied that she was able to demonstrate through her attempt, I did not see right away. 51
testimony what truly transpired on that fateful day.

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 Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the procedure. From their
testimonies, it appears that the observation was made only as an
afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of
anesthesia is universally observed to lessen the possibility of anesthetic
accidents. Pre-operative evaluation and preparation for anesthesia begins
when the anesthesiologist reviews the patient's medical records and visits
with the patient, traditionally, the day before elective surgery. 53 It includes
taking the patient's 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 patient's 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
patient's airway would go a long way towards decreasing patient morbidity
and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda
for the first time on the day of the operation itself, on 17 June 1985. Before
this date, no prior consultations with, or pre-operative evaluation of
76
Erlinda was done by her. Until the day of the operation, respondent Dra.
Gutierrez was unaware of the physiological make-up and needs of Erlinda.
She was likewise not properly informed of the possible difficulties she
would face during the administration of anesthesia to Erlinda. Respondent
Dra. Gutierrez' act of seeing her patient for the first time only an hour
before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives lie at the
core of the physician's centuries-old Hippocratic Oath. Her failure to follow
this medical procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission
by playing around with the trial court's ignorance of clinical procedure,
hoping that she could get away with it. Respondent Dra. Gutierrez tried to
muddle the difference between an elective surgery and an emergency
surgery just so her failure to perform the required pre-operative evaluation
would escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is
good medical practice to see the
patient a day before so you can
introduce yourself to establish good
doctor-patient relationship and gain
the trust and confidence of the
patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it
depends on the operative procedure of
the anesthesiologist and in my case,
with elective cases and normal cardio-
pulmonary clearance like that, I usually
don't do it except on emergency and on

cases that have an abnormalities
(sic). 58
However, the exact opposite is true. In an emergency procedure, there is
hardly enough time available for the fastidious demands of pre-operative
procedure so that an anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on the other hand,
are operative procedures that can wait for days, weeks or even months.
Hence, in these cases, the anesthesiologist possesses the luxury of time to
be at the patient's beside to do a proper interview and clinical evaluation.
There is ample time to explain the method of anesthesia, the drugs to be
used, and their possible hazards for purposes of informed consent. Usually,
the pre-operative assessment is conducted at least one day before the
intended surgery, when the patient is relaxed and cooperative.
Erlinda's case was elective and this was known to respondent Dra.
Gutierrez. Thus, she had all the time to make a thorough evaluation of
Erlinda's case prior to the operation and prepare her for anesthesia.
However, she never saw the patient at the bedside. She herself admitted
that she had seen petitioner only in the operating room, and only on the
actual date of the cholecystectomy. She negligently failed to take
advantage of this important opportunity. As such, her attempt to exculpate
herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-
operative evaluation of the patient which, in turn, resulted to a wrongful
intubation, we now determine if the faulty intubation is truly the
proximate cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the cerebral
anoxia which led to Erlinda's coma was due to bronchospasm 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
77
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. Jamora's testimony
as an expert witness in the anesthetic practice of Pentothal administration
is further supported by his own admission that he formulated his opinions
on the drug not from the practical experience gained by a specialist or
expert in the administration and use of Sodium Pentothal on patients, but
only from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on
pulmonology, did you have any
occasion to use pentothal as a method
of management?
DR. JAMORA:
A: We do it in conjunction with the
anesthesiologist when they have to
intubate our patient.
Q: But not in particular when you
practice pulmonology?
A: No.

Q: In other words, your knowledge
about pentothal is based only on what
you have read from books and not by
your own personal application of the
medicine pentothal?
A: Based on my personal experience
also on pentothal.
Q: How many times have you used
pentothal?
A: They used it on me. I went into
bronchospasm during my
appendectomy.
Q: And because they have used it on
you and on account of your own
personal experience you feel that you
can testify on pentothal here with
medical authority?
A: No. That is why I used references to
support my claims. 61
An anesthetic accident caused by a rare drug-induced bronchospasm
properly falls within the fields of anesthesia, internal medicine-allergy, and
clinical pharmacology. The resulting anoxic encephalopathy belongs to the
field of neurology. While admittedly, many bronchospastic-mediated
pulmonary diseases are within the expertise of pulmonary medicine, Dr.
Jamora's field, the anesthetic drug-induced, allergic mediated
bronchospasm alleged in this case is within the disciplines of
anesthesiology, allergology and pharmacology. On the basis of the
foregoing transcript, in which the pulmonologist himself admitted that he
could not testify about the drug with medical authority, it is clear that the
appellate court erred in giving weight to Dr. Jamora's testimony as an
expert in the administration of Thiopental Sodium.
78
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 advanced in
order to absolve them of any and all responsibility for the patient's
condition.
In view of the evidence at hand, we are inclined to believe petitioners'
stand that it was the faulty intubation which was the proximate cause of
Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces injury,
and without which the result would not have occurred. 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 Erlinda's brain damage and, ultimately, her comatosed
condition.
Private respondents themselves admitted in their testimony that the first
intubation was a failure. This fact was likewise observed by witness Cruz
when she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-
intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan."
Thereafter, witness Cruz noticed abdominal distention on the body of
Erlinda. The development of abdominal distention, together with
respiratory embarrassment indicates that the endotracheal tube entered
the esophagus instead of the respiratory tree. In other words, instead of
the intended endotracheal intubation what actually took place was an
esophageal intubation. During intubation, such distention indicates that air
has entered the gastrointestinal tract through the esophagus instead of the
lungs through the trachea. Entry into the esophagus would certainly cause
some delay in oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention had been
observed during the first intubation suggests that the length of time
utilized in inserting the endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly significant. Due to the delay
in the delivery of oxygen in her lungs Erlinda showed signs of
cyanosis. 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'
79
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 patient's 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 patient's neck
and oral area, defects which would have been easily overcome by a prior
knowledge of those variations together with a change in technique. 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 surgeon's responsibility to see to it that those under him perform their
task in the proper manner. Respondent Dr. Hosaka's negligence can be
found in his failure to exercise the proper authority (as the "captain" of the
operative team) in not determining if his anesthesiologist observed proper

anesthesia protocols. In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly
intubated the patient. Furthermore, it does not escape us that respondent
Dr. Hosaka had scheduled another procedure in a different hospital at the
same time as Erlinda's cholecystectomy, and was in fact over three hours
late for the latter's operation. Because of this, he had little or no time to
confer with his anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties towards his patient.
Thus, he shares equal responsibility for the events which resulted in
Erlinda's condition.
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
physician's performance as a specialist is generally evaluated by a peer
review committee on the basis of mortality and morbidity statistics, and
80
feedback from patients, nurses, interns and residents. A consultant remiss
in his duties, or a consultant who regularly falls short of the minimum
standards acceptable to the hospital or its peer review committee, is
normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over
their attending and visiting "consultant" staff. While "consultants" are not,
technically employees, a point which respondent hospital asserts in
denying all responsibility for the patient's condition, the control exercised,
the hiring, and the right to terminate consultants all fulfill the important
hallmarks of an employer-employee relationship, with the exception of the
payment of wages. In assessing whether such a relationship in fact exists,
the control test is determining. Accordingly, on the basis of the foregoing,
we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This being
the case, the question now arises as to whether or not respondent hospital
is solidarily liable with respondent doctors for petitioner's condition. 76
The basis for holding an employer solidarily responsible for the negligence
of its employee is found in Article 2180 of the Civil Code which considers a
person accountable not only for his own acts but also for those of others
based on the former's responsibility under a relationship of patria
potestas. 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 Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals erred in
accepting and relying on the testimonies of the witnesses for the private
respondents. Indeed, as shown by the above discussions, private
respondents were unable to rebut the presumption of negligence. Upon
these disquisitions we hold that private respondents are solidarily liable for
damages under Article 2176 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.
81
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
82
adjustments in her prosthetic devise due to the shrinkage
of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements
and months of physical and occupational rehabilitation
and therapy. During the lifetime, the prosthetic devise
will have to be replaced and readjusted to changes in the
size of her lower limb effected by the biological changes
of middle-age, menopause and aging. Assuming she
reaches menopause, for example, the prosthetic will
have to be adjusted to respond to the changes in bone
resulting from a precipitate decrease in calcium levels
observed in the bones of all post-menopausal women. In
other words, the damage done to her would not only be
permanent and lasting, it would also be permanently
changing and adjusting to the physiologic changes which
her body would normally undergo through the years. The
replacements, changes, and adjustments will require
corresponding adjustive physical and occupational
therapy. All of these adjustments, it has been
documented, are painful.
xxx xxx xxx
A prosthetic devise, however technologically advanced,
will only allow a reasonable amount of functional
restoration of the motor functions of the lower limb. The
sensory functions are forever lost. The resultant anxiety,
sleeplessness, psychological injury, mental and physical
pain are inestimable. 83
The injury suffered by Erlinda as a consequence of private respondents'
negligence is certainly much more serious than the amputation in the
Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident
occurred. She has been in a comatose state for over fourteen years now.
 83

The burden of care has so far been heroically shouldered by her husband
and children, who, in the intervening years have been deprived of the love
of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of
petitioner would be virtually impossible to quantify. Even the temperate
damages herein awarded would be inadequate if petitioner's condition
remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's actual injury
would not even scratch the surface of the resulting moral damage because
it would be highly speculative to estimate the amount of emotional and
moral pain, psychological damage and injury suffered by the victim or
those actually affected by the victim's condition. 84The husband and the
children, all petitioners in this case, will have to live with the day to day
uncertainty of the patient's illness, knowing any hope of recovery is close
to nil. They have fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into account their life with
a comatose patient. They, not the respondents, are charged with the moral
responsibility of the care of the victim. The family's moral injury and
suffering in this case is clearly a real one. For the foregoing reasons, an
award of P2,000,000.00 in moral damages would be appropriate.
experience with his patients would sometimes tempt him to deviate from
established community practices, and he may end a distinguished career
using unorthodox methods without incident. However, when failure to
follow established procedure results in the evil precisely sought to be
averted by observance of the procedure and a nexus is made between the
deviation and the injury or damage, the physician would necessarily be
called to account for it. In the case at bar, the failure to observe pre-
operative assessment protocol which would have influenced the intubation
in a salutary way was fatal to private respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed
from are hereby modified so as to award in favor of petitioners, and
solidarily against private respondents the following: 1) P1,352,000.00 as
actual damages computed as of the date of promulgation of this decision
plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda
Ramos expires or miraculously survives; 2) P2,000,000.00 as moral
damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as
exemplary damages and attorney's fees; and, 5) the costs of the suit.
SO ORDERED.

Finally, by way of example, exemplary damages in the amount of

P100,000.00 are hereby awarded. Considering the length and nature of the
instant suit we are of the opinion that attorney's fees valued at
P100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases

because physicians are not insurers of life and, they rarely set out to
intentionally cause injury or death to their patients. However, intent is
immaterial in negligence cases because where negligence exists and is
proven, the same automatically gives the injured a right to reparation for
the damage caused.

Established medical procedures and practices, though in constant flux are

devised for the purpose of preventing complications. A physician's

G.R. No. 142625 December 19, 2006
ROGELIO P. NOGALES, for himself and on behalf of the minors, ROGER
ANTHONY, ANGELICA, NANCY, and MICHAEL CHRISTOPHER, all surnamed
NOGALES, petitioners,
vs.
CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA, DR. ELY VILLAFLOR, DR.
ROSA UY, DR. JOEL ENRIQUEZ, DR. PERPETUA LACSON, DR. NOE
ESPINOLA, and NURSE J. DUMLAO, respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 6 February 1998 Decision2 and 21
March 2000 Resolution3 of the Court of Appeals in CA-G.R. CV No. 45641.
The Court of Appeals affirmed in toto the 22 November 1993 Decision4 of
the Regional Trial Court of Manila, Branch 33, finding Dr. Oscar Estrada
solely liable for damages for the death of his patient, Corazon Nogales,
while absolving the remaining respondents of any liability. The Court of
Appeals denied petitioners' motion for reconsideration.
The Facts
Pregnant with her fourth child, Corazon Nogales ("Corazon"), who was
then 37 years old, was under the exclusive prenatal care of Dr. Oscar
Estrada ("Dr. Estrada") beginning on her fourth month of pregnancy or as
early as December 1975. While Corazon was on her last trimester of
pregnancy, Dr. Estrada noted an increase in her blood pressure and
84
development of leg edema5 indicating preeclampsia,6 which is a dangerous
complication of pregnancy.7
Around midnight of 25 May 1976, Corazon started to experience mild labor
pains prompting Corazon and Rogelio Nogales ("Spouses Nogales") to see
Dr. Estrada at his home. After examining Corazon, Dr. Estrada advised her
immediate admission to the Capitol Medical Center ("CMC").
On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the
staff nurse noted the written admission request 8 of Dr. Estrada. Upon
Corazon's admission at the CMC, Rogelio Nogales ("Rogelio") executed and
signed the "Consent on Admission and Agreement" 9 and "Admission
Agreement."10 Corazon was then brought to the labor room of the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of CMC,
conducted an internal examination of Corazon. Dr. Uy then called up Dr.
Estrada to notify him of her findings.
Based on the Doctor's Order Sheet,11 around 3:00 a.m., Dr. Estrada ordered
for 10 mg. of valium to be administered immediately by intramuscular
injection. Dr. Estrada later ordered the start of intravenous administration
of syntocinon admixed with dextrose, 5%, in lactated Ringers' solution, at
the rate of eight to ten micro-drops per minute.
According to the Nurse's Observation Notes,12 Dr. Joel Enriquez ("Dr.
Enriquez"), an anesthesiologist at CMC, was notified at 4:15 a.m. of
Corazon's admission. Subsequently, when asked if he needed the services
of an anesthesiologist, Dr. Estrada refused. Despite Dr. Estrada's refusal,
Dr. Enriquez stayed to observe Corazon's condition.
At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the CMC.
At 6:10 a.m., Corazon's bag of water ruptured spontaneously. At 6:12 a.m.,
Corazon's cervix was fully dilated. At 6:13 a.m., Corazon started to
experience convulsions.

At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium
sulfate. However, Dr. Ely Villaflor ("Dr. Villaflor"), who was assisting Dr.
Estrada, administered only 2.5 grams of magnesium sulfate.
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to
extract Corazon's baby. In the process, a 1.0 x 2.5 cm. piece of cervical
tissue was allegedly torn. The baby came out in an apnic, cyanotic, weak
and injured condition. Consequently, the baby had to be intubated and
resuscitated by Dr. Enriquez and Dr. Payumo.
At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which
rapidly became profuse. Corazon's blood pressure dropped from 130/80 to
60/40 within five minutes. There was continuous profuse vaginal bleeding.
The assisting nurse administered hemacel through a gauge 19 needle as a
side drip to the ongoing intravenous injection of dextrose.
At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with
bottled blood. It took approximately 30 minutes for the CMC laboratory,
headed by Dr. Perpetua Lacson ("Dr. Lacson"), to comply with Dr. Estrada's
order and deliver the blood.
At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the Obstetrics-
Gynecology Department of the CMC, was apprised of Corazon's condition
by telephone. Upon being informed that Corazon was bleeding profusely,
Dr. Espinola ordered immediate hysterectomy. Rogelio was made to sign a
"Consent to Operation."13
Due to the inclement weather then, Dr. Espinola, who was fetched from his
residence by an ambulance, arrived at the CMC about an hour later or at
9:00 a.m. He examined the patient and ordered some resuscitative
measures to be administered. Despite Dr. Espinola's efforts, Corazon died
at 9:15 a.m. The cause of death was "hemorrhage, post partum."14
On 14 May 1980, petitioners filed a complaint for damages 15 with the
Regional Trial Court16 of Manila against CMC, Dr. Estrada, Dr. Villaflor, Dr.
Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for
the death of Corazon. Petitioners mainly contended that defendant
85
physicians and CMC personnel were negligent in the treatment and
management of Corazon's condition. Petitioners charged CMC with
negligence in the selection and supervision of defendant physicians and
hospital staff.
For failing to file their answer to the complaint despite service of
summons, the trial court declared Dr. Estrada, Dr. Enriquez, and Nurse
Dumlao in default.17 CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson
filed their respective answers denying and opposing the allegations in the
complaint. Subsequently, trial ensued.
After more than 11 years of trial, the trial court rendered judgment on 22
November 1993 finding Dr. Estrada solely liable for damages. The trial
court ruled as follows:
The victim was under his pre-natal care, apparently, his fault
began from his incorrect and inadequate management and lack of
treatment of the pre-eclamptic condition of his patient. It is not
disputed that he misapplied the forceps in causing the delivery
because it resulted in a large cervical tear which had caused the
profuse bleeding which he also failed to control with the
application of inadequate injection of magnesium sulfate by his
assistant Dra. Ely Villaflor. Dr. Estrada even failed to notice the
erroneous administration by nurse Dumlao of hemacel by way of
side drip, instead of direct intravenous injection, and his failure to
consult a senior obstetrician at an early stage of the problem.
On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr. Joel
Enriquez, Dr. Lacson, Dr. Espinola, nurse J. Dumlao and CMC, the
Court finds no legal justification to find them civilly liable.
On the part of Dra. Ely Villaflor, she was only taking orders from
Dr. Estrada, the principal physician of Corazon Nogales. She can
only make suggestions in the manner the patient maybe treated
but she cannot impose her will as to do so would be to substitute
her good judgment to that of Dr. Estrada. If she failed to correctly
diagnose the true cause of the bleeding which in this case appears

to be a cervical laceration, it cannot be safely concluded by the
Court that Dra. Villaflor had the correct diagnosis and she failed to
inform Dr. Estrada. No evidence was introduced to show that
indeed Dra. Villaflor had discovered that there was laceration at
the cervical area of the patient's internal organ.
On the part of nurse Dumlao, there is no showing that when she
administered the hemacel as a side drip, she did it on her own. If
the correct procedure was directly thru the veins, it could only be
because this was what was probably the orders of Dr. Estrada.
While the evidence of the plaintiffs shows that Dr. Noe Espinola,
who was the Chief of the Department of Obstetrics and
Gynecology who attended to the patient Mrs. Nogales, it was only
at 9:00 a.m. That he was able to reach the hospital because of
typhoon Didang (Exhibit 2). While he was able to give prescription
in the manner Corazon Nogales may be treated, the prescription
was based on the information given to him by phone and he acted
on the basis of facts as presented to him, believing in good faith
that such is the correct remedy. He was not with Dr. Estrada when
the patient was brought to the hospital at 2:30 o'clock a.m. So,
whatever errors that Dr. Estrada committed on the patient before
9:00 o'clock a.m. are certainly the errors of Dr. Estrada and cannot
be the mistake of Dr. Noe Espinola. His failure to come to the
hospital on time was due to fortuitous event.
On the part of Dr. Joel Enriquez, while he was present in the
delivery room, it is not incumbent upon him to call the attention
of Dr. Estrada, Dra. Villaflor and also of Nurse Dumlao on the
alleged errors committed by them. Besides, as anesthesiologist,
he has no authority to control the actuations of Dr. Estrada and
Dra. Villaflor. For the Court to assume that there were errors
being committed in the presence of Dr. Enriquez would be to
dwell on conjectures and speculations.
On the civil liability of Dr. Perpetua Lacson, [s]he is a hematologist
and in-charge of the blood bank of the CMC. The Court cannot
86
accept the theory of the plaintiffs that there was delay in
delivering the blood needed by the patient. It was testified, that in
order that this blood will be made available, a laboratory test has
to be conducted to determine the type of blood, cross matching
and other matters consistent with medical science so, the lapse of
30 minutes maybe considered a reasonable time to do all of these
things, and not a delay as the plaintiffs would want the Court to
believe.
Admittedly, Dra. Rosa Uy is a resident physician of the Capitol
Medical Center. She was sued because of her alleged failure to
notice the incompetence and negligence of Dr. Estrada. However,
there is no evidence to support such theory. No evidence was
adduced to show that Dra. Rosa Uy as a resident physician of
Capitol Medical Center, had knowledge of the mismanagement of
the patient Corazon Nogales, and that notwithstanding such
knowledge, she tolerated the same to happen.
In the pre-trial order, plaintiffs and CMC agreed that defendant
CMC did not have any hand or participation in the selection or
hiring of Dr. Estrada or his assistant Dra. Ely Villaflor as attending
physician[s] of the deceased. In other words, the two (2) doctors
were not employees of the hospital and therefore the hospital did
not have control over their professional conduct. When Mrs.
Nogales was brought to the hospital, it was an emergency case
and defendant CMC had no choice but to admit her. Such being
the case, there is therefore no legal ground to apply the
provisions of Article 2176 and 2180 of the New Civil Code
referring to the vicarious liability of an employer for the
negligence of its employees. If ever in this case there is fault or
negligence in the treatment of the deceased on the part of the
attending physicians who were employed by the family of the
deceased, such civil liability should be borne by the attending
physicians under the principle of "respondeat superior".
WHEREFORE, premises considered, judgment is hereby rendered
finding defendant Dr. Estrada of Number 13 Pitimini St. San

Francisco del Monte, Quezon City civilly liable to pay plaintiffs: 1)
By way of actual damages in the amount of P105,000.00; 2) By
way of moral damages in the amount of P700,000.00; 3)
Attorney's fees in the amount of P100,000.00 and to pay the costs
of suit.
For failure of the plaintiffs to adduce evidence to support its [sic]
allegations against the other defendants, the complaint is hereby
ordered dismissed. While the Court looks with disfavor the filing
of the present complaint against the other defendants by the
herein plaintiffs, as in a way it has caused them personal
inconvenience and slight damage on their name and reputation,
the Court cannot accepts [sic] however, the theory of the
remaining defendants that plaintiffs were motivated in bad faith
in the filing of this complaint. For this reason defendants'
counterclaims are hereby ordered dismissed.
SO ORDERED.18
Petitioners appealed the trial court's decision. Petitioners claimed that
aside from Dr. Estrada, the remaining respondents should be held equally
liable for negligence. Petitioners pointed out the extent of each
respondent's alleged liability.
On 6 February 1998, the Court of Appeals affirmed the decision of the trial
court.19 Petitioners filed a motion for reconsideration which the Court of
Appeals denied in its Resolution of 21 March 2000.20
Hence, this petition.
Meanwhile, petitioners filed a Manifestation dated 12 April 200221 stating
that respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao
"need no longer be notified of the petition because they are absolutely not
involved in the issue raised before the [Court], regarding the liability of
[CMC]."22 Petitioners stressed that the subject matter of this petition is the
liability of CMC for the negligence of Dr. Estrada.23
87
The Court issued a Resolution dated 9 September 2002 24 dispensing with
the requirement to submit the correct and present addresses of
respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The
Court stated that with the filing of petitioners' Manifestation, it should be
understood that they are claiming only against respondents CMC, Dr.
Espinola, Dr. Lacson, and Dr. Uy who have filed their respective comments.
Petitioners are foregoing further claims against respondents Dr. Estrada,
Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao.
The Court noted that Dr. Estrada did not appeal the decision of the Court
of Appeals affirming the decision of the Regional Trial Court. Accordingly,
the decision of the Court of Appeals, affirming the trial court's judgment, is
already final as against Dr. Oscar Estrada.
Petitioners filed a motion for reconsideration25 of the Court's 9 September
2002 Resolution claiming that Dr. Enriquez, Dr. Villaflor and Nurse Dumlao
were notified of the petition at their counsels' last known addresses.
Petitioners reiterated their imputation of negligence on these respondents.
The Court denied petitioners' Motion for Reconsideration in its 18
February 2004 Resolution.26
The Court of Appeals' Ruling
In its Decision of 6 February 1998, the Court of Appeals upheld the trial
court's ruling. The Court of Appeals rejected petitioners' view that the
doctrine in Darling v. Charleston Community Memorial Hospital27 applies to
this case. According to the Court of Appeals, the present case differs from
the Darling case since Dr. Estrada is an independent contractor-physician
whereas the Darling case involved a physician and a nurse who were
employees of the hospital.
Citing other American cases, the Court of Appeals further held that the
mere fact that a hospital permitted a physician to practice medicine and
use its facilities is not sufficient to render the hospital liable for the
physician's negligence.28 A hospital is not responsible for the negligence of
a physician who is an independent contractor.29
 88

The Court of Appeals found the cases of Davidson v. Conole30 and Campbell of the other respondents is inevitable to finally and completely dispose of
v. Emma Laing Stevens Hospital31applicable to this case. the present controversy.
Quoting Campbell, the Court of Appeals stated that where there is no
proof that defendant physician was an employee of defendant hospital or The Ruling of the Court
that defendant hospital had reason to know that any acts of malpractice
would take place, defendant hospital could not be held liable for its failure The petition is partly meritorious.
to intervene in the relationship of physician-patient between defendant
physician and plaintiff.
On the Liability of CMC

On the liability of the other respondents, the Court of Appeals applied the
Dr. Estrada's negligence in handling the treatment and management of
"borrowed servant" doctrine considering that Dr. Estrada was an
Corazon's condition which ultimately resulted in Corazon's death is no
independent contractor who was merely exercising hospital privileges. This
longer in issue. Dr. Estrada did not appeal the decision of the Court of
doctrine provides that once the surgeon enters the operating room and
Appeals which affirmed the ruling of the trial court finding Dr. Estrada
takes charge of the proceedings, the acts or omissions of operating room
solely liable for damages. Accordingly, the finding of the trial court on Dr.
personnel, and any negligence associated with such acts or omissions, are
Estrada's negligence is already final.
imputable to the surgeon.32 While the assisting physicians and nurses may
be employed by the hospital, or engaged by the patient, they normally
Petitioners maintain that CMC is vicariously liable for Dr. Estrada's
become the temporary servants or agents of the surgeon in charge while
negligence based on Article 2180 in relation to Article 2176 of the Civil
the operation is in progress, and liability may be imposed upon the
Code. These provisions pertinently state:
surgeon for their negligent acts under the doctrine of respondeat
superior.33
Art. 2180. The obligation imposed by article 2176 is demandable
not only for one's own acts or omissions, but also for those of
The Court of Appeals concluded that since Rogelio engaged Dr. Estrada as
persons for whom one is responsible.
the attending physician of his wife, any liability for malpractice must be Dr.
Estrada's sole responsibility.
xxxx
While it found the amount of damages fair and reasonable, the Court of
Appeals held that no interest could be imposed on unliquidated claims or Employers shall be liable for the damages caused by their
damages. employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or industry.
The Issue

Basically, the issue in this case is whether CMC is vicariously liable for the
negligence of Dr. Estrada. The resolution of this issue rests, on the other
hand, on the ascertainment of the relationship between Dr. Estrada and
CMC. The Court also believes that a determination of the extent of liability
xxxx
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.

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.
Similarly, in the United States, a hospital which is the employer, master, or
principal of a physician employee, servant, or agent, may be held liable for
the physician's negligence under the doctrine of respondeat superior.34
In the present case, petitioners maintain that CMC, in allowing Dr. Estrada
to practice and admit patients at CMC, should be liable for Dr. Estrada's
malpractice. Rogelio claims that he knew Dr. Estrada as an accredited
physician of CMC, though he discovered later that Dr. Estrada was not a
salaried employee of the CMC.35 Rogelio further claims that he was dealing
with CMC, whose primary concern was the treatment and management of
his wife's condition. Dr. Estrada just happened to be the specific person he
talked to representing CMC.36 Moreover, the fact that CMC made Rogelio
sign a Consent on Admission and Admission Agreement 37 and a Consent to
Operation printed on the letterhead of CMC indicates that CMC considered
Dr. Estrada as a member of its medical staff.
On the other hand, CMC disclaims liability by asserting that Dr. Estrada was
a mere visiting physician and that it admitted Corazon because her physical
condition then was classified an emergency obstetrics case. 38
CMC alleges that Dr. Estrada is an independent contractor "for whose
actuations CMC would be a total stranger." CMC maintains that it had no
control or supervision over Dr. Estrada in the exercise of his medical
profession.
The Court had the occasion to determine the relationship between a
hospital and a consultant or visiting physician and the liability of such
hospital for that physician's negligence in Ramos v. Court of Appeals,39 to
wit:
89
In the first place, hospitals exercise significant control in the hiring
and firing of consultants and in the conduct of their work within
the hospital premises. Doctors who apply for "consultant" slots,
visiting or attending, are required to submit proof of completion
of residency, their educational qualifications; generally, evidence
of accreditation by the appropriate board (diplomate), evidence
of fellowship in most cases, and references. These requirements
are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital
who either accept or reject the application. This is particularly
true with respondent hospital.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and
residents, moderate grand rounds and patient audits and perform
other tasks and responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege of
admitting patients into the hospital. In addition to these, the
physician's performance as a specialist is generally evaluated by a
peer review committee on the basis of mortality and morbidity
statistics, and feedback from patients, nurses, interns and
residents. A consultant remiss in his duties, or a consultant who
regularly falls short of the minimum standards acceptable to the
hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting "consultant" staff. While
"consultants" are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the
patient's condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks
of an employer-employee relationship, with the exception of the
payment of wages. In assessing whether such a relationship in
fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an employer-

employee relationship in effect exists between hospitals and
their attending and visiting physicians. This being the case, the
question now arises as to whether or not respondent hospital is
solidarily liable with respondent doctors for petitioner's condition.
The basis for holding an employer solidarily responsible for the
negligence of its employee is found in Article 2180 of the Civil
Code which considers a person accountable not only for his own
acts but also for those of others based on the former's
responsibility under a relationship of patria potestas. x x
x40 (Emphasis supplied)
While the Court in Ramos did not expound on the control test, such test
essentially determines whether an employment relationship exists
between a physician and a hospital based on the exercise of control over
the physician as to details. Specifically, the employer (or the hospital) must
have the right to control both the means and the details of the process by
which the employee (or the physician) is to accomplish his task.41
After a thorough examination of the voluminous records of this case, the
Court finds no single evidence pointing to CMC's exercise of control over
Dr. Estrada's treatment and management of Corazon's condition. It is
undisputed that throughout Corazon's pregnancy, she was under the
exclusive prenatal care of Dr. Estrada. At the time of Corazon's admission
at CMC and during her delivery, it was Dr. Estrada, assisted by Dr. Villaflor,
who attended to Corazon. There was no showing that CMC had a part in
diagnosing Corazon's condition. While Dr. Estrada enjoyed staff privileges
at CMC, such fact alone did not make him an employee of CMC.42 CMC
merely allowed Dr. Estrada to use its facilities43 when Corazon was about
to give birth, which CMC considered an emergency. Considering these
circumstances, Dr. Estrada is not an employee of CMC, but an independent
contractor.
The question now is whether CMC is automatically exempt from liability
considering that Dr. Estrada is an independent contractor-physician.
90
In general, a hospital is not liable for the negligence of an independent
contractor-physician. There is, however, an exception to this principle. The
hospital may be liable if the physician is the "ostensible" agent of the
hospital.44This exception is also known as the "doctrine of apparent
authority."45 In Gilbert v. Sycamore Municipal Hospital,46the Illinois
Supreme Court explained the doctrine of apparent authority in this wise:
[U]nder the doctrine of apparent authority a hospital can be held
vicariously liable for the negligent acts of a physician providing
care at the hospital, regardless of whether the physician is an
independent contractor, unless the patient knows, or should have
known, that the physician is an independent contractor. The
elements of the action have been set out as follows:
"For a hospital to be liable under the doctrine of apparent
authority, a plaintiff must show that: (1) the hospital, or its agent,
acted in a manner that would lead a reasonable person to
conclude that the individual who was alleged to be negligent was
an employee or agent of the hospital; (2) where the acts of the
agent create the appearance of authority, the plaintiff must also
prove that the hospital had knowledge of and acquiesced in them;
and (3) the plaintiff acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary care and prudence."
The element of "holding out" on the part of the hospital does not
require an express representation by the hospital that the person
alleged to be negligent is an employee. Rather, the element is
satisfied if the hospital holds itself out as a provider of emergency
room care without informing the patient that the care is provided
by independent contractors.
The element of justifiable reliance on the part of the plaintiff is
satisfied if the plaintiff relies upon the hospital to provide
complete emergency room care, rather than upon a specific
physician.

The doctrine of apparent authority essentially involves two factors to
determine the liability of an independent-contractor physician.
The first factor focuses on the hospital's manifestations and is sometimes
described as an inquiry whether the hospital acted in a manner which
would lead a reasonable person to conclude that the individual who was
alleged to be negligent was an employee or agent of the hospital.47 In this
regard, the hospital need not make express representations to the
patient that the treating physician is an employee of the hospital; rather
a representation may be general and implied.48
The doctrine of apparent authority is a species of the doctrine of estoppel.
Article 1431 of the Civil Code provides that "[t]hrough estoppel, an
admission or representation is rendered conclusive upon the person
making it, and cannot be denied or disproved as against the person relying
thereon." Estoppel rests on this rule: "Whenever a party has, by his own
declaration, act, or omission, intentionally and deliberately led another to
believe a particular thing true, and to act upon such belief, he cannot, in
any litigation arising out of such declaration, act or omission, be permitted
to falsify it."49
In the instant case, CMC impliedly held out Dr. Estrada as a member of its
medical staff. Through CMC's acts, CMC clothed Dr. Estrada with apparent
authority thereby leading the Spouses Nogales to believe that Dr. Estrada
was an employee or agent of CMC. CMC cannot now repudiate such
authority.
While the Consent to Operation pertinently reads, thus:
First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical
staff and facilities to Dr. Estrada. Upon Dr. Estrada's request for Corazon's
admission, CMC, through its personnel, readily accommodated Corazon
and updated Dr. Estrada of her condition.
Second, CMC made Rogelio sign consent forms printed on CMC letterhead.
Prior to Corazon's admission and supposed hysterectomy, CMC asked
Rogelio to sign release forms, the contents of which reinforced Rogelio's
belief that Dr. Estrada was a member of CMC's medical staff.50 The Consent
on Admission and Agreement explicitly provides:
91
KNOW ALL MEN BY THESE PRESENTS:
I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar
St., Malate Mla., being the
father/mother/brother/sister/spouse/relative/ guardian/or
person in custody of Ma. Corazon, and representing his/her
family, of my own volition and free will, do consent and submit
said Ma. Corazon to Dr. Oscar Estrada (hereinafter referred to as
Physician) for cure, treatment, retreatment, or emergency
measures, that the Physician, personally or by and through the
Capitol Medical Center and/or its staff, may use, adapt, or
employ such means, forms or methods of cure, treatment,
retreatment, or emergency measures as he may see best and
most expedient; that Ma. Corazon and I will comply with any
and all rules, regulations, directions, and instructions of the
Physician, the Capitol Medical Center and/or its staff; and, that I
will not hold liable or responsible and hereby waive and forever
discharge and hold free the Physician, the Capitol Medical Center
and/or its staff, from any and all claims of whatever kind of
nature, arising from directly or indirectly, or by reason of said
cure, treatment, or retreatment, or emergency measures or
intervention of said physician, the Capitol Medical Center and/or
its staff.
x x x x51 (Emphasis supplied)
I, ROGELIO NOGALES, x x x, of my own volition and free will, do
consent and submit said CORAZON NOGALES to Hysterectomy, by
the Surgical Staff and Anesthesiologists of Capitol Medical
Center and/or whatever succeeding operations, treatment, or
emergency measures as may be necessary and most expedient;
and, that I will not hold liable or responsible and hereby waive
and forever discharge and hold free the Surgeon, his assistants,
anesthesiologists, the Capitol Medical Center and/or its staff, from
any and all claims of whatever kind of nature, arising from directly

or indirectly, or by reason of said operation or operations,
treatment, or emergency measures, or intervention of the
Surgeon, his assistants, anesthesiologists, the Capitol Medical
Center and/or its staff.52 (Emphasis supplied)
Without any indication in these consent forms that Dr. Estrada was an
independent contractor-physician, the Spouses Nogales could not have
known that Dr. Estrada was an independent contractor. Significantly, no
one from CMC informed the Spouses Nogales that Dr. Estrada was an
independent contractor. On the contrary, Dr. Atencio, who was then a
member of CMC Board of Directors, testified that Dr. Estrada was part of
CMC's surgical staff.53
Third, Dr. Estrada's referral of Corazon's profuse vaginal bleeding to Dr.
Espinola, who was then the Head of the Obstetrics and Gynecology
Department of CMC, gave the impression that Dr. Estrada as a member of
CMC's medical staff was collaborating with other CMC-employed
specialists in treating Corazon.
The second factor focuses on the patient's reliance. It is sometimes
characterized as an inquiry on whether the plaintiff acted in reliance upon
the conduct of the hospital or its agent, consistent with ordinary care and
prudence.54
The records show that the Spouses Nogales relied upon a perceived
employment relationship with CMC in accepting Dr. Estrada's services.
Rogelio testified that he and his wife specifically chose Dr. Estrada to
handle Corazon's delivery not only because of their friend's
recommendation, but more importantly because of Dr. Estrada's
"connection with a reputable hospital, the [CMC]."55 In other words, Dr.
Estrada's relationship with CMC played a significant role in the Spouses
Nogales' decision in accepting Dr. Estrada's services as the obstetrician-
gynecologist for Corazon's delivery. Moreover, as earlier stated, there is no
showing that before and during Corazon's confinement at CMC, the
Spouses Nogales knew or should have known that Dr. Estrada was not an
employee of CMC.
92
Further, the Spouses Nogales looked to CMC to provide the best medical
care and support services for Corazon's delivery. The Court notes that prior
to Corazon's fourth pregnancy, she used to give birth inside a clinic.
Considering Corazon's age then, the Spouses Nogales decided to have their
fourth child delivered at CMC, which Rogelio regarded one of the best
hospitals at the time.56 This is precisely because the Spouses Nogales
feared that Corazon might experience complications during her delivery
which would be better addressed and treated in a modern and big hospital
such as CMC. Moreover, Rogelio's consent in Corazon's hysterectomy to be
performed by a different physician, namely Dr. Espinola, is a clear
indication of Rogelio's confidence in CMC's surgical staff.
CMC's defense that all it did was "to extend to [Corazon] its facilities" is
untenable. The Court cannot close its eyes to the reality that hospitals,
such as CMC, are in the business of treatment. In this regard, the Court
agrees with the observation made by the Court of Appeals of North
Carolina in Diggs v. Novant Health, Inc.,57 to wit:
"The conception that the hospital does not undertake to treat the
patient, does not undertake to act through its doctors and nurses,
but undertakes instead simply to procure them to act upon their
own responsibility, no longer reflects the fact. Present day
hospitals, as their manner of operation plainly demonstrates, do
far more than furnish facilities for treatment. They regularly
employ on a salary basis a large staff of physicians, nurses and
internes [sic], as well as administrative and manual workers, and
they charge patients for medical care and treatment, collecting
for such services, if necessary, by legal action. Certainly, the
person who avails himself of 'hospital facilities' expects that the
hospital will attempt to cure him, not that its nurses or other
employees will act on their own responsibility." x x x (Emphasis
supplied)
Likewise unconvincing is CMC's argument that petitioners are estopped
from claiming damages based on the Consent on Admission and Consent
to Operation. Both release forms consist of two parts. The first part gave
CMC permission to administer to Corazon any form of recognized medical

treatment which the CMC medical staff deemed advisable. The second part
of the documents, which may properly be described as the releasing part,
releases CMC and its employees "from any and all claims" arising from or
by reason of the treatment and operation.
The documents do not expressly release CMC from liability for injury to
Corazon due to negligence during her treatment or operation. Neither do
the consent forms expressly exempt CMC from liability for Corazon's death
due to negligence during such treatment or operation. Such release forms,
being in the nature of contracts of adhesion, are construed strictly against
hospitals. Besides, a blanket release in favor of hospitals "from any and all
claims," which includes claims due to bad faith or gross negligence, would
be contrary to public policy and thus void.
Even simple negligence is not subject to blanket release in favor of
establishments like hospitals but may only mitigate liability depending on
the circumstances.58 When a person needing urgent medical attention
rushes to a hospital, he cannot bargain on equal footing with the hospital
on the terms of admission and operation. Such a person is literally at the
mercy of the hospital. There can be no clearer example of a contract of
adhesion than one arising from such a dire situation. Thus, the release
forms of CMC cannot relieve CMC from liability for the negligent medical
treatment of Corazon.
On the Liability of the Other Respondents
Despite this Court's pronouncement in its 9 September 200259 Resolution
that the filing of petitioners' Manifestation confined petitioners' claim only
against CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy, who have filed their
comments, the Court deems it proper to resolve the individual liability of
the remaining respondents to put an end finally to this more than two-
decade old controversy.
a) Dr. Ely Villaflor
Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause of
Corazon's bleeding and to suggest the correct remedy to Dr.
93
Estrada.60 Petitioners assert that it was Dr. Villaflor's duty to correct the
error of Nurse Dumlao in the administration of hemacel.
The Court is not persuaded. Dr. Villaflor admitted administering a lower
dosage of magnesium sulfate. However, this was after informing Dr.
Estrada that Corazon was no longer in convulsion and that her blood
pressure went down to a dangerous level.61 At that moment, Dr. Estrada
instructed Dr. Villaflor to reduce the dosage of magnesium sulfate from 10
to 2.5 grams. Since petitioners did not dispute Dr. Villaflor's allegation, Dr.
Villaflor's defense remains uncontroverted. Dr. Villaflor's act of
administering a lower dosage of magnesium sulfate was not out of her own
volition or was in contravention of Dr. Estrada's order.
b) Dr. Rosa Uy
Dr. Rosa Uy's alleged negligence consisted of her failure (1) to call the
attention of Dr. Estrada on the incorrect dosage of magnesium sulfate
administered by Dr. Villaflor; (2) to take corrective measures; and (3) to
correct Nurse Dumlao's wrong method of hemacel administration.
The Court believes Dr. Uy's claim that as a second year resident physician
then at CMC, she was merely authorized to take the clinical history and
physical examination of Corazon.62 However, that routine internal
examination did not ipso facto make Dr. Uy liable for the errors committed
by Dr. Estrada. Further, petitioners' imputation of negligence rests on their
baseless assumption that Dr. Uy was present at the delivery room. Nothing
shows that Dr. Uy participated in delivering Corazon's baby. Further, it is
unexpected from Dr. Uy, a mere resident physician at that time, to call the
attention of a more experienced specialist, if ever she was present at the
delivery room.
c) Dr. Joel Enriquez
Petitioners fault Dr. Joel Enriquez also for not calling the attention of Dr.
Estrada, Dr. Villaflor, and Nurse Dumlao about their errors. 63 Petitioners
insist that Dr. Enriquez should have taken, or at least suggested, corrective
measures to rectify such errors.

The Court is not convinced. Dr. Enriquez is an anesthesiologist whose field
of expertise is definitely not obstetrics and gynecology. As such, Dr.
Enriquez was not expected to correct Dr. Estrada's errors. Besides, there
was no evidence of Dr. Enriquez's knowledge of any error committed by
Dr. Estrada and his failure to act upon such observation.
d) Dr. Perpetua Lacson
Petitioners fault Dr. Perpetua Lacson for her purported delay in the
delivery of blood Corazon needed.64Petitioners claim that Dr. Lacson was
remiss in her duty of supervising the blood bank staff.
As found by the trial court, there was no unreasonable delay in the delivery
of blood from the time of the request until the transfusion to Corazon. Dr.
Lacson competently explained the procedure before blood could be given
to the patient.65 Taking into account the bleeding time, clotting time and
cross-matching, Dr. Lacson stated that it would take approximately 45-60
minutes before blood could be ready for transfusion.66 Further, no
evidence exists that Dr. Lacson neglected her duties as head of the blood
bank.
e) Dr. Noe Espinola
Petitioners argue that Dr. Espinola should not have ordered immediate
hysterectomy without determining the underlying cause of Corazon's
bleeding. Dr. Espinola should have first considered the possibility of
cervical injury, and advised a thorough examination of the cervix, instead
of believing outright Dr. Estrada's diagnosis that the cause of bleeding was
uterine atony.
Dr. Espinola's order to do hysterectomy which was based on the
information he received by phone is not negligence. The Court agrees with
the trial court's observation that Dr. Espinola, upon hearing such
information about Corazon's condition, believed in good faith that
hysterectomy was the correct remedy. At any rate, the hysterectomy did
not push through because upon Dr. Espinola's arrival, it was already too
late. At the time, Corazon was practically dead.
94
f) Nurse J. Dumlao
In Moore v. Guthrie Hospital Inc.,67 the US Court of Appeals, Fourth Circuit,
held that to recover, a patient complaining of injuries allegedly resulting
when the nurse negligently injected medicine to him intravenously instead
of intramuscularly had to show that (1) an intravenous injection
constituted a lack of reasonable and ordinary care; (2) the nurse injected
medicine intravenously; and (3) such injection was the proximate cause of
his injury.
In the present case, there is no evidence of Nurse Dumlao's alleged failure
to follow Dr. Estrada's specific instructions. Even assuming Nurse Dumlao
defied Dr. Estrada's order, there is no showing that side-drip
administration of hemacel proximately caused Corazon's death. No
evidence linking Corazon's death and the alleged wrongful hemacel
administration was introduced. Therefore, there is no basis to hold Nurse
Dumlao liable for negligence.
On the Award of Interest on Damages
The award of interest on damages is proper and allowed under Article
2211 of the Civil Code, which states that in crimes and quasi-delicts,
interest as a part of the damages may, in a proper case, be adjudicated in
the discretion of the court.68
WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds
respondent Capitol Medical Center vicariously liable for the negligence of
Dr. Oscar Estrada. The amounts of P105,000 as actual damages
and P700,000 as moral damages should each earn legal interest at the rate
of six percent (6%) per annum computed from the date of the judgment of
the trial court. The Court affirms the rest of the Decision dated 6 February
1998 and Resolution dated 21 March 2000 of the Court of Appeals in CA-
G.R. CV No. 45641.
SO ORDERED.
 95

G.R. No. 126297 January 31, 2007 Assailed in these three consolidated petitions for review on certiorari is the
Court of Appeals’ Decision2 dated September 6, 1996 in CA-G.R. CV No.
PROFESSIONAL SERVICES, INC., Petitioner, 42062 and CA-G.R. SP No. 32198 affirming with modification the
vs. Decision3dated March 17, 1993 of the Regional Trial Court (RTC), Branch
NATIVIDAD and ENRIQUE AGANA, Respondents. 96, Quezon City in Civil Case No. Q-43322 and nullifying its Order dated
September 21, 1993.
x-----------------------x
The facts, as culled from the records, are:
G.R. No. 126467 January 31, 2007
On April 4, 1984, Natividad Agana was rushed to the Medical City General
NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE Hospital (Medical City Hospital) because of difficulty of bowel movement
AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND and bloody anal discharge. After a series of medical examinations, Dr.
AGANA) and ENRIQUE AGANA, Petitioners, Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering
vs. from "cancer of the sigmoid."
JUAN FUENTES, Respondent.
On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the Medical
x- - - - - - - - - - - - - - - - - - - -- - - - x City Hospital, performed an anterior resection surgery on Natividad. He
found that the malignancy in her sigmoid area had spread on her left
ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil
G.R. No. 127590 January 31, 2007
obtained the consent of Natividad’s husband, Enrique Agana, to permit Dr.
Juan Fuentes, respondent in G.R. No. 126467, to perform hysterectomy on
MIGUEL AMPIL, Petitioner,
her.
vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over,
completed the operation and closed the incision.
DECISION
However, the operation appeared to be flawed. In the corresponding
SANDOVAL-GUTIERREZ, J.:
Record of Operation dated April 11, 1984, the attending nurses entered
these remarks:
Hospitals, having undertaken one of mankind’s most important and
delicate endeavors, must assume the grave responsibility of pursuing it
"sponge count lacking 2
with appropriate care. The care and service dispensed through this high
trust, however technical, complex and esoteric its character may be, must
"announced to surgeon searched (sic) done but to no avail continue for
meet standards of responsibility commensurate with the undertaking to
closure."
preserve and protect the health, and indeed, the very lives of those placed
in the hospital’s keeping.1
On April 24, 1984, Natividad was released from the hospital. Her hospital
and medical bills, including the doctors’ fees, amounted to P60,000.00.

After a couple of days, Natividad complained of excruciating pain in her
anal region. She consulted both Dr. Ampil and Dr. Fuentes about it. They
told her that the pain was the natural consequence of the surgery. Dr.
Ampil then recommended that she consult an oncologist to examine the
cancerous nodes which were not removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to the
United States to seek further treatment. After four months of
consultations and laboratory examinations, Natividad was told she was
free of cancer. Hence, she was advised to return to the Philippines.
On August 31, 1984, Natividad flew back to the Philippines, still suffering
from pains. Two weeks thereafter, her daughter found a piece of gauze
protruding from her vagina. Upon being informed about it, Dr. Ampil
proceeded to her house where he managed to extract by hand a piece of
gauze measuring 1.5 inches in width. He then assured her that the pains
would soon vanish.
Dr. Ampil’s assurance did not come true. Instead, the pains intensified,
prompting Natividad to seek treatment at the Polymedic General Hospital.
While confined there, Dr. Ramon Gutierrez detected the presence of
another foreign object in her vagina -- a foul-smelling gauze measuring 1.5
inches in width which badly infected her vaginal vault. A recto-vaginal
fistula had formed in her reproductive organs which forced stool to excrete
through the vagina. Another surgical operation was needed to remedy the
damage. Thus, in October 1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the RTC,
Branch 96, Quezon City a complaint for damages against the Professional
Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr.
Fuentes, docketed as Civil Case No. Q-43322. They alleged that the latter
are liable for negligence for leaving two pieces of gauze inside Natividad’s
body and malpractice for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional Regulation
Commission (PRC) an administrative complaint for gross negligence and
malpractice against Dr. Ampil and Dr. Fuentes, docketed as Administrative
96
Case No. 1690. The PRC Board of Medicine heard the case only with
respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr.
Ampil who was then in the United States.
On February 16, 1986, pending the outcome of the above cases, Natividad
died and was duly substituted by her above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas,
finding PSI, Dr. Ampil and Dr. Fuentes liable for negligence and malpractice,
the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the
defendants PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR.
JUAN FUENTES to pay to the plaintiffs, jointly and severally, except in
respect of the award for exemplary damages and the interest thereon
which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as
follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of
US$19,900.00 at the rate of P21.60-US$1.00, as
reimbursement of actual expenses incurred in the United
States of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and
their physician daughter;
c. The total sum of P45,802.50, representing the cost of
hospitalization at Polymedic Hospital, medical fees, and
cost of the saline solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;

4. As attorney’s fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove,
from date of filing of the complaint until full payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the
Court of Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a
partial execution of its Decision, which was granted in an Order dated May
11, 1993. Thereafter, the sheriff levied upon certain properties of Dr. Ampil
and sold them for P451,275.00 and delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into an
agreement with PSI and Dr. Fuentes to indefinitely suspend any further
execution of the RTC Decision. However, not long thereafter, the Aganas
again filed a motion for an alias writ of execution against the properties of
PSI and Dr. Fuentes. On September 21, 1993, the RTC granted the motion
and issued the corresponding writ, prompting Dr. Fuentes to file with the
Court of Appeals a petition for certiorari and prohibition, with prayer for
preliminary injunction, docketed as CA-G.R. SP No. 32198. During its
pendency, the Court of Appeals issued a Resolution 5 dated October 29,
1993 granting Dr. Fuentes’ prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R.
CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its
Decision6 in Administrative Case No. 1690 dismissing the case against Dr.
Fuentes. The Board held that the prosecution failed to show that Dr.
Fuentes was the one who left the two pieces of gauze inside Natividad’s
body; and that he concealed such fact from Natividad.
97
On September 6, 1996, the Court of Appeals rendered its Decision jointly
disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case against defendant-
appellant Dr. Juan Fuentes is hereby DISMISSED, and with the
pronouncement that defendant-appellant Dr. Miguel Ampil is liable to
reimburse defendant-appellant Professional Services, Inc., whatever
amount the latter will pay or had paid to the plaintiffs-appellees, the
decision appealed from is hereby AFFIRMED and the instant appeal
DISMISSED.
Concomitant with the above, the petition for certiorari and prohibition
filed by herein defendant-appellant Dr. Juan Fuentes in CA-G.R. SP No.
32198 is hereby GRANTED and the challenged order of the respondent
judge dated September 21, 1993, as well as the alias writ of execution
issued pursuant thereto are hereby NULLIFIED and SET ASIDE. The bond
posted by the petitioner in connection with the writ of preliminary
injunction issued by this Court on November 29, 1993 is hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and Professional
Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied in a
Resolution7 dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals
erred in holding that: (1) it is estopped from raising the defense that Dr.
Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it
is not entitled to its counterclaim against the Aganas. PSI contends that Dr.
Ampil is not its employee, but a mere consultant or independent
contractor. As such, he alone should answer for his negligence.

In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in
finding that Dr. Fuentes is not guilty of negligence or medical malpractice,
invoking the doctrine of res ipsa loquitur. They contend that the pieces of
gauze are prima facie proofs that the operating surgeons have been
negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals
erred in finding him liable for negligence and malpractice sans evidence
that he left the two pieces of gauze in Natividad’s vagina. He pointed to
other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in
performing the hysterectomy; (2) the attending nurses’ failure to properly
count the gauzes used during surgery; and (3) the medical intervention of
the American doctors who examined Natividad in the United States of
America.
For our resolution are these three vital issues: first, whether the Court of
Appeals erred in holding Dr. Ampil liable for negligence and malpractice;
second, whether the Court of Appeals erred in absolving Dr. Fuentes of any
liability; and third, whether PSI may be held solidarily liable for the
negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to
other possible causes of Natividad’s detriment. He argues that the Court
should not discount either of the following possibilities: first, Dr. Fuentes
left the gauzes in Natividad’s body after performing hysterectomy; second,
the attending nurses erred in counting the gauzes; and third, the American
doctors were the ones who placed the gauzes in Natividad’s body.
Dr. Ampil’s arguments are purely conjectural and without basis. Records
show that he did not present any evidence to prove that the American
doctors were the ones who put or left the gauzes in Natividad’s body.
98
Neither did he submit evidence to rebut the correctness of the record of
operation, particularly the number of gauzes used. As to the alleged
negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his (Dr.
Fuentes’) work and found it in order.
The glaring truth is that all the major circumstances, taken together, as
specified by the Court of Appeals, directly point to Dr. Ampil as the
negligent party, thus:
First, it is not disputed that the surgeons used gauzes as sponges
to control the bleeding of the patient during the surgical
operation.
Second, immediately after the operation, the nurses who assisted
in the surgery noted in their report that the ‘sponge count (was)
lacking 2’; that such anomaly was ‘announced to surgeon’ and
that a ‘search was done but to no avail’ prompting Dr. Ampil to
‘continue for closure’ x x x.
Third, after the operation, two (2) gauzes were extracted from the
same spot of the body of Mrs. Agana where the surgery was
performed.
An operation requiring the placing of sponges in the incision is not
complete until the sponges are properly removed, and it is settled that the
leaving of sponges or other foreign substances in the wound after the
incision has been closed is at least prima facie negligence by the operating
surgeon.8 To put it simply, such act is considered so inconsistent with due
care as to raise an inference of negligence. There are even legions of
authorities to the effect that such act is negligence per se.9
Of course, the Court is not blind to the reality that there are times when
danger to a patient’s life precludes a surgeon from further searching
missing sponges or foreign objects left in the body. But this does not leave
him free from any obligation. Even if it has been shown that a surgeon was
required by the urgent necessities of the case to leave a sponge in his
patient’s abdomen, because of the dangers attendant upon delay, still, it is
 99

his legal duty to so inform his patient within a reasonable time thereafter still missing. That they were later on extracted from Natividad’s vagina
by advising her of what he had been compelled to do. This is in order that established the causal link between Dr. Ampil’s negligence and the injury.
she might seek relief from the effects of the foreign object left in her body And what further aggravated such injury was his deliberate concealment of
as her condition might permit. The ruling in Smith v. Zeagler 10 is explicit, the missing gauzes from the knowledge of Natividad and her family.
thus:
II - G.R. No. 126467
The removal of all sponges used is part of a surgical operation, and when a
physician or surgeon fails to remove a sponge he has placed in his patient’s Whether the Court of Appeals Erred in Absolving
body that should be removed as part of the operation, he thereby leaves
his operation uncompleted and creates a new condition which imposes Dr. Fuentes of any Liability
upon him the legal duty of calling the new condition to his patient’s
attention, and endeavoring with the means he has at hand to minimize and
The Aganas assailed the dismissal by the trial court of the case against Dr.
avoid untoward results likely to ensue therefrom.
Fuentes on the ground that it is contrary to the doctrine of res ipsa
loquitur. According to them, the fact that the two pieces of gauze were left
Here, Dr. Ampil did not inform Natividad about the missing two pieces of inside Natividad’s body is a prima facie evidence of Dr. Fuentes’
gauze. Worse, he even misled her that the pain she was experiencing was negligence.
the ordinary consequence of her operation. Had he been more candid,
Natividad could have taken the immediate and appropriate medical
We are not convinced.
remedy to remove the gauzes from her body. To our mind, what was
initially an act of negligence by Dr. Ampil has ripened into a deliberate
Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule
wrongful act of deceiving his patient.
that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of
This is a clear case of medical malpractice or more appropriately, medical
negligence, or make out a plaintiff’s prima facie case, and present a
negligence. To successfully pursue this kind of case, a patient must only
question of fact for defendant to meet with an explanation.13Stated
prove that a health care provider either failed to do something which a
differently, where the thing which caused the injury, without the fault of
reasonably prudent health care provider would have done, or that he did
the injured, is under the exclusive control of the defendant and the injury
something that a reasonably prudent provider would not have done; and
is such that it should not have occurred if he, having such control used
that failure or action caused injury to the patient.11 Simply put, the
proper care, it affords reasonable evidence, in the absence of explanation
elements are duty, breach, injury and proximate causation. Dr, Ampil, as
that the injury arose from the defendant’s want of care, and the burden of
the lead surgeon, had the duty to remove all foreign objects, such as
proof is shifted to him to establish that he has observed due care and
gauzes, from Natividad’s body before closure of the incision. When he
diligence.14
failed to do so, it was his duty to inform Natividad about it. Dr. Ampil
breached both duties. Such breach caused injury to Natividad,
From the foregoing statements of the rule, the requisites for the
necessitating her further examination by American doctors and another
surgery. That Dr. Ampil’s negligence is the proximate cause 12 of Natividad’s applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of
an injury; (2) the thing which caused the injury was under the control and
injury could be traced from his act of closing the incision despite the
management of the defendant; (3) the occurrence was such that in the
information given by the attending nurses that two pieces of gauze were
ordinary course of things, would not have happened if those who had

control or management used proper care; and (4) the absence of
explanation by the defendant. Of the foregoing requisites, the most
instrumental is the "control and management of the thing which caused
the injury."15
We find the element of "control and management of the thing which
caused the injury" to be wanting. Hence, the doctrine of res ipsa loquitur
will not lie.
It was duly established that Dr. Ampil was the lead surgeon during the
operation of Natividad. He requested the assistance of Dr. Fuentes only to
perform hysterectomy when he (Dr. Ampil) found that the malignancy in
her sigmoid area had spread to her left ovary. Dr. Fuentes performed the
surgery and thereafter reported and showed his work to Dr. Ampil. The
latter examined it and finding everything to be in order, allowed Dr.
Fuentes to leave the operating room. Dr. Ampil then resumed operating on
Natividad. He was about to finish the procedure when the attending nurses
informed him that two pieces of gauze were missing. A "diligent search"
was conducted, but the misplaced gauzes were not found. Dr. Ampil then
directed that the incision be closed. During this entire period, Dr. Fuentes
was no longer in the operating room and had, in fact, left the hospital.
Under the "Captain of the Ship" rule, the operating surgeon is the person
in complete charge of the surgery room and all personnel connected with
the operation. Their duty is to obey his orders.16 As stated before, Dr.
Ampil was the lead surgeon. In other words, he was the "Captain of the
Ship." That he discharged such role is evident from his following conduct:
(1) calling Dr. Fuentes to perform a hysterectomy; (2) examining the work
of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’ permission
to leave; and (4) ordering the closure of the incision. To our mind, it was
this act of ordering the closure of the incision notwithstanding that two
pieces of gauze remained unaccounted for, that caused injury to
Natividad’s body. Clearly, the control and management of the thing which
caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence,
does not per se create or constitute an independent or separate ground of
100
liability, being a mere evidentiary rule.17 In other words, mere invocation
and application of the doctrine does not dispense with the requirement of
proof of negligence. Here, the negligence was proven to have been
committed by Dr. Ampil and not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical development of
hospitals and the resulting theories concerning their liability for the
negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable
institutions, providing medical services to the lowest classes of society,
without regard for a patient’s ability to pay.18 Those who could afford
medical treatment were usually treated at home by their
doctors.19 However, the days of house calls and philanthropic health care
are over. The modern health care industry continues to distance itself from
its charitable past and has experienced a significant conversion from a not-
for-profit health care to for-profit hospital businesses. Consequently,
significant changes in health law have accompanied the business-related
changes in the hospital industry. One important legal change is an increase
in hospital liability for medical malpractice. Many courts now allow claims
for hospital vicarious liability under the theories of respondeat superior,
apparent authority, ostensible authority, or agency by estoppel. 20
In this jurisdiction, the statute governing liability for negligent acts is Article
2176 of the Civil Code, which reads:
Art. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such fault
or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this
Chapter.

A derivative of this provision is Article 2180, the rule governing vicarious
liability under the doctrine of respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is demandable not only
for one’s own acts or omissions, but also for those of persons for whom
one is responsible.
x x x x x x
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks even
though the former are not engaged in any business or industry.
x x x x x x
The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good
father of a family to prevent damage.
A prominent civilist commented that professionals engaged by an
employer, such as physicians, dentists, and pharmacists, are not
"employees" under this article because the manner in which they perform
their work is not within the control of the latter (employer). In other
words, professionals are considered personally liable for the fault or
negligence they commit in the discharge of their duties, and their
employer cannot be held liable for such fault or negligence. In the context
of the present case, "a hospital cannot be held liable for the fault or
negligence of a physician or surgeon in the treatment or operation of
patients."21
The foregoing view is grounded on the traditional notion that the
professional status and the very nature of the physician’s calling preclude
101
him from being classed as an agent or employee of a hospital, whenever he
acts in a professional capacity.22 It has been said that medical practice
strictly involves highly developed and specialized knowledge,23 such that
physicians are generally free to exercise their own skill and judgment in
rendering medical services sans interference.24 Hence, when a doctor
practices medicine in a hospital setting, the hospital and its employees are
deemed to subserve him in his ministrations to the patient and his actions
are of his own responsibility.25
The case of Schloendorff v. Society of New York Hospital26 was then
considered an authority for this view. The "Schloendorff doctrine" regards
a physician, even if employed by a hospital, as an independent contractor
because of the skill he exercises and the lack of control exerted over his
work. Under this doctrine, hospitals are exempt from the application of the
respondeat superior principle for fault or negligence committed by
physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened with the
significant developments in medical care. Courts came to realize that
modern hospitals are increasingly taking active role in supplying and
regulating medical care to patients. No longer were a hospital’s functions
limited to furnishing room, food, facilities for treatment and operation, and
attendants for its patients. Thus, in Bing v. Thunig,27 the New York Court of
Appeals deviated from the Schloendorff doctrine, noting that modern
hospitals actually do far more than provide facilities for treatment. Rather,
they regularly employ, on a salaried basis, a large staff of physicians,
interns, nurses, administrative and manual workers. They charge patients
for medical care and treatment, even collecting for such services through
legal action, if necessary. The court then concluded that there is no reason
to exempt hospitals from the universal rule of respondeat superior.
In our shores, the nature of the relationship between the hospital and the
physicians is rendered inconsequential in view of our categorical
pronouncement in Ramos v. Court of Appeals28 that for purposes of
apportioning responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and their
attending and visiting physicians. This Court held:

"We now discuss the responsibility of the hospital in this particular
incident. The unique practice (among private hospitals) of filling up
specialist staff with attending and visiting "consultants," who are allegedly
not hospital employees, presents problems in apportioning responsibility
for negligence in medical malpractice cases. However, the difficulty is more
apparent than real.
In the first place, hospitals exercise significant control in the hiring and
firing of consultants and in the conduct of their work within the hospital
premises. Doctors who apply for ‘consultant’ slots, visiting or attending,
are required to submit proof of completion of residency, their educational
qualifications, generally, evidence of accreditation by the appropriate
board (diplomate), evidence of fellowship in most cases, and references.
These requirements are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital who either
accept or reject the application. x x x.
After a physician is accepted, either as a visiting or attending consultant, he
is normally required to attend clinico-pathological conferences, conduct
bedside rounds for clerks, interns and residents, moderate grand rounds
and patient audits and perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In addition to these, the
physician’s performance as a specialist is generally evaluated by a peer
review committee on the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and residents. A consultant remiss
in his duties, or a consultant who regularly falls short of the minimum
standards acceptable to the hospital or its peer review committee, is
normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over
their attending and visiting ‘consultant’ staff. While ‘consultants’ are not,
technically employees, x x x, the control exercised, the hiring, and the right
to terminate consultants all fulfill the important hallmarks of an employer-
employee relationship, with the exception of the payment of wages. In
assessing whether such a relationship in fact exists, the control test is
determining. Accordingly, on the basis of the foregoing, we rule that for
102
the purpose of allocating responsibility in medical negligence cases, an
employer-employee relationship in effect exists between hospitals and
their attending and visiting physicians. "
But the Ramos pronouncement is not our only basis in sustaining PSI’s
liability. Its liability is also anchored upon the agency principle of apparent
authority or agency by estoppel and the doctrine of corporate negligence
which have gained acceptance in the determination of a hospital’s liability
for negligent acts of health professionals. The present case serves as a
perfect platform to test the applicability of these doctrines, thus, enriching
our jurisprudence.
Apparent authority, or what is sometimes referred to as the "holding
out" theory, or doctrine of ostensible agency or agency by estoppel,29 has
its origin from the law of agency. It imposes liability, not as the result of
the reality of a contractual relationship, but rather because of the actions
of a principal or an employer in somehow misleading the public into
believing that the relationship or the authority exists.30 The concept is
essentially one of estoppel and has been explained in this manner:
"The principal is bound by the acts of his agent with the apparent authority
which he knowingly permits the agent to assume, or which he holds the
agent out to the public as possessing. The question in every case is
whether the principal has by his voluntary act placed the agent in such a
situation that a person of ordinary prudence, conversant with business
usages and the nature of the particular business, is justified in presuming
that such agent has authority to perform the particular act in question. 31
The applicability of apparent authority in the field of hospital liability was
upheld long time ago in Irving v. Doctor Hospital of Lake Worth,
Inc.32 There, it was explicitly stated that "there does not appear to be any
rational basis for excluding the concept of apparent authority from the
field of hospital liability." Thus, in cases where it can be shown that a
hospital, by its actions, has held out a particular physician as its agent
and/or employee and that a patient has accepted treatment from that

physician in the reasonable belief that it is being rendered in behalf of the
hospital, then the hospital will be liable for the physician’s negligence.
Our jurisdiction recognizes the concept of an agency by implication or
estoppel. Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of the
principal, from his silence or lack of action, or his failure to repudiate the
agency, knowing that another person is acting on his behalf without
authority.
In this case, PSI publicly displays in the lobby of the Medical City Hospital
the names and specializations of the physicians associated or accredited by
it, including those of Dr. Ampil and Dr. Fuentes. We concur with the Court
of Appeals’ conclusion that it "is now estopped from passing all the blame
to the physicians whose names it proudly paraded in the public directory
leading the public to believe that it vouched for their skill and
competence." Indeed, PSI’s act is tantamount to holding out to the public
that Medical City Hospital, through its accredited physicians, offers quality
health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly
advertising their qualifications, the hospital created the impression that
they were its agents, authorized to perform medical or surgical services for
its patients. As expected, these patients, Natividad being one of them,
accepted the services on the reasonable belief that such were being
rendered by the hospital or its employees, agents, or servants. The trial
court correctly pointed out:
x x x regardless of the education and status in life of the patient, he ought
not be burdened with the defense of absence of employer-employee
relationship between the hospital and the independent physician whose
name and competence are certainly certified to the general public by the
hospital’s act of listing him and his specialty in its lobby directory, as in the
case herein. The high costs of today’s medical and health care should at
least exact on the hospital greater, if not broader, legal responsibility for
the conduct of treatment and surgery within its facility by its accredited
physician or surgeon, regardless of whether he is independent or
employed."33
103
The wisdom of the foregoing ratiocination is easy to discern. Corporate
entities, like PSI, are capable of acting only through other individuals, such
as physicians. If these accredited physicians do their job well, the hospital
succeeds in its mission of offering quality medical services and thus profits
financially. Logically, where negligence mars the quality of its services, the
hospital should not be allowed to escape liability for the acts of its
ostensible agents.
We now proceed to the doctrine of corporate negligence or corporate
responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence
and malpractice is that PSI as owner, operator and manager of Medical City
Hospital, "did not perform the necessary supervision nor exercise diligent
efforts in the supervision of Drs. Ampil and Fuentes and its nursing staff,
resident doctors, and medical interns who assisted Drs. Ampil and Fuentes
in the performance of their duties as surgeons."34 Premised on the
doctrine of corporate negligence, the trial court held that PSI is directly
liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the judicial
answer to the problem of allocating hospital’s liability for the negligent
acts of health practitioners, absent facts to support the application of
respondeat superior or apparent authority. Its formulation proceeds from
the judiciary’s acknowledgment that in these modern times, the duty of
providing quality medical service is no longer the sole prerogative and
responsibility of the physician. The modern hospitals have changed
structure. Hospitals now tend to organize a highly professional medical
staff whose competence and performance need to be monitored by the
hospitals commensurate with their inherent responsibility to provide
quality medical care.35
The doctrine has its genesis in Darling v. Charleston Community
Hospital.36 There, the Supreme Court of Illinois held that "the jury could
have found a hospital negligent, inter alia, in failing to have a sufficient

number of trained nurses attending the patient; failing to require a
consultation with or examination by members of the hospital staff; and
failing to review the treatment rendered to the patient." On the basis of
Darling, other jurisdictions held that a hospital’s corporate negligence
extends to permitting a physician known to be incompetent to practice at
the hospital.37 With the passage of time, more duties were expected from
hospitals, among them: (1) the use of reasonable care in the maintenance
of safe and adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or supervision of all
persons who practice medicine within its walls; and (4) the formulation,
adoption and enforcement of adequate rules and policies that ensure
quality care for its patients.38 Thus, in Tucson Medical Center, Inc. v.
Misevich,39 it was held that a hospital, following the doctrine of corporate
responsibility, has the duty to see that it meets the standards of
responsibilities for the care of patients. Such duty includes the proper
supervision of the members of its medical staff. And in Bost v. Riley,40 the
court concluded that a patient who enters a hospital does so with the
reasonable expectation that it will attempt to cure him. The hospital
accordingly has the duty to make a reasonable effort to monitor and
oversee the treatment prescribed and administered by the physicians
practicing in its premises.
In the present case, it was duly established that PSI operates the Medical
City Hospital for the purpose and under the concept of providing
comprehensive medical services to the public. Accordingly, it has the duty
to exercise reasonable care to protect from harm all patients admitted into
its facility for medical treatment. Unfortunately, PSI failed to perform such
duty. The findings of the trial court are convincing, thus:
x x x PSI’s liability is traceable to its failure to conduct an investigation of
the matter reported in the nota bene of the count nurse. Such failure
established PSI’s part in the dark conspiracy of silence and concealment
about the gauzes. Ethical considerations, if not also legal, dictated the
holding of an immediate inquiry into the events, if not for the benefit of
the patient to whom the duty is primarily owed, then in the interest of
arriving at the truth. The Court cannot accept that the medical and the
healing professions, through their members like defendant surgeons, and
their institutions like PSI’s hospital facility, can callously turn their backs on
104
and disregard even a mere probability of mistake or negligence by refusing
or failing to investigate a report of such seriousness as the one in
Natividad’s case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad
with the assistance of the Medical City Hospital’s staff, composed of
resident doctors, nurses, and interns. As such, it is reasonable to conclude
that PSI, as the operator of the hospital, has actual or constructive
knowledge of the procedures carried out, particularly the report of the
attending nurses that the two pieces of gauze were missing. In Fridena v.
Evans,41 it was held that a corporation is bound by the knowledge acquired
by or notice given to its agents or officers within the scope of their
authority and in reference to a matter to which their authority extends.
This means that the knowledge of any of the staff of Medical City Hospital
constitutes knowledge of PSI. Now, the failure of PSI, despite the attending
nurses’ report, to investigate and inform Natividad regarding the missing
gauzes amounts to callous negligence. Not only did PSI breach its duties to
oversee or supervise all persons who practice medicine within its walls, it
also failed to take an active step in fixing the negligence committed. This
renders PSI, not only vicariously liable for the negligence of Dr. Ampil
under Article 2180 of the Civil Code, but also directly liable for its own
negligence under Article 2176. In Fridena, the Supreme Court of Arizona
held:
x x x In recent years, however, the duty of care owed to the patient by the
hospital has expanded. The emerging trend is to hold the hospital
responsible where the hospital has failed to monitor and review medical
services being provided within its walls. See Kahn Hospital Malpractice
Prevention, 27 De Paul . Rev. 23 (1977).
Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman,
18 Ariz. App. 75,500 P. 2d 335 (1972). In Purcell, the hospital argued that it
could not be held liable for the malpractice of a medical practitioner
because he was an independent contractor within the hospital. The Court
of Appeals pointed out that the hospital had created a professional staff
whose competence and performance was to be monitored and reviewed
by the governing body of the hospital, and the court held that a hospital
 105

would be negligent where it had knowledge or reason to believe that a WHEREFORE, we DENY all the petitions and AFFIRM the challenged
doctor using the facilities was employing a method of treatment or care Decision of the Court of Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP
which fell below the recognized standard of care. No. 32198.

Subsequent to the Purcell decision, the Arizona Court of Appeals held that Costs against petitioners PSI and Dr. Miguel Ampil.
a hospital has certain inherent responsibilities regarding the quality of
medical care furnished to patients within its walls and it must meet the SO ORDERED.
standards of responsibility commensurate with this undertaking. Beeck v.
Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This
court has confirmed the rulings of the Court of Appeals that a hospital has
the duty of supervising the competence of the doctors on its staff. x x x.

x x x x x x

In the amended complaint, the plaintiffs did plead that the operation was
performed at the hospital with its knowledge, aid, and assistance, and that
the negligence of the defendants was the proximate cause of the patient’s
injuries. We find that such general allegations of negligence, along with the
evidence produced at the trial of this case, are sufficient to support the
hospital’s liability based on the theory of negligent supervision."

Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil
for damages, let it be emphasized that PSI, apart from a general denial of
its responsibility, failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the accreditation and supervision
of the latter. In neglecting to offer such proof, PSI failed to discharge its
burden under the last paragraph of Article 2180 cited earlier, and,
therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover, as
we have discussed, PSI is also directly liable to the Aganas.

One final word. Once a physician undertakes the treatment and care of a
patient, the law imposes on him certain obligations. In order to escape
liability, he must possess that reasonable degree of learning, skill and
experience required by his profession. At the same time, he must apply
reasonable care and diligence in the exercise of his skill and the application
of his knowledge, and exert his best judgment.

G.R. No. 139008 March 13, 2002
ROBERT DEL MAR, petitioner,
vs.
COURT OF APPEALS and NORMA EBERSOLE DEL MAR, respondents.
DECISION
PANGANIBAN, J.:
The Court of Appeals cannot be faulted with reversible error, much less
grave abuse of discretion, for dismissing a petition because petitioner’s
brief was not filed on time. Indeed, in so doing, the appellate court is
merely abiding by the Rules of Court.
The Case
Before us is a Petition for Certiorari and Mandamus under Rule 65 of the
Rules of Court, praying for the setting aside of the January 13, 19991 and
the April 26, 19992 Resolutions of the Court of Appeals (CA) in CA-GR CV
No. 58804. The first Resolution is worded as follows:
"Upon consideration of the motion to dismiss appeal filed by plaintiff-
appellee and the Judicial Records Division’s Report that no appellant[‘]s
brief has been filed as of December 9, 1998, the appeal is hereby
ordered DISMISSED pursuant to Section 1 (e), Rule 50, 1997 Rules of Civil
Procedure."3
The second Resolution denied petitioner’s "Motion for
Reconsideration/Petition for Relief & Motion to Admit Appellant’s Brief." 4
The Facts
In his Memorandum, Petitioner Robert del Mar alleges as follows:
106
"1. The private respondent, Norma Ebersole Del Mar, and her
sister, Florence Ebersole Finch, inherited three (3) parcels of land
covered by TCT Nos. T-58397, T-58398 and T-58402, situated in
Mabini, Santiago City, with a total area of 29,736 square meters,
more or less. On December 6, 1974, Florence Ebersole Finch, a
resident of New York, USA, executed a general power of attorney
naming and constituting private respondent as her attorney-in-
fact with regard to the subject property.
"2. On January 29, 1975, private respondent, acting for herself
and as attorney-in-fact of Florence Ebersole Finch, executed
Deeds of Absolute Sale in favor of petitioner covering the three
aforementioned parcels of land. The private respondent is the
mother of herein petitioner.
"3. On March 25, 1976, Florence Ebersole Finch executed a Deed
of Confirmation in New York, USA, confirming and ratifying all the
acts and deeds executed by Norma Ebersole del Mar, in conveying
properties to Robert E. del Mar, ‘as appearing in Document Nos.
1780, Page 57, Book No. 14, Series of 1975; 1781, Page 58, Book
No. 14, Series of 1975; and 1782, Page 58, Book No. 14, Series of
1975, of the Notarial Registry of Paulo Pascua, a notary public for
and in the Province of Isabela, Philippines’. This document was
authenticated by Wenceslao J.O. Quirolgico, Vice-Consul of the
Philippine Consulate Office in New York, USA.
"4. After x x x said parcels of land were sub-divided into several
lots, x x x petitioner obtained the following Certificates of Title in
his name: TCT Nos. T-32251, T-82257, T-282260, and T-82263, all
on April 18, 1975; T-116117 on January 11, 1979; T-17549 on
March 16, 1979; and T-13664 on October 15, 1981.
"5. After the peaceful and continuous possession by petitioner of
the subject properties for more than twenty-two (22) years, a
complaint for reconveyance was filed by x x x private respondent
against x x x petitioner on May 15, 1997, alleging, inter-alia, that x
x x petitioner obtained the aforementioned Certificates of Title

through fraud and deceit. Private respondent claimed that x x x
said properties were left by her under the administration of
petitioner, who allegedly transferred the ownership of x x x said
realty in his name by causing the issuance of Certificates of Title in
his name without her knowledge and consent. However, records
show that before she left for the United States, private
respondent executed the corresponding Deeds of Absolute Sale in
favor of petitioner. This case, entitled ‘Norma Ebersole del Mar
represented by Gerald del Mar vs. Roberto del Mar and the
Register of Deeds, Province of Isabela’ was filed before the
Regional Trial Court of Santiago City, Branch 35 and docketed as
Civil Case No. 2373.
"6. In his Answer, x x x petitioner claimed that x x x private
respondent and her co-owner, Florence Ebersole Finch, sold x x x
said properties to him before the former left for the United
States. Moreover, the properties were transferred for good,
sufficient and valuable consideration, hence the sale was lawful
and valid.
"7. During the pre-trial conference, neither x x x petitioner nor his
counsel, Atty. Federico Abuan, appeared, by reason of which the
trial court issued an order declaring petitioner as in default. The
non-appearance was due to the failure of Atty. Abuan, Jr. to
inform petitioner’s attorney-in-fact, Angelita Austria, of the
scheduled hearing. Said petitioner filed a motion for
reconsideration but the same was denied, and x x x private
respondent was allowed to adduce her evidence ex-parte. On the
same day that x x x said motion was denied, the trial court
rendered its October 21, 1997 [D]ecision in favor of x x x private
respondent and against x x x petitioner, the dispositive portion of
which reads:
‘WHEREFORE, judgment is rendered against [petitioner] and in favor of
[private respondent], as follows:
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1. Ordering the Register of Deeds of Ilagan, Isabela to cancel Titles
Nos. T-82257; T-82261, T-82260, T-82263, T-82264, T-234664, T-
116117 and T-822659;
2. Ordering Robert E. del Mar to reconvey the ownership of
properties to [private respondent] and in case of failure on the
part of [petitioner], the Register of Deeds is directed to execute
the necessary deed of reconveyance in favor of [private
respondent];
3. Enjoining permanently [petitioner] or any person acting for and
in [his] behalf from committing or doing any act of disposition or
alienation of the properties;
4. Ordering [petitioner] to pay the amount of FIVE HUNDRED
THOUSAND (₱500,000.00) as moral damages to [private
respondent];
5. Ordering [petitioner] to pay the amount of TWO HUNDRED
FIFTY THOUSAND PESOS ([₱]250,000.00) as attorney’s fees.
6. Cost of the suit."5
On the other hand, private respondent counters with the following
allegations in her Memorandum:
"The parcels of land covered by the land titles that are sought to be
nullified x x x are all owned by [private] respondent NORMA EBERSOLE DEL
MAR by way of inheritance from her lawful [ascendants]. The original titles
were all issued in her name and favor.
"In the early 1970’s [private] respondent x x x together with her two
children, GERALD and FLORENCE went to the United States with the intent
of obtaining domicile there[i]n and leaving behind the other son x x x
petitioner x x x, and entrusting [to] his [administration] x x x their
properties.

"In 1974, [private respondent] came back to the Philippines and stayed up
until 1978 and thereafter went back to the US. During her stay, the
properties were intact.
"Sometime in 1996, [private respondent] discovered that the properties
were already in the name of [petitioner]. [Private respondent] protested
because she never had done any act of transfer of the properties in favor
of [petitioner], because her intent was to have these properties to be
eventually x x x divided into THREE (3) equal parts for her THREE (3)
children x x x. The transfer was [without] the knowledge of [private
respondent]. It was fraudulent and unlawful x x x."
Private respondent also claims that petitioner had been duly served
summons, but neither he nor his counsel appeared for pretrial. Hence,
petitioner was declared in default. While he did receive the Order of
Default, he never bothered to have it lifted. So, trial proceeded and
evidence ex parte for private respondent was received by the trial court.6
Petitioner filed a Notice of Appeal. On January 7, 1998, Noel T. Tomas,
legal researcher and officer in charge of the Regional Trial Court (RTC) of
Santiago City (Branch 35), forwarded to the CA the records of Civil Case No.
35-2373.7 Buenaventura B. Miguel, chief of the Judicial Records Division of
the appellate court, thereafter wrote a letter 8 dated August 13, 1998,
addressed to Atty. Federico Abuan Jr., counsel for petitioner, stating the
following:
"Pursuant to the resolution en banc of the Supreme Court, dated February
23, 1984, you are hereby required to file with this court SEVEN (7) printed
copies of the brief, or SEVEN (7) eleven inches in leng[th] by eight and a
half inches in width - commonly known letter size[,] written double space,
copies of said brief together with the proof of service of TWO (2) printed
typewritten or mimeographed copies hereof upon the appellee. The
decision of Trial Court shall be appended to the brief."9
On December 8, 1998, Atty. Amado C. Vallejo Jr., counsel for private
respondent, moved to dismiss10 the appeal on the ground that petitioner
had failed to file the required brief within the reglementary period.
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Ruling of the Court of Appeals
As already stated, the CA granted the Motion to Dismiss via the first
assailed Resolution.
As regards petitioner’s "Motion for Reconsideration/Petition for Relief &
Motion to Admit Appellant’s Brief," the appellate court’s denial is justified
by the following reasons:
"Clearly, the subject motion/petition can not be in the nature of a Petition
for Relief for Denial of Appeal under Rule 38 of the Rules of Court. Section
2 of Rule 38 provides that -
’When a judgment or final order is rendered by any court in a case, and a
party thereto, by fraud, accident, or excusable negligence, has
been prevented from taking an appeal, he may file a petition in such court
and in the same case praying that the appeal be given due course.’
"In the present case, the appellant was not prevented from taking an
appeal as in fact, notice of appeal was timely filed by the appellant on 11
November 1997 from the challenged decision. The instant motion/petition,
though denominated as such will be properly treated simply as a motion
for reconsideration [of] the order of dismissal.
"From the allegations in the subject motion for reconsideration, this Court
finds no cogent reason to disturb the dismissal of the appellant.
The appellant’s brief became due [i]n October 1998. The movant claims
ignorance of the fact that counsel failed to file the appellant’s brief. There
being no showing that counsel’s failure to file the appellant’s brief was due
to gross negligence, the rule that negligence of counsel is binding upon the
client must be applied. Besides, it appears from the records that herein
appellant, as party-defendant in the proceedings below, was declared
in default for his and counsel’s non-appearance during the pre-trial
conference. Having lost the opportunity to present evidence in view of the
default order, the appellant, through his attorney-in-fact, should have
shown more vigor in protecting his statutory right of appeal. He should
have jealously guarded this opportunity, knowing that this could well be

his last chance to protect his rights. The interest of justice so conveniently
invoked by the appellant now will be better served if this dispute will be
put to an end for failure of the appellant to observe the degree of vigilance
needed to protect his remedies in law."11
Hence, this Petition.12
The Issues
Petitioner, in his Memorandum,13 raises the following issues:
"Who between the petitioner and the private respondent has a better right
to the properties in question.
"Whether or not the Respondent Court of Appeals committed grave abuse
of di[s]cretion in ruling in favor of private respondent."
For reasons that will be evident later on, the issues will be tackled in
reverse order.
The Court’s Ruling
The Petition has no merit.
First Issue:
Effect of Failure to File a Brief
Petitioner argues that the CA gravely abused its discretion in dismissing his
appeal for his mere failure to file his Brief within the reglementary period.
We disagree. Rule 50, Section 1(e) of the Revised Rules of Court, expressly
authorizes the CA to dismiss an appeal for, inter alia, "failure of appellant
to serve and file the required number of copies of his brief or
memorandum within the time provided by these Rules."
109
Certiorari as a special civil action can be availed of when the following
requisites concur: (a) a tribunal, board or officer exercising judicial
functions has acted without or in excess of jurisdiction or with grave abuse
of discretion amounting to lack or in excess of jurisdiction; and (b) there is
no appeal or plain, speedy and adequate remedy in the ordinary course of
law for annulling or modifying the proceeding.14
Petitioner claims that Atty. Abuan’s failure to file the required pleading
constituted fraud against him, and that his absence from the country while
the appeal was pending constituted a mistake that was excusable.
We disagree. It is well-settled that the negligence of counsel binds the
client.15 Exceptions to this rule arise when (1) such negligence is so gross,
palpable, reckless and inexcusable that the client is deprived of the due
process of law; and (2) the application of such due process results in the
outright deprivation of one’s property through a technicality. 16
The negligence of Atty. Abuan does not fall under these exceptions. His
negligence in this case was his inexcusable failure to file the required
appellant’s Brief, thus causing the dismissal of the appeal of petitioner. But
the latter was not without fault. He was aware of Atty. Abuan’s failure to
appear at the pretrial conference, a failure that had placed him in default.
Because petitioner was in default, private respondent’s evidence was
received ex parte by the RTC. No wonder, the trial court decided against
him. Yet, he retained Atty. Abuan’s services for the appeal. One is bound
by the decisions of one’s counsel regarding the conduct of the case,
especially where the former does not complain against the manner in
which the latter handled the case.17
In effect, petitioner consented to the shabby and negligent treatment of
his case by his counsel. Hence, he should not complain now of the
negligence or "fraud" done to him by his lawyer. A party’s counsel cannot
be blamed for negligence, if the party was likewise guilty of the
same.18 Clients should suffer the consequences of the negligence, mistake
or lack of competence of the counsel whom they themselves hired, and
whom they had full authority to fire at any time and replace with
another.19
 110

Petitioner cannot be said to have been denied due process, because he WHEREFORE, the Petition is DISMISSED. Costs against petitioner.
was afforded the opportunity to be heard. In fact, he filed an Answer to
private respondent’s Complaint. That he did not present evidence in his SO ORDERED.
favor was the effect of his being in default and his continued failure to
move that such status be lifted. His claim that he was abroad is unavailing.

We cannot attribute grave abuse of discretion to the Court of Appeals

which merely followed Rule 50 in dismissing the appeal.

Second Issue:

Petitioner’s Defenses

Petitioner avers that he has in his favor the following valid and meritorious
defenses: (1) valid purchase of the disputed lots, (2) acquisitive
prescription, and (3) prescription and laches barring private respondent’s
action. He proposes to prove these arguments with the following
documents: (1) an alleged Deed of Sale dated January 29, 1975 purportedly
signed by private respondent on her own behalf and as the agent of her
sister Florence; (2) a Confirmation of Sale allegedly signed by Florence; and
(3) an alleged "Certificate of Authentication" of the confirmation issued by
a Philippine vice consul in New York, USA.

Assuming arguendo that this Petition is granted and the CA is required to

pass upon the RTC’s judgment, how can the CA give any probative value to
the above documents, when they were not presented before the trial
court? Be it remembered that petitioner had been declared in default, and
that he did not even ask for the lifting of the Default Order. Hence, the
grant of the Petition will be not only legally unsound, but also practically
useless.1âwphi1 It will just clog the CA’s docket.

Finally, after the CA denied his Motion for Reconsideration, petitioner

allowed the reglementary period for filing an appeal to lapse, opting
instead to file this Petition for Certiorari. Well-settled is the rule that
certiorari is not a substitute for a lost appeal.20 Even if for this reason
alone, the Petition should not be given due course.