EFFECT ON ADOPTION OF PARENTAL AUTHORITY

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 85044 June 3, 1992

MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO, petitioners,

vs.
HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan,
Ilocos Sur; VICTOR BUNDOC; and CLARA BUNDOC, respondents.

FELICIANO, J.:

On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo with
an air rifle causing injuries which resulted in her death. Accordingly, a civil complaint for damages
was filed with the Regional Trial Court, Branch 20, Vigan, Ilocos Sur, docketed as Civil Case No.
3457-V, by petitioner Macario Tamargo, Jennifer's adopting parent, and petitioner spouses Celso and
Aurelia Tamargo, Jennifer's natural parents against respondent spouses Victor and Clara Bundoc,
Adelberto's natural parents with whom he was living at the time of the tragic incident. In addition to
this case for damages, a criminal information or Homicide through Reckless Imprudence was filed
[Criminal Case No. 1722-V] against Adelberto Bundoc. Adelberto, however, was acquitted and
exempted from criminal liability on the ground that he bad acted without discernment.

Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura had filed a
petition to adopt the minor Adelberto Bundoc in Special Proceedings No. 0373-T before the then
Court of First Instance of Ilocos Sur. This petition for adoption was grunted on, 18 November 1982,
that is, after Adelberto had shot and killed Jennifer.

In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the result of the
foregoing petition for adoption, claimed that not they, but rather the adopting parents, namely the
spouses Sabas and Felisa Rapisura, were indispensable parties to the action since parental
authority had shifted to the adopting parents from the moment the successful petition for adoption
was filed.

Petitioners in their Reply contended that since Adelberto Bundoc was then actually living with his
natural parents, parental authority had not ceased nor been relinquished by the mere filing and
granting of a petition for adoption.

The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that respondent natural
parents of Adelberto indeed were not indispensable parties to the action.

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Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the 15-day
reglementary period, or on 14 December 1987, petitioners filed a motion for reconsideration followed
by a supplemental motion for reconsideration on 15 January 1988. It appearing, however, that the
motions failed to comply with Sections 4 and 5 of Rule 15 of the Revised Rules of Court — that
notice of the motion shall be given to all parties concerned at least three (3) days before the hearing
of said motion; and that said notice shall state the time and place of hearing — both motions were
denied by the trial court in an Order dated 18 April 1988. On 28 April 1988, petitioners filed a notice
of appeal. In its Order dated 6 June 1988, the trial court dismissed the notice at appeal, this time
ruling that the notice had been filed beyond the 15-day reglementary period ending 22 December
1987.

Petitioners went to the Court of Appeals on a petition for mandamus and certiorari questioning the
trial court's Decision dated 3 December 1987 and the Orders dated 18 April 1988 and 6 June 1988,
The Court of Appeals dismissed the petition, ruling that petitioners had lost their right to appeal.

In the present Petition for Review, petitioners once again contend that respondent spouses Bundoc
are the indispensable parties to the action for damages caused by the acts of their minor child,
Adelberto Bundoc. Resolution of this Petition hinges on the following issues: (1) whether or not
petitioners, notwithstanding loss of their right to appeal, may still file the instant Petition; conversely,
whether the Court may still take cognizance of the case even through petitioners' appeal had been
filed out of time; and (2) whether or not the effects of adoption, insofar as parental authority is
concerned may be given retroactive effect so as to make the adopting parents the indispensable
parties in a damage case filed against their adopted child, for acts committed by the latter, when
actual custody was yet lodged with the biological parents.

1. It will be recalled that, petitioners' motion (and supplemental motion) for reconsideration filed
before the trial court, not having complied with the requirements of Section 13, Rule 41, and Section
4, Rule 15, of the Revised Rules of Court, were considered pro forma and hence did not interrupt
and suspend the reglementary period to appeal: the trial court held that the motions, not having
contained a notice of time and place of hearing, had become useless pieces of paper which did not
interrupt the reglementary period. 1 As in fact repeatedly held by this Court, what is mandatory is the
service of the motion on the opposing counsel indicating the time and place of hearing. 2

In view, however, of the nature of the issue raised in the instant. Petition, and in order that
substantial justice may be served, the Court, invoking its right to suspend the application of technical
rules to prevent manifest injustice, elects to treat the notice of appeal as having been seasonably
filed before the trial court, and the motion (and supplemental motion) for reconsideration filed by
petitioner in the trial court as having interrupted the reglementary period for appeal. As the Court
held in Gregorio v. Court of Appeals: 3

Dismissal of appeal; purely on technical grounds is frowned upon where the policy of
the courts is to encourage hearings of appeal on their merits. The rules of procedure
ought not be applied in a very rigid technical sense, rules of procedure are used only
to help secure not override, substantial justice. if d technical and rigid enforcement of
the rules is made their aim would be defeated. 4

2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo with an air
rifle gave rise to a cause of action on quasi-delict against him. As Article 2176 of the Civil Code
provides:

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 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 . . .

Upon the other hand, the law imposes civil liability upon the father and, in case of his death or
incapacity, the mother, for any damages that may be caused by a minor child who lives with them.
Article 2180 of the Civil Code reads:

The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the
damages caused by the minor children who live in their company.

xxx xxx xxx

The responsibility treated of in this Article shall cease when the person herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage. (Emphasis supplied)

This principle of parental liability is a species of what is frequently designated as vicarious liability, or
the doctrine of "imputed negligence" under Anglo-American tort law, where a person is not only liable
for torts committed by himself, but also for torts committed by others with whom he has a certain
relationship and for whom he is responsible. Thus, parental liability is made a natural or logical
consequence of the duties and responsibilities of parents — their parental authority — which
includes the instructing, controlling and disciplining of the child. 5 The basis for the doctrine of vicarious
liability was explained by the Court in Cangco v. Manila Railroad Co. 6 in the following terms:

With respect to extra-contractual obligation arising from negligence, whether of act or

omission, it is competent for the legislature to elect — and our Legislature has so
elected — to limit such liability to cases in which the person upon whom such an
obligation is imposed is morally culpable or, on the contrary, for reasons of public
policy. to extend that liability, without regard to the lack of moral culpability, so as to
include responsibility for the negligence of those persons whose acts or omissions
are imputable, by a legal fiction, to others who are in a position to exercise an
absolute or limited control over them. The legislature which adopted our Civil Code
has elected to limit extra-contractual liability — with certain well-defined exceptions
— to cases in which moral culpability can be directly imputed to the persons to be
charged. This moral responsibility may consist in having failed to exercise due care
in one's own acts, or in having failed to exercise due care in the selection and control
of one's agent or servants, or in the control of persons who, by reasons of their
status, occupy a position of dependency with respect to the person made liable for
their conduct. 7(Emphasis Supplied)

The civil liability imposed upon parents for the torts of their minor children living with them,
may be seen to be based upon the parental authority vested by the Civil Code upon such
parents. The civil law assumes that when an unemancipated child living with its parents
commits a tortious acts, the parents were negligent in the performance of their legal and
natural duty closely to supervise the child who is in their custody and control. Parental liability
is, in other words, anchored upon parental authority coupled with presumed parental
dereliction in the discharge of the duties accompanying such authority. The parental
dereliction is, of course, only presumed and the presumption can be overtuned under Article

3
 2180 of the Civil Code by proof that the parents had exercised all the diligence of a good
father of a family to prevent the damage.

In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when parental
authority was still lodged in respondent Bundoc spouses, the natural parents of the minor Adelberto.
It would thus follow that the natural parents who had then actual custody of the minor Adelberto, are
the indispensable parties to the suit for damages.

The natural parents of Adelberto, however, stoutly maintain that because a decree of adoption was
issued by the adoption court in favor of the Rapisura spouses, parental authority was vested in the
latter as adopting parents as of the time of the filing of the petition for adoption that
is, before Adelberto had shot Jennifer which an air rifle. The Bundoc spouses contend that they were
therefore free of any parental responsibility for Adelberto's allegedly tortious conduct.

Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare Code 8 which reads as
follows:

Art. 36. Decree of Adoption. — If, after considering the report of the Department of
Social Welfare or duly licensed child placement agency and the evidence submitted
before it, the court is satisfied that the petitioner is qualified to maintain, care for, and
educate the child, that the trial custody period has been completed, and that the best
interests of the child will be promoted by the adoption, a decree of adoption shall be
entered, which shall be effective he date the original petition was filed. The decree
shall state the name by which the child is thenceforth to be known. (Emphasis
supplied)

The Bundoc spouses further argue that the above Article 36 should be read in relation to
Article 39 of the same Code:

Art. 39. Effect of Adoption. — The adoption shall:

xxx xxx xxx

(2) Dissolve the authority vested in the natural parents, except where the adopter is
the spouse of the surviving natural parent;

xxx xxx xxx

(Emphasis supplied)

and urge that their Parental authority must be deemed to have been dissolved as of the time the
Petition for adoption was filed.

The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental liability for
the torts of a minor child is the relationship existing between the parents and the minor child living
with them and over whom, the law presumes, the parents exercise supervision and control. Article
58 of the Child and Youth Welfare Code, re-enacted this rule:

Article 58 Torts — Parents and guardians are responsible for the damage caused by
the child under their parental authority in accordance with the civil Code. (Emphasis
supplied)

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Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the requisite that the
child, doer of the tortious act, shall have beer in the actual custody of the parents sought to be held liable
for the ensuing damage:

Art. 221. Parents and other persons exercising parental authority shall be civilly liable
for the injuries and damages caused by the acts or omissions of their unemancipated
children living in their company and under their parental authority subject to the
appropriate defenses provided by law. (Emphasis supplied)

We do not believe that parental authority is properly regarded as having been retroactively
transferred to and vested in the adopting parents, the Rapisura spouses, at the time the air rifle
shooting happened. We do not consider that retroactive effect may be giver to the decree of
adoption so as to impose a liability upon the adopting parents accruing at a time when adopting
parents had no actual or physically custody over the adopted child. Retroactive affect may perhaps
be given to the granting of the petition for adoption where such is essential to permit the accrual of
some benefit or advantage in favor of the adopted child. In the instant case, however, to hold that
parental authority had been retroactively lodged in the Rapisura spouses so as to burden them with
liability for a tortious act that they could not have foreseen and which they could not have prevented
(since they were at the time in the United States and had no physical custody over the child
Adelberto) would be unfair and unconscionable. Such a result, moreover, would be inconsistent with
the philosophical and policy basis underlying the doctrine of vicarious liability. Put a little differently,
no presumption of parental dereliction on the part of the adopting parents, the Rapisura spouses,
could have arisen since Adelberto was not in fact subject to their control at the time the tort was
committed.

Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above. Article 35
provides as follows:

Art. 35. Trial Custody. — No petition for adoption shall be finally granted unless and
until the adopting parents are given by the courts a supervised trial custody period of
at least six months to assess their adjustment and emotional readiness for the legal
union. During the period of trial custody, parental authority shall be vested in the
adopting parents. (Emphasis supplied)

Under the above Article 35, parental authority is provisionally vested in the adopting parents during
the period of trial custody, i.e., before the issuance of a decree of adoption, precisely because the
adopting parents are given actual custody of the child during such trial period. In the instant case,
the trial custody period either had not yet begun or bad already been completed at the time of the air
rifle shooting; in any case, actual custody of Adelberto was then with his natural parents, not the
adopting parents.

Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents, were
indispensable parties to the suit for damages brought by petitioners, and that the dismissal by the
trial court of petitioners' complaint, the indispensable parties being already before the court,
constituted grave abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE COURSE
and the Decision of the Court of Appeals dated 6 September 1988, in C.A.-G.R. No. SP-15016 is
hereby REVERSED and SET ASIDE. Petitioners' complaint filed before the trial court is hereby
REINSTATED and this case is REMANDED to that court for further proceedings consistent with this
Decision. Costs against respondent Bundoc spouses. This Decision is immediately executory.

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 [G.R. No. 70890. September 18, 1992.]

CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON.

INTERMEDIATE APPELLATE COURT, FELIPE GOTIONG and SHIRLEY
GOTIONG, Respondents.

Alex Y. Tan, for Petitioners.

Mario D. Ortiz and Danilo V. Ortiz for Private Respondents.

SYLLABUS

1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL

LIABILITY ARISING FROM CRIMINAL OFFENSES COMMITTED BY THEIR
MINOR CHILDREN; RULE. — The parents are and should be held primarily liable
for the civil liability arising from criminal offenses committed by their minor children
under their legal authority or control, or who live in their company, unless it is proven
that the former acted with the diligence of a good father of a family to prevent such
damages. That primary liability is premised on the provisions of Article 101 of the
Revised Penal Code with respect to damages ex delicto caused by their children 9
years of age or under, or over 9 but under 15 years of age who acted without
discernment; and, with regard to their children over 9 but under 15 years of age who
acted with discernment, or 15 years or over but under 21 years of age, such primary
liability shall be imposed pursuant to Article 2180 of the Civil Code. Under said
Article 2180, the enforcement of such liability shall be effected against the father and,
in case of his death or incapacity, the mother. This was amplified by the Child and
Youth Welfare Code which provides that the same shall devolve upon the father and,
in case of his death or incapacity, upon the mother or, in case of her death or
incapacity, upon the guardian, but the liability may also be voluntarily assumed by a
relative or family friend of the youthful offender. However, under the Family Code,
this civil liability is now, without such alternative qualification, the responsibility of
the parents and those who exercise parental authority over the minor offender. For
civil liability arising from quasi-delicts committed by minors, the same rules shall
apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

DECISION

REGALADO, J.:
6
One of the ironic verities of life, it has been said, is that sorrow is sometimes a
touchstone of love. A tragic illustration is provided by the instant case, wherein two
lovers died while still in the prime of their years, a bitter episode for those whose lives
they have touched. While we cannot expect to award complete assuagement to their
families through seemingly prosaic legal verbiage, this disposition should at least
terminate the acrimony and rancor of an extended judicial contest resulting from the
unfortunate occurrence.

In this final denouement of the judicial recourse the stages whereof were alternately
initiated by the parties, petitioners are now before us seeking the reversal of the
judgment of respondent court promulgated on January 2, 1985 in AC-G.R. CV No.
69060 with the following decretal portion: jgc:chanrobl es.com.ph

"WHEREFORE, the decision of the lower court dismissing plaintiff’s complaint is

hereby reversed; and instead, judgment is hereby rendered sentencing defendants,
jointly and solidarily, to pay to plaintiffs the following amounts: chanrobl es.com : virtual law library

1. Moral damages, P30,000.000;

2. Exemplary damages, P10,000.00;

3. Attorney’s fees, P20,000.00, and costs.

However, denial of defendants-appellees’ counterclaims is affirmed." 1

Synthesized from the findings of the lower courts, it appears that respondent spouses
are the legitimate parents of Julie Ann Gotiong who, at the time of the deplorable
incident which took place and from which she died on January 14, 1979, was an 18-
year old first year commerce student of the University of San Carlos, Cebu City;
while petitioners are the parents of Wendell Libi, then a minor between 18 and 19
years of age living with his aforesaid parents, and who also died in the same event on
the same date.

For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi
were sweethearts until December, 1978 when Julie Ann broke up her relationship with
Wendell after she supposedly found him to be sadistic and irresponsible. During the
first and second weeks of January, 1979, Wendell kept pestering Julie Ann with
demands for reconciliation but the latter persisted in her refusal, prompting the former
to resort to threats against her. In order to avoid him, Julie Ann stayed in the house of

7
her best friend, Malou Alfonso, at the corner of Maria Cristina and Juana Osmeña
Streets, Cebu City, from January 7 to 13, 1978.

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound
inflicted with the same firearm, a Smith and Wesson revolver licensed in the name of
petitioner Cresencio Libi, which was recovered from the scene of the crime inside the
residence of private respondents at the corner of General Maxilom and D. Jakosalem
streets of the same city.

Due to the absence of an eyewitness account of the circumstances surrounding the

death of both minors, their parents, who are the contending parties herein, posited
their respective theories drawn from their interpretation of circumstantial evidence,
available reports, documents and evidence of physical facts.

Private respondents, bereaved over the death of their daughter, submitted that Wendell
caused her death by shooting her with the aforesaid firearm and, thereafter, turning the
gun on himself to commit suicide. On the other hand, Petitioners, puzzled and
likewise distressed over the death of their son, rejected the imputation and contended
that an unknown third party, whom Wendell may have displeased or antagonized by
reason of his work as a narcotics informer of the Constabulary Anti-Narcotics Unit
(CANU), must have caused Wendell’s death and then shot Julie Ann to eliminate any
witness and thereby avoid identification.chanrobles.com:cralaw:red

As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the
then Court of First Instance of Cebu against the parents of Wendell to recover
damages arising from the latter’s vicarious liability under Article 2180 of the Civil
Code. After trial, the court below rendered judgment on October 20, 1980 as
follows:jgc:chanrobl es.com.ph

"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing

plaintiffs’ complaint for insufficiency of the evidence. Defendants’ counterclaim is
likewise denied for lack of sufficient merit." 2

On appeal to respondent court, said judgment of the lower court dismissing the
complaint of therein plaintiffs-appellants was set aside and another judgment was
rendered against defendants-appellees who, as petitioners in the present appeal
by certiorari, now submit for resolution the following issues in this case:
chanrob1es virtual 1aw library

1. Whether or not respondent court correctly reversed the trial court in accordance
with established decisional laws; and

8
2. Whether or not Article 2180 of the Civil Code was correctly interpreted by
respondent court to make petitioners liable for vicarious liability. 3

In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal
Officer of Cebu, submitted his findings and opinions on some postulates for
determining whether or not the gunshot wound was inflicted on Wendell Libi by his
own suicidal act. However, undue emphasis was placed by the lower court on the
absence of gunpowder or tattooing around the wound at the point of entry of the
bullet. It should be emphasized, however, that this is not the only circumstance to be
taken into account in the determination of whether it was suicide or not.

It is true that said witness declared that he found no evidence of contact or close-
contact of an explosive discharge in the entrance wound. However, as pointed out by
private respondents, the body of deceased Wendell Libi must have been washed at the
funeral parlor, considering the hasty interment thereof a little after eight (8) hours
from the occurrence wherein he died. Dr. Cerna himself could not categorically state
that the body of Wendell Libi was left untouched at the funeral parlor before he was
able to conduct his autopsy. It will also be noted that Dr. Cerna was negligent in not
conducting a paraffin test on Wendell Libi, hence possible evidence of gunpowder
residue on Wendell’s hands was forever lost when Wendell was hastily buried. cralawnad

More specifically, Dr. Cerna testified that he conducted an autopsy on the body of
Wendell Libi about eight (8) hours after the incident or, to be exact, eight (8) hours
and twenty (20) minutes based on the record of death; that when he arrived at the
Cosmopolitan Funeral Homes, the body of the deceased was already on the autopsy
table and in the stage of rigor mortis; and that said body was not washed, but it was
dried. 4 However, on redirect examination, he admitted that during the 8-hour
interval, he never saw the body nor did he see whether said body was wiped or
washed in the area of the wound on the head which he examined because the deceased
was inside the morgue. 5 In fact, on cross-examination, he had earlier admitted that as
far as the entrance of the wound, the trajectory of the bullet and the exit of the wound
are concerned, it is possible that Wendell Libi shot himself. 6

He further testified that the muzzle of the gun was not pressed on the head of the
victim and that he found no burning or singeing of the hair or extensive laceration on
the gunshot wound of entrance which are general characteristics of contact or near-
contact fire. On direct examination, Dr. Cerna nonetheless made these clarification: jgc:chanrobl es.com.ph

"Q Is it not a fact that there are certain guns which are so made that there would be no
black residue or tattooing that could result from these guns because they are what we
call clean?

9
A Yes, sir. I know that there are what we call smokeless powder.

ATTY. ORTIZ: chanrob1es virtual 1aw library

Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those
indications that you said may not rule out the possibility that the gun was closer than
24 inches, is that correct?

A If the . . . assuming that the gun used was .. the bullet used was a smokeless powder.

Q At any rate, doctor, from . . . disregarding those other matters that you have noticed,
the singeing, etc., from the trajectory, based on the trajectory of the bullet as shown in
your own sketch, is it not a fact that the gun could have been fired by the person
himself, the victim himself, Wendell Libi, because it shows a point of entry a little
above the right ear and point of exit a little above that, to be very fair and on your
oath?

A As far as the point of entrance is concerned and as far as the trajectory of the bullet
is concerned and as far as the angle or the manner of fire is concerned, it could have
been fired by the victim." 7

As shown by the evidence, there were only two used bullets 8 found at the scene of
the crime, each of which were the bullets that hit Julie Ann Gotiong and Wendell Libi,
respectively. Also, the sketch prepared by the Medico-Legal Division of the National
Bureau of Investigation, 9 shows that there is only one gunshot wound of entrance
located at the right temple of Wendell Libi. The necropsy report prepared by Dr. Cerna
states:
chanrob1es virtual 1aw library

x x x

"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest
inferiorly by 0.2 cm., edges inverted, oriented upward, located at the head, temporal
region, right, 2.8 cms. behind and 5.5 cms. above right external auditory meatus,
directed slightly forward, upward and to the left, involving skin and soft tissues,
making a punch-in fracture on the temporal bone, right, penetrating cranial cavity,
lacerating extensively along its course the brain tissues, fracturing parietal bone, left,
and finally making an EXIT wound, irregular, 2.0 x 1.8 cms., edges (e)verted, parietal
region, left, 2.0 cms. behind and 12.9 cms. above left external auditory meatus. chanrobl es virtualawlibrary chanrobles.com:chanrobles.com.ph

10
 x x x

"Evidence of contact or close-contact fire, such as burning around the gunshot wound
of entrance, gunpowder tatooing (sic), smudging, singeing of hair, extensive
laceration or bursting of the gunshot wound of entrance, or separation of the skin from
the underlying tissue, are absent." 10

On cross-examination, Dr. Cerna demonstrated his theory which was made of record,
thus:jgc:chanrobl es.com.ph

"Q Now, will you please use yourself as Wendell Libi, and following the entrance of
the wound, the trajectory of the bullet and the exit of the wound, and measuring
yourself 24 inches, will you please indicate to the Honorable Court how would it have
been possible for Wendell Libi to kill himself? Will you please indicate the 24 inches?

WITNESS: chanrob1es virtual 1aw library

A Actually, sir, the 24 inches is approximately one arm’s length.

ATTY. SENINING: chanrob1es virtual 1aw library

I would like to make of record that the witness has demonstrated by extending his
right arm almost straight towards his head." 11

Private respondents assail the fact that the trial court gave credence to the testimonies
of defendants’ witnesses Lydia Ang and James Enrique Tan, the first being a resident
of an apartment across the street from the Gotiongs and the second, a resident of the
house adjacent to the Gotiong residence, who declared having seen a "shadow" of a
person at the gate of the Gotiong house after hearing shots therefrom.

On cross-examination, Lydia Ang testified that the apartment where she was staying
faces the gas station; that it is the second apartment; that from her window she can see
directly the gate of the Gotiongs and, that there is a firewall between her apartment
and the gas station. 12 After seeing a man jump from the gate of the Gotiongs to the
rooftop of the Tans, she called the police station but the telephone lines were busy.
Later on, she talked with James Enrique Tan and told him that she saw a man leap
from the gate towards his rooftop. 13

However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the
Gotiongs, but denied having talked with anyone regarding what he saw. He explained

11
that he lives in a duplex house with a garden in front of it; that his house is next to
Felipe Gotiong’s house; and he further gave the following answers to these
questions: chanrobl es.com : virtual law library

"ATTY. ORTIZ: (TO WITNESS).

Q What is the height of the wall of the Gotiong’s in relation to your house?

WITNESS: chanrob1es virtual 1aw library

A It is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)

Q And where were you looking from?

WITNESS: chanrob1es virtual 1aw library

A From upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

Q From Your living room window, is that correct?

WITNESS: chanrob1es virtual 1aw library

A Yes, but not very clear because the wall is high." 14

Analyzing the foregoing testimonies, we agree with respondent court that the same do
not inspire credence as to the reliability and accuracy of the witnesses’ observations,
since the visual perceptions of both were obstructed by high walls in their respective
houses in relation to the house of herein private respondents. On the other hand,
witness Manolo Alfonso, testifying on rebuttal, attested without contradiction that he
and his sister, Malou Alfonso, were waiting for Julie Ann Gotiong when they heard
her scream; that when Manolo climbed the fence to see what was going on inside the
Gotiong house, he heard the first shot; and, not more than five (5) seconds later, he
heard another shot. Consequently, he went down from the fence and drove to the
police station to report the incident. 15 Manolo’s direct and candid testimony
establishes and explains the fact that it was he whom Lydia Ang and James Enrique
Tan saw as the "shadow" of a man at the gate of the Gotiong house.

12
We have perforce to reject petitioners’ effete and unsubstantiated pretension that it
was another man who shot Wendell and Julie Ann. It is significant that the Libi family
did not even point to or present any suspect in the crime nor did they file any case
against any alleged "John Doe." Nor can we sustain the trial court’s dubious theory
that Wendell Libi did not die by his own hand because of the overwhelming evidence
— testimonial, documentary and pictorial — the confluence of which point to
Wendell as the assailant of Julie Ann, his motive being revenge for her rejection of his
persistent pleas for a reconciliation.
chanrobl es.com:cralaw:red

Petitioners’ defense that they had exercised the due diligence of a good father of a
family, hence they should not be civilly liable for the crime committed by their minor
son, is not borne out by the evidence on record either.

Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio
Libi, owns a gun which he kept in a safety deposit box inside a drawer in their
bedroom. Each of these petitioners holds a key to the safety deposit box and Amelita’s
key is always in her bag, all of which facts were known to Wendell. They have never
seen their son Wendell taking or using the gun. She admitted, however, that on that
fateful night the gun was no longer in the safety deposit box. 16 We, accordingly,
cannot but entertain serious doubts that petitioner spouses had really been exercising
the diligence of a good father of a family by safely locking the fatal gun away.
Wendell could not have gotten hold thereof unless one of the keys to the safety deposit
box was negligently left lying around or he had free access to the bag of his mother
where the other key was.

The diligence of a good father of a family required by law in a parent and child
relationship consists, to a large extent, of the instruction and supervision of the child.
Petitioners were gravely remiss in their duties as parents in not diligently supervising
the activities of their son, despite his minority and immaturity, so much so that it was
only at the time of Wendell’s death that they allegedly discovered that he was a
CANU agent and that Cresencio’s gun was missing from the safety deposit box. Both
parents were sadly wanting in their duty and responsibility in monitoring and knowing
the activities of their children who, for all they know, may be engaged in dangerous
work such as being drug informers, 17 or even drug users. Neither was a plausible
explanation given for the photograph of Wendell, with a handwritten dedication to
Julie Ann at the back thereof, 18 holding upright what clearly appears as a revolver
and on how or why he was in possession of that firearm.

In setting aside the judgment of the court a quo and holding petitioners civilly liable,
as explained at the start of this opinion, respondent court waved aside the protestations
of diligence on the part of petitioners and had this to say: jgc:chanrobl es.com.ph

13
". . . It is still the duty of parents to know the activity of their children who may be
engaged in this dangerous activity involving the menace of drugs. Had the defendants-
appellees been diligent in supervising the activities of their son, Wendell, and in
keeping said gun from his reach, they could have prevented Wendell from killing Julie
Ann Gotiong. Therefore, appellants are liable under Article 2180 of the Civil Code
which provides: chanrob1es virtual 1aw library

‘The father, and in case of his death or incapacity, the mother, are responsible for the
damages caused by their minor children who live in their company.’

"Having been grossly negligent in preventing Wendell Libi from having access to said
gun which was allegedly kept in a safety deposit box, defendants-appellees are
subsidiarily liable for the natural consequence of the criminal act of said minor who
was living in their company. This vicarious liability of herein defendants-appellees
has been reiterated by the Supreme Court in many cases, prominent of which is the
case of Fuellas v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which
held that:
chanrob1es virtual 1aw library

‘The subsidiary liability of parents for damages caused by their minor children
imposed by Article 2180 of the New Civil Code covers obligations arising from both
quasi-delicts and criminal offenses.’

‘The subsidiary liability of parent’s arising from the criminal acts of their minor
children who acted with discernment is determined under the provisions of Article
2180, N.C.C. and under Article 101 of the Revised Penal Code, because to hold that
the former only covers obligations which arise from quasi-delicts and not obligations
which arise from criminal offenses, would result in the absurdity that while for an act
where mere negligence intervenes the father or mother may stand subsidiarily liable
for the damages caused by his or her son, no liability would attach if the damage is
caused with criminal intent.’ (3 SCRA 361-362).

". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi
somehow got hold of the key to the drawer where said gun was kept under lock
without defendant-spouses ever knowing that said gun had been missing from that
safety box since 1978 when Wendell Libi had) a picture taken wherein he proudly
displayed said gun and dedicated this picture to his sweetheart, Julie Ann Gotiong;
also since then, Wendell Libi was said to have kept said gun in his car, in keeping up
with his supposed role of a CANU agent . . ." chanrobles lawlibrary : rednad

x x x

14
"Based on the foregoing discussions of the assigned errors, this Court holds that the
lower court was not correct in dismissing herein plaintiffs-appellants’ complaint
because as preponderantly shown by evidence, defendants-appellees utterly failed to
exercise all the diligence of a good father of the family in preventing their minor son
from committing this crime by means of the gun of defendants-appellees which was
freely accessible to Wendell Libi for they have not regularly checked whether said gun
was still under lock, but learned that it was missing from the safety deposit box only
after the crime had been committed." (Emphases ours.) 19

We agree with the conclusion of respondent court that petitioners should be held liable
for the civil liability based on what appears from all indications was a crime
committed by their minor son. We take this opportunity, however, to digress and
discuss its ratiocination therefor on jurisprudential dicta which we feel require
clarification.

In imposing sanctions for the so-called vicarious liability of petitioners, respondent

court cites Fuellas v. Cadano, Et. Al. 20 which supposedly holds that" (t)he subsidiary
liability of parents for damages caused by their minor children imposed by Article
2180 of the New Civil Code covers obligations arising from both quasi-delicts and
criminal offenses," followed by an extended quotation ostensibly from the same case
explaining why under Article 2180 of the Civil Code and Article 101 of the Revised
Penal Code parents should assume subsidiary liability for damages caused by their
minor children. The quoted passages are set out two paragraphs back, with pertinent
underscoring for purposes of the discussion hereunder. chanrobles law library

Now, we do not have any objection to the doctrinal rule holding, the parents liable, but
the categorization of their liability as being subsidiary, and not primary, in nature
requires a hard second look considering previous decisions of this court on the matter
which warrant comparative analyses. Our concern stems from our readings that if the
liability of the parents for crimes or quasi-delicts of their minor children is subsidiary,
then the parents can neither invoke nor be absolved of civil liability on the defense
that they acted with the diligence of a good father of a family to prevent damages. On
the other hand, if such liability imputed to the parents is considered direct and
primary, that diligence would constitute a valid and substantial defense.

We believe that the civil liability of parents for quasi-delicts of their minor children, as
contemplated in Article 2180 of the Civil Code, is primary and not subsidiary. In fact,
if we apply Article 2194 of said code which provides for solidary liability of joint
tortfeasors, the persons responsible for the act or omission, in this case the minor and

15
the father and, in case of his death of incapacity, the mother, are solidarily liable.
Accordingly, such parental liability is primary and not subsidiary, hence the last
paragraph of Article 2180 provides that" (t)he 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 damages." cralaw virtua1aw library

We are also persuaded that the liability of the parents for felonies committed by their
minor children is likewise primary, not subsidiary. Article 101 of the Revised Penal
Code provides: jgc:chanrobles.com.ph

"ARTICLE 101. Rules regarding civil liability in certain cases. —

x x x

First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts
committed by . . . a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment, shall devolve upon those
having such person under their legal authority or control, unless it appears that there
was no fault or negligence on their part." (Emphasis supplied.) 21

Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing
provision the civil liability of the parents for crimes committed by their minor
children is likewise direct and primary, and also subject to the defense of lack of fault
or negligence on their part, that is, the exercise of the diligence of a good father of a
family.

That in both quasi-delicts and crimes the parents primarily respond for such damages
is buttressed by the corresponding provisions in both codes that the minor transgressor
shall be answerable or shall respond with his own property only in the absence or in
case of insolvency of the former. Thus, for civil liability ex quasi delicto of minors,
Article 2182 of the Civil Code states that" (i)f the minor causing damage has no
parents or guardian, the minor . . . shall be answerable with his own property in an
action against him where a guardian ad litem shall be appointed." For civil liability ex
delicto of minors, an equivalent provision is found in the third paragraph of Article
101 of the Revised Penal Code, to wit: jgc:chanrobl es.com.ph

"Should there be no person having such . . . minor under his authority, legal
guardianship or control, or if such person be insolvent, said . . . minor shall respond
with (his) own property, excepting property exempt from execution, in accordance
with civil law."cral aw virtua1aw library

16
The civil liability of parents for felonies committed by their minor children
contemplated in the aforesaid rule in Article 101 of the Revised Penal Code in relation
to Article 2180 of the Civil Code has, aside from the aforecited case of Fuellas, been
the subject of a number of cases adjudicated by this Court, viz.: Exconde v. Capuno,
Et Al., 22 Araneta v. Arreglado, 23 Salen, Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v.
Bangkili, Et Al., 25 and Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the aforesaid
cases were basically on the issue of the civil liability of parents for crimes committed
by their minor children over 9 but under 15 years of age, who acted with discernment,
and also of minors 15 years of aye or over, since these situations are not covered by
Article 101, Revised Penal Code. In both instances, this Court held that the issue of
parental civil liability should be resolved in accordance with the provisions of Article
2180 of the Civil Code for the reasons well expressed in Salen and adopted in the
cases hereinbefore enumerated that to hold that the civil liability under Article 2180
would apply only to quasi-delicts and not to criminal offenses would result in the
absurdity that in an act involving mere negligence the parents would be liable but not
where the damage is caused with criminal intent. In said cases, however, there are
unfortunate variances resulting in a regrettable inconsistency in the Court’s
determination of whether the liability of the parents, in cases involving either crimes
or quasi-delicts of their minor children, is primary or subsidiary.

In Exconde, where the 15-year old minor was convicted of double homicide through
reckless imprudence, in a separate civil action arising from the crime the minor and
his father were held jointly and severally liable for failure of the latter to prove the
diligence of a good father of a family. The same liability in solidum and, therefore,
primary liability was imposed in a separate civil action in Araneta on the parents and
their 14-year old son who was found guilty of frustrated homicide, but on the
authority of Article 2194 of the Civil Code providing for solidary responsibility of two
or more persons who are liable for a quasi-delict.

However, in Salen, the father was declared subsidiarily liable for damages arising
from the conviction of his son, who was over 15 but less than 18 years of age, by
applying Article 2180 but, this time, disregarding Article 2194 of the Civil Code. In
the present case, as already explained, the petitioners herein were also held liable but
supposedly in line with Fuellas which purportedly declared the parents subsidiarily
liable for the civil liability for serious physical injuries committed by their 13-year old
son. On the other hand, in Paleyan, the mother and her 19-year old son were adjudged
solidarily liable for damages arising from his conviction for homicide by the
application of Article 2180 of the Civil Code since this is likewise not covered by
Article 101 of the Revised Penal Code. Finally, in Elcano, although the son was
acquitted in a homicide charge due to "lack of intent, coupled with mistake," it was

17
ruled that while under Article 2180 of the Civil Code there should be solidary liability
for damages, since the son, "although married, was living with his father and getting
subsistence from him at the time of the occurrence," but "is now of age, as a matter of
equity" the father was only held subsidiarily liable.

It bears stressing, however, that the Revised Penal Code provides for subsidiary
liability only for persons causing damages under the compulsion of irresistible force
or under the impulse of an uncontrollable fear; 27 innkeepers, tavernkeepers and
proprietors of establishments; 28 employers, teachers, persons and corporations
engaged in industry; 29 and principals, accomplices and accessories for the unpaid
civil liability of their co-accused in the other classes. 30

Also, coming back to respondent court’s reliance on Fuellas in its decision in the
present case, it is not exactly accurate to say that Fuellas provided for subsidiary
liability of the parents therein. A careful scrutiny shows that what respondent court
quoted verbatim in its decision now on appeal in the present case, and which it
attributed to Fuellas, was the syllabus on the law report of said case which spoke of
"subsidiary" liability. However, such categorization does not specifically appear in the
text of the decision in Fuellas. In fact, after reviewing therein the cases of Exconde,
Araneta and Salen and the discussions in said cases of Article 101 of the Revised
Penal Code in relation to Article 2180 of the Civil Code, this Court concluded its
decision in this wise:
jgc:chanrobles.com.ph

"Moreover, the case at bar was decided by the Court of Appeals on the basis of
evidence submitted therein by both parties, independent of the criminal case. And
responsibility for fault or negligence under Article 2176 upon which the present action
was instituted, is entirely separate and distinct from the civil liability arising from
fault or negligence under the Penal Code (Art. 2177), and having in mind the reasons
behind the law as heretofore stated, any discussion as to the minor’s criminal
responsibility is of no moment." cral aw virtua1aw library

Under the foregoing considerations, therefore, we hereby rule that the parents are and
should be held primarily liable for the civil liability arising from criminal offenses
committed by their minor children under their legal authority or control, or who live
in their company, unless it is proven that the former acted with the diligence of a good
father of a family to prevent such damages. That primary liability is premised on the
provisions of Article 101 of the Revised Penal Code with respect to damages ex
delicto caused by their children 9 years of age or under, or over 9 but under 15 years
of age who acted without discernment; and, with regard to their children over 9 but
under 15 years of age who acted with discernment, or 15 years or over but under 21
years of age, such primary liability shall be imposed pursuant to Article 2180 of the

18
Civil Code. 31

Under said Article 2180, the enforcement of such liability shall be effected against the
father and, in case of his death or incapacity, the mother. This was amplified by the
Child and Youth Welfare Code which provides that the same shall devolve upon the
father and, in case of his death or incapacity, upon the mother or, in case of her death
or incapacity, upon the guardian, but the liability may also be voluntarily assumed by
a relative or family friend of the youthful offender. 32 However, under the Family
Code, this civil liability is now, without such alternative qualification, the
responsibility of the parents and those who exercise parental authority over the minor
offender. 33 For civil liability arising from quasi-delicts committed by minors, the
same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code,
as so modified.

In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a
felony or a quasi-delict committed by Wendell Libi, respondent court did not err in
holding petitioners liable for damages arising therefrom. Subject to the preceding
modifications of the premises relied upon by it therefor and on the bases of the legal
imperatives herein explained, we conjoin in its findings that said petitioners failed to
duly exercise the requisite diligentissimi patris familias to prevent such damages.

ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of

respondent Court of Appeals is hereby AFFIRMED, with costs against petitioners.

SO ORDERED.
Republic of the Philippines
Supreme Court
Manila
THIRD DIVISION

SPS. BUENAVENTURA JAYME G.R. No. 163609

AND ROSARIO JAYME,
Petitioners,
Present:
- versus - YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,

19
RODRIGO APOSTOL, FIDEL CHICO-NAZARIO,
LOZANO, ERNESTO SIMBULAN, NACHURA, and
MAYOR FERNANDO Q. MIGUEL, REYES, JJ.
MUNICIPALITY OF KORONADAL
(NOW CITY OF KORONADAL),
PROVINCE OF SOUTH COTABATO,
represented by the MUNICIPAL
TREASURER and/or MUNICIPAL
MAYOR FERNANDO Q. MIGUEL,
and THE FIRST INTEGRATED Promulgated:
BONDING AND INSURANCE
COMPANY, INC. ,
Respondents. November 27, 2008

x--------------------------------------------------x

DECISION

REYES, R.T., J.:

MAY a municipal mayor be held solidarily liable for the negligent acts of the
driver assigned to him, which resulted in the death of a minor pedestrian?

Challenged in this petition for review on certiorari is the Decision[1] of the Court of
Appeals (CA) which reversed and set aside the decision of the Regional Trial Court
(RTC), Polomolok, Cotabato City, Branch 39, insofar as defendant Mayor
Fernando Q. Miguel is concerned. The CA absolved Mayor Miguel from any
liability since it was not he, but the Municipality of Koronadal, that was the
employer of the negligent driver.

The Facts

20
On February 5, 1989, Mayor Miguel of Koronadal, South Cotabato was on board
the Isuzu pick-up truck driven by Fidel Lozano, an employee of
the Municipality of Koronadal.[2] The pick-up truck was registered under the name
of Rodrigo Apostol, but it was then in the possession of Ernesto Simbulan.
[3]
Lozano borrowed the pick-up truck from Simbulan to bring Miguel
to Buayan Airport atGeneral Santos City to catch his Manila flight.[4]

The pick-up truck accidentally hit Marvin C. Jayme, a minor, who was then
crossing the National Highway in Poblacion, Polomolok, South Cotabato.[5] The
intensity of the collision sent Marvin some fifty (50) meters away from the point of
impact, a clear indication that Lozano was driving at a very high speed at the time
of the accident.[6]

Marvin sustained severe head injuries with subdural hematoma and diffused
cerebral contusion.[7] He was initially treated at
[8]
the Howard Hubbard Memorial Hospital. Due to the seriousness of his injuries,
he was airlifted to the Ricardo Limso MedicalCenter in Davao City for more
intensive treatment.[9] Despite medical attention, Marvin expired six (6) days after
the accident.[10]

Petitioners spouses Buenaventura and Rosario Jayme, the parents of Marvin,

filed a complaint for damages with the RTCagainst respondents.[11] In their
complaint, they prayed that all respondents be held solidarily liable for their
loss. They pointed out that that proximate cause of Marvins death was Lozanos
negligent and reckless operation of the vehicle. They prayed for actual, moral, and
exemplary damages, attorneys fees, and litigation expenses.

In their respective Answers, all respondents denied liability for Marvins

death. Apostol and Simbulan averred that Lozano took the pick-up truck without
their consent. Likewise, Miguel and Lozano pointed out that Marvins sudden sprint
across the highway made it impossible to avoid the accident. Yet, Miguel denied
being on board the vehicle when it hit
Marvin. TheMunicipality of Koronadal adopted the answer of Lozano and
Miguel. As for First Integrated Bonding and Insurance Company, Inc., the vehicle
insurer, it insisted that its liability is contributory and is only conditioned on the

21
right of the insured. Since the insured did not file a claim within the prescribed
period, any cause of action against it had prescribed.

RTC Disposition

On January 25, 1999, the RTC rendered judgment in favor of spouses Jayme,
the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the defendant Municipality of

Koronadal cannot be held liable for the damages incurred by other
defendant (sic) being an agency of the State performing a (sic)
governmental functions. The same with defendant Hermogenes
Simbulan, not being the owner of the subject vehicle, he is absolved of
any liability.

22
 The complaint against defendant First Integrated Bonding Insurance
Company, Inc. is hereby ordered dismissed there being no cause of
action against said insurance company.

However, defendants Fidel Lozano, Rodrigo Apostol, and Mayor

Fernando Miguel of Koronadal, South Cotabato, are hereby ordered
jointly and severally to pay the plaintiff (sic) the following sums:

1. One Hundred Seventy Three Thousand One Hundred

One and Forty Centavos (P173,101.40) Pesos as actual
damages with legal interest of 12% per annum
computed from February 11, 1989 until fully paid;
2. Fifty Thousand (P50,000.00) Pesos as moral damages;
3. Twenty Thousand (P20,000.00) Pesos as exemplary
damages;
4. Twenty Thousand (P20,000.00) Pesos as Attorneys fees;
5. Fifty Thousand (P50,000.00) Pesos for the death of
Marvin Jayme;
6. Three Thousand (P3,000.00) as litigation expenses; and
7. To pay the cost of this suit.

SO ORDERED.[12]

Dissatisfied with the RTC ruling, Mayor Miguel interposed an appeal to the CA.

CA Disposition

In his appeal, Mayor Miguel contended that the RTC erred in ruling that he
was Lozanos employer and, hence, solidarily liable for the latters negligent
act. Records showed that the Municipality of Koronadal was the drivers true and
lawful employer.Mayor Miguel also denied that he did not exercise due care and
diligence in the supervision of Lozano. The incident, although unfortunate, was
unexpected and cannot be attributed to him.

On October 22, 2003, the CA granted the appeal, disposing as follows:

23
 WHEREFORE, the Decision appealed from is REVERSED and
SET ASIDE, insofar as defendant-appellant Mayor Fernando Q. Miguel
is concerned, and the complaint against him is DISMISSED.

IT IS SO ORDERED.[13]

The CA held that Mayor Miguel should not be held liable for damages for
the death of Marvin Jayme. Said the appellate court:

Moreover, plaintiffs-appellees admitted that Mayor Miguel was

not the employer of Lozano. Thus, paragraph 9 of the complaint alleged
that the Municipality of Koronadal was the employer of both Mayor
Miguel and Lozano. Not being the employer of Lozano, Mayor Miguel
could not thus be held liable for the damages caused by the
former. Mayor Miguel was a mere passenger in the Isuzu pick-up at
the time of the accident.[14] (Emphasis supplied)

The CA also reiterated the settled rule that it is the registered owner of a vehicle
who is jointly and severally liable with the driver for damages incurred by
passengers or third persons as a consequence of injuries or death sustained in the
operation of the vehicle.

Issues

The spouses Jayme have resorted to the present recourse and assign to the
CA the following errors:

I.
THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT MAYOR FERNANDO MIGUEL CANNOT BE
HELD LIABLE FOR THE DEATH OF MARVIN JAYME WHICH
CONCLUSION IS CONTRARY TO LAW AND THE SETTLED
PRONOUNCEMENTS OF THIS HONORABLE TRIBUNAL;

II.
THE FINDINGS OF FACTS OF THE HONORABLE COURT
OF APPEALS ARE CONTRARY TO THE FINDINGS OF THE TRIAL
COURT AND ARE CONTRADICTED BY THE EVIDENCE ON

24
 RECORD; MOREOVER, THE CONCLUSIONS DRAWN BY THE
HONORABLE COURT OF APPEALS ARE ALL BASED ON
CONJECTURES AND SURMISES AND AGAINST ACCEPTED
COURSE OF JUDICIAL PROCEEDINGS WHICH URGENTLY CALL
FOR AN EXERCISE OF THIS HONORABLE COURTS
SUPERVISION.[15]

Our Ruling

The doctrine of vicarious liability or imputed liability finds no application in

the present case.

Spouses Jayme contend, inter alia, that vicarious liability attaches to Mayor
Miguel. He was not a mere passenger, but instead one who had direct control and
supervision over Lozano during the time of the accident. According to petitioners,
the element of direct control is not negated by the fact that Lozanos employer was
the Municipality of Koronadal. Mayor Miguel, being Lozanos superior, still had
control over the manner the vehicle was operated.

Article 2180[16] of the Civil Code provides that a person is not only liable for
ones own quasi-delictual acts, but also for those persons for whom one is
responsible for. This liability is popularly known as vicarious or imputed
liability. To sustain claims against employers for the acts of their employees, the
following requisites must be established: (1) That the employee was chosen by the
employer personally or through another; (2) That the service to be rendered in
accordance with orders which the employer has the authority to give at all times;
and (3) That the illicit act of the employee was on the occasion or by reason of the
functions entrusted to him.[17]

Significantly, to make the employee liable under paragraphs 5 and 6 of

Article 2180, it must be established that the injurious or tortuous act was
committed at the time the employee was performing his functions.[18]

Furthermore, the employer-employee relationship cannot be assumed. It is

incumbent upon the plaintiff to prove the relationship by preponderant
evidence. In Belen v. Belen,[19] this Court ruled that it was enough for defendant to
25
deny an alleged employment relationship. The defendant is under no obligation to
prove the negative averment. This Court said:

It is an old and well-settled rule of the courts that the burden of

proving the action is upon the plaintiff, and that if he fails satisfactorily
to show the facts upon which he bases his claim, the defendant is under
no obligation to prove his exceptions. This rue is in harmony with the
provisions of Section 297 of the Code of Civil Procedure holding that
each party must prove his own affirmative allegations, etc. [20]

In resolving the present controversy, it is imperative to find out if Mayor

Miguel is, indeed, the employer of Lozano and therefore liable for the negligent
acts of the latter. To determine the existence of an employment relationship, We
rely on the four-fold test. This involves: (1) the employers power of selection; (2)
payment of wages or other remuneration; (3) the employers right to control the
method of doing the work; and (4) the employers right of suspension or dismissal.
[21]

Applying the foregoing test, the CA correctly held that it was

the Municipality of Koronadal which was the lawful employer of Lozano at the
time of the accident. It is uncontested that Lozano was employed as a driver by the
municipality. That he was subsequently assigned to Mayor Miguel during the time
of the accident is of no moment. This Court has, on several occasions, held that an
employer-employee relationship still exists even if the employee was loaned by the
employer to another person or entity because control over the employee subsists.
[22]
In the case under review, the Municipality of Koronadal remains to be Lozanos
employer notwithstanding Lozanos assignment to Mayor Miguel.

Spouses Jayme argued that Mayor Miguel had at least supervision and
control over Lozano and how the latter operated or drove the Isuzu pick-up during
the time of the accident. They, however, failed to buttress this claim.

Even assuming arguendo that Mayor Miguel had authority to give

instructions or directions to Lozano, he still can not be held liable. In Benson v.
Sorrell,[23] the New England Supreme Court ruled that mere giving of directions to
the driver does not establish that the passenger has control over the

26
vehicle. Neither does it render one the employer of the driver. This Court,
in Soliman, Jr. v. Tuazon,[24] ruled in a similar vein, to wit:

x x x The fact that a client company may give instructions or directions

to the security guards assigned to it, does not, by itself, render the
client responsible as an employer of the security guards concerned and
liable for their wrongful acts and omissions. Those instructions or
directions are ordinarily no more than requests commonly envisaged in
the contract for services entered into with the security agency. x x
x[25] (Emphasis supplied)

Significantly, no negligence may be imputed against a fellow employee

although the person may have the right to control the manner of the vehicles
operation.[26] In the absence of an employer-employee relationship establishing
vicarious liability, the drivers negligence should not be attributed to a fellow
employee who only happens to be an occupant of the vehicle.[27] Whatever right of
control the occupant may have over the driver is not sufficient by itself to justify an
application of the doctrine of vicarious liability. Handley v. Lombardi[28] is
instructive on this exception to the rule on vicarious liability:

Plaintiff was not the master or principal of the driver of the truck,
but only an intermediate and superior employee or agent. This being so,
the doctrine of respondeat superior or qui facit per alium is not properly
applicable to him. His power to direct and control the driver was not as
master, but only by virtue of the fact that they were both employed by
Kruse, and the further fact that as Kruses agent he was delegated Kruses
authority over the driver. x x x

In the case of actionable negligence, the rule is well settled both in

this state and elsewhere that the negligence of a subordinate employee or
subagent is not to be imputed to a superior employee or agent, but only to
the master or principal. (Hilton v. Oliver, 204 Cal. 535 [61 A. L. R. 297,
269 Pac. 425]; Guild v. Brown, 115 Cal. App. 374 [1 Pac. (2d) 528]; Ellis
v. Southern Ry. Co., 72 S. C. 464 [2 L. R. A. (N. S.) 378, 52 S. E.
228]; Thurman v. Pittsburg & M. Copper Co. , 41 Mont. 141 [108 Pac.
588]; 2 Cor. Jur., p. 829; and see the elaborate note in 61 A. L. R.
277, and particularly that part commencing at p. 290.) We can see no
logical reason for drawing any distinction in this regard between
actionable negligence and contributory negligence. x x x[29]

27
 The rule was reiterated in Bryant v. Pacific Elec. Ry. Co.[30] and again
in Sichterman v. Hollingshead Co.[31]

In Swanson v. McQuown,[32] a case involving a military officer who

happened to be riding in a car driven by a subordinate later involved in an accident,
the Colorado Supreme Court adhered to the general rule that a public official is not
liable for the wrongful acts of his subordinates on a vicarious basis since the
relationship is not a true master-servant situation.[33] The court went on to rule that
the only exception is when they cooperate in the act complained of, or direct or
encourage it.[34]

In the case at bar, Mayor Miguel was neither Lozanos employer nor the
vehicles registered owner. There existed no causal relationship between him and
Lozano or the vehicle used that will make him accountable for Marvins
death. Mayor Miguel was a mere passenger at the time of the accident.

Parenthetically, it has been held that the failure of a passenger to assist the
driver, by providing him warnings or by serving as lookout does not make the
passenger liable for the latters negligent acts. [35] The drivers duty is not one that
may be delegated to others.[36]

As correctly held by the trial court, the true and lawful employer of Lozano is
the Municipality of Koronadal. Unfortunately for Spouses Jayme, the municipality
may not be sued because it is an agency of the State engaged in governmental
functions and, hence, immune from suit. This immunity is illustrated
in Municipality of San Fernando, La Union v. Firme,[37] where this Court held:

It has already been remarked that municipal corporations are suable

because their charters grant them the competence to sue and be
sued.Nevertheless, they are generally not liable for torts committed by
them in the discharge of governmental functions and can only be held
answerable only if it can be shown that they were acting in proprietary
capacity. In permitting such entities to be sued, the State merely gives
the claimant the right to show that the defendant was not acting in
governmental capacity when the injury was committed or that the case

28
 comes under the exceptions recognized by law. Failing this, the claimant
cannot recover.[38]

Verily, liability attaches to the registered owner, the negligent driver and his
direct employer. The CA observation along this line are worth restating:

Settled is the rule that the registered owner of a vehicle is jointly and
severally liable with the driver for damages incurred by passengers and
third persons as a consequence of injuries or death sustained in the
operation of said vehicles. Regardless of who the actual owner of the
vehicle is, the operator of record continues to be the operator of the
vehicle as regards the public and third persons, and as such is directly
and primarily responsible for the consequences incident (sic) to its
operation x x x.[39]

The accidental death of Marvin Jayme is a tragic loss for his

parents. However, justice demands that only those liable under our laws be held
accountable for Marvins demise. Justice can not sway in favor of petitioners
simply to assuage their pain and loss.The law on the matter is clear: only the
negligent driver, the drivers employer, and the registered owner of the vehicle are
liable for the death of a third person resulting from the negligent operation of the
vehicle.

WHEREFORE, the petition is DENIED and the appealed Decision AFFIRMED.

SO ORDERED.
FIRST DIVISION

G.R. No. 126297 January 31, 2007

PROFESSIONAL SERVICES, INC., Petitioner,

vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.

x-----------------------x

G.R. No. 126467 January 31, 2007

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR.,
EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE
AGANA, Petitioners,

29
vs.
JUAN FUENTES, Respondent.

x- - - - - - - - - - - - - - - - - - - -- - - - x

G.R. No. 127590 January 31, 2007

MIGUEL AMPIL, Petitioner,

vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Hospitals, having undertaken one of mankind’s most important and delicate endeavors, must
assume the grave responsibility of pursuing it with appropriate care. The care and service dispensed
through this high trust, however technical, complex and esoteric its character may be, must meet
standards of responsibility commensurate with the undertaking to preserve and protect the health,
and indeed, the very lives of those placed in the hospital’s keeping. 1

Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals’
Decision2 dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming
with modification the Decision3 dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96,
Quezon City in Civil Case No. Q-43322 and nullifying its Order dated September 21, 1993.

The facts, as culled from the records, are:

On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City
Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of
medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering
from "cancer of the sigmoid."

On April 11, 1984, Dr. Ampil, assisted by the medical staff 4 of the Medical City Hospital, performed an
anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had
spread on her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained
the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R.
No. 126467, to perform hysterectomy on her.

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and
closed the incision.

However, the operation appeared to be flawed. In the corresponding Record of Operation dated April
11, 1984, the attending nurses entered these remarks:

"sponge count lacking 2

"announced to surgeon searched (sic) done but to no avail continue for closure."

On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including
the doctors’ fees, amounted to P60,000.00.

30
After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted
both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of
the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous
nodes which were not removed during the operation.

On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further
treatment. After four months of consultations and laboratory examinations, Natividad was told she
was free of cancer. Hence, she was advised to return to the Philippines.

On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks
thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed
about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze
measuring 1.5 inches in width. He then assured her that the pains would soon vanish.

Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek
treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected
the presence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in
width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive
organs which forced stool to excrete through the vagina. Another surgical operation was needed to
remedy the damage. Thus, in October 1984, Natividad underwent another surgery.

On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a
complaint for damages against the Professional Services, Inc. (PSI), owner of the Medical City
Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. They alleged that the
latter are liable for negligence for leaving two pieces of gauze inside Natividad’s body and
malpractice for concealing their acts of negligence.

Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an
administrative complaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes,
docketed as Administrative Case No. 1690. The PRC Board of Medicine heard the case only with
respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in the
United States.

On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly
substituted by her above-named children (the Aganas).

On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and
Dr. Fuentes liable for negligence and malpractice, the decretal part of which reads:

WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants
PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the
plaintiffs, jointly and severally, except in respect of the award for exemplary damages and the
interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:

1. As actual damages, the following amounts:

a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of

P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States
of America;

b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;

31
 c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic
Hospital, medical fees, and cost of the saline solution;

2. As moral damages, the sum of P2,000,000.00;

3. As exemplary damages, the sum of P300,000.00;

4. As attorney’s fees, the sum of P250,000.00;

5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the
complaint until full payment; and

6. Costs of suit.

SO ORDERED.

Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed
as CA-G.R. CV No. 42062.

Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its
Decision, which was granted in an Order dated May 11, 1993. Thereafter, the sheriff levied upon
certain properties of Dr. Ampil and sold them for P451,275.00 and delivered the amount to the
Aganas.

Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr.
Fuentes to indefinitely suspend any further execution of the RTC Decision. However, not long
thereafter, the Aganas again filed a motion for an alias writ of execution against the properties of PSI
and Dr. Fuentes. On September 21, 1993, the RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a petition for certiorari
and prohibition, with prayer for preliminary injunction, docketed as CA-G.R. SP No. 32198. During its
pendency, the Court of Appeals issued a Resolution5 dated October 29, 1993 granting Dr. Fuentes’
prayer for injunctive relief.

On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.

Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision 6 in
Administrative Case No. 1690 dismissing the case against Dr. Fuentes. The Board held that the
prosecution failed to show that Dr. Fuentes was the one who left the two pieces of gauze inside
Natividad’s body; and that he concealed such fact from Natividad.

On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV
No. 42062 and CA-G.R. SP No. 32198, thus:

WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan
Fuentes is hereby DISMISSED, and with the pronouncement that defendant-appellant Dr. Miguel
Ampil is liable to reimburse defendant-appellant Professional Services, Inc., whatever amount the
latter will pay or had paid to the plaintiffs-appellees, the decision appealed from is hereby
AFFIRMED and the instant appeal DISMISSED.

Concomitant with the above, the petition for certiorari and prohibition filed by herein defendant-
appellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order

32
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 Resolution 7 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

33
Natividad’s body. Neither did he submit evidence to rebut the correctness of the record of operation,
particularly the number of gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful
that Dr. Ampil examined his (Dr. Fuentes’) work and found it in order.

The glaring truth is that all the major circumstances, taken together, as specified by the Court of
Appeals, directly point to Dr. Ampil as the negligent party, thus:

First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of
the patient during the surgical operation.

Second, immediately after the operation, the nurses who assisted in the surgery noted in
their report that the ‘sponge count (was) lacking 2’; that such anomaly was ‘announced to
surgeon’ and that a ‘search was done but to no avail’ prompting Dr. Ampil to ‘continue for
closure’ x x x.

Third, after the operation, two (2) gauzes were extracted from the same spot of the body of
Mrs. Agana where the surgery was performed.

An operation requiring the placing of sponges in the incision is not complete until the sponges are
properly removed, and it is settled that the leaving of sponges or other foreign substances in the
wound after the incision has been closed is at least prima facie negligence by the operating
surgeon.8 To put it simply, such act is considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of authorities to the effect that such act is
negligence per se.9

Of course, the Court is not blind to the reality that there are times when danger to a patient’s life
precludes a surgeon from further searching missing sponges or foreign objects left in the body. But
this does not leave him free from any obligation. Even if it has been shown that a surgeon was
required by the urgent necessities of the case to leave a sponge in his patient’s abdomen, because
of the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a
reasonable time thereafter by advising her of what he had been compelled to do. This is in order that
she might seek relief from the effects of the foreign object left in her body as her condition might
permit. The ruling in Smith v. Zeagler10 is explicit, thus:

The removal of all sponges used is part of a surgical operation, and when a physician or surgeon
fails to remove a sponge he has placed in his patient’s body that should be removed as part of the
operation, he thereby leaves his operation uncompleted and creates a new condition which imposes
upon him the legal duty of calling the new condition to his patient’s attention, and endeavoring with
the means he has at hand to minimize and avoid untoward results likely to ensue therefrom.

Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even
misled her that the pain she was experiencing was the ordinary consequence of her operation. Had
he been more candid, Natividad could have taken the immediate and appropriate medical remedy to
remove the gauzes from her body. To our mind, what was initially an act of negligence by Dr. Ampil
has ripened into a deliberate wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical negligence. To

successfully pursue this kind of case, a patient must only prove that a health care provider either
failed to do something which a reasonably prudent health care provider would have done, or that he
did something that a reasonably prudent provider would not have done; and that failure or action
caused injury to the patient.11 Simply put, the elements are duty, breach, injury and proximate
causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as

34
gauzes, from Natividad’s body before closure of the incision. When he failed to do so, it was his duty
to inform Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to Natividad,
necessitating her further examination by American doctors and another surgery. That Dr. Ampil’s
negligence is the proximate cause12 of Natividad’s injury could be traced from his act of closing the
incision despite the information given by the attending nurses that two pieces of gauze were still
missing. That they were later on extracted from Natividad’s vagina established the causal link
between Dr. Ampil’s negligence and the injury. And what further aggravated such injury was his
deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.

II - G.R. No. 126467

Whether the Court of Appeals Erred in Absolving

Dr. Fuentes of any Liability

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground
that it is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces of
gauze were left inside Natividad’s body is a prima facie evidence of Dr. Fuentes’ negligence.

We are not convinced.

Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact of the
occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise
a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of
fact for defendant to meet with an explanation.13 Stated differently, where the thing which caused the
injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is
such that it should not have occurred if he, having such control used proper care, it affords
reasonable evidence, in the absence of explanation that the injury arose from the defendant’s want
of care, and the burden of proof is shifted to him to establish that he has observed due care and
diligence.14

From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res
ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the
control and management of the defendant; (3) the occurrence was such that in the ordinary course
of things, would not have happened if those who had control or management used proper care; and
(4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental
is the "control and management of the thing which caused the injury." 15

We find the element of "control and management of the thing which caused the injury" to be wanting.
Hence, the doctrine of res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He
requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found
that the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the
surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding
everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed
operating on Natividad. He was about to finish the procedure when the attending nurses informed
him that two pieces of gauze were missing. A "diligent search" was conducted, but the misplaced
gauzes were not found. Dr. Ampil then directed that the incision be closed. During this entire period,
Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.

35
Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the
surgery room and all personnel connected with the operation. Their duty is to obey his orders. 16 As
stated before, Dr. Ampil was the lead surgeon. In other words, he was the "Captain of the Ship." That
he discharged such role is evident from his following conduct: (1) calling Dr. Fuentes to perform a
hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’
permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of
ordering the closure of the incision notwithstanding that two pieces of gauze remained unaccounted
for, that caused injury to Natividad’s body. Clearly, the control and management of the thing which
caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.

In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or
constitute an independent or separate ground of liability, being a mere evidentiary rule. 17 In other
words, mere invocation and application of the doctrine does not dispense with the requirement of
proof of negligence. Here, the negligence was proven to have been committed by Dr. Ampil and not
by Dr. Fuentes.

III - G.R. No. 126297

Whether PSI Is Liable for the Negligence of Dr. Ampil

The third issue necessitates a glimpse at the historical development of hospitals and the resulting
theories concerning their liability for the negligence of physicians.

Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical
services to the lowest classes of society, without regard for a patient’s ability to pay. 18 Those who
could afford medical treatment were usually treated at home by their doctors. 19 However, the days of
house calls and philanthropic health care are over. The modern health care industry continues to
distance itself from its charitable past and has experienced a significant conversion from a not-for-
profit health care to for-profit hospital businesses. Consequently, significant changes in health law
have accompanied the business-related changes in the hospital industry. One important legal
change is an increase in hospital liability for medical malpractice. Many courts now allow claims for
hospital vicarious liability under the theories of respondeat superior, apparent authority, ostensible
authority, or agency by estoppel. 20

In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code,
which reads:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.

A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of
respondeat superior, thus:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or
omissions, but also for those of persons for whom one is responsible.

x x x x x x

36
The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks even though the former are not engaged in any business or
industry.

x x x x x x

The responsibility treated of in this article shall cease when the persons herein mentioned prove that
they observed all the diligence of a good father of a family to prevent damage.

A prominent civilist commented that professionals engaged by an employer, such as physicians,

dentists, and pharmacists, are not "employees" under this article because the manner in which they
perform their work is not within the control of the latter (employer). In other words, professionals are
considered personally liable for the fault or negligence they commit in the discharge of their duties,
and their employer cannot be held liable for such fault or negligence. In the context of the present
case, "a hospital cannot be held liable for the fault or negligence of a physician or surgeon in the
treatment or operation of patients."21

The foregoing view is grounded on the traditional notion that the professional status and the very
nature of the physician’s calling preclude him from being classed as an agent or employee of a
hospital, whenever he acts in a professional capacity. 22 It has been said that medical practice strictly
involves highly developed and specialized knowledge, 23 such that physicians are generally free to
exercise their own skill and judgment in rendering medical services sans interference. 24 Hence, when
a doctor practices medicine in a hospital setting, the hospital and its employees are deemed to
subserve him in his ministrations to the patient and his actions are of his own responsibility. 25

The case of Schloendorff v. Society of New York Hospital26 was then considered an authority for this
view. The "Schloendorff doctrine" regards a physician, even if employed by a hospital, as an
independent contractor because of the skill he exercises and the lack of control exerted over his
work. Under this doctrine, hospitals are exempt from the application of the respondeat superior
principle for fault or negligence committed by physicians in the discharge of their profession.

However, the efficacy of the foregoing doctrine has weakened with the significant developments in
medical care. Courts came to realize that modern hospitals are increasingly taking active role in
supplying and regulating medical care to patients. No longer were a hospital’s functions limited to
furnishing room, food, facilities for treatment and operation, and attendants for its patients. Thus, in
Bing v. Thunig,27 the New York Court of Appeals deviated from the Schloendorff doctrine, noting that
modern hospitals actually do far more than provide facilities for treatment. Rather, they regularly
employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative and manual
workers. They charge patients for medical care and treatment, even collecting for such services
through legal action, if necessary. The court then concluded that there is no reason to exempt
hospitals from the universal rule of respondeat superior.

In our shores, the nature of the relationship between the hospital and the physicians is rendered
inconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals 28 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:

37
"We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting "consultants," who
are allegedly not hospital employees, presents problems in apportioning responsibility for negligence
in medical malpractice cases. However, the difficulty is more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the
conduct of their work within the hospital premises. Doctors who apply for ‘consultant’ slots, visiting or
attending, are required to submit proof of completion of residency, their educational qualifications,
generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are carefully scrutinized by members of the
hospital administration or by a review committee set up by the hospital who either accept or reject
the application. x x x.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to

attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients
into the hospital. In addition to these, the physician’s performance as a specialist is generally
evaluated by a peer review committee on the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a
consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer
review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
‘consultant’ staff. While ‘consultants’ are not, technically employees, x x x, the control exercised, the
hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-
employee relationship, with the exception of the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing,
we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and their attending and visiting physicians. "

But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its liability is also
anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of
corporate negligence which have gained acceptance in the determination of a hospital’s liability for
negligent acts of health professionals. The present case serves as a perfect platform to test the
applicability of these doctrines, thus, enriching our jurisprudence.

Apparent authority, or what is sometimes referred to as the "holding

out" theory, or doctrine of ostensible agency or agency by estoppel, 29 has its origin from the law of
agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather
because of the actions of a principal or an employer in somehow misleading the public into believing
that the relationship or the authority exists.30 The concept is essentially one of estoppel and has been
explained in this manner:

"The principal is bound by the acts of his agent with the apparent authority which he knowingly
permits the agent to assume, or which he holds the agent out to the public as possessing. The
question in every case is whether the principal has by his voluntary act placed the agent in such a
situation that a person of ordinary prudence, conversant with business usages and the nature of the
particular business, is justified in presuming that such agent has authority to perform the particular
act in question.31

38
The applicability of apparent authority in the field of hospital liability was upheld long time ago in
Irving v. Doctor Hospital of Lake Worth, Inc.32 There, it was explicitly stated that "there does not
appear to be any rational basis for excluding the concept of apparent authority from the field of
hospital liability." Thus, in cases where it can be shown that a hospital, by its actions, has held out a
particular physician as its agent and/or employee and that a patient has accepted treatment from
that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the
hospital will be liable for the physician’s negligence.

Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the
Civil Code reads:

ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack
of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf
without authority.

In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and
specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr.
Fuentes. We concur with the Court of Appeals’ conclusion that it "is now estopped from passing all
the blame to the physicians whose names it proudly paraded in the public directory leading the
public to believe that it vouched for their skill and competence." Indeed, PSI’s act is tantamount to
holding out to the public that Medical City Hospital, through its accredited physicians, offers quality
health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their
qualifications, the hospital created the impression that they were its agents, authorized to perform
medical or surgical services for its patients. As expected, these patients, Natividad being one of
them, accepted the services on the reasonable belief that such were being rendered by the hospital
or its employees, agents, or servants. The trial court correctly pointed out:

x x x regardless of the education and status in life of the patient, he ought not be burdened with the
defense of absence of employer-employee relationship between the hospital and the independent
physician whose name and competence are certainly certified to the general public by the hospital’s
act of listing him and his specialty in its lobby directory, as in the case herein. The high costs of
today’s medical and health care should at least exact on the hospital greater, if not broader, legal
responsibility for the conduct of treatment and surgery within its facility by its accredited physician or
surgeon, regardless of whether he is independent or employed."33

The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable
of acting only through other individuals, such as physicians. If these accredited physicians do their
job well, the hospital succeeds in its mission of offering quality medical services and thus profits
financially. Logically, where negligence mars the quality of its services, the hospital should not be
allowed to escape liability for the acts of its ostensible agents.

We now proceed to the doctrine of corporate negligence or corporate responsibility.

One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI
as owner, operator and manager of Medical City Hospital, "did not perform the necessary
supervision nor exercise diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing
staff, resident doctors, and medical interns who assisted Drs. Ampil and Fuentes in the performance
of their duties as surgeons."34 Premised on the doctrine of corporate negligence, the trial court held
that PSI is directly liable for such breach of duty.

We agree with the trial court.

39
Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem
of allocating hospital’s liability for the negligent acts of health practitioners, absent facts to support
the application of respondeat superior or apparent authority. Its formulation proceeds from the
judiciary’s acknowledgment that in these modern times, the duty of providing quality medical service
is no longer the sole prerogative and responsibility of the physician. The modern hospitals have
changed structure. Hospitals now tend to organize a highly professional medical staff whose
competence and performance need to be monitored by the hospitals commensurate with their
inherent responsibility to provide quality medical care.35

The doctrine has its genesis in Darling v. Charleston Community Hospital. 36 There, the Supreme
Court of Illinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a
sufficient number of trained nurses attending the patient; failing to require a consultation with or
examination by members of the hospital staff; and failing to review the treatment rendered to the
patient." On the basis of Darling, other jurisdictions held that a hospital’s corporate negligence
extends to permitting a physician known to be incompetent to practice at the hospital. 37 With the
passage of time, more duties were expected from hospitals, among them: (1) the use of reasonable
care in the maintenance of safe and adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or supervision of all persons who practice
medicine within its walls; and (4) the formulation, adoption and enforcement of adequate rules and
policies that ensure quality care for its patients.38 Thus, in Tucson Medical Center, Inc. v. Misevich,39 it
was held that a hospital, following the doctrine of corporate responsibility, has the duty to see that it
meets the standards of responsibilities for the care of patients. Such duty includes the proper
supervision of the members of its medical staff. And in Bost v. Riley,40 the court concluded that a
patient who enters a hospital does so with the reasonable expectation that it will attempt to cure him.
The hospital accordingly has the duty to make a reasonable effort to monitor and oversee the
treatment prescribed and administered by the physicians practicing in its premises.

In the present case, it was duly established that PSI operates the Medical City Hospital for the
purpose and under the concept of providing comprehensive medical services to the public.
Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted
into its facility for medical treatment. Unfortunately, PSI failed to perform such duty. The findings of
the trial court are convincing, thus:

x x x PSI’s liability is traceable to its failure to conduct an investigation of the matter reported in the
nota bene of the count nurse. Such failure established PSI’s part in the dark conspiracy of silence
and concealment about the gauzes. Ethical considerations, if not also legal, dictated the holding of
an immediate inquiry into the events, if not for the benefit of the patient to whom the duty is primarily
owed, then in the interest of arriving at the truth. The Court cannot accept that the medical and the
healing professions, through their members like defendant surgeons, and their institutions like PSI’s
hospital facility, can callously turn their backs on and disregard even a mere probability of mistake or
negligence by refusing or failing to investigate a report of such seriousness as the one in Natividad’s
case.

It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the
Medical City Hospital’s staff, composed of resident doctors, nurses, and interns. As such, it is
reasonable to conclude that PSI, as the operator of the hospital, has actual or constructive
knowledge of the procedures carried out, particularly the report of the attending nurses that the two
pieces of gauze were missing. In Fridena v. Evans,41 it was held that a corporation is bound by the
knowledge acquired by or notice given to its agents or officers within the scope of their authority and
in reference to a matter to which their authority extends. This means that the knowledge of any of the
staff of Medical City Hospital constitutes knowledge of PSI. Now, the failure of PSI, despite the
attending nurses’ report, to investigate and inform Natividad regarding the missing gauzes amounts

40
to callous negligence. Not only did PSI breach its duties to oversee or supervise all persons who
practice medicine within its walls, it also failed to take an active step in fixing the negligence
committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article
2180 of the Civil Code, but also directly liable for its own negligence under Article 2176. In Fridena,
the Supreme Court of Arizona held:

x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded.
The emerging trend is to hold the hospital responsible where the hospital has failed to monitor and
review medical services being provided within its walls. See Kahn Hospital Malpractice Prevention,
27 De Paul . Rev. 23 (1977).

Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P.
2d 335 (1972). In Purcell, the hospital argued that it could not be held liable for the malpractice of a
medical practitioner because he was an independent contractor within the hospital. The Court of
Appeals pointed out that the hospital had created a professional staff whose competence and
performance was to be monitored and reviewed by the governing body of the hospital, and the court
held that a hospital would be negligent where it had knowledge or reason to believe that a doctor
using the facilities was employing a method of treatment or care which fell below the recognized
standard of care.

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

x x x x x x

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

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

One final word. Once a physician undertakes the treatment and care of a patient, the law imposes
on him certain obligations. In order to escape liability, he must possess that reasonable degree of
learning, skill and experience required by his profession. At the same time, he must apply
reasonable care and diligence in the exercise of his skill and the application of his knowledge, and
exert his best judgment.

WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of
Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.

Costs against petitioners PSI and Dr. Miguel Ampil.

41
G.R. No. 120554 September 21, 1999

SO PING BUN, petitioner,

vs.
COURT OF APPEALS, TEK HUA ENTERPRISES CORP. and MANUEL C. TIONG, respondents.

QUISUMBING, J.:

This petition for certiorari challenges the Decision 1 of the Court of Appeals dated October 10, 1994,
and the Resolution2 dated June 5, 1995, in CA-G.R. CV No. 38784. The appellate court affirmed the
decision of the Regional Trial Court of Manila, Branch 35, except for the award of attorney's fees, as
follows:

WHEREFORE, foregoing considered, the appeal of respondent-appellant So Ping

Bun for lack of merit is DISMISSED. The appealed decision dated April 20, 1992 of
the court a quo is modified by reducing the attorney's fees awarded to plaintiff Tek
Hua Enterprising Corporation from P500,000.00 to P200,000.00. 3

The facts are as follows:

In 1963, Tek Hua Trading Co, through its managing partner, So Pek Giok, entered into lease
agreements with lessor Dee C. Chuan & Sons Inc. (DCCSI). Subjects of four (4) lease contracts
were premises located at Nos. 930, 930-Int., 924-B and 924-C, Soler Street, Binondo, Manila. Tek
Hua used the areas to store its textiles. The contracts each had a one-year term. They provided that
should the lessee continue to occupy the premises after the term, the lease shall be on a month-to-
month basis.

When the contracts expired, the parties did not renew the contracts, but Tek Hua continued to
occupy the premises. In 1976, Tek Hua Trading Co. was dissolved. Later, the original members of
Tek Hua Trading Co. including Manuel C. Tiong, formed Tek Hua Enterprising Corp., herein
respondent corporation.

So Pek Giok, managing partner of Tek Hua Trading, died in 1986. So Pek Giok's grandson, petitioner
So Ping Bun, occupied the warehouse for his own textile business, Trendsetter Marketing.

On August 1, 1989, lessor DCCSI sent letters addressed to Tek Hua Enterprises, informing the latter
of the 25% increase in rent effective September 1, 1989. The rent increase was later on reduced to
20% effective January 1, 1990, upon other lessees' demand. Again on December 1, 1990, the lessor
implemented a 30% rent increase. Enclosed in these letters were new lease contracts for signing.
DCCSI warned that failure of the lessee to accomplish the contracts shall be deemed as lack of
interest on the lessee's part, and agreement to the termination of the lease. Private respondents did
not answer any of these letters. Still, the lease contracts were not rescinded.

On March 1, 1991, private respondent Tiong sent a letter to petitioner which reads as follows:

March 1, 1991

Mr. So Ping Bun

42
 930 Soler Street

Binondo, Manila

Dear Mr. So,

Due to my closed (sic) business associate (sic) for three decades with your late
grandfather Mr. So Pek Giok and late father, Mr. So Chong Bon, I allowed you
temporarily to use the warehouse of Tek Hua Enterprising Corp. for several years to
generate your personal business.

Since I decided to go back into textile business, I need a warehouse immediately for
my stocks. Therefore, please be advised to vacate all your stocks in Tek Hua
Enterprising Corp. Warehouse. You are hereby given 14 days to vacate the premises
unless you have good reasons that you have the right to stay. Otherwise, I will be
constrained to take measure to protect my interest.

Please give this urgent matter your preferential attention to avoid inconvenience on
your part.

Very truly yours,

(Sgd) Manuel C. Tiong

MANUEL C. TIONG

President 4

Petitioner refused to vacate. On March 4, 1992, petitioner requested formal contracts of lease with
DCCSI in favor Trendsetter Marketing. So Ping Bun claimed that after the death of his grandfather,
So Pek Giok, he had been occupying the premises for his textile business and religiously paid rent.
DCCSI acceded to petitioner's request. The lease contracts in favor of Trendsetter were executed.

In the suit for injunction, private respondents pressed for the nullification of the lease contracts
between DCCSI and petitioner. They also claimed damages.

After trial, the trial court ruled:

WHEREFORE, judgment is rendered:

1. Annulling the four Contracts of Lease (Exhibits A,

A-1 to A-3, inclusive) all dated March 11, 1991,
between defendant So Ping Bun, doing business
under the name and style of "Trendsetter Marketing",
and defendant Dee C. Chuan & Sons, Inc. over the
premises located at Nos. 924-B, 924-C, 930 and 930,
Int., respectively, Soler Street, Binondo Manila;

2. Making permanent the writ of preliminary injunction

issued by this Court on June 21, 1991;

43
 3. Ordering defendant So Ping Bun to pay the
aggrieved party, plaintiff Tek Hua Enterprising
Corporation, the sum of P500,000.00, for attorney's
fees;

4. Dismissing the complaint, insofar as plaintiff

Manuel C. Tiong is concerned, and the respective
counterclaims of the defendant;

5. Ordering defendant So Ping Bun to pay the costs of

this lawsuit;

This judgment is without prejudice to the rights of plaintiff Tek Hua Enterprising
Corporation and defendant Dee C. Chuan & Sons, Inc. to negotiate for the renewal of
their lease contracts over the premises located at Nos. 930, 930-Int., 924-B and 924-
C Soler Street, Binondo, Manila, under such terms and conditions as they agree
upon, provided they are not contrary to law, public policy, public order, and morals.

SO ORDERED. 5

Petitioner's motion for reconsideration of the above decision was denied.

On appeal by So Ping Bun, the Court of Appeals upheld the trial court. On motion for
reconsideration, the appellate court modified the decision by reducing the award of attorney's fees
from five hundred thousand (P500,000.00) pesos to two hundred thousand (P200,000.00) pesos.

Petitioner is now before the Court raising the following issues:

I. WHETHER THE APPELLATE COURT ERRED IN

AFFIRMING THE TRIAL COURT'S DECISION FINDING SO
PING BUN GUILTY OF TORTUOUS INTERFERENCE OF
CONTRACT?

II. WHETHER THE APPELLATE COURT ERRED IN

AWARDING ATTORNEY'S FEES OF P200,000.00 IN FAVOR
OF PRIVATE RESPONDENTS.

The foregoing issues involve, essentially, the correct interpretation of the applicable law on tortuous
conduct, particularly unlawful interference with contract. We have to begin, obviously, with certain
fundamental principles on torts and damages.

Damage is the loss, hurt, or harm which results from injury, and damages are the recompense or
compensation awarded for the damage suffered. 6 One becomes liable in an action for damages for a
nontrespassory invasion of another's interest in the private use and enjoyment of asset if (a) the other has
property rights and privileges with respect to the use or enjoyment interfered with, (b) the invasion is
substantial, (c) the defendant's conduct is a legal cause of the invasion, and (d) the invasion is either
intentional and unreasonable or unintentional and actionable under general negligence rules. 7

The elements of tort interference are: (1) existence of a valid contract; (2) knowledge on the part of
the third person of the existence of contract; and (3) interference of the third person is without legal
justification or excuse.8

44
A duty which the law of torts is concerned with is respect for the property of others, and a cause of
action ex delicto may be predicated upon an unlawful interference by one person of the enjoyment
by the other of his private
property. 9 This may pertain to a situation where a third person induces a party to renege on or violate his
undertaking under a contract. In the case before us, petitioner's Trendsetter Marketing asked DCCSI to
execute lease contracts in its favor, and as a result petitioner deprived respondent corporation of the
latter's property right. Clearly, and as correctly viewed by the appellate court, the three elements of tort
interference above-mentioned are present in the instant case.

Authorities debate on whether interference may be justified where the defendant acts for the sole
purpose of furthering his own financial or economic interest. 10 One view is that, as a general rule,
justification for interfering with the business relations of another exists where the actor's motive is to
benefit himself. Such justification does not exist where his sole motive is to cause harm to the other.
Added to this, some authorities believe that it is not necessary that the interferer's interest outweigh that
of the party whose rights are invaded, and that an individual acts under an economic interest that is
substantial, not merely de minimis, such that wrongful and malicious motives are negatived, for he acts in
self-protection. 11 Moreover justification for protecting one's financial position should not be made to
depend on a comparison of his economic interest in the subject matter with that of others. 12 It is sufficient
if the impetus of his conduct lies in a proper business interest rather than in wrongful motives. 13

As early as Gilchrist vs. Cuddy, 14 we held that where there was no malice in the interference of a
contract, and the impulse behind one's conduct lies in a proper business interest rather than in wrongful
motives, a party cannot be a malicious interferer. Where the alleged interferer is financially interested, and
such interest motivates his conduct, it cannot be said that he is an officious or malicious intermeddler. 15

In the instant case, it is clear that petitioner So Ping Bun prevailed upon DCCSI to lease the
warehouse to his enterprise at the expense of respondent corporation. Though petitioner took
interest in the property of respondent corporation and benefited from it, nothing on record imputes
deliberate wrongful motives or malice on him.

Sec. 1314 of the Civil Code categorically provides also that, "Any third person who induces another
to violate his contract shall be liable for damages to the other contracting party." Petitioner argues
that damage is an essential element of tort interference, and since the trial court and the appellate
court ruled that private respondents were not entitled to actual, moral or exemplary damages, it
follows that he ought to be absolved of any liability, including attorney's fees.

It is true that the lower courts did not award damages, but this was only because the extent of
damages was not quantifiable. We had a similar situation in Gilchrist, where it was difficult or
impossible to determine the extent of damage and there was nothing on record to serve as basis
thereof. In that case we refrained from awarding damages. We believe the same conclusion applies
in this case.

While we do not encourage tort interferers seeking their economic interest to intrude into existing
contracts at the expense of others, however, we find that the conduct herein complained of did not
transcend the limits forbidding an obligatory award for damages in the absence of any malice. The
business desire is there to make some gain to the detriment of the contracting parties. Lack of
malice, however, precludes damages. But it does not relieve petitioner of the legal liability for
entering into contracts and causing breach of existing ones. The respondent appellate court correctly
confirmed the permanent injunction and nullification of the lease contracts between DCCSI and
Trendsetter Marketing, without awarding damages. The injunction saved the respondents from
further damage or injury caused by petitioner's interference.

45
Lastly, the recovery of attorney's fees in the concept of actual or compensatory damages, is allowed
under the circumstances provided for in Article 2208 of the Civil Code. 16 One such occasion is when
the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur
expenses to protect his interest. 17 But we have consistently held that the award of considerable damages
should have clear factual and legal bases. 18 In connection with attorney's fees, the award should be
commensurate to the benefits that would have been derived from a favorable judgment. Settled is the rule
that fairness of the award of damages by the trial court calls for appellate review such that the award if far
too excessive can be reduced. 19 This ruling applies with equal force on the award of attorney's fees. In a
long line of cases we said, "It is not sound policy to place in penalty on the right to litigate. To compel the
defeated party to pay the fees of counsel for his successful opponent would throw wide open the door of
temptation to the opposing party and his counsel to swell the fees to undue proportions." 20

Considering that the respondent corporation's lease contract, at the time when the cause of action
accrued, ran only on a month-to-month basis whence before it was on a yearly basis, we find even
the reduced amount of attorney's fees ordered by the Court of Appeals still exorbitant in the light of
prevailing jurisprudence. 21Consequently, the amount of two hundred thousand (P200,000.00) awarded
by respondent appellate court should be reduced to one hundred thousand (P100,000.00) pesos as the
reasonable award or attorney's fees in favor of private respondent corporation.

WHEREFORE, the petition is hereby DENIED. The assailed Decision and Resolution of the Court of
Appeals in CA-G.R. CV No. 38784 are hereby AFFIRMED, with MODIFICATION that the award of
attorney's fees is reduced from two hundred thousand (P200,000.00) to one hundred thousand
(P100,000.00) pesos. No pronouncement as to costs. 1âwphi1.nêt

G.R. No. L-9356 February 18, 1915

C. S. GILCHRIST, plaintiff-appellee,
vs.
E. A. CUDDY, ET AL., defendants.
JOSE FERNANDEZ ESPEJO and MARIANO ZALDARRIAGA, appellants.

C. Lozano for appellants.

Bruce, Lawrence, Ross and Block for appellee.

TRENT, J.:

An appeal by the defendants, Jose Fernandez Espejo and Mariano Zaldarriaga, from a judgment of
the Court of First Instance of Iloilo, dismissing their cross-complaint upon the merits for damages
against the plaintiff for the alleged wrongful issuance of a mandatory and a preliminary injunction.

Upon the application of the appellee an ex parte mandatory injunction was issued on the 22d of May,
1913, directing the defendant, E. A. Cuddy, to send to the appellee a certain cinematograph film
called "Zigomar" in compliance with an alleged contract which had been entered into between these
two parties, and at the time anex parte preliminary injunction was issued restraining the appellants
from receiving and exhibiting in their theater the Zigomar until further orders of the court. On the 26th
of that month the appellants appeared and moved the court to dissolve the preliminary injunction.
When the case was called for trial on August 6, the appellee moved for the dismissal of the
complaint "for the reason that there is no further necessity for the maintenance of the injunction."
The motion was granted without objection as to Cuddy and denied as to the appellants in order to
give them an opportunity to prove that the injunction were wrongfully issued and the amount of
damages suffered by reason thereof.

46
The pertinent part of the trial court's findings of fact in this case is as follows:

It appears in this case that Cuddy was the owner of the film Zigomar and that on the 24th of
April he rented it to C. S. Gilchrist for a week for P125, and it was to be delivered on the 26th
of May, the week beginning that day. A few days prior to this Cuddy sent the money back to
Gilchrist, which he had forwarded to him in Manila, saying that he had made other
arrangements with his film. The other arrangements was the rental to these defendants
Espejo and his partner for P350 for the week and the injunction was asked by Gilchrist
against these parties from showing it for the week beginning the 26th of May.

It appears from the testimony in this case, conclusively, that Cuddy willfully violated his
contract, he being the owner of the picture, with Gilchrist because the defendants had
offered him more for the same period. Mr. Espejo at the trial on the permanent injunction on
the 26th of May admitted that he knew that Cuddy was the owner of the film. He was trying to
get it through his agents Pathe Brothers in Manila. He is the agent of the same concern in
Iloilo. There is in evidence in this case on the trial today as well as on the 26th of May, letters
showing that the Pathe Brothers in Manila advised this man on two different occasions not to
contend for this film Zigomar because the rental price was prohibitive and assured him also
that he could not get the film for about six weeks. The last of these letters was written on the
26th of April, which showed conclusively that he knew they had to get this film from Cuddy
and from this letter that the agent in Manila could not get it, but he made Cuddy an offer
himself and Cuddy accepted it because he was paying about three times as much as he had
contracted with Gilchrist for. Therefore, in the opinion of this court, the defendants failed
signally to show the injunction against the defendant was wrongfully procured.

The appellants duly excepted to the order of the court denying their motion for new trial on the
ground that the evidence was insufficient to justify the decision rendered. There is lacking from the
record before us the deposition of the defendant Cuddy, which apparently throws light upon a
contract entered into between him and the plaintiff Gilchrist. The contents of this deposition are
discussed at length in the brief of the appellants and an endeavor is made to show that no such
contract was entered into. The trial court, which had this deposition before it, found that there was a
contract between Cuddy and Gilchrist. Not having the deposition in question before us, it is
impossible to say how strongly it militates against this findings of fact. By a series of decisions we
have construed section 143 and 497 (2) of the Code of Civil Procedure to require the production
of all the evidence in this court. This is the duty of the appellant and, upon his failure to perform it, we
decline to proceed with a review of the evidence. In such cases we rely entirely upon the pleadings
and the findings of fact of the trial court and examine only such assigned errors as raise questions of
law. (Ferrer vs. Neri Abejuela, 9 Phil. Rep., 324; Valle vs. Galera, 10 Phil. Rep., 619;
Salvacion vs. Salvacion, 13 Phil. Rep., 366; Breta vs. Smith, Bell & Co., 15 Phil. Rep., 446;
Arroyo vs. Yulo, 18 Phil. Rep., 236; Olsen & Co. vs. Matson, Lord & Belser Co., 19 Phil. Rep., 102;
Blum vs. Barretto, 19 Phil. Rep., 161; Cuyugan vs. Aguas, 19 Phil. Rep., 379; Mapa vs. Chaves, 20
Phil. Rep., 147; Mans vs. Garry, 20 Phil. Rep., 134.) It is true that some of the more recent of these
cases make exceptions to the general rule. Thus, in Olsen & Co. vs. Matson, Lord & Belser Co., (19
Phil. Rep., 102), that portion of the evidence before us tended to show that grave injustice might
result from a strict reliance upon the findings of fact contained in the judgment appealed from. We,
therefore, gave the appellant an opportunity to explain the omission. But we required that such
explanation must show a satisfactory reason for the omission, and that the missing portion of the
evidence must be submitted within sixty days or cause shown for failing to do so. The other cases
making exceptions to the rule are based upon peculiar circumstances which will seldom arise in
practice and need not here be set forth, for the reason that they are wholly inapplicable to the
present case. The appellants would be entitled to indulgence only under the doctrine of the Olsen
case. But from that portion of the record before us, we are not inclined to believe that the missing
deposition would be sufficient to justify us in reversing the findings of fact of the trial court that the

47
contract in question had been made. There is in the record not only the positive and detailed
testimony of Gilchrist to this effect, but there is also a letter of apology from Cuddy to Gilchrist in
which the former enters into a lengthy explanation of his reasons for leasing the film to another party.
The latter could only have been called forth by a broken contract with Gilchrist to lease the film to
him. We, therefore, fail to find any reason for overlooking the omission of the defendants to bring up
the missing portion of the evidence and, adhering to the general rule above referred to, proceed to
examine the questions of law raised by the appellants.

From the above-quoted findings of fact it is clear that Cuddy, a resident of Manila, was the owner of
the "Zigomar;" that Gilchrist was the owner of a cinematograph theater in Iloilo; that in accordance
with the terms of the contract entered into between Cuddy and Gilchrist the former leased to the
latter the "Zigomar" for exhibition in his (Gilchrist's) theater for the week beginning May 26, 1913;
and that Cuddy willfully violate his contract in order that he might accept the appellant's offer of P350
for the film for the same period. Did the appellants know that they were inducing Cuddy to violate his
contract with a third party when they induced him to accept the P350? Espejo admitted that he knew
that Cuddy was the owner of the film. He received a letter from his agents in Manila dated April
26, assuring him that he could not get the film for about six weeks. The arrangement between Cuddy
and the appellants for the exhibition of the film by the latter on the 26th of May were perfected after
April 26, so that the six weeks would include and extend beyond May 26. The appellants must
necessarily have known at the time they made their offer to Cuddy that the latter had booked or
contracted the film for six weeks from April 26. Therefore, the inevitable conclusion is that the
appellants knowingly induced Cuddy to violate his contract with another person. But there is no
specific finding that the appellants knew the identity of the other party. So we must assume that they
did not know that Gilchrist was the person who had contracted for the film.

The appellants take the position that if the preliminary injunction had not been issued against them
they could have exhibited the film in their theater for a number of days beginning May 26, and could
have also subleased it to other theater owners in the nearby towns and, by so doing, could have
cleared, during the life of their contract with Cuddy, the amount claimed as damages. Taking this
view of the case, it will be unnecessary for us to inquire whether the mandatory injunction against
Cuddy was properly issued or not. No question is raised with reference to the issuance of that
injunction.

The right on the part of Gilchrist to enter into a contract with Cuddy for the lease of the film must be
fully recognized and admitted by all. That Cuddy was liable in an action for damages for the breach
of that contract, there can be no doubt. Were the appellants likewise liable for interfering with the
contract between Gilchrist and Cuddy, they not knowing at the time the identity of one of the
contracting parties? The appellants claim that they had a right to do what they did. The ground upon
which the appellants base this contention is, that there was no valid and binding contract between
Cuddy and Gilchrist and that, therefore, they had a right to compete with Gilchrist for the lease of the
film, the right to compete being a justification for their acts. If there had been no contract between
Cuddy and Gilchrist this defense would be tenable, but the mere right to compete could not justify
the appellants in intentionally inducing Cuddy to take away the appellee's contractual rights.

Chief Justice Wells in Walker vs. Cronin (107 Mass., 555), said: "Everyone has a right to enjoy the
fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be free from
malicious and wanton interference, disturbance or annoyance. If disturbance or loss come as a
result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless
some superior right by contract or otherwise is interfered with."

In Read vs. Friendly Society of Operative Stonemasons ([1902] 2 K. B., 88), Darling, J., said: "I think
the plaintiff has a cause of action against the defendants, unless the court is satisfied that, when

48
they interfered with the contractual rights of plaintiff, the defendants had a sufficient justification for
their interference; . . . for it is not a justification that `they acted bona fide in the best interests of the
society of masons,' i. e., in their own interests. Nor is it enough that `they were not actuated by
improper motives.' I think their sufficient justification for interference with plaintiff's right must be an
equal or superior right in themselves, and that no one can legally excuse himself to a man, of whose
contract he has procured the breach, on the ground that he acted on a wrong understanding of his
own rights, or without malice, or bona fide, or in the best interests of himself, or even that he acted
as an altruist, seeking only good of another and careless of his own advantage." (Quoted with
approval in Beekman vs. Marsters, 195 Mass., 205.)

It is said that the ground on which the liability of a third party for interfering with a contract between
others rests, is that the interference was malicious. The contrary view, however, is taken by the
Supreme Court of the United States in the case of Angle vs. Railway Co. (151 U. S., 1). The only
motive for interference by the third party in that case was the desire to make a profit to the injury of
one of the parties of the contract. There was no malice in the case beyond the desire to make an
unlawful gain to the detriment of one of the contracting parties.

In the case at bar the only motive for the interference with the Gilchrist — Cuddy contract on the part
of the appellants was a desire to make a profit by exhibiting the film in their theater. There was no
malice beyond this desire; but this fact does not relieve them of the legal liability for interfering with
that contract and causing its breach. It is, therefore, clear, under the above authorities, that they
were liable to Gilchrist for the damages caused by their acts, unless they are relieved from such
liability by reason of the fact that they did not know at the time the identity of the original lessee
(Gilchrist) of the film.

The liability of the appellants arises from unlawful acts and not from contractual obligations, as they
were under no such obligations to induce Cuddy to violate his contract with Gilchrist. So that if the
action of Gilchrist had been one for damages, it would be governed by chapter 2, title 16, book 4 of
the Civil Code. Article 1902 of that code provides that a person who, by act or omission, causes
damages to another when there is fault or negligence, shall be obliged to repair the damage do
done. There is nothing in this article which requires as a condition precedent to the liability of a tort-
feasor that he must know the identity of a person to whom he causes damages. In fact, the chapter
wherein this article is found clearly shows that no such knowledge is required in order that the
injured party may recover for the damage suffered.

But the fact that the appellants' interference with the Gilchrist contract was actionable did not of itself
entitle Gilchrist to sue out an injunction against them. The allowance of this remedy must be justified
under section 164 of the Code of Civil Procedure, which specifies the circumstance under which an
injunction may issue. Upon the general doctrine of injunction we said in Devesa vs. Arbes (13 Phil.
Rep., 273):

An injunction is a "special remedy" adopted in that code (Act No. 190) from American
practice, and originally borrowed from English legal procedure, which was there issued by
the authority and under the seal of a court of equity, and limited, as in order cases where
equitable relief is sought, to cases where there is no "plain, adequate, and complete remedy
at law," which "will not be granted while the rights between the parties are undetermined,
except in extraordinary cases where material and irreparable injury will be done," which
cannot be compensated in damages, and where there will be no adequate remedy,and
which will not, as a rule, be granted, to take property out of the possession of one party and
put it into that of another whose title has not been established by law.

49
We subsequently affirmed the doctrine of the Devesa case in Palafox vs. Madamba (19 Phil., Rep.,
444), and we take this occasion of again affirming it, believing, as we do, that the indiscriminate use
of injunctions should be discouraged.

Does the fact that the appellants did not know at the time the identity of the original lessee of the film
militate against Gilchrist's right to a preliminary injunction, although the appellant's incurred civil
liability for damages for such interference? In the examination of the adjudicated cases, where in
injunctions have been issued to restrain wrongful interference with contracts by strangers to such
contracts, we have been unable to find any case where this precise question was involved, as in all
of those cases which we have examined, the identity of both of the contracting parties was known to
the tort-feasors. We might say, however, that this fact does not seem to have a controlling feature in
those cases. There is nothing in section 164 of the Code of Civil Procedure which indicates, even
remotely, that before an injunction may issue restraining the wrongful interference with contrast by
strangers, the strangers must know the identity of both parties. It would seem that this is not
essential, as injunctions frequently issue against municipal corporations, public service corporations,
public officers, and others to restrain the commission of acts which would tend to injuriously affect
the rights of person whose identity the respondents could not possibly have known beforehand. This
court has held that in a proper case injunction will issue at the instance of a private citizen to
restrain ultra vires acts of public officials. (Severino vs. Governor-General, 16 Phil. Rep., 366.) So we
proceed to the determination of the main question of whether or not the preliminary injunction ought
to have been issued in this case.

As a rule, injunctions are denied to those who have an adequate remedy at law. Where the choice is
between the ordinary and the extraordinary processes of law, and the former are sufficient, the rule
will not permit the use of the latter. (In re Debs, 158 U. S., 564.) If the injury is irreparable, the
ordinary process is inadequate. In Wahle vs.Reinbach (76 Ill., 322), the supreme court of Illinois
approved a definition of the term "irreparable injury" in the following language: "By `irreparable injury'
is not meant such injury as is beyond the possibility of repair, or beyond possible compensation in
damages, nor necessarily great injury or great damage, but that species of injury, whether great or
small, that ought not to be submitted to on the one hand or inflicted on the other; and, because it is
so large on the one hand, or so small on the other, is of such constant and frequent recurrence that
no fair or reasonable redress can be had therefor in a court of law." (Quoted with approval in
Nashville R. R. Co.vs. McConnell, 82 Fed., 65.)

The case at bar is somewhat novel, as the only contract which was broken was that between Cuddy
and Gilchrist, and the profits of the appellee depended upon the patronage of the public, for which it
is conceded the appellants were at liberty to complete by all fair does not deter the application of
remarked in the case of the "ticket scalpers" (82 Fed., 65), the novelty of the facts does not deter the
application of equitable principles. This court takes judicial notice of the general character of a
cinematograph or motion-picture theater. It is a quite modern form of the play house, wherein, by
means of an apparatus known as a cinematograph or cinematograph, a series of views representing
closely successive phases of a moving object, are exhibited in rapid sequence, giving a picture
which, owing to the persistence of vision, appears to the observer to be in continuous motion. (The
Encyclopedia Britanica, vol. 6, p. 374.) The subjects which have lent themselves to the art of the
photographer in this manner have increased enormously in recent years, as well as have the places
where such exhibition are given. The attendance, and, consequently, the receipts, at one of these
cinematograph or motion-picture theaters depends in no small degree upon the excellence of the
photographs, and it is quite common for the proprietor of the theater to secure an especially
attractive exhibit as his "feature film" and advertise it as such in order to attract the public. This
feature film is depended upon to secure a larger attendance that if its place on the program were
filled by other films of mediocre quality. It is evident that the failure to exhibit the feature film will
reduce the receipts of the theater.

50
Hence, Gilchrist was facing the immediate prospect of diminished profits by reason of the fact that
the appellants had induced Cuddy to rent to them the film Gilchrist had counted upon as his feature
film. It is quite apparent that to estimate with any decree of accuracy the damages which Gilchrist
would likely suffer from such an event would be quite difficult if not impossible. If he allowed the
appellants to exhibit the film in Iloilo, it would be useless for him to exhibit it again, as the desire of
the public to witness the production would have been already satisfied. In this extremity, the appellee
applied for and was granted, as we have indicated, a mandatory injunction against Cuddy requiring
him to deliver the Zigomar to Gilchrist, and a preliminary injunction against the appellants restraining
them from exhibiting that film in their theater during the weeks he (Gilchrist) had a right to exhibit it.
These injunction saved the plaintiff harmless from damages due to the unwarranted interference of
the defendants, as well as the difficult task which would have been set for the court of estimating
them in case the appellants had been allowed to carry out their illegal plans. As to whether or not the
mandatory injunction should have been issued, we are not, as we have said, called upon to
determine. So far as the preliminary injunction issued against the appellants is concerned, which
prohibited them from exhibiting the Zigomar during the week which Gilchrist desired to exhibit it, we
are of the opinion that the circumstances justified the issuance of that injunction in the discretion of
the court.

We are not lacking in authority to support our conclusion that the court was justified in issuing the
preliminary injunction against the appellants. Upon the precise question as to whether injunction will
issue to restrain wrongful interference with contracts by strangers to such contracts, it may be said
that courts in the United States have usually granted such relief where the profits of the injured
person are derived from his contractual relations with a large and indefinite number of individuals,
thus reducing him to the necessity of proving in an action against the tort-feasor that the latter was
responsible in each case for the broken contract, or else obliging him to institute individual suits
against each contracting party and so exposing him to a multiplicity of suits. Sperry & Hutchinson
Co. vs. Mechanics' Clothing Co. (128 Fed., 800); Sperry & Hutchinson Co. vs. Louis Weber & Co.
(161 Fed., 219); Sperry & Hutchinson Co. vs. Pommer (199 Fed., 309); were all cases wherein the
respondents were inducing retail merchants to break their contracts with the company for the sale of
the latters' trading stamps. Injunction issued in each case restraining the respondents from
interfering with such contracts.

In the case of the Nashville R. R. Co. vs. McConnell (82 Fed., 65), the court, among other things,
said: "One who wrongfully interferes in a contract between others, and, for the purpose of gain to
himself induces one of the parties to break it, is liable to the party injured thereby; and his continued
interference may be ground for an injunction where the injuries resulting will be irreparable."

In Hamby & Toomer vs. Georgia Iron & Coal Co. (127 Ga., 792), it appears that the respondents
were interfering in a contract for prison labor, and the result would be, if they were successful, the
shutting down of the petitioner's plant for an indefinite time. The court held that although there was
no contention that the respondents were insolvent, the trial court did not abuse its discretion in
granting a preliminary injunction against the respondents.

In Beekman vs. Marsters (195 Mass., 205), the plaintiff had obtained from the Jamestown Hotel
Corporation, conducting a hotel within the grounds of the Jamestown Exposition, a contract whereby
he was made their exclusive agent for the New England States to solicit patronage for the hotel. The
defendant induced the hotel corporation to break their contract with the plaintiff in order to allow him
to act also as their agent in the New England States. The court held that an action for damages
would not have afforded the plaintiff adequate relief, and that an injunction was proper compelling
the defendant to desist from further interference with the plaintiff's exclusive contract with the hotel
company.

51
In Citizens' Light, Heat & Power Co. vs. Montgomery Light & Water Power Co. (171 Fed., 553), the
court, while admitting that there are some authorities to the contrary, held that the current authority in
the United States and England is that:

The violation of a legal right committed knowingly is a cause of action, and that it is a
violation of a legal right to interfere with contractual relations recognized by law, if there be
no sufficient justification for the interference. (Quinn vs. Leatham, supra, 510;
Angle vs. Chicago, etc., Ry. Co., 151 U. S., 1; 14 Sup. Ct., 240; 38 L. Ed., 55;
Martens vs. Reilly, 109 Wis., 464, 84 N. W., 840; Rice vs. Manley, 66 N. Y., 82; 23 Am. Rep.,
30; Bitterman vs. L. & N. R. R. Co., 207 U. S., 205; 28 Sup. Ct., 91; 52 L. Ed., 171;
Beekman vs.Marsters, 195 Mass., 205; 80 N. E., 817; 11 L. R. A. [N. S.] 201; 122 Am. St.
Rep., 232; South Wales Miners' Fed. vs. Glamorgan Coal Co., Appeal Cases, 1905, p. 239.)

See also Nims on Unfair Business Competition, pp. 351- 371.

In 3 Elliot on Contracts, section 2511, it is said: "Injunction is the proper remedy to prevent a
wrongful interference with contract by strangers to such contracts where the legal remedy is
insufficient and the resulting injury is irreparable. And where there is a malicious interference with
lawful and valid contracts a permanent injunction will ordinarily issue without proof of express malice.
So, an injunction may be issued where the complainant to break their contracts with him by agreeing
to indemnify who breaks his contracts of employment may be adjoined from including other
employees to break their contracts and enter into new contracts with a new employer of the servant
who first broke his contract. But the remedy by injunction cannot be used to restrain a legitimate
competition, though such competition would involve the violation of a contract. Nor will equity
ordinarily enjoin employees who have quit the service of their employer from attempting by proper
argument to persuade others from taking their places so long as they do not resort to force or
intimidations on obstruct the public thoroughfares."

Beekman vs. Marster, supra, is practically on all fours with the case at bar in that there was only one
contract in question and the profits of the injured person depended upon the patronage of the public.
Hamby & Toomer vs.Georgia Iron & Coal Co., supra, is also similar to the case at bar in that there
was only one contract, the interference of which was stopped by injunction.

For the foregoing reasons the judgment is affirmed, with costs, against the appellants.

Arellano, C.J., Torres, Carson and Araullo, JJ., concur.

Res Ipsa Loquitur; Medical

Negligence Cases
Once again, the SC in Dr. Milagros Cantre v. Sps. Go, G.R. No. 160889, April 27, 2007, had the
occasion to say that the Hippocratic Oath mandates physicians to give primordial consideration
to the well-being of their patients. If a doctor fails to live up to this precept, he is accountable for
his acts. This notwithstanding, courts face a unique restraint in adjudicating medical negligence
cases because physicians are not guarantors of case and, they never set out to intentionally cause

52
injury to their patients. However, intent is immaterial in negligence cases because where
negligence exists and is proven, it automatically gives the injured a right to reparation for the
damage caused. (Ramos v. CA, G.R. No. 124354, December 29, 1999, 321 SCRA 584).

In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence
of an injury to justify a presumption of negligence on the part of the person who controls the
instrument causing the injury, provided that the following requisites concur:

1. The accident is of a kind which ordinarily does not occur in the absence of someone’s
negligence;

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

and

3. the possibility of contributing conduct would make the plaintiff responsible is eliminated.

In this case, a woman gave birth. Due to the operation, there was profuse bleeding inside her
womb, hence, the doctors performed various medical procedures. Her blood pressure was
monitored with the use of a sphygmomamometer. It was observed later on that there was a fresh
gaping wound in the inner portion of her left arm. The NBI-Medico Legal found out that it
appeared to be a burn resulting in the placing of a droplight near her skin. Despite surgical
operation, there was an unsightly mark in her left arm and the pain remained and her movements
were restricted. A complaint was filed praying for damages where the RTC rendered judgment
holding the doctor liable. The CA affirmed, but modified the judgment. On appeal to the SC it
was contended that the wound was not caused by the droplight but by the constant taking of her
blood pressure.

The SC said that, that is immaterial. The medical practice is to deflate the blood pressure cuff
immediately after each use. Otherwise, the inflated band can cause injury to the patient similar to
what could have happened in this case. Thus, if the wound was caused by the blood pressure
cuff, then the taking of the blood pressure must have been done so negligently as to have
inflicted a gaping wound on her arm, for which the defendant cannot escape liability under the
“captain of the ship” doctrine.

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

Based on the foregoing, the presumption that defendant was negligent in the exercise of her
profession stands unrebutted. In this connection, the Civil Code provides:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done…

ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and

53
similar injury. Though incapable of pecuniary computation, moral damages may be
recovered if they are the proximate result of the defendant’s wrongful act or omission.

Clearly, under the law, the defendant is obliged to pay plaintiff for moral damages suffered by the
latter as a proximate result of her negligence.

On the presumption of negligence under the principle of res ipsa loquitur, the SC in applying the
requirements of the rule said:

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

Second, whether the injury was caused by the droplight or by the blood pressure cuff is of no
moment. Both instruments are deemed within the exclusive control of the physician in charge
under the “captain of the ship” doctrine. This doctrine holds the surgeon in charge of an
operation liable for the negligence of his assistants during the time when those assistants are
under the surgeon’s control. (Black Law Dictionary, 192 (5th ed., 1979). In this particular case, it
can be logically inferred that defendant, the senior consultant in charge during the delivery of the
baby, exercised control over the assistants assigned to both the use of the droplight and the taking
of the plaintiff’s blood pressure. Hence, the use of the droplight and the blood pressure cuff is
also within her exclusive control.

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

The defense that the wound was caused not by the droplight but by the constant taking of her
blood pressure, even if the latter was necessary given her condition, does not absolve her from
liability.

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, DE LOS SANTOS MEDICAL CENTER,
DR. ORLINO HOSAKA and DR. PERFECTA
GUTIERREZ, respondents.

R E S O LUTIO N

54
KAPUNAN, J.:

Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr.
Perfecta Gutierrez move for a reconsideration of the Decision, dated December 29,
1999, of this Court holding them civilly liable for petitioner Erlinda Ramos comatose
condition after she delivered herself to them for their professional care and
management.
For better understanding of the issues raised in private respondents respective
motions, we will briefly restate the facts of the case as follows:
Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical
help, was advised to undergo an operation for the removal of a stone in her gall
bladder (cholecystectomy). She was referred to Dr. Hosaka, a surgeon, who agreed to
perform the operation on her. The operation was scheduled for June 17, 1985 at 9:00
in the morning at private respondent De Los Santos Medical Center (DLSMC). Since
neither petitioner Erlinda nor her husband, petitioner Rogelio, knew of any
anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez.
Petitioner Erlinda was admitted to the DLSMC the day before the scheduled
operation. By 7:30 in the morning of the following day, petitioner Erlinda was already
being prepared for operation. Upon the request of petitioner Erlinda, her sister-in-law,
Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical
Center, was allowed to accompany her inside the operating room.
At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez
tried to get in touch with him by phone. Thereafter, Dr. Gutierrez informed Cruz that
the operation might be delayed due to the late arrival of Dr. Hosaka. In the meantime,
the patient, petitioner Erlinda said to Cruz, Mindy, inip na inip na ako, ikuha mo ako
ng ibang Doctor.
By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner
Rogelio already wanted to pull out his wife from the operating room. He met Dr.
Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr. Hosaka
finally arrived at the hospital at around 12:10 in the afternoon, or more than three (3)
hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard about Dr. Hosakas
arrival. While she held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate
the patient. Cruz heard Dr. Gutierrez utter: ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan. Cruz noticed a bluish discoloration of Erlindas
nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct someone to call
Dr. Calderon, another anesthesiologist. When he arrived, Dr. Calderon attempted to
intubate the patient. The nailbeds of the patient remained bluish, thus, she was placed
in a trendelenburg position a position where the head of the patient is placed in a
55
position lower than her feet. At this point, Cruz went out of the operating room to
express her concern to petitioner Rogelio that Erlindas operation was not going well.
Cruz quickly rushed back to the operating room and saw that the patient was still
in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda being
wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner Rogelio
that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was
released from the hospital only four months later or on November 15, 1985. Since the
ill-fated operation, Erlinda remained in comatose condition until she died on August 3,
1999.[1]
Petitioners filed with the Regional Trial Court of Quezon City a civil case for
damages against private respondents. After due trial, the court a quorendered
judgment in favor of petitioners. Essentially, the trial court found that private
respondents were negligent in the performance of their duties to Erlinda. On appeal by
private respondents, the Court of Appeals reversed the trial courts decision and
directed petitioners to pay their unpaid medical bills to private respondents.
Petitioners filed with this Court a petition for review on certiorari. The private
respondents were then required to submit their respective comments thereon. On
December 29, 1999, this Court promulgated the decision which private respondents
now seek to be reconsidered. The dispositive portion of said Decision states:

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
exemplary damages and attorneys fees; and 5) the costs of the suit. [2]

In his Motion for Reconsideration, private respondent Dr. Hosaka submits the
following as grounds therefor:
I

THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE

ERROR WHEN IT HELD RESPONDENT DR. HOSAKA LIABLE ON THE
BASIS OF THE CAPTAIN-OF-THE-SHIP DOCTRINE.
II

56
 THE HONORABLE SUPREME COURT ERRED IN HOLDING
RESPONDENT DR. HOSAKA LIABLE DESPITE THE FACT THAT NO
NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.
III

ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR.

HOSAKA IS LIABLE, THE HONORABLE SUPREME COURT ERRED IN
AWARDING DAMAGES THAT WERE CLEARLY EXCESSIVE AND
WITHOUT LEGAL BASIS.[3]

Private respondent Dr. Gutierrez, for her part, avers that:

A. THE HONORABLE SUPREME COURT MAY HAVE

INADVERTENTLY OVERLOOKED THE FACT THAT THE COURT OF
APPEALS DECISION DATED 29 MAY 1995 HAD ALREADY BECOME
FINAL AND EXECUTORY AS OF 25 JUNE 1995, THEREBY
DEPRIVING THIS HONORABLE COURT OF JURISDICTION OVER
THE INSTANT PETITION;

B. THE HONORABLE SUPREME COURT MAY HAVE

INADVERTENTLY OVERLOOKED SEVERAL MATERIAL FACTUAL
CIRCUMSTANCES WHICH, IF PROPERLY CONSIDERED, WOULD
INDUBITABLY LEAD TO NO OTHER CONCLUSION BUT THAT
PRIVATE RESPONDENT DOCTORS WERE NOT GUILTY OF ANY
NEGLIGENCE IN RESPECT OF THE INSTANT CASE;

B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY

DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF
OF HER COMPLIANCE WITH THE STANDARDS OF DUE CARE
EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL
SPECIALIZATION.
B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY
DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF
OF HER HAVING SUCCESSFULLY INTUBATED PATIENT ERLINDA
RAMOS

C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED

TOO MUCH RELIANCE ON THE TESTIMONY OF PETITIONERS
WITNESS HERMINDA CRUZ, DESPITE THE EXISTENCE OF
SEVERAL FACTUAL CIRCUMSTANCES WHICH RENDERS DOUBT
ON HER CREDIBILITY

57
 D. THE SUPREME COURT MAY HAVE INADVERTENTLY
DISREGARDED THE EXPERT TESTIMONY OF DR. JAMORA AND
DRA. CALDERON

E. THE HONORABLE SUPREME COURT MAY HAVE

INADVERTENTLY AWARDED DAMAGES TO PETITIONERS DESPITE
THE FACT THAT THERE WAS NO NEGLIGENCE ON THE PART OF
RESPONDENT DOCTOR.[4]

Private respondent De Los Santos Medical Center likewise moves for

reconsideration on the following grounds:
I

THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE

INSTANT PETITION AS THE DECISION OF THE HONORABLE COURT
OF APPEALS HAD ALREADY BECOME FINAL AND EXECUTORY
II

THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN

EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS BETWEEN
RESPONDENT DE LOS SANTOS MEDICAL CENTER AND DRS.
ORLINO HOSAKA AND PERFECTA GUTIERREZ
III

THE HONORABLE SUPREME COURT ERRED IN FINDING THAT

RESPONDENT DE LOS SANTOS MEDICAL CENTER IS SOLIDARILY
LIABLE WITH RESPONDENT DOCTORS
IV

THE HONORABLE SUPREME COURT ERRED IN INCREASING THE

AWARD OF DAMAGES IN FAVOR OF PETITIONERS.[5]

In the Resolution of February 21, 2000, this Court denied the motions for
reconsideration of private respondents Drs. Hosaka and Gutierrez. They then filed
their respective second motions for reconsideration. The Philippine College of
Surgeons filed its Petition-in-Intervention contending in the main that this Court erred
in holding private respondent Dr. Hosaka liable under the captain of the ship
doctrine. According to the intervenor, said doctrine had long been abandoned in the
United States in recognition of the developments in modern medical and hospital
practice.[6] The Court noted these pleadings in the Resolution of July 17, 2000. [7]
58
 On March 19, 2001, the Court heard the oral arguments of the parties, including
the intervenor. Also present during the hearing were the amicii curiae: Dr. Felipe A.
Estrella, Jr., Consultant of the Philippine Charity Sweepstakes, former Director of the
Philippine General Hospital and former Secretary of Health; Dr. Iluminada T.
Camagay, President of the Philippine Society of Anesthesiologists, Inc. and Professor
and Vice-Chair for Research, Department of Anesthesiology, College of Medicine-
Philippine General Hospital, University of the Philippines; and Dr. Lydia M. Egay,
Professor and Vice-Chair for Academics, Department of Anesthesiology, College of
Medicine-Philippine General Hospital, University of the Philippines.
The Court enumerated the issues to be resolved in this case as follows:
1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR
NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS LIABLE
FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS
LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED BY THEIR VISITING
CONSULTANT SURGEON AND ANESTHESIOLOGIST.[8]

We shall first resolve the issue pertaining to private respondent Dr. Gutierrez. She
maintains that the Court erred in finding her negligent and inholding that it was the
faulty intubation which was the proximate cause of Erlindas comatose condition. The
following objective facts allegedly negate a finding of negligence on her part: 1) That
the outcome of the procedure was a comatose patient and not a dead one; 2) That the
patient had a cardiac arrest; and 3) That the patient was revived from that cardiac
arrest.[9] In effect, Dr. Gutierrez insists that, contrary to the finding of this Court, the
intubation she performed on Erlinda was successful.
Unfortunately, Dr. Gutierrez claim of lack of negligence on her part is belied by
the records of the case. It has been sufficiently established that she failed to exercise
the standards of care in the administration of anesthesia on a patient. Dr. Egay
enlightened the Court on what these standards are:

x x x What are the standards of care that an anesthesiologist should do before we

administer anesthesia? The initial step is the preparation of the patient for surgery and
this is a pre-operative evaluation because the anesthesiologist is responsible for
determining the medical status of the patient, developing the anesthesia plan and
acquainting the patient or the responsible adult particularly if we are referring with the
patient or to adult patient who may not have, who may have some mental handicaps of
the proposed plans. We do pre-operative evaluation because this provides for an
opportunity for us to establish identification and personal acquaintance with the
patient. It also makes us have an opportunity to alleviate anxiety, explain techniques
and risks to the patient, given the patient the choice and establishing consent to

59
proceed with the plan. And lastly, once this has been agreed upon by all parties
concerned the ordering of pre-operative medications. And following this line at the
end of the evaluation we usually come up on writing, documentation is very important
as far as when we train an anesthesiologist we always emphasize this because we need
records for our protection, well, records. And it entails having brief summary of
patient history and physical findings pertinent to anesthesia, plan, organize as a
problem list, the plan anesthesia technique, the plan post operative, pain management
if appropriate, special issues for this particular patient. There are needs for special
care after surgery and if it so it must be written down there and a request must be
made known to proper authorities that such and such care is necessary. And the
request for medical evaluation if there is an indication. When we ask for a cardio-
pulmonary clearance it is not in fact to tell them if this patient is going to be fit for
anesthesia, the decision to give anesthesia rests on the anesthesiologist. What we ask
them is actually to give us the functional capacity of certain systems which maybe
affected by the anesthetic agent or the technique that we are going to use. But the
burden of responsibility in terms of selection of agent and how to administer it rest on
the anesthesiologist.[10]

The conduct of a preanesthetic/preoperative evaluation prior to an operation,

whether elective or emergency, cannot be dispensed with.[11] Such evaluation is
necessary for the formulation of a plan of anesthesia care suited to the needs of the
patient concerned.
Pre-evaluation for anesthesia involves taking the patients medical history,
reviewing his current drug therapy, conducting physical examination,
interpreting laboratory data, and determining the appropriate prescription of
preoperative medications as necessary to the conduct of anesthesia. [12]
Physical examination of the patient entails not only evaluating the patients central
nervous system, cardiovascular system and lungs but also the upper airway.
Examination of the upper airway would in turn include an analysis of the patients
cervical spine mobility, temporomandibular mobility, prominent central incisors,
deceased or artificial teeth, ability to visualize uvula and the thyromental distance. [13]
Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation
on Erlinda. As she herself admitted, she saw Erlinda for the first time on the day of
the operation itself, one hour before the scheduled operation. She auscultated[14] the
patients heart and lungs and checked the latters blood pressure to determine if Erlinda
was indeed fit for operation.[15] However, she did not proceed to examine the patients
airway. Had she been able to check petitioner Erlindas airway prior to the operation,
Dr. Gutierrez would most probably not have experienced difficulty in intubating the
former, and thus the resultant injury could have been avoided. As we have stated in
our Decision:

60
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first
time on the day of the operation itself, on 17 June 1985. Before this date, no prior
consultations with, or pre-operative evaluation of Erlinda was done by her. Until the
day of the operation, respondent Dra. Gutierrez was unaware of the physiological
make-up and needs of Erlinda. She was likewise not properly informed of the possible
difficulties she would face during the administration of anesthesia to
Erlinda. Respondent Dra. Gutierrez act of seeing her patient for the first time only an
hour before the scheduled operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the physicians centuries-old
Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a
clear indiciaof her negligence.[16]

Further, there is no cogent reason for the Court to reverse its finding that it was
the faulty intubation on Erlinda that caused her comatose condition.There is no
question that Erlinda became comatose after Dr. Gutierrez performed a medical
procedure on her. Even the counsel of Dr. Gutierrez admitted to this fact during the
oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this involves a comatose patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a comatose, a comatose after any other acts were done by Dr.
Gutierrez or comatose before any act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after some intervention, professional acts have been
done by Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a consequence of some acts performed by D. Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:

61
 An acts performed by her, is that not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.[17]

What is left to be determined therefore is whether Erlindas hapless condition was

due to any fault or negligence on the part of Dr. Gutierrez while she (Erlinda) was
under the latters care. Dr. Gutierrez maintains that the bronchospasm and cardiac
arrest resulting in the patients comatose condition was brought about by the
anaphylactic reaction of the patient to Thiopental Sodium (pentothal). [18] In the
Decision, we explained why we found Dr. Gutierrez theory unacceptable. In the first
place, Dr. Eduardo Jamora, the witness who was presented to support her (Dr.
Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an authority
on anesthesia practice and procedure and their complications. [19]
Secondly, there was no evidence on record to support the theory that Erlinda
developed an allergic reaction to pentothal. Dr. Camagay enlightened the Court as to
the manifestations of an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical terminology an allergic reaction is
something which is not usual response and it is further qualified by the release of a hormone
called histamine and histamine has an effect on all the organs of the body generally release
because the substance that entered the body reacts with the particular cell, the mass cell, and the
mass cell secretes this histamine. In a way it is some form of response to take away that which is
not mine, which is not part of the body. So, histamine has multiple effects on the body. So, one of
the effects as you will see you will have redness, if you have an allergy you will have tearing of
the eyes, you will have swelling, very crucial swelling sometimes of the larynges which is your
voice box main airway, that swelling may be enough to obstruct the entry of air to the trachea and
you could also have contraction, constriction of the smaller airways beyond the trachea, you see
you have the trachea this way, we brought some visual aids but unfortunately we do not have a
projector. And then you have the smaller airways, the bronchi and then eventually into the mass
of the lungs you have the bronchus. The difference is that these tubes have also in their walls
muscles and this particular kind of muscles is smooth muscle so, when histamine is released they
close up like this and that phenomenon is known as bronco spasm.However, the effects of
histamine also on blood vessels are different. They dilate blood vessel open up and the patient or
whoever has this histamine release has hypertension or low blood pressure to a point that the
patient may have decrease blood supply to the brain and may collapse so, you may have people
who have this.[20]

These symptoms of an allergic reaction were not shown to have been extant in
Erlindas case. As we held in our Decision, no evidence of stridor, skin reactions, or
wheezing some of the more common accompanying signs of an allergic reaction
appears on record. No laboratory data were ever presented to the court. [21]

62
 Dr. Gutierrez, however, insists that she successfully intubated Erlinda as
evidenced by the fact that she was revived after suffering from cardiac arrest. Dr.
Gutierrez faults the Court for giving credence to the testimony of Cruz on the matter
of the administration of anesthesia when she (Cruz), being a nurse, was allegedly not
qualified to testify thereon. Rather, Dr. Gutierrez invites the Courts attention to her
synopsis on what transpired during Erlindas intubation:
12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by slow IV. 02
was started by mask. After pentothal injection this was followed by IV injection of
Norcuron 4mg. After 2 minutes 02 was given by positive pressure for about one
minute. Intubation with endotracheal tube 7.5 m in diameter was done with slight
difficulty (short neck & slightly prominent upper teeth) chest was examined for
breath sounds & checked if equal on both sides. The tube was then anchored to the
mouth by plaster & cuff inflated. Ethrane 2% with 02 4 liters was given. Blood
pressure was checked 120/80 & heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02 given
alone. Cyanosis disappeared. Blood pressure and heart beats stable.
12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales all over the
chest. D_5%_H20 & 1 ampule of aminophyline by fast drip was started. Still the
cyanosis was persistent. Patient was connected to a cardiac monitor. Another
ampule of of [sic] aminophyline was given and solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac injection of
adrenalin was given & heart beat reappeared in less than one minute. Sodium
bicarbonate & another dose of solu cortef was given by IV. Cyanosis slowly
disappeared & 02 continuously given & assisted positive pressure. Laboratory
exams done (see results in chart).

Patient was transferred to ICU for further management. [22]

From the foregoing, it can be allegedly seen that there was no withdrawal
(extubation) of the tube. And the fact that the cyanosis allegedly disappeared after
pure oxygen was supplied through the tube proved that it was properly placed.
The Court has reservations on giving evidentiary weight to the entries purportedly
contained in Dr. Gutierrez synopsis. It is significant to note that the said record
prepared by Dr. Gutierrez was made only after Erlinda was taken out of the operating
room. The standard practice in anesthesia is that every single act that the
anesthesiologist performs must be recorded. In Dr. Gutierrez case, she could not
account for at least ten (10) minutes of what happened during the administration of
anesthesia on Erlinda. The following exchange between Dr. Estrella, one of the amicii
curiae, and Dr. Gutierrez is instructive:
DR. ESTRELLA
You mentioned that there were two (2) attempts in the intubation period?
DR. GUTIERREZ

63
 Yes.
Q There were two attempts. In the first attempt was the tube inserted or was the laryngoscope only
inserted, which was inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember right somewhere in the re-direct, a certain lawyer, you were
asked that you did a first attempt and the question was did you withdraw the tube? And you said
you never withdrew the tube, is that right?
A Yes.
Q Yes. And so if you never withdrew the tube then there was no, there was no insertion of the tube
during that first attempt. Now, the other thing that we have to settle here is when cyanosis
occurred, is it recorded in the anesthesia record when the cyanosis, in your recording when did
the cyanosis occur?
A (sic)
Q Is it a standard practice of anesthesia that whatever you do during that period or from the time of
induction to the time that you probably get the patient out of the operating room that every single
action that you do is so recorded in your anesthesia record?
A I was not able to record everything I did not have time anymore because I did that after the, when
the patient was about to leave the operating room. When there was second cyanosis already that
was the (interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started induction at 12:15?
A Yes, Your Honor.
Q And the first medication you gave was what?
A The first medication, no, first the patient was oxygenated for around one to two minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the resident physician to start giving the pentothal very slowly and that was
around one minute.
Q So, that is about 12:13 no, 12:15, 12:17?
A Yes, and then, after one minute another oxygenation was given and after (interrupted)
Q 12:18?
A Yes, and then after giving the oxygen we start the menorcure which is a relaxant. After that relaxant
(interrupted)
Q After that relaxant, how long do you wait before you do any manipulation?
A Usually you wait for two minutes or three minutes.

64
Q So, if our estimate of the time is accurate we are now more or less 12:19, is that right?
A Maybe.
Q 12:19. And at that time, what would have been done to this patient?
A After that time you examine the, if there is relaxation of the jaw which you push it downwards and
when I saw that the patient was relax because that monorcure is a relaxant, you cannot intubate
the patient or insert the laryngoscope if it is not keeping him relax. So, my first attempt when I
put the laryngoscope on I saw the trachea was deeply interiorly. So, what I did ask mahirap ata ito
ah. So, I removed the laryngoscope and oxygenated again the patient.
Q So, more or less you attempted to do an intubation after the first attempt as you claimed that it was
only the laryngoscope that was inserted.
A Yes.
Q And in the second attempt you inserted the laryngoscope and now possible intubation?
A Yes.
Q And at that point, you made a remark, what remark did you make?
A I said mahirap ata ito when the first attempt I did not see the trachea right away. That was when I
(interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able to intubate right away within two to three seconds.
Q At what point, for purposes of discussion without accepting it, at what point did you make the
comment na mahirap ata to intubate, mali ata ang pinasukan
A I did not say mali ata ang pinasukan I never said that.
Q Well, just for the information of the group here the remarks I am making is based on the documents
that were forwarded to me by the Supreme Court. That is why for purposes of discussion I am
trying to clarify this for the sake of enlightenment. So, at what point did you ever make that
comment?
A Which one, sir?
Q The mahirap intubate ito assuming that you (interrupted)
A Iyon lang, that is what I only said mahirap intubate (interrupted)
Q At what point?
A When the first attempt when I inserted the laryngoscope for the first time.
Q So, when you claim that at the first attempt you inserted the laryngoscope, right?
A Yes.
Q But in one of the recordings somewhere at the, somewhere in the transcript of records that when the
lawyer of the other party try to inquire from you during the first attempt that was the time when

65
 mayroon ba kayong hinugot sa tube, I do not remember the page now, but it seems to me it is
there. So, that it was on the second attempt that (interrupted)
A I was able to intubate.
Q And this is more or less about what time 12:21?
A Maybe, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21 and looking at the anesthesia records from 12:20 to
12:30 there was no recording of the vital signs. And can we presume that at this stage there was
already some problems in handling the patient?
A Not yet.
Q But why are there no recordings in the anesthesia record?
A I did not have time.
Q Ah, you did not have time, why did you not have time?
A Because it was so fast, I really (at this juncture the witness is laughing)
Q No, I am just asking. Remember I am not here not to pin point on anybody I am here just to more or
less clarify certainty more ore less on the record.
A Yes, Sir.
Q And so it seems that there were no recording during that span of ten (10) minutes. From 12:20 to
12:30, and going over your narration, it seems to me that the cyanosis appeared ten (10) minutes
after induction, is that right?
A Yes.
Q And that is after induction 12:15 that is 12:25 that was the first cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going over the record ano,
kung mali ito kuwan eh di ano. So, ganoon po ano, that it seems to me that there is no recording
from 12:20 to 12:30, so, I am just wondering why there were no recordings during the period and
then of course the second cyanosis, after the first cyanosis. I think that was the time Dr. Hosaka
came in?
A No, the first cyanosis (interrupted).[23]

We cannot thus give full credence to Dr. Gutierrez synopsis in light of her
admission that it does not fully reflect the events that transpired during the
administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there was a
ten-minute gap in Dr. Gutierrez synopsis, i.e., the vital signs of Erlinda were not
recorded during that time. The absence of these data is particularly significant
because, as found by the trial court, it was the absence of oxygen supply for four (4)
to five (5) minutes that caused Erlindas comatose condition.

66
 On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As
we stated in the Decision, she is competent to testify on matters which she is capable
of observing such as, the statements and acts of the physician and surgeon, external
appearances and manifest conditions which are observable by any one. [24] Cruz,
Erlindas sister-in-law, was with her inside the operating room. Moreover, being a
nurse and Dean of the Capitol Medical Center School of Nursing at that, she is not
entirely ignorant of anesthetic procedure. Cruz narrated that she heard Dr. Gutierrez
remark, Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan. She observed that the nailbeds of Erlinda became bluish and thereafter Erlinda
was placed in trendelenburg position. [25] Cruz further averred that she noticed that the
abdomen of Erlinda became distended.[26]
The cyanosis (bluish discoloration of the skin or mucous membranes caused by
lack of oxygen or abnormal hemoglobin in the blood) and enlargement of the stomach
of Erlinda indicate that the endotracheal tube was improperly inserted into the
esophagus instead of the trachea.Consequently, oxygen was delivered not to the lungs
but to the gastrointestinal tract. This conclusion is supported by the fact that Erlinda
was placed in trendelenburg position. This indicates that there was a decrease of blood
supply to the patients brain. The brain was thus temporarily deprived of oxygen
supply causing Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not normally happen absent any
negligence in the administration of anesthesia and in the use of an endotracheal
tube. As was noted in our Decision, the instruments used in the administration of
anesthesia, including the endotracheal tube, were all under the exclusive control of
private respondents Dr. Gutierrez and Dr. Hosaka. [27] In Voss vs. Bridwell,[28] which
involved a patient who suffered brain damage due to the wrongful administration of
anesthesia, and even before the scheduled mastoid operation could be performed, the
Kansas SupremeCourt applied the doctrine of res ipsa loquitur, reasoning that the
injury to the patient therein was one which does not ordinarily take place in the
absence of negligence in the administration of an anesthetic, and in the use and
employment of an endotracheal tube. The court went on to say that [o]rdinarily a
person being put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in the absence of negligence. Upon these facts and
under these circumstances, a layman would be able to say, as a matter of common
knowledge and observation, that the consequences of professional treatment were not
as such as would ordinarily have followed if due care had been exercised.
[29]
Considering the application of the doctrine of res ipsa loquitur, the testimony of
Cruz was properly given credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court erred in finding him
negligent as a surgeon by applying the Captain-of-the-Ship doctrine. [30]Dr. Hosaka
argues that the trend in United States jurisprudence has been to reject said doctrine in

67
light of the developments in medical practice. He points out that anesthesiology and
surgery are two distinct and specialized fields in medicine and as a surgeon, he is not
deemed to have control over the acts of Dr. Gutierrez. As anesthesiologist, Dr.
Gutierrez is a specialist in her field and has acquired skills and knowledge in the
course of her training which Dr. Hosaka, as a surgeon, does not possess. [31] He states
further that current American jurisprudence on the matter recognizes that the trend
towards specialization in medicine has created situations where surgeons do not
always have the right to control all personnel within the operating room, [32]especially a
fellow specialist.[33]
Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital,[34] which
involved a suit filed by a patient who lost his voice due to the wrongful insertion of
the endotracheal tube preparatory to the administration of anesthesia in connection
with the laparotomy to be conducted on him. The patient sued both the
anesthesiologist and the surgeon for the injury suffered by him. The Supreme Court of
Appeals of West Virginia held that the surgeon could not be held liable for the loss of
the patients voice, considering that the surgeon did not have a hand in the intubation
of the patient. The court rejected the application of the Captain-of-the-Ship Doctrine,
citing the fact that the field of medicine has become specialized such that surgeons
can no longer be deemed as having control over the other personnel in the operating
room. It held that [a]n assignment of liability based on actual control more
realistically reflects the actual relationship which exists in a modern operating room.
[35]
Hence, only the anesthesiologist who inserted the endotracheal tube into the
patients throat was held liable for the injury suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away with the Captain-of-
the-Ship doctrine does not mean that this Court will ipso facto follow said trend. Due
regard for the peculiar factual circumstances obtaining in this case justify the
application of the Captain-of-the-Ship doctrine. From the facts on record it can be
logically inferred that Dr. Hosaka exercised a certain degree of, at the very least,
supervision over the procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the services of Dr.
Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez possessed the
necessary competence and skills. Drs. Hosaka and Gutierrez had worked together
since 1977. Whenever Dr. Hosaka performed a surgery, he would always engage the
services of Dr. Gutierrez to administer the anesthesia on his patient. [36]
Second, Dr. Hosaka himself admitted that he was the attending physician of
Erlinda. Thus, when Erlinda showed signs of cyanosis, it was Dr. Hosaka who gave
instructions to call for another anesthesiologist and cardiologist to help resuscitate
Erlinda.[37]

68
 Third, it is conceded that in performing their responsibilities to the patient, Drs.
Hosaka and Gutierrez worked as a team. Their work cannot be placed in separate
watertight compartments because their duties intersect with each other. [38]
While the professional services of Dr. Hosaka and Dr. Gutierrez were secured
primarily for their performance of acts within their respective fields of expertise for
the treatment of petitioner Erlinda, and that one does not exercise control over the
other, they were certainly not completely independent of each other so as to absolve
one from the negligent acts of the other physician.
That they were working as a medical team is evident from the fact that Dr. Hosaka
was keeping an eye on the intubation of the patient by Dr. Gutierrez, and while doing
so, he observed that the patients nails had become dusky and had to call Dr. Gutierrezs
attention thereto. The Court also notes that the counsel for Dr. Hosaka admitted that in
practice, the anesthesiologist would also have to observe the surgeons acts during the
surgical process and calls the attention of the surgeon whenever necessary [39] in the
course of the treatment. The duties of Dr. Hosaka and those of Dr. Gutierrez in the
treatment of petitioner Erlinda are therefore not as clear-cut as respondents claim them
to be. On the contrary, it is quite apparent that they have a common responsibility to
treat the patient, which responsibility necessitates that they call each others attention
to the condition of the patient while the other physician is performing the necessary
medical procedures.
It is equally important to point out that Dr. Hosaka was remiss in his duty of
attending to petitioner Erlinda promptly, for he arrived more than three (3) hours late
for the scheduled operation. The cholecystectomy was set for June 17, 1985 at 9:00
a.m., but he arrived at DLSMC only at around 12:10 p.m. In reckless disregard for his
patients well being, Dr. Hosaka scheduled two procedures on the same day, just thirty
minutes apart from each other, at different hospitals. Thus, when the first procedure
(protoscopy) at the Sta. Teresita Hospital did not proceed on time, Erlinda was kept in
a state of uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlindas scheduled operation subjected her to
continued starvation and consequently, to the risk of acidosis, [40]or the condition of
decreased alkalinity of the blood and tissues, marked by sickly sweet breath,
headache, nausea and vomiting, and visual disturbances. [41] The long period that Dr.
Hosaka made Erlinda wait for him certainly aggravated the anxiety that she must have
been feeling at the time. It could be safely said that her anxiety adversely affected the
administration of anesthesia on her. As explained by Dr. Camagay, the patients
anxiety usually causes the outpouring of adrenaline which in turn results in high blood
pressure or disturbances in the heart rhythm:
DR. CAMAGAY:

69
 x x x Pre-operative medication has three main functions: One is to alleviate anxiety. Second
is to dry up the secretions and Third is to relieve pain. Now, it is very important to alleviate
anxiety because anxiety is associated with the outpouring of certain substances formed in the
body called adrenalin. When a patient is anxious there is an outpouring of adrenalin which would
have adverse effect on the patient. One of it is high blood pressure, the other is that he opens
himself to disturbances in the heart rhythm, which would have adverse implications. So, we
would like to alleviate patients anxiety mainly because he will not be in control of his body there
could be adverse results to surgery and he will be opened up; a knife is going to open up his
body. x x x[42]

Dr. Hosaka cannot now claim that he was entirely blameless of what happened to
Erlinda. His conduct clearly constituted a breach of his professional duties to Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor, you were talking about anxiety, would you consider a
patient's stay on the operating table for three hours sufficient enough to aggravate or magnify his
or her anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that was the case, three hours waiting and
the patient was already on the operating table (interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon contributed to the aggravation of the anxiety of
the patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is already a source of anxiety and most
operating tables are very narrow and that patients are usually at risk of falling on the floor so
there are restraints that are placed on them and they are never, never left alone in the operating
room by themselves specially if they are already pre-medicated because they may not be aware of
some of their movement that they make which would contribute to their injury.
CHIEF JUSTICE:
In other words due diligence would require a surgeon to come on time?
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:

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 And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor.[43]

Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled
operation of petitioner Erlinda is violative, not only of his duty as a physician to serve
the interest of his patients with the greatest solicitude, giving them always his best
talent and skill,[44] but also of Article 19 of the Civil Code which requires a person, in
the performance of his duties, to act with justice and give everyone his due.
Anent private respondent DLSMCs liability for the resulting injury to petitioner
Erlinda, we held that respondent hospital is solidarily liable with respondent doctors
therefor under Article 2180 of the Civil Code[45] since there exists an employer-
employee relationship between private respondent DLSMC and Drs. Gutierrez and
Hosaka:

In other words, private hospitals, hire, fire and exercise real control over their
attending and visiting consultant staff. While consultants are not, technically
employees, 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. x x x [46]

DLSMC however contends that applying the four-fold test in determining whether
such a relationship exists between it and the respondent doctors, the inescapable
conclusion is that DLSMC cannot be considered an employer of the respondent
doctors.
It has been consistently held that in determining whether an employer-employee
relationship exists between the parties, the following elements must be present: (1)
selection and engagement of services; (2) payment of wages; (3) the power to hire and
fire; and (4) the power to control not only the end to be achieved, but the means to be
used in reaching such an end.[47]
DLSMC maintains that first, a hospital does not hire or engage the services of a
consultant, but rather, accredits the latter and grants him or her the privilege of
maintaining a clinic and/or admitting patients in the hospital upon a showing by the
consultant that he or she possesses the necessary qualifications, such as accreditation
by the appropriate board (diplomate), evidence of fellowship and references.
[48]
Second, it is not the hospital but the patient who pays the consultants fee for
services rendered by the latter.[49] Third, a hospital does not dismiss a consultant;
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instead, the latter may lose his or her accreditation or privileges granted by the
hospital.[50] Lastly, DLSMC argues that when a doctor refers a patient for admission in
a hospital, it is the doctor who prescribes the treatment to be given to said patient. The
hospitals obligation is limited to providing the patient with the preferred room
accommodation, the nutritional diet and medications prescribed by the doctor, the
equipment and facilities necessary for the treatment of the patient, as well as the
services of the hospital staff who perform the ministerial tasks of ensuring that the
doctors orders are carried out strictly.[51]
After a careful consideration of the arguments raised by DLSMC, the Court finds
that respondent hospitals position on this issue is meritorious. There is no employer-
employee relationship between DLSMC and Drs. Gutierrez and Hosaka which would
hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under
Article 2180 of the Civil Code.
As explained by respondent hospital, that the admission of a physician to
membership in DLSMCs medical staff as active or visiting consultant is first decided
upon by the Credentials Committee thereof, which is composed of the heads of the
various specialty departments such as the Department of Obstetrics and Gynecology,
Pediatrics, Surgery with the department head of the particular specialty applied for as
chairman. The Credentials Committee then recommends to DLSMC's Medical
Director or Hospital Administrator the acceptance or rejection of the applicant
physician, and said director or administrator validates the committee's
recommendation.[52] Similarly, in cases where a disciplinary action is lodged against a
consultant, the same is initiated by the department to whom the consultant concerned
belongs and filed with the Ethics Committee consisting of the department specialty
heads.The medical director/hospital administrator merely acts as ex-officio member of
said committee.
Neither is there any showing that it is DLSMC which pays any of its consultants
for medical services rendered by the latter to their respective patients. Moreover, the
contract between the consultant in respondent hospital and his patient is separate and
distinct from the contract between respondent hospital and said patient. The first has
for its object the rendition of medical services by the consultant to the patient, while
the second concerns the provision by the hospital of facilities and services by its staff
such as nurses and laboratory personnel necessary for the proper treatment of the
patient.
Further, no evidence was adduced to show that the injury suffered by petitioner
Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital
facilities and staff necessary for her treatment.
For these reasons, we reverse the finding of liability on the part of DLSMC for the
injury suffered by petitioner Erlinda.

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 Finally, the Court also deems it necessary to modify the award of damages to
petitioners in view of the supervening event of petitioner Erlindas death.In the
assailed Decision, the Court awarded actual damages of One Million Three Hundred
Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner
Erlindas treatment and care from the date of promulgation of the Decision up to the
time the patient expires or survives. [53] In addition thereto, the Court awarded
temperate damages of One Million Five Hundred Thousand Pesos (P1,500,000.00) in
view of the chronic and continuing nature of petitioner Erlindas injury and the
certainty of further pecuniary loss by petitioners as a result of said injury, the amount
of which, however, could not be made with certainty at the time of the promulgation
of the decision. The Court justified such award in this manner:

Our rules on actual or compensatory damages generally assume that at the time of
litigation, the injury suffered as a consequence of an act of negligence has been
completed and that the cost can be liquidated. However, these provisions neglect to
take into account those situations, as in this case, where the resulting injury might be
continuing and possible future complications directly arising from the injury, while
certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to
adequately and correctly respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved, up to the time of trial; and one
which would meet pecuniary loss certain to be suffered but which could not, from the
nature of the case, be made with certainty. In other words, temperate damages can and
should be awarded on top of actual or compensatory damages in instances where the
injury is chronic and continuing. And because of the unique nature of such cases, no
incompatibility ariseswhen both actual and temperate damages are provided for. The
reason is that these damages cover two distinct phases.

As it would not be equitableand certainly not in the best interests of the administration
of justicefor the victim in such cases to constantly come before the courts and invoke
their aid in seeking adjustments to the compensatory damages previously
awardedtemperate 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
73
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.[54]

However, subsequent to the promulgation of the Decision, the Court was informed
by petitioner Rogelio that petitioner Erlinda died on August 3, 1999. [55] In view of this
supervening event, the award of temperate damages in addition to the actual or
compensatory damages would no longer be justified since the actual damages
awarded in the Decision are sufficient to cover the medical expenses incurred by
petitioners for the patient. Hence, only the amounts representing actual, moral and
exemplary damages, attorneys fees and costs of suit should be awarded to petitioners.
WHEREFORE, the assailed Decision is hereby modified as follows:
(1) Private respondent De Los Santos Medical Center is hereby absolved from
liability arising from the injury suffered by petitioner Erlinda Ramos on June 17,
1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby
declared to be solidarily liable for the injury suffered by petitioner Erlinda on June 17,
1985 and are ordered to pay petitioners

(a) P1,352,000.00 as actual damages;

(b) P2,000,000.00 as moral damages;

(c) P100,000.00 as exemplary damages;

(d) P100,000.00 as attorneys fees; and

(e) the costs of the suit.

SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago, JJ., concur.

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