G.R. No.

L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of
P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From a judgment
of the Court of First Instance of the Province of La Union absolving the defendant from liability the
plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the
Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was
riding on his pony over said bridge. Before he had gotten half way across, the defendant approached from the
opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant
neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He continued his
course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that the man
on horseback before him was not observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed
by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing
on the right side of the bridge instead of going to the left. He says that the reason he did this was that he thought
he did not have sufficient time to get over to the other side. The bridge is shown to have a length of about 75
meters and a width of 4.80 meters. As the automobile approached, the defendant guided it toward his left, that
being the proper side of the road for the machine. In so doing the defendant assumed that the horseman would
move to the other side. The pony had not as yet exhibited fright, and the rider had made no sign for the
automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to the right
while yet some distance away or slowing down, continued to approach directly toward the horse without
diminution of speed. When he had gotten quite near, there being then no possibility of the horse getting across
to the other side, the defendant quickly turned his car sufficiently to the right to escape hitting the horse
alongside of the railing where it as then standing; but in so doing the automobile passed in such close proximity
to the animal that it became frightened and turned its body across the bridge with its head toward the railing. In
so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb was broken. The horse
fell and its rider was thrown off with some violence. From the evidence adduced in the case we believe that
when the accident occurred the free space where the pony stood between the automobile and the railing of the
bridge was probably less than one and one half meters. As a result of its injuries the horse died. The plaintiff
received contusions which caused temporary unconsciousness and required medical attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the manner above
described was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are
of the opinion that he is so liable. As the defendant started across the bridge, he had the right to assume that the
horse and the rider would pass over to the proper side; but as he moved toward the center of the bridge it was
demonstrated to his eyes that this would not be done; and he must in a moment have perceived that it was too
late for the horse to cross with safety in front of the moving vehicle. In the nature of things this change of
situation occurred while the automobile was yet some distance away; and from this moment it was not longer
within the power of the plaintiff to escape being run down by going to a place of greater safety. The control of
the situation had then passed entirely to the defendant; and it was his duty either to bring his car to an
immediate stop or, seeing that there were no other persons on the bridge, to take the other side and pass
sufficiently far away from the horse to avoid the danger of collision. Instead of doing this, the defendant ran
straight on until he was almost upon the horse. He was, we think, deceived into doing this by the fact that the
horse had not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that,
if the animal in question was unacquainted with automobiles, he might get exited and jump under the conditions
which here confronted him. When the defendant exposed the horse and rider to this danger he was, in our
opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the
defendant in doing the alleged negligent act use that person would have used in the same situation? If not, then
he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor in the situation before him. The law considers
what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and
determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of course be
always determined in the light of human experience and in view of the facts involved in the particular case.
Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable men
govern their conduct by the circumstances which are before them or known to them. They are not, and are not
supposed to be, omniscient of the future. Hence they can be expected to take care only when there is something
before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm
as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against
that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for
determining the existence of negligence in a given case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing conduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly
established. A prudent man, placed in the position of the defendant, would in our opinion, have recognized that
the course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the horse
and the rider as reasonable consequence of that course. Under these circumstances the law imposed on the
defendant the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was
also negligent; and in such case the problem always is to discover which agent is immediately and directly
responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these
circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do
so is chargeable with the consequences, without reference to the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held that while contributory negligence on the part of the person
injured did not constitute a bar to recovery, it could be received in evidence to reduce the damages which would
otherwise have been assessed wholly against the other party. The defendant company had there employed the
plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor to the company's yards
located not far away. The rails were conveyed upon cars which were hauled along a narrow track. At certain
spot near the water's edge the track gave way by reason of the combined effect of the weight of the car and the
insecurity of the road bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught
and broken. It appeared in evidence that the accident was due to the effects of the typhoon which had dislodged
one of the supports of the track. The court found that the defendant company was negligent in having failed to
repair the bed of the track and also that the plaintiff was, at the moment of the accident, guilty of contributory
negligence in walking at the side of the car instead of being in front or behind. It was held that while the
defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track in proper
repair nevertheless the amount of the damages should be reduced on account of the contributory negligence in
the plaintiff. As will be seen the defendant's negligence in that case consisted in an omission only. The liability
of the company arose from its responsibility for the dangerous condition of its track. In a case like the one now
before us, where the defendant was actually present and operating the automobile which caused the damage, we
do not feel constrained to attempt to weigh the negligence of the respective parties in order to apportion the
damage according to the degree of their relative fault. It is enough to say that the negligence of the defendant
was in this case the immediate and determining cause of the accident and that the antecedent negligence of the
plaintiff was a more remote factor in the case.

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

From what has been said it results that the judgment of the lower court must be reversed, and judgment is her
rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated to include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on the whole to the date of
this recovery. The other damages claimed by the plaintiff are remote or otherwise of such character as not to be
recoverable. So ordered.

G.R. No. 143008 June 10, 2002

SMITH BELL DODWELL SHIPPING AGENCY CORPORATION, petitioner,

vs.
CATALINO BORJA and INTERNATIONAL TO WAGE AND TRANSPORT CORPORATION,
respondents.

PANGANIBAN, J.:

The owner or the person in possession and control of a vessel is liable for all natural and proximate damages
caused to persons and property by reason of negligence in its management or navigation. The liability for the
loss of the earning capacity of the deceased is fixed by taking into account the net income of the victim at
the time of death -- of the incident in this case -- and that person's probable life expectancy.1âwphi1.nêt

The Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, challenging the March 6,
2000 Decision1 and the April 25, 2000 Resolution2 of the Court of Appeals3 (CA) in CA-GR CV No. 57470.
The assailed Decision disposed as follows:
 "WHEREFORE, premises considered, the instant appeal is hereby DENIED. The questioned decision of
the lower court is hereby AFFIRMED in toto. No pronouncement as to costs."4

Reconsideration was denied in the assailed Resolution.

The Facts

The facts of the case are set forth by the CA as follows:

"It appears that on September 23, 1987, Smith Bell [herein petitioner] filed a written request with the
Bureau of Customs for the attendance of the latter's inspection team on vessel M/T King Family which
was due to arrive at the port of Manila on September 24, 1987.

"Said vessel contained 750 metric tons of alkyl benzene and methyl methacrylate monomer.

"On the same day, Supervising Customs Inspector Manuel Ma. D. Nalgan instructed [Respondent
Catalino Borja] to board said vessel and perform his duties as inspector upon the vessel's arrival until its
departure. At that time, [Borja] was a customs inspector of the Bureau of Customs receiving a salary of
P31,188.25 per annum.

"At about 11 o'clock in the morning on September 24, 1987, while M/T King Family was unloading
chemicals unto two (2) barges [--] ITTC 101 and CLC-1002 [--] owned by [Respondent] ITTC, a sudden
explosion occurred setting the vessels afire. Upon hearing the explosion, [Borja], who was at that time
inside the cabin preparing reports, ran outside to check what happened. Again, another explosion was
heard.

"Seeing the fire and fearing for his life, [Borja] hurriedly jumped over board to save himself. However,
the [water] [was] likewise on fire due mainly to the spilled chemicals. Despite the tremendous heat,
[Borja] swam his way for one (1) hour until he was rescued by the people living in the squatters' area
and sent to San Juan De Dios Hospital.

"After weeks of intensive care at the hospital, his attending physician diagnosed [Borja] to be
permanently disabled due to the incident. [Borja] made demands against Smith Bell and ITTC for the
damages caused by the explosion. However, both denied liabilities and attributed to each other
negligence."5

The trial court6 (RTC) ruled in favor of Respondent Borja and held petitioner liable for damages and loss of
income. The RTC disposed as follows:

"WHEREFORE, premises considered, judgment is hereby rendered ordering [Petitioner] Smith Bell
Dodwell [S]hipping Agency Corporation to pay [Borja]:

1. The amount of P495,360.00 as actual damages for loss of earning capacity:

2. The amount of P100,000.00 for moral damages; and

3. The amount of P50,000.00 for and as reasonable attorney's fees.

"The cross-claim of [Petitioner] Smith Bell Dodwell Shipping Agency Corporation against co-defendant
International Towage and Transport Corporation and the latter's counterclaim against [Borja] and cross-
claim with compulsory counterclaim against Smith Bell are hereby ordered dismissed."7
Ruling of the Court of Appeals

Affirming the trial court, the CA rejected the plea of petitioner that it be exonerated from liability for
Respondent Borja's injuries. Contrary to the claim of petitioner that no physical evidence was shown to prove
that the explosion had originated from its vessel, the CA held that the fire had originated from M/T King
Family. This conclusion was amply supported by the testimonies of Borja and Eulogio Laurente (the eyewitness
of International Towage and Transport Corporation or ITTC) as well as by the investigation conducted by the
Special Board of Marine Inquiry and affirmed by the secretary of the Department of National Defense. On the
other hand, the RTC, which the CA sustained, had not given probative value to the evidence of petitioner,
whose sole eyewitness had not shown up for cross-examination.

Hence, this Petition.8

The Issues

In its Memorandum,9 petitioner raises the following issues:

"1. Whether petitioner should be held liable for the injuries of Respondent Catalino Borja.

"2. Whether Respondent ITTC should be held liable for the injuries of Respondent Catalino Borja.

"3. Assuming without admitting that Respondent Catalino Borja is entitled to damages, whether
Respondent Borja is entitled to the amount of damages awarded to him by the trial court." 10

Simply put, these issues can be summed up in these two questions: (1) Who, if any, is liable for Borja's injuries?
(2) What is the proper amount of liability?

This Court's Ruling

The Petition is partly meritorious.

First Issue:
Responsibility for Injuries

Petitioner avers that both lower courts labored under a misapprehension of the facts. It claims that the
documents adduced in the RTC conclusively revealed that the explosion that caused the fire on M/T King
Family had originated from the barge ITTC-101, a conclusion based on three grounds. First, the Survey Report
(Exh. "10") dated October 21, 1987 submitted by the Admiral Surveyors and Adjusters, Inc., showed that no
part of M/T King Family sustained any sharp or violent damage that would otherwise be observed if indeed an
explosion had occurred on it. On the other hand, the fact that the vessel sustained cracks on its shell plating was
noted in two Survey Reports from Greutzman Divers Underwater Specialist, dated October 6, 1987 (Exh. "11"),
and during the underwater inspection on the sunken barge ITTC-101.

Second, external fire damage on the hull of M/T King Family indicated that the fire had started from outside the
vessel and from ITTC-101. The port side of the vessel to which the ITTC barge was tied was completely gutted
by fire, while the starboard side to which the barge CLC-1002 was tied sustained only slight fire damage.

Third, testimonial evidence proved that the explosion came from the barge of the ITTC and not from its vessel.
Security Guard Vivencio Estrella testified that he had seen the sudden explosion of monomer on the barge with
fire that went up to about 60 meters. Third Mate Choi Seong Hwan and Second Mate Nam Bang Choun of M/T
King Family narrated that while they were discharging the chemicals, they saw and heard an explosion from the
barge ITTC-101. Chief Security Guard Reynaldo Patron, in turn, testified that he was 7 to 10 meters away from
the barge when he heard the explosion from the port side of M/T King Family and saw the barge already on fire.

We are not persuaded. Both the RTC and the CA ruled that the fire and the explosion had originated from
petitioner's vessel. Said the trial court:

"The attempts of [Petitioner] Smith Bell to shift the blame on x x x ITTC were all for naught. First, the
testimony of its alleged eyewitness was stricken off the record for his failure to appear for cross-
examination (p. 361, Record). Second, the documents offered to prove that the fire originated from
barge ITTC-101 were all denied admission by the [c]ourt for being, in effect, hearsay (pp. 335 and 362).
x x x Thus, there is nothing in the record to support [petitioner's] contention that the fire and explosion
originated from barge ITTC-101."11

We find no cogent reason to overturn these factual findings. Nothing is more settled in jurisprudence than that
this Court is bound by the factual findings of the Court of Appeals when these are supported by substantial
evidence and are not under any of the exceptions in Fuentes v. Court of Appeals;12 more so, when such findings
affirm those of the trial court.13 Verily, this Court reviews only issues of law.

Negligence is conduct that creates undue risk of harm to another. It is the failure to observe that degree of care,
precaution and vigilance that the circumstances justly demand, whereby that other person suffers injury.14
Petitioner's vessel was carrying chemical cargo -- alkyl benzene and methyl methacrylate monomer. 15 While
knowing that their vessel was carrying dangerous inflammable chemicals, its officers and crew failed to take all
the necessary precautions to prevent an accident. Petitioner was, therefore, negligent.

The three elements of quasi delict are: (a) damages suffered by the plaintiff, (b) fault or negligence of the
defendant, and (c) the connection of cause and effect between the fault or negligence of the defendant and the
damages inflicted on the plaintiff.16 All these elements were established in this case. Knowing fully well that it
was carrying dangerous chemicals, petitioner was negligent in not taking all the necessary precautions in
transporting the cargo.

As a result of the fire and the explosion during the unloading of the chemicals from petitioner's vessel,
Respondent Borja suffered the following damage: and injuries: "(1) chemical burns of the face and arms; (2)
inhalation of fumes from burning chemicals; (3) exposure to the elements [while] floating in sea water for about
three (3) hours; (4) homonymous hemianopsia or blurring of the right eye [which was of] possible toxic origin;
and (5) [c]erebral infract with neo-vascularization, left occipital region with right sided headache and the
blurring of vision of right eye."17

Hence, the owner or the person in possession and control of a vessel and the vessel are liable for all natural and
proximate damage caused to persons and property by reason of negligent management or navigation.18

Second Issue:
Amount of Liability

Petitioner insists that Borja is not entitled to the full amount of damages awarded by the lower courts. It disputes
the use of his gross earning as basis for the computation of the award for loss of earning capacity. Both courts,
in computing the value of such loss, used the remaining years of the victim as a government employee and the
amount he had been receiving per annum at the time of the incident.

Counsel for Respondent Borja, on the other hand, claims that petitioner had no cause to complain, because the
miscomputation had ironically been in its favor. The multiplier used in the computation was erroneously based
on the remaining years in government service, instead of the life expectancy, of the victim. Borja's counsel also
points out that the award was based on the former's meager salary in 1987, or about 23 years ago when the
foreign exchange was still P14 to $1. Hence, the questioned award is consistent with the primary purpose of
giving what is just, moral and legally due the victim as the aggrieved party.

Both parties have a point. In determining the reasonableness of the damages awarded under Article 1764 in
conjunction with Article 2206 of the Civil Code, the factors to be considered are: (1) life expectancy
(considering the health of the victim and the mortality table which is deemed conclusive) and loss of earning
capacity; (b) pecuniary loss, loss of support and service; and (c) moral and mental sufferings.19 The loss of
earning capacity is based mainly on the number of years remaining in the person's expected life span. In turn,
this number is the basis of the damages that shall be computed and the rate at which the loss sustained by the
heirs shall be fixed.20

The formula for the computation of loss of earning capacity is as follows: 21

Net earning capacity = Life expectancy x [Gross Annual Income - Living Expenses (50% of
gross annual income)], where life expectancy = 2/3 (80 - the age of the deceased).22

Petitioner is correct in arguing that it is net income (or gross income less living expenses) which is to be used in
the computation of the award for loss of income. Villa Rey Transit v. Court of Appeals23 explained that "the
amount recoverable is not the loss of the entire earning, but rather the loss of that portion of the earnings which
the beneficiary would have received." Hence, in fixing the amount of the said damages, the necessary expenses
of the deceased should be deducted from his earnings.

In other words, only net earnings, not gross earnings, are to be considered; that is, the total of the earnings less
expenses necessary in the creation of such earnings or income, less living and other incidental expenses. When
there is no showing that the living expenses constituted a smaller percentage of the gross income, we fix the
living expenses at half of the gross income. To hold that one would have used only a small part of the income,
with the larger part going to the support of one's children, would be conjectural and unreasonable. 24

Counsel for Respondent Borja is also correct in saying that life expectancy should not be based on the
retirement age of government employees, which is pegged at 65. In Negros Navigation Co, Inc. v. CA,25 the
Court resolved that in calculating the life expectancy of an individual for the purpose of determining loss of
earning capacity under Article 2206(1) of the Civil Code, it is assumed that the deceased would have earned
income even after retirement from a particular job.1âwphi1.nêt

Respondent Borja should not be situated differently just because he was a government employee. Private
employees, given the retirement packages provided by their companies, usually retire earlier than government
employees; yet, the life expectancy of the former is not pegged at 65 years.

Petitioner avers that Respondent Borja died nine years after the incident and, hence, his life expectancy of 80
years should yield to the reality that he was only 59 when he actually died.

We disagree. The Court uses the American Experience/Expectancy Table of Mortality or the Actuarial or
Combined Experience Table of Mortality, which consistently pegs the life span of the average Filipino at 80
years, from which it extrapolates the estimated income to be earned by the deceased had he or she not been
killed.26

Respondent Borja's demise earlier than the estimated life span is of no moment. For purposes of determining
loss of earning capacity, life expectancy remains at 80. Otherwise, the computation of loss of earning capacity
will never become final, being always subject to the eventuality of the victim's death. The computation should
not change even if Borja lived beyond 80 years. Fair is fair.

Based on the foregoing discussion, the award for loss of earning capacity should be computed as follows:
 Loss of earning = [2 (80-50)] x [(P2,752x12)-
capacity 16,512]
3

= P330,240

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

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

SO ORDERED.

G.R. No. 156034 October 1, 2003

DELSAN TRANSPORT LINES, INC., petitioner,

vs.
C & A construction, inc., respondent.

DECISION

YNARES-SANTIAGO, J.:

Assailed in this petition for review under Rule 45 of the Revised Rules of Court are the June 14, 2002 decision1
of the Court of Appeals in CA-G.R. CV No. 59034, which reversed the decision2 of the Regional Trial Court of
Manila, Branch 46, in Civil Case No. 95-75565, and its November 7, 2002 resolution3 denying petitioner’s
motion for reconsideration.

The undisputed facts reveal that respondent C & A Construction, Inc. was engaged by the National Housing
Authority (NHA) to construct a deflector wall at the Vitas Reclamation Area in Vitas, Tondo, Manila.4 The
project was completed in 1994 but it was not formally turned over to NHA.

On October 9, 1994, M/V Delsan Express, a ship owned and operated by petitioner Delsan Transport Lines,
Inc., anchored at the Navotas Fish Port for the purpose of installing a cargo pump and clearing the cargo oil
tank. At around 12:00 midnight of October 20, 1994, Captain Demetrio T. Jusep of M/V Delsan Express
received a report from his radio head operator in Japan5 that a typhoon was going to hit Manila6 in about eight
(8) hours.7 At approximately 8:35 in the morning of October 21, 1994, Capt. Jusep tried to seek shelter at the
North Harbor but could not enter the area because it was already congested.8 At 10:00 a.m., Capt. Jusep
decided to drop anchor at the vicinity of Vitas mouth, 4 miles away from a Napocor power barge. At that time,
the waves were already reaching 8 to 10 feet high. Capt. Jusep ordered his crew to go full ahead to counter the
wind which was dragging the ship towards the Napocor power barge. To avoid collision, Capt. Jusep ordered a
full stop of the vessel.9 He succeeded in avoiding the power barge, but when the engine was re-started and the
ship was maneuvered full astern, it hit the deflector wall constructed by respondent.10 The damage caused by
the incident amounted to P456,198.24.11

Respondent demanded payment of the damage from petitioner but the latter refused to pay. Consequently,
respondent filed a complaint for damages with the Regional Trial Court of Manila, Branch 46, which was
docketed as Civil Case No. 95-75565. In its answer, petitioner claimed that the damage was caused by a
fortuitous event.12

On February 13, 1998, the complaint filed by respondent was dismissed. The trial court ruled that petitioner was
not guilty of negligence because it had taken all the necessary precautions to avoid the accident. Applying the
"emergency rule", it absolved petitioner of liability because the latter had no opportunity to adequately weigh
the best solution to a threatening situation. It further held that even if the maneuver chosen by petitioner was a
wrong move, it cannot be held liable as the cause of the damage sustained by respondent was typhoon
"Katring", which is an act of God.13

On appeal to the Court of Appeals, the decision of the trial court was reversed and set aside.14 It found Capt.
Jusep guilty of negligence in deciding to transfer the vessel to the North Harbor only at 8:35 a.m. of October 21,
1994 and thus held petitioner liable for damages.

Hence, petitioner filed the instant petition contending that Capt. Jusep was not negligent in waiting until 8:35 in
the morning of October 21, 1994 before transferring the vessel to the North Harbor inasmuch as it was not
shown that had the transfer been made earlier, the vessel could have sought shelter.15 It further claimed that it
cannot be held vicariously liable under Article 2180 of the Civil Code because respondent failed to allege in the
complaint that petitioner was negligent in the selection and supervision of its employees.16 Granting that Capt.
Jusep was indeed guilty of negligence, petitioner is not liable because it exercised due diligence in the selection
of Capt. Jusep who is a duly licensed and competent Master Mariner.17

The issues to be resolved in this petition are as follows – (1) Whether or not Capt. Jusep was negligent; (2) If
yes, whether or not petitioner is solidarily liable under Article 2180 of the Civil Code for the quasi-delict
committed by Capt. Jusep?

Article 2176 of the Civil Code provides that whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict. The test for determining the existence of
negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act
use the reasonable care and caution which an ordinary prudent person would have used in the same situation? If
not, then he is guilty of negligence.18

In the case at bar, the Court of Appeals was correct in holding that Capt. Jusep was negligent in deciding to
transfer the vessel only at 8:35 in the morning of October 21, 1994. As early as 12:00 midnight of October 20,
1994, he received a report from his radio head operator in Japan19 that a typhoon was going to hit Manila20
after 8 hours.21 This, notwithstanding, he did nothing, until 8:35 in the morning of October 21, 1994, when he
decided to seek shelter at the North Harbor, which unfortunately was already congested. The finding of
negligence cannot be rebutted upon proof that the ship could not have sought refuge at the North Harbor even if
the transfer was done earlier. It is not the speculative success or failure of a decision that determines the
existence of negligence in the present case, but the failure to take immediate and appropriate action under the
circumstances. Capt. Jusep, despite knowledge that the typhoon was to hit Manila in 8 hours, complacently
waited for the lapse of more than 8 hours thinking that the typhoon might change direction.22 He cannot claim
that he waited for the sun to rise instead of moving the vessel at midnight immediately after receiving the report
because of the difficulty of traveling at night. The hour of 8:35 a.m. is way past sunrise. Furthermore, he did not
transfer as soon as the sun rose because, according to him, it was not very cloudy23 and there was no weather
disturbance yet.24

When he ignored the weather report notwithstanding reasonable foresight of harm, Capt. Jusep showed an
inexcusable lack of care and caution which an ordinary prudent person would have observed in the same
situation.25 Had he moved the vessel earlier, he could have had greater chances of finding a space at the North
Harbor considering that the Navotas Port where they docked was very near North Harbor.26 Even if the latter
was already congested, he would still have time to seek refuge in other ports.

The trial court erred in applying the emergency rule. Under this rule, one who suddenly finds himself in a place
of danger, and is required to act without time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may
appear to have been a better method, unless the danger in which he finds himself is brought about by his own
negligence.27 Clearly, the emergency rule is not applicable to the instant case because the danger where Capt.
Jusep found himself was caused by his own negligence.

Anent the second issue, we find petitioner vicariously liable for the negligent act of Capt. Jusep.1awphi1.nét
Under Article 2180 of the Civil Code an employer may be held solidarily liable for the negligent act of his
employee. Thus –

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

xxxxxxxxx

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

xxxxxxxxx

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

Whenever an employee’s negligence causes damage or injury to another, there instantly arises a presumption
juris tantum that the employer failed to exercise diligentissimi patris families in the selection (culpa in
eligiendo) or supervision (culpa in vigilando) of its employees. To avoid liability for a quasi-delict committed
by his employee, an employer must overcome the presumption by presenting convincing proof that he exercised
the care and diligence of a good father of a family in the selection and supervision of his employee. 28

There is no question that petitioner, who is the owner/operator of M/V Delsan Express, is also the employer of
Capt. Jusep who at the time of the incident acted within the scope of his duty. The defense raised by petitioner
was that it exercised due diligence in the selection of Capt. Jusep because the latter is a licensed and competent
Master Mariner. It should be stressed, however, that the required diligence of a good father of a family pertains
not only to the selection, but also to the supervision of employees. It is not enough that the employees chosen be
competent and qualified, inasmuch as the employer is still required to exercise due diligence in supervising its
employees.

In Fabre, Jr. v. Court of Appeals,29 it was held that due diligence in supervision requires the formulation of
rules and regulations for the guidance of employees and the issuance of proper instructions as well as actual
implementation and monitoring of consistent compliance with the rules. Corollarily, in Ramos v. Court of
Appeals,30 the Court stressed that once negligence on the part of the employees is shown, the burden of proving
that he observed the diligence in the selection and supervision of its employees shifts to the employer.

In the case at bar, however, petitioner presented no evidence that it formulated rules/guidelines for the proper
performance of functions of its employees and that it strictly implemented and monitored compliance therewith.
Failing to discharge the burden, petitioner should therefore be held liable for the negligent act of Capt. Jusep.
So also, petitioner cannot disclaim liability on the basis of respondent’s failure to allege in its complaint that the
former did not exercise due diligence in the selection and supervision of its employees. In Viron Transportation
Co., Inc. v. Delos Santos,31 it was held that it is not necessary to state that petitioner was negligent in the
supervision or selection of its employees, inasmuch as its negligence is presumed by operation of law.
Allegations of negligence against the employee and that of an employer-employee relation in the complaint are
enough to make out a case of quasi-delict under Article 2180 of the Civil Code.32

Considering that petitioner did not assail the damages awarded by the trial court, we find no reason to alter the
same. The interest imposed should, however, be modified. In Eastern Shipping Lines, Inc. v. Court of
Appeals,33 it was held that the rate of interest on obligations not constituting a loan or forbearance of money is
six percent (6%) per annum. If the purchase price can be established with certainty at the time of the filing of
the complaint, the six percent (6%) interest should be computed from the date the complaint was filed until
finality of the decision. After the judgment becomes final and executory until the obligation is satisfied, the
amount due shall earn interest at 12% per year, the interim period being deemed equivalent to a forbearance of
credit.34

Accordingly, the amount of P456,198.27 due the respondent shall earn 6% interest per annum from October 3,
1995 until the finality of this decision. If the adjudged principal and the interest (or any part thereof) remain
unpaid thereafter, the interest rate shall be twelve percent (12%) per annum computed from the time the
judgment becomes final and executory until it is fully satisfied.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED.1awphi1.nét The June 14, 2002
decision of the Court of Appeals in CA-G.R. CV No. 59034 ordering petitioner Delsan Transport Lines, Inc., to
pay respondent C & A Construction, Inc., damages in the amount of P456,198.27, plus P30,000.00 as attorney’s
fees, is AFFIRMED with the MODIFICATION that the award of P456,198.27 shall earn interest at the rate of
6% per annum from October 3, 1995, until finality of this decision, and 12% per annum thereafter on the
principal and interest (or any part thereof) until full payment.

SO ORDERED.

G.R. No. L-7664 August 29, 1958

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,

vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.

Tomas Tria Tirona for appellants.

Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.

BAUTISTA ANGELO, J.:

Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of P50,000 as
damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death of their son Dominador Ong
in one of the swimming pools operated by defendant.

Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers that his death
was caused by his own negligence or by unavoidable accident. Defendant also avers that it had exercised due
diligence in the selection of, and supervision over, its employees and that it had observed the diligence required
by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint without
pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because the amount involved
exceeds the sum of P50,000.

Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman, Quezon City, to
which people are invited and for which a nominal fee of P0.50 for adults and P0.20 for children is charged. The
main pool it between two small pools of oval shape known as the "Wading pool" and the "Beginners Pool."
There are diving boards in the big pools and the depths of the water at different parts are indicated by
appropriate marks on the wall. The care and supervision of the pools and the users thereof is entrusted to a
recreational section composed of Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards
who had taken the life-saving course given by the Philippine Red Cross at the YMCA in Manila. For the safety
of its patrons, defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a
resuscitator. There is also a sanitary inspector who is in charge of a clinic established for the benefit of the
patrons. Defendant has also on display in a conspicuous place certain rules and regulations governing the use of
the pools, one of which prohibits the swimming in the pool alone or without any attendant. Although defendant
does not maintain a full-time physician in the swimming pool compound, it has however a nurse and a sanitary
inspector ready to administer injections or operate the oxygen resuscitator if the need should arise.

In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school student and
boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools. This was not the first time
that the three brothers had gone to said natatorium for they had already been there four or five times before.
They arrived at the natatorium at about 1:45 p.m. After paying the requisite admission fee, they immediately
went to one of the small pools where the water was shallow. At about 4:35 p.m., Dominador Ong told his
brothers that he was going to the locker room in an adjoining building to drink a bottle of coke. Upon hearing
this, Ruben and Eusebio went to the bigger pool leaving Dominador in the small pool and so they did not see
the latter when he left the pool to get a bottle of coke. In that afternoon, there were two lifeguards on duty in the
pool compound, namely, Manuel Abaño and Mario Villanueva. The tour of duty of Abaño was from 8:00 to
12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30 a.m. and
from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty bathers inside the pool
area and Manuel Abaño was going around the pools to observe the bathers in compliance with the instructions
of his chief.

Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of Andres
Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy informed lifeguard
Manuel Abaño of the same happening and Abaño immediately jumped into the big swimming pool and
retrieved the apparently lifeless body of Dominador Ong from the bottom. The body was placed at the edge o f
the pool and Abaño immediately applied manual artificial respiration. Soon after, male nurse Armando Rule
came to render assistance, followed by sanitary inspector Iluminado Vicente who, after being called by phone
from the clinic by one of the security guards, boarded a jeep carrying with him the resuscitator and a medicine
kit, and upon arriving he injected the boy with camphorated oil. After the injection, Vicente left on a jeep in
order to fetch Dr. Ayuyao from the University of the Philippines. Meanwhile, Abaño continued the artificial
manual respiration, and when this failed to revive him, they applied the resuscitator until the two oxygen tanks
were exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the same became of no
use because he found the boy already dead. The doctor ordered that the body be taken to the clinic.

In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department of Quezon
City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave written statements. On the following
day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los Santos, Chief, Medico Legal Division,
National Bureau of Investigation, who found in the body of the deceased the following: an abrasion on the right
elbow lateral aspect; contusion on the right forehead; hematoma on the scalp, frontal region, right side; a
congestion in the brain with petechial subcortical hemorrhage, frontal lobe; cyanosis on the face and on the
nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood in the heart; congestion in the
visceral organs, and brownish fluid in the stomach. The death was due to asphyxia by submersion in water.

The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the negligence
of defendant and/or its employees so as to entitle plaintiffs to recover damages.

The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The first
article provides that "whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damages done." Such fault or negligence is called quasi-delict. Under the second article,
this obligation is demandable not only for one's own acts or omissions but also for those of persons for whom
one is responsible. In addition, we may quote the following authorities cited in the decision of the trial court:

"The rule is well settled that the owners of resorts to which people generally are expressly or by
implication invited are legally bound to exercise ordinary care and prudence in the management and
maintenance of such resorts, to the end of making them reasonably safe for visitors" (Larkin vs. Saltair
Beach Co., 30 Utah 86, 83 Pac. 686).

"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of ordinary
care in providing for his safety, without the fault of the patron, he is not, however, in any sense deemed
to be the insurer of the safety of patrons. And the death of a patron within his premises does not cast
upon him the burden of excusing himself from any presumption of negligence" (Bertalot vs. Kinnare. 72
Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot
vs. Kinnare, supra, it was held that there could be no recovery for the death by drowning of a fifteen-
year boy in defendant's natatorium, where it appeared merely that he was lastly seen alive in water at the
shallow end of the pool, and some ten or fifteen minutes later was discovered unconscious, and perhaps
lifeless, at the bottom of the pool, all efforts to resuscitate him being without avail.

Since the present action is one for damages founded on culpable negligence, the principle to be observed is that
the person claiming damages has the burden of proving that the damage is caused by the fault or negligence of
the person from whom the damage is claimed, or of one of his employees (Walter A. Smith & Co. vs.
Cadwallader Gibson Lumber Co., 55 Phil., 517). The question then that arises is: Have appellants established by
sufficient evidence the existence of fault or negligence on the part of appellee so as to render it liable for
damages for the death of Dominador Ong?

There is no question that appellants had striven to prove that appellee failed to take the necessary precaution to
protect the lives of its patrons by not placing at the swimming pools efficient and competent employees who
may render help at a moment's notice, and they ascribed such negligence to appellee because the lifeguard it had
on the occasion minor Ong was drowning was not available or was attending to something else with the result
that his help came late. Thus, appellants tried to prove through the testimony of Andres Hagad, Jr. and Ruben
Ong that when Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom of the big
swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abaño did not immediately respond to
the alarm and it was only upon the third call that he threw away the magazine he was reading and allowed three
or four minutes to elapse before retrieving the body from the water. This negligence of Abaño, they contend, is
attributable to appellee.

But the claim of these two witnesses not only was vehemently denied by lifeguard Abaño, but is belied by the
written statements given by them in the investigation conducted by the Police Department of Quezon City
approximately three hours after the happening of the accident. Thus, these two boys admitted in the
investigation that they narrated in their statements everything they knew of the accident, but, as found by the
trial, nowhere in said statements do they state that the lifeguard was chatting with the security guard at the gate
of the swimming pool or was reading a comic magazine when the alarm was given for which reason he failed to
immediately respond to the alarm. On the contrary, what Ruben Ong particularly emphasized therein was that
after the lifeguard heard the shouts for help, the latter immediately dived into the pool to retrieve the person
under water who turned out to be his brother. For this reason, the trial court made this conclusion: "The
testimony of Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abaño to immediately
respond to their call may therefore be disregarded because they are belied by their written statements.
(Emphasis supplied.)

On the other hand, there is sufficient evidence to show that appellee has taken all necessary precautions to avoid
danger to the lives of its patrons or prevent accident which may cause their death. Thus, it has been shown that
the swimming pools of appellee are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and a
first aid medicine kit. The bottom of the pools is painted with black colors so as to insure clear visibility. There
is on display in a conspicuous place within the area certain rules and regulations governing the use of the pools.
Appellee employs six lifeguards who are all trained as they had taken a course for that purpose and were issued
certificates of proficiency. These lifeguards work on schedule prepared by their chief and arranged in such a
way as to have two guards at a time on duty to look after the safety of the bathers. There is a male nurse and a
sanitary inspector with a clinic provided with oxygen resuscitator. And there are security guards who are
available always in case of emergency.

The record also shows that when the body of minor Ong was retrieved from the bottom of the pool, the
employees of appellee did everything possible to bring him back to life. Thus, after he was placed at the edge of
the pool, lifeguard Abaño immediately gave him manual artificial respiration. Soon thereafter, nurse Armando
Rule arrived, followed by sanitary inspector Iluminado Vicente who brought with him an oxygen resuscitator.
When they found that the pulse of the boy was abnormal, the inspector immediately injected him with
camphorated oil. When the manual artificial respiration proved ineffective they applied the oxygen resuscitator
until its contents were exhausted. And while all these efforts were being made, they sent for Dr. Ayuyao from
the University of the Philippines who however came late because upon examining the body he found him to be
already dead. All of the foregoing shows that appellee has done what is humanly possible under the
circumstances to restore life to minor Ong and for that reason it is unfair to hold it liable for his death.

Sensing that their former theory as regards the liability of appellee may not be of much help, appellants now
switch to the theory that even if it be assumed that the deceased is partly to be blamed for the unfortunate
incident, still appellee may be held liable under the doctrine of "last clear chance" for the reason that, having the
last opportunity to save the victim, it failed to do so.

We do not see how this doctrine may apply considering that the record does not show how minor Ong came into
the big swimming pool. The only thing the record discloses is that minor Ong informed his elder brothers that
he was going to the locker room to drink a bottle of coke but that from that time on nobody knew what
happened to him until his lifeless body was retrieved. The doctrine of last clear chance simply means that the
negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that the
latter, by exercising reasonable care and prudence, might have avoided injurious consequences to claimant
notwithstanding his negligence. Or, "As the doctrine usually is stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or the negligence of a
third person which is imputed to his opponent, is considered in law solely responsible for the consequences of
the accident." (38 Am. Jur. pp. 900-902)

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself in the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances, the law is that a person who has the last clear chance to
avoid the impending harm and fails to do so is chargeable with the consequences, without reference to
the prior negligence of the other party. (Picart vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big swimming pool and it being apparent that he went there
without any companion in violation of one of the regulations of appellee as regards the use of the pools, and it
appearing that lifeguard Aba_¤_o responded to the call for help as soon as his attention was called to it and
immediately after retrieving the body all efforts at the disposal of appellee had been put into play in order to
bring him back to life, it is clear that there is no room for the application of the doctrine now invoked by
appellants to impute liability to appellee..

The last clear chance doctrine can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all means at hand after the
peril is or should have been discovered; at least in cases in which any previous negligence of the party
charged cannot be said to have contributed to the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233,
350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)

Before closing, we wish to quote the following observation of the trial court, which we find supported by the
evidence: "There is (also) a strong suggestion coming from the expert evidence presented by both parties that
Dominador Ong might have dived where the water was only 5.5 feet deep, and in so doing he might have hit or
bumped his forehead against the bottom of the pool, as a consequence of which he was stunned, and which to
his drowning. As a boy scout he must have received instructions in swimming. He knew, or have known that it
was dangerous for him to dive in that part of the pool."

Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby affirm the
same, without pronouncement as to costs.

G.R. No. 152040 March 31, 2006

MARIKINA AUTO LINE TRANSPORT CORPORATION and FREDDIE L. SUELTO, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES and ERLINDA V. VALDELLON, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CA-
G.R. CR No. 16739 affirming the Joint Decision of the Regional Trial Court (RTC) in Criminal Case No. Q-93-
42629 and Civil Case No. Q-93-16051, where Freddie Suelto was convicted of reckless imprudence resulting in
damages to property.

Erlinda V. Valdellon is the owner of a two-door commercial apartment located at No. 31 Kamias Road, Quezon
City. The Marikina Auto Line Transport Corporation (MALTC) is the owner-operator of a passenger bus with
Plate Number NCV-849. Suelto, its employee, was assigned as the regular driver of the bus. 2

At around 2:00 p.m. on October 3, 1992, Suelto was driving the aforementioned passenger bus along Kamias
Road, Kamuning, Quezon City, going towards Epifanio de los Santos Avenue (EDSA). The bus suddenly
swerved to the right and struck the terrace of the commercial apartment owned by Valdellon located along
Kamuning Road.3 Upon Valdellon’s request, the court ordered Sergio Pontiveros, the Senior Building
Inspection Officer of the City Engineer’s Office, to inspect the damaged terrace. Pontiveros submitted a report
enumerating and describing the damages:

(1) The front exterior and the right side concrete columns of the covered terrace were vertically
displaced from its original position causing exposure of the vertical reinforcement.
 (2) The beams supporting the roof and parapet walls are found with cracks on top of the displaced
columns.

(3) The 6″ CHB walls at [the] right side of the covered terrace were found with cracks caused by this
accident.

(4) The front iron grills and concrete balusters were found totally damaged and the later [sic] beyond
repair.4

He recommended that since the structural members made of concrete had been displaced, the terrace would
have to be demolished "to keep its monolithicness, and to insure the safety and stability of the building." 5

Photographs6 of the damaged terrace were taken. Valdellon commissioned Engr. Jesus R. Regal, Jr. to estimate
the cost of repairs, inclusive of labor and painting, and the latter pegged the cost at P171,088.46.7

In a letter dated October 19, 1992 addressed to the bus company and Suelto, Valdellon demanded payment of
P148,440.00, within 10 days from receipt thereof, to cover the cost of the damage to the terrace. 8 The bus
company and Suelto offered a P30,000.00 settlement which Valdellon refused. 9

Valdellon filed a criminal complaint for reckless imprudence resulting in damage to property against Suelto.
After the requisite preliminary investigation, an Information was filed with the RTC of Quezon City. The
accusatory portion of the Information reads:

That on or about the 3rd day of October 1992, in Quezon City, Philippines, the said accused, being then the
driver and/or person in charge of a Marikina Auto Line bus bearing Plate No. NVC-849, did then and there
unlawfully, and feloniously drive, manage, and operate the same along Kamias Road, in said City, in a careless,
reckless, negligent, and imprudent manner, by then and there making the said vehicle run at a speed greater than
was reasonable and proper without taking the necessary precaution to avoid accident to person/s and damage to
property, and considering the condition of the traffic at said place at the time, causing as a consequence of his
said carelessness, negligence, imprudence and lack of precaution, the said vehicle so driven, managed and
operated by him to hit and bump, as in fact it hit and bump a commercial apartment belonging to ERLINDA V.
VALDELLON located at No. 31 Kamias Road, this City, thereby causing damages to said apartment in the total
amount of P171,088.46, Philippine Currency, to her damage and prejudice in the total amount aforementioned.

CONTRARY TO LAW.10

Valdellon also filed a separate civil complaint against Suelto and the bus company for damages. She prayed that
after due proceedings, judgment be rendered in her favor, thus:

WHEREFORE, it is respectfully prayed of this Honorable Court to issue a writ of preliminary attachment
against the defendants upon approval of plaintiff’s bond, and after trial on the merits, to render a decision in
favor of the plaintiff, ordering the defendants, jointly and severally, to pay –

a) the total sum of P171,088.46 constituting the expenses for the repair of the damaged apartment of
plaintiff, with interests to be charged thereon at the legal rate from the date of the formal demand until
the whole obligation is fully paid;

b) the sum of not less than P20,000.00 each as compensatory and exemplary damages;

c) the sum of P20,000.00 as attorney’s fees and the sum of P1,000.00 for each appearance of plaintiff’s
counsel; and costs of suit;
PLAINTIFF further prays for such other reliefs as may be just and equitable in the premises. 11

A joint trial of the two cases was ordered by the trial court.12

The trial court conducted an ocular inspection of the damaged terrace, where defendants offered to have it
repaired and restored to its original state. Valdellon, however, disagreed because she wanted the building
demolished to give way for the construction of a new one. 13

During the trial, Valdellon testified on the damage caused to the terrace of her apartment, and, in support
thereof, adduced in evidence a receipt for P35,000.00, dated October 20, 1993, issued by the BB Construction
and Steel Fabricator for "carpentry, masonry, welding job and electrical [work]."14

Pontiveros of the Office of the City Engineer testified that there was a need to change the column of the terrace,
but that the building should also be demolished because "if concrete is destroyed, [one] cannot have it restored
to its original position."15

Engr. Jesus Regal, Jr., the proprietor of the SSP Construction, declared that he inspected the terrace and
estimated the cost of repairs, including labor, at P171,088.46.

Suelto testified that at 2:00 p.m. on October 3, 1992, he was driving the bus on its way to Ayala Avenue,
Makati, Metro Manila. When he reached the corner of K-H Street at Kamias Road, Quezon City, a passenger
jeepney suddenly crossed from EDSA going to V. Luna and swerved to the lane occupied by the bus. Suelto
had to swerve the bus to the right upon which it hit the side front of the terrace of Valdellon’s two-door
apartment.16 Based on his estimate, the cost to the damage on the terrace of the apartment amounted to
P40,000.00.17 On cross-examination, Suelto declared that he saw the passenger jeepney when it was a meter
away from the bus. Before then, he had seen some passenger jeepneys on the right trying to overtake one
another.18

Architect Arnulfo Galapate testified that the cost of the repair of the damaged terrace amounted to P55,000.00.19

On April 28, 1994, the trial court rendered judgment finding Suelto guilty beyond reasonable doubt of reckless
imprudence resulting in damage to property, and ordered MALTC and Suelto to pay, jointly and severally,
P150,000.00 to Valdellon, by way of actual and compensatory damages, as well as attorney’s fees and costs of
suit. The fallo of the decision reads:

WHEREFORE, finding the accused FREDDIE SUELTO Y LIWAG guilty beyond reasonable doubt of the
crime of Reckless Imprudence Resulting in Damage to Property, said accused is hereby sentenced to suffer
imprisonment of ONE (1) YEAR.

With respect to the civil liability, judgment is hereby rendered in favor of plaintiff Erlinda Valdellon and against
defendant Marikina Auto Line Transport Corporation and accused Freddie Suelto, where both are ordered,
jointly and severally, to pay plaintiff:

a. the sum of P150,000.00, as reasonable compensation sustained by plaintiff for her damaged
apartment;

b. the sum of P20,000.00, as compensatory and exemplary damages;

c. the sum of P20,000.00, as attorney’s fees; and,

d. the costs of suit.

SO ORDERED.20

MALTC and Suelto, now appellants, appealed the decision to the CA, alleging that the prosecution failed to
prove Suelto’s guilt beyond reasonable doubt. They averred that the prosecution merely relied on Valdellon,
who testified only on the damage caused to the terrace of her apartment which appellants also alleged was
excessive. Appellant Suelto further alleged that he should be acquitted in the criminal case for the prosecution’s
failure to prove his guilt beyond reasonable doubt. He maintained that, in an emergency case, he was not, in
law, negligent. Even if the appellate court affirmed his conviction, the penalty of imprisonment imposed on him
by the trial court is contrary to law.

In its Brief for the People of the Philippines, the Office of the Solicitor General (OSG) submitted that the
appealed decision should be affirmed with modification. On Suelto’s claim that the prosecution failed to prove
his guilt for the crime of reckless imprudence resulting in damage to property, the OSG contended that,
applying the principle of res ipsa loquitur, the prosecution was able to prove that he drove the bus with
negligence and recklessness. The OSG averred that the prosecution was able to prove that Suelto’s act of
swerving the bus to the right was the cause of damage to the terrace of Valdellon’s apartment, and in the
absence of an explanation to the contrary, the accident was evidently due to appellant’s want of care.
Consequently, the OSG posited, the burden was on the appellant to prove that, in swerving the bus to the right,
he acted on an emergency, and failed to discharge this burden. However, the OSG averred that the trial court
erred in sentencing appellant to a straight penalty of one year, and recommended a penalty of fine.

On June 20, 2000, the CA rendered judgment affirming the decision of the trial court, but the award for actual
damages was reduced to P100,000.00. The fallo of the decision reads:

WHEREFORE, premises considered, the decision dated April 28, 1994, rendered by the court a quo is
AFFIRMED with the modification that the sum of P150,000.00 as compensation sustained by the plaintiff-
appellee for her damaged apartment be reduced to P100,000.00 without pronouncement as to costs.

SO ORDERED.21

Appellants filed a Motion for Reconsideration, but the CA denied the same. 22

MALTC and Suelto, now petitioners, filed the instant petition reiterating its submissions in the CA: (a) the
prosecution failed to prove the crime charged against petitioner Suelto; (b) the prosecution failed to adduce
evidence to prove that respondent suffered actual damages in the amount of P100,000.00; and (c) the trial court
erred in sentencing petitioner Suelto to one (1) year prison term.

On the first issue, petitioners aver that the prosecution was mandated to prove that petitioner Suelto acted with
recklessness in swerving the bus to the right thereby hitting the terrace of private respondent’s apartment.
However, the prosecution failed to discharge its burden. On the other hand, petitioner Suelto was able to prove
that he acted in an emergency when a passenger jeepney coming from EDSA towards the direction of the bus
overtook another vehicle and, in the process, intruded into the lane of the bus.

On the second issue, petitioners insist that private respondent was able to prove only the amount of P35,000.00
by way of actual damages; hence, the award of P100,000.00 is barren of factual basis.

On the third issue, petitioner Suelto posits that the straight penalty of imprisonment recommended by the trial
court, and affirmed by the CA, is contrary to Article 365 of the Revised Penal Code.

The petition is partially granted.

On the first issue, we find and so resolve that respondent People of the Philippines was able to prove beyond
reasonable doubt that petitioner Suelto swerved the bus to the right with recklessness, thereby causing damage
to the terrace of private respondent’s apartment. Although she did not testify to seeing the incident as it
happened, petitioner Suelto himself admitted this in his answer to the complaint in Civil Case No. Q-93-16051,
and when he testified in the trial court.

Suelto narrated that he suddenly swerved the bus to the right of the road causing it to hit the column of the
terrace of private respondent. Petitioners were burdened to prove that the damage to the terrace of private
respondent was not the fault of petitioner Suelto.

We have reviewed the evidence on record and find that, as ruled by the trial court and the appellate court,
petitioners failed to prove that petitioner acted on an emergency caused by the sudden intrusion of a passenger
jeepney into the lane of the bus he was driving.

It was the burden of petitioners herein to prove petitioner Suelto’s defense that he acted on an emergency, that
is, he had to swerve the bus to the right to avoid colliding with a passenger jeep coming from EDSA that had
overtaken another vehicle and intruded into the lane of the bus. The sudden emergency rule was enunciated by
this Court in Gan v. Court of Appeals,23 thus:

[O]ne who suddenly finds himself in a place of danger, and is required to act without time to consider the best
means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to adopt what
subsequently and upon reflection may appear to have been a better method unless the emergency in which he
finds himself is brought about by his own negligence.

Under Section 37 of Republic Act No. 4136, as amended, otherwise known as the Land Transportation and
Traffic Code, motorists are mandated to drive and operate vehicles on the right side of the road or highway:

SEC. 37. Driving on right side of highway. – Unless a different course of action is required in the interest of the
safety and the security of life, person or property, or because of unreasonable difficulty of operation in
compliance herewith, every person operating a motor vehicle or an animal-drawn vehicle on a highway shall
pass to the right when meeting persons or vehicles coming toward him, and to the left when overtaking persons
or vehicles going the same direction, and when turning to the left in going from one highway to another, every
vehicle shall be conducted to the right of the center of the intersection of the highway.

Section 35 of the law provides, thus:

Sec. 35. Restriction as to speed.—(a) Any person driving a motor vehicle on a highway shall drive the same at a
careful and prudent speed, not greater nor less than is reasonable and proper, having due regard for the traffic,
the width of the highway, and of any other condition then and there existing; and no person shall drive any
motor vehicle upon a highway at such a speed as to endanger the life, limb and property of any person, nor at a
speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead
(emphasis supplied).

In relation thereto, Article 2185 of the New Civil Code provides that "unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle has been negligent, if at the time of mishap, he was violating
any traffic regulation." By his own admission, petitioner Suelto violated the Land Transportation and Traffic
Code when he suddenly swerved the bus to the right, thereby causing damage to the property of private
respondent.

However, the trial court correctly rejected petitioner Suelto’s defense, in light of his contradictory testimony
vis-à-vis his Counter-Affidavit submitted during the preliminary investigation:
It is clear from the photographs submitted by the prosecution (Exhs. C, D, G, H & I) that the commercial
apartment of Dr. Valdellon sustained heavy damage caused by the bus being driven by Suelto. "It seems highly
improbable that the said damages were not caused by a strong impact. And, it is quite reasonable to conclude
that, at the time of the impact, the bus was traveling at a high speed when Suelto tried to avoid the passenger
jeepney." Such a conclusion finds support in the decision of the Supreme Court in People vs. Ison, 173 SCRA
118, where the Court stated that "physical evidence is of the highest order. It speaks more eloquently than a
hundred witnesses." The pictures submitted do not lie, having been taken immediately after the incident. The
damages could not have been caused except by a speeding bus. Had the accused not been speeding, he could
have easily reduced his speed and come to a full stop when he noticed the jeep. Were he more prudent in
driving, he could have avoided the incident or even if he could not avoid the incident, the damages would have
been less severe.

In addition to this, the accused has made conflicting statements in his counter-affidavit and his testimony in
court. In the former, he stated that the reason why he swerved to the right was because he wanted to avoid the
passenger jeepney in front of him that made a sudden stop. But, in his testimony in court, he said that it was to
avoid a passenger jeepney coming from EDSA that was overtaking by occupying his lane. Such glaring
inconsistencies on material points render the testimony of the witness doubtful and shatter his credibility.
Furthermore, the variance between testimony and prior statements renders the witness unreliable. Such
inconsistency results in the loss in the credibility of the witness and his testimony as to his prudence and
diligence.

As already maintained and concluded, the severe damages sustained could not have resulted had the accused
acted as a reasonable and prudent man would. The accused was not diligent as he claims to be. What is more
probable is that the accused had to swerve to the right and hit the commercial apartment of the plaintiff because
he could not make a full stop as he was driving too fast in a usually crowded street.24

Moreover, if the claim of petitioners were true, they should have filed a third-party complaint against the driver
of the offending passenger jeepney and the owner/operator thereof.

Petitioner Suelto’s reliance on the sudden emergency rule to escape conviction for the crime charged and his
civil liabilities based thereon is, thus, futile.

On the second issue, we agree with the contention of petitioners that respondents failed to prove that the
damages to the terrace caused by the incident amounted to P100,000.00. The only evidence adduced by
respondents to prove actual damages claimed by private respondent were the summary computation of damage
made by Engr. Jesus R. Regal, Jr. amounting to P171,088.46 and the receipt issued by the BB Construction and
Steel Fabricator to private respondent for P35,000.00 representing cost for carpentry works, masonry, welding,
and electrical works. Respondents failed to present Regal to testify on his estimation. In its five-page decision,
the trial court awarded P150,000.00 as actual damages to private respondent but failed to state the factual basis
for such award. Indeed, the trial court merely declared in the decretal portion of its decision that the "sum of
P150,000.00 as reasonable compensation sustained by plaintiff for her damaged apartment." The appellate
court, for its part, failed to explain how it arrived at the amount of P100,000.00 in its three-page decision. Thus,
the appellate court merely declared:

With respect to the civil liability of the appellants, they contend that there was no urgent necessity to completely
demolish the apartment in question considering the nature of the damages sustained as a result of the accident.
Consequently, appellants continue, the award of P150,000.00 as compensation sustained by the plaintiff-
appellee for her damaged apartment is an unconscionable amount.

The damaged portions of the apartment in question are not disputed.

Considering the aforesaid damages which are the direct result of the accident, the reasonable, and adequate
compensation due is hereby fixed at P100,000.00.25

Under Article 2199 of the New Civil Code, actual damages include all the natural and probable consequences of
the act or omission complained of, classified as one for the loss of what a person already possesses (daño
emergente) and the other, for the failure to receive, as a benefit, that which would have pertained to him (lucro
cesante). As expostulated by the Court in PNOC Shipping and Transport Corporation v. Court of Appeals: 26

Under Article 2199 of the Civil Code, actual or compensatory damages are those awarded in satisfaction of, or
in recompense for, loss or injury sustained. They proceed from a sense of natural justice and are designed to
repair the wrong that has been done, to compensate for the injury inflicted and not to impose a penalty. In
actions based on torts or quasi-delicts, actual damages include all the natural and probable consequences of the
act or omission complained of. There are two kinds of actual or compensatory damages: one is the loss of what
a person already possesses (daño emergente), and the other is the failure to receive as a benefit that which
would have pertained to him (lucro cesante).27

The burden of proof is on the party who would be defeated if no evidence would be presented on either side.
The burden is to establish one’s case by a preponderance of evidence which means that the evidence, as a
whole, adduced by one side, is superior to that of the other. Actual damages are not presumed. The claimant
must prove the actual amount of loss with a reasonable degree of certainty premised upon competent proof and
on the best evidence obtainable. Specific facts that could afford a basis for measuring whatever compensatory
or actual damages are borne must be pointed out. Actual damages cannot be anchored on mere surmises,
speculations or conjectures. As the Court declared:

As stated at the outset, to enable an injured party to recover actual or compensatory damages, he is required to
prove the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the
best evidence available. The burden of proof is on the party who would be defeated if no evidence would be
presented on either side. He must establish his case by a preponderance of evidence which means that the
evidence, as a whole, adduced by one side is superior to that of the other. In other words, damages cannot be
presumed and courts, in making an award, must point out specific facts that could afford a basis for measuring
whatever compensatory or actual damages are borne. 28

The Court further declared that "where goods are destroyed by the wrongful act of defendant, the plaintiff is
entitled to their value at the time of the destruction, that is, normally, the sum of money which he would have to
pay in the market for identical or essentially similar goods, plus in a proper case, damages for the loss of the use
during the period before replacement. 29

While claimants’ bare testimonial assertions in support of their claims for damages should not be discarded
altogether, however, the same should be admitted with extreme caution. Their testimonies should be viewed in
light of claimants’ self-interest, hence, should not be taken as gospel truth. Such assertion should be buttressed
by independent evidence. In the language of the Court:

For this reason, Del Rosario’s claim that private respondent incurred losses in the total amount of P6,438,048.00
should be admitted with extreme caution considering that, because it was a bare assertion, it should be
supported by independent evidence. Moreover, because he was the owner of private respondent corporation
whatever testimony he would give with regard to the value of the lost vessel, its equipment and cargoes should
be viewed in the light of his self-interest therein. We agree with the Court of Appeals that his testimony as to
the equipment installed and the cargoes loaded on the vessel should be given credence considering his
familiarity thereto. However, we do not subscribe to the conclusion that his valuation of such equipment, cargo,
and the vessel itself should be accepted as gospel truth. We must, therefore, examine the documentary evidence
presented to support Del Rosario’s claim as regards the amount of losses. 30
An estimate of the damage cost will not suffice:

Private respondents failed to adduce adequate and competent proof of the pecuniary loss they actually incurred.
It is not enough that the damage be capable of proof but must be actually proved with a reasonable degree of
certainty, pointing out specific facts that afford a basis for measuring whatever compensatory damages are
borne. Private respondents merely sustained an estimated amount needed for the repair of the roof of their
subject building. What is more, whether the necessary repairs were caused only by petitioner’s alleged
negligence in the maintenance of its school building, or included the ordinary wear and tear of the house itself,
is an essential question that remains indeterminable. 31

We note, however, that petitioners adduced evidence that, in their view, the cost of the damage to the terrace of
private respondent would amount to P55,000.00.32 Accordingly, private respondent is entitled to P55,000.00
actual damages.

We also agree with petitioner Suelto’s contention that the trial court erred in sentencing him to suffer a straight
penalty of one (1) year. This is so because under the third paragraph of Article 365 of the Revised Penal Code,
the offender must be sentenced to pay a fine when the execution of the act shall have only resulted in damage to
property. The said provision reads in full:

ART. 365. Imprudence and negligence. – Any person who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period, to prision correccional in its medium period; if it would have constituted a less grave felony,
the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted
a light felony, the penalty of arresto menor in its maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would, otherwise, constitute a
grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed.

When the execution of the act covered by this article shall have only resulted in damage to the property of
another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to
three times such value, but which shall in no case be less than 25 pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple
imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light
felony.

In the imposition of these penalties, the courts shall exercise their sound discretion, without regard to the rules
prescribed in Article 64 (Emphasis supplied).

In the present case, the only damage caused by petitioner Suelto’s act was to the terrace of private respondent’s
apartment, costing P55,000.00. Consequently, petitioner’s contention that the CA erred in awarding
P100,000.00 by way of actual damages to private respondent is correct. We agree that private respondent is
entitled to exemplary damages, and find that the award given by the trial court, as affirmed by the CA, is
reasonable. Considering the attendant circumstances, we rule that private respondent Valdellon is entitled to
only P20,000.00 by way of exemplary damages.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The joint decision of the
Regional Trial Court of Quezon City is AFFIRMED WITH THE MODIFICATION that petitioner Suelto is
sentenced to pay a fine of P55,000.00 with subsidiary imprisonment in case of insolvency. Petitioners are
ORDERED to pay to Erlinda V. Valdellon, jointly and severally, the total amount of P55,000.00 by way of
actual damages, and P20,000.00 by way of exemplary damages.
No pronouncement as to costs.

SO ORDERED.

G.R. No. L-12986 March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA
ONG, petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-appellees.

Ross, Selph, Carrascoso and Janda for the respondents.

Bernabe Africa, etc. for the petitioners.

MAKALINTAL., J.:

This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed that of
the Court of First Instance of Manila dismissing petitioners' second amended complaint against respondents.

The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the afternoon of
March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal Avenue,
Manila. It started while gasoline was being hosed from a tank truck into the underground storage, right at the
opening of the receiving tank where the nozzle of the hose was inserted. The fire spread to and burned several
neighboring houses, including the personal properties and effects inside them. Their owners, among them
petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the
station and the second as its agent in charge of operation. Negligence on the part of both of them was attributed
as the cause of the fire.

The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents
had exercised due care in the premises and with respect to the supervision of their employees.

The first question before Us refers to the admissibility of certain reports on the fire prepared by the Manila
Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines. Portions of
the first two reports are as follows:

1. Police Department report: —

Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was
transferring gasoline from a tank truck, plate No. T-5292 into the underground tank of the Caltex
Gasoline Station located at the corner of Rizal Avenue and Antipolo Street, this City, an
unknown Filipino lighted a cigarette and threw the burning match stick near the main valve of
the said underground tank. Due to the gasoline fumes, fire suddenly blazed. Quick action of
Leandro Flores in pulling off the gasoline hose connecting the truck with the underground tank
prevented a terrific explosion. However, the flames scattered due to the hose from which the
gasoline was spouting. It burned the truck and the following accessorias and residences.

2. The Fire Department report: —

In connection with their allegation that the premises was (sic) subleased for the installation of a coca-
cola and cigarette stand, the complainants furnished this Office a copy of a photograph taken during the
fire and which is submitted herewith. it appears in this picture that there are in the premises a coca-cola
 cooler and a rack which according to information gathered in the neighborhood contained cigarettes and
matches, installed between the gasoline pumps and the underground tanks.

The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the history of
the gasoline station and what the chief of the fire department had told him on the same subject.

The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence inadmissible. This
ruling is now assigned as error. It is contended: first, that said reports were admitted by the trial court without
objection on the part of respondents; secondly, that with respect to the police report (Exhibit V-Africa) which
appears signed by a Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as witness
but respondents waived their right to cross-examine him although they had the opportunity to do so; and thirdly,
that in any event the said reports are admissible as an exception to the hearsay rule under section 35 of Rule
123, now Rule 130.

The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953 (pp.
167-170) shows that the reports in question, when offered as evidence, were objected to by counsel for each of
respondents on the ground that they were hearsay and that they were "irrelevant, immaterial and impertinent."
Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the admission
of the others, including the disputed ones, carried no such explanation.

On the second point, although Detective Capacillo did take the witness stand, he was not examined and he did
not testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All he said was that he
was one of those who investigated "the location of the fire and, if possible, gather witnesses as to the
occurrence, and that he brought the report with him. There was nothing, therefore, on which he need be cross-
examined; and the contents of the report, as to which he did not testify, did not thereby become competent
evidence. And even if he had testified, his testimony would still have been objectionable as far as information
gathered by him from third persons was concerned.

Petitioners maintain, however, that the reports in themselves, that is, without further testimonial evidence on
their contents, fall within the scope of section 35, Rule 123, which provides that "entries in official records
made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of
a duty specially enjoined by law, are prima facie evidence of the facts therein stated."

There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a
public officer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer
in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law;
and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must
have been acquired by him personally or through official information (Moran, Comments on the Rules of Court,
Vol. 3 [1957] p. 398).

Of the three requisites just stated, only the last need be considered here. Obviously the material facts recited in
the reports as to the cause and circumstances of the fire were not within the personal knowledge of the officers
who conducted the investigation. Was knowledge of such facts, however, acquired by them through official
information? As to some facts the sources thereof are not even identified. Others are attributed to Leopoldo
Medina, referred to as an employee at the gas station were the fire occurred; to Leandro Flores, driver of the
tank truck from which gasoline was being transferred at the time to the underground tank of the station; and to
respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any reason as to the origin of
the fire. To qualify their statements as "official information" acquired by the officers who prepared the reports,
the persons who made the statements not only must have personal knowledge of the facts stated but must have
the duty to give such statements for record.1
The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not
acquired by the reporting officers through official information, not having been given by the informants
pursuant to any duty to do so.

The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsa
loquitur should apply so as to presume negligence on the part of appellees. Both the trial court and the appellate
court refused to apply the doctrine in the instant case on the grounds that "as to (its) applicability ... in the
Philippines, there seems to he nothing definite," and that while the rules do not prohibit its adoption in
appropriate cases, "in the case at bar, however, we find no practical use for such doctrine." The question
deserves more than such summary dismissal. The doctrine has actually been applied in this jurisdiction, in the
case of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R, September 20, 1949),
wherein the decision of the Court of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the
Supreme Court.

The facts of that case are stated in the decision as follows:

In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass
between the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and
without any wind blowing, an electric transmission wire, installed and maintained by the defendant
Philippine Power and Development Co., Inc. alongside the road, suddenly parted, and one of the broken
ends hit the head of the plaintiff as he was about to board the truck. As a result, plaintiff received the full
shock of 4,400 volts carried by the wire and was knocked unconscious to the ground. The electric charge
coursed through his body and caused extensive and serious multiple burns from skull to legs, leaving the
bone exposed in some parts and causing intense pain and wounds that were not completely healed when
the case was tried on June 18, 1947, over one year after the mishap.

The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of
negligence, but the appellate court overruled the defense under the doctrine of res ipsa loquitur. The court said:

The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense.
While it is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa
aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was
the negligence of the defendant, it is also a recognized principal that "where the thing which caused
injury, without fault of the injured person, is under the exclusive control of the defendant and the injury
is such as in the ordinary course of things does not occur if he having such control use proper care, it
affords reasonable evidence, in the absence of the explanation, that the injury arose from defendant's
want of care."

And the burden of evidence is shifted to him to establish that he has observed due care and diligence.
(San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name
of res ipsa loquitur (the transaction speaks for itself), and is peculiarly applicable to the case at bar,
where it is unquestioned that the plaintiff had every right to be on the highway, and the electric wire was
under the sole control of defendant company. In the ordinary course of events, electric wires do not part
suddenly in fair weather and injure people, unless they are subjected to unusual strain and stress or there
are defects in their installation, maintenance and supervision; just as barrels do not ordinarily roll out of
the warehouse windows to injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H &
Co. 722; 159 Eng. Reprint 299, the leading case that established that rule). Consequently, in the absence
of contributory negligence (which is admittedly not present), the fact that the wire snapped suffices to
raise a reasonable presumption of negligence in its installation, care and maintenance. Thereafter, as
observed by Chief Baron Pollock, "if there are any facts inconsistent with negligence, it is for the
defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the Supreme
Court, but we do not consider this a reason for not applying the particular doctrine of res ipsa loquitur in the
case at bar. Gasoline is a highly combustible material, in the storage and sale of which extreme care must be
taken. On the other hand, fire is not considered a fortuitous event, as it arises almost invariably from some act of
man. A case strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So. 447:

Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to
the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of the
lease, while gasoline was being transferred from the tank wagon, also operated by the Shell Petroleum
Corporation, to the underground tank of the station, a fire started with resulting damages to the building
owned by Jones. Alleging that the damages to his building amounted to $516.95, Jones sued the Shell
Petroleum Corporation for the recovery of that amount. The judge of the district court, after hearing the
testimony, concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for
$427.82. The Court of Appeals for the First Circuit reversed this judgment, on the ground the testimony
failed to show with reasonable certainty any negligence on the part of the Shell Petroleum Corporation
or any of its agents or employees. Plaintiff applied to this Court for a Writ of Review which was
granted, and the case is now before us for decision.1äwphï1.ñët

In resolving the issue of negligence, the Supreme Court of Louisiana held:

Plaintiff's petition contains two distinct charges of negligence — one relating to the cause of the fire and
the other relating to the spreading of the gasoline about the filling station.

Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were
placed on the stand by the defendant.

Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the
record that the filling station and the tank truck were under the control of the defendant and operated by
its agents or employees. We further find from the uncontradicted testimony of plaintiff's witnesses that
fire started in the underground tank attached to the filling station while it was being filled from the tank
truck and while both the tank and the truck were in charge of and being operated by the agents or
employees of the defendant, extended to the hose and tank truck, and was communicated from the
burning hose, tank truck, and escaping gasoline to the building owned by the plaintiff.

Predicated on these circumstances and the further circumstance of defendant's failure to explain the
cause of the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res
ipsa loquitur. There are many cases in which the doctrine may be successfully invoked and this, we
think, is one of them.

Where the thing which caused the injury complained of is shown to be under the management of
defendant or his servants and the accident is such as in the ordinary course of things does not happen if
those who have its management or control use proper care, it affords reasonable evidence, in absence of
explanation by defendant, that the accident arose from want of care. (45 C.J. #768, p. 1193).

This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of
last resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the
following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co.,
111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La.
63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.

The principle enunciated in the aforequoted case applies with equal force here. The gasoline station, with all its
appliances, equipment and employees, was under the control of appellees. A fire occurred therein and spread to
and burned the neighboring houses. The persons who knew or could have known how the fire started were
appellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.

In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa) the
following appears:

Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies a
lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. The location is
within a very busy business district near the Obrero Market, a railroad crossing and very thickly
populated neighborhood where a great number of people mill around t

until

gasoline

tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a
secondary hazard to its operation which in turn endangers the entire neighborhood to conflagration.

Furthermore, aside from precautions already taken by its operator the concrete walls south and west
adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from leaping
over it in case of fire.

Records show that there have been two cases of fire which caused not only material damages but
desperation and also panic in the neighborhood.

Although the soft drinks stand had been eliminated, this gasoline service station is also used by its
operator as a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another risk
to the possible outbreak of fire at this already small but crowded gasoline station.

The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of
his own personal observation of the facts reported, may properly be considered as an exception to the hearsay
rule. These facts, descriptive of the location and objective circumstances surrounding the operation of the
gasoline station in question, strengthen the presumption of negligence under the doctrine of res ipsa loquitur,
since on their face they called for more stringent measures of caution than those which would satisfy the
standard of due diligence under ordinary circumstances. There is no more eloquent demonstration of this than
the statement of Leandro Flores before the police investigator. Flores was the driver of the gasoline tank wagon
who, alone and without assistance, was transferring the contents thereof into the underground storage when the
fire broke out. He said: "Before loading the underground tank there were no people, but while the loading was
going on, there were people who went to drink coca-cola (at the coca-cola stand) which is about a meter from
the hole leading to the underground tank." He added that when the tank was almost filled he went to the tank
truck to close the valve, and while he had his back turned to the "manhole" he, heard someone shout "fire."

Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent
omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent the
flames from leaping over it. As it was the concrete wall was only 2-1/2 meters high, and beyond that height it
consisted merely of galvanized iron sheets, which would predictably crumple and melt when subjected to
intense heat. Defendants' negligence, therefore, was not only with respect to the cause of the fire but also with
respect to the spread thereof to the neighboring houses.

There is an admission on the part of Boquiren in his amended answer to the second amended complaint that "the
fire was caused through the acts of a stranger who, without authority, or permission of answering defendant,
passed through the gasoline station and negligently threw a lighted match in the premises." No evidence on this
point was adduced, but assuming the allegation to be true — certainly any unfavorable inference from the
admission may be taken against Boquiren — it does not extenuate his negligence. A decision of the Supreme
Court of Texas, upon facts analogous to those of the present case, states the rule which we find acceptable here.
"It is the rule that those who distribute a dangerous article or agent, owe a degree of protection to the public
proportionate to and commensurate with a danger involved ... we think it is the generally accepted rule as
applied to torts that 'if the effects of the actor's negligent conduct actively and continuously operate to bring
about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third
person's innocent, tortious or criminal act is also a substantial factor in bringing about the harm, does not protect
the actor from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The
intention of an unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer from consequences of
negligence, if such negligence directly and proximately cooperates with the independent cause in the resulting
injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W. 2nd 442.)

The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue depends
on whether Boquiren was an independent contractor, as held by the Court of Appeals, or an agent of Caltex.
This question, in the light of the facts not controverted, is one of law and hence may be passed upon by this
Court. These facts are: (1) Boquiren made an admission that he was an agent of Caltex; (2) at the time of the
fire Caltex owned the gasoline station and all the equipment therein; (3) Caltex exercised control over Boquiren
in the management of the state; (4) the delivery truck used in delivering gasoline to the station had the name of
CALTEX painted on it; and (5) the license to store gasoline at the station was in the name of Caltex, which paid
the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-
Africa).

In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his drivers to
remove gasoline from the truck into the tank and alleged that the "alleged driver, if one there was, was not in his
employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is
true that Boquiren later on amended his answer, and that among the changes was one to the effect that he was
not acting as agent of Caltex. But then again, in his motion to dismiss appellants' second amended complaint the
ground alleged was that it stated no cause of action since under the allegations thereof he was merely acting as
agent of Caltex, such that he could not have incurred personal liability. A motion to dismiss on this ground is
deemed to be an admission of the facts alleged in the complaint.

Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the business
conducted at the service station in question was owned and operated by Boquiren. But Caltex did not present
any contract with Boquiren that would reveal the nature of their relationship at the time of the fire. There must
have been one in existence at that time. Instead, what was presented was a license agreement manifestly tailored
for purposes of this case, since it was entered into shortly before the expiration of the one-year period it was
intended to operate. This so-called license agreement (Exhibit 5-Caltex) was executed on November 29, 1948,
but made effective as of January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This
retroactivity provision is quite significant, and gives rise to the conclusion that it was designed precisely to free
Caltex from any responsibility with respect to the fire, as shown by the clause that Caltex "shall not be liable for
any injury to person or property while in the property herein licensed, it being understood and agreed that
LICENSEE (Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)."

But even if the license agreement were to govern, Boquiren can hardly be considered an independent contractor.
Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the use of the premises
and all the equipment therein. He could sell only Caltex Products. Maintenance of the station and its equipment
was subject to the approval, in other words control, of Caltex. Boquiren could not assign or transfer his rights as
licensee without the consent of Caltex. The license agreement was supposed to be from January 1, 1948 to
December 31, 1948, and thereafter until terminated by Caltex upon two days prior written notice. Caltex could
at any time cancel and terminate the agreement in case Boquiren ceased to sell Caltex products, or did not
conduct the business with due diligence, in the judgment of Caltex. Termination of the contract was therefore a
right granted only to Caltex but not to Boquiren. These provisions of the contract show the extent of the control
of Caltex over Boquiren. The control was such that the latter was virtually an employee of the former.

Taking into consideration the fact that the operator owed his position to the company and the latter could
remove him or terminate his services at will; that the service station belonged to the company and bore
its tradename and the operator sold only the products of the company; that the equipment used by the
operator belonged to the company and were just loaned to the operator and the company took charge of
their repair and maintenance; that an employee of the company supervised the operator and conducted
periodic inspection of the company's gasoline and service station; that the price of the products sold by
the operator was fixed by the company and not by the operator; and that the receipts signed by the
operator indicated that he was a mere agent, the finding of the Court of Appeals that the operator was an
agent of the company and not an independent contractor should not be disturbed.

To determine the nature of a contract courts do not have or are not bound to rely upon the name or title
given it by the contracting parties, should thereby a controversy as to what they really had intended to
enter into, but the way the contracting parties do or perform their respective obligations stipulated or
agreed upon may be shown and inquired into, and should such performance conflict with the name or
title given the contract by the parties, the former must prevail over the latter. (Shell Company of the
Philippines, Ltd. vs. Firemens' Insurance Company of Newark, New Jersey, 100 Phil. 757).

The written contract was apparently drawn for the purpose of creating the apparent relationship of
employer and independent contractor, and of avoiding liability for the negligence of the employees
about the station; but the company was not satisfied to allow such relationship to exist. The evidence
shows that it immediately assumed control, and proceeded to direct the method by which the work
contracted for should be performed. By reserving the right to terminate the contract at will, it retained
the means of compelling submission to its orders. Having elected to assume control and to direct the
means and methods by which the work has to be performed, it must be held liable for the negligence of
those performing service under its direction. We think the evidence was sufficient to sustain the verdict
of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).

Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices were
presented to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales contract to
prove the same.

As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of P2,000.00
collected by them on the insurance of the house. The deduction is now challenged as erroneous on the ground
that Article 2207 of the New Civil Code, which provides for the subrogation of the insurer to the rights of the
insured, was not yet in effect when the loss took place. However, regardless of the silence of the law on this
point at that time, the amount that should be recovered be measured by the damages actually suffered, otherwise
the principle prohibiting unjust enrichment would be violated. With respect to the claim of the heirs of Ong
P7,500.00 was adjudged by the lower court on the basis of the assessed value of the property destroyed, namely,
P1,500.00, disregarding the testimony of one of the Ong children that said property was worth P4,000.00. We
agree that the court erred, since it is of common knowledge that the assessment for taxation purposes is not an
accurate gauge of fair market value, and in this case should not prevail over positive evidence of such value.
The heirs of Ong are therefore entitled to P10,000.00.

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

G.R. No. 121964 June 17, 1997

DRA. ABDULIA RODRIGUEZ, LEONOR PRIETOS, LEONORA RODRIGUEZ NOLASCO,
LUZVIMINDA ANTIG and JUANITA RODRIGUEZ, petitioners,
vs.
COURT OF APPEALS, HARRY VILORIA, MARGARITA MILAGROS VILORIA and JOHN P.
YOUNG, respondents.

DAVIDE, JR. J.:

In this petition for review under Rule 45 of the Rules of Court, petitioners seek reversal of that portion of
the 14 March 1995 decision1 of respondent Court of Appeals in CA-G.R. CV No. 362472 dismissing
petitioners' complaint in Civil Case No. CEB-8095 of the Cebu Regional Trial Court, Branch 21. The
latter was an action for damages based on quasi-delict filed by petitioners against private respondents
due to a fire which allegedly started in private respondents' construction site and damaged petitioners'
building.

After trial on the merits, the trial court found that the fire was not caused by an instrumentality within
the exclusive control of defendants (private respondents) and rendered a decisions3 against petitioners.
The dispositive portion of the decision reads as follows:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered:

(1) Dismissing plaintiff's complaint;

(2) Condemning plaintiffs to pay defendants,

(a) Moral damages of P500,000 for defendants Vilorias, and moral damages of
P200,000 for defendant John P. Young;

(b) Exemplary damages of P75,000;

(c) Attorney's fees of P30,000

(3) Ordering plaintiffs to pay, jointly and severally, the costs.

SO ORDERED.4

Plaintiffs, herein petitioners, appealed from the judgment to respondent Court of Appeals which docketed the
appeal as CA-G.R. CV No. 36247. In asking for the reversal of the judgment they imputed upon the trial court
the commission of the following errors:

THE LOWER COURT GRAVELY ERRED IN EVALUATING THE TESTIMONY OF

EYEWITNESSES.

II

THE TRIAL COURT ERRED IN NOT ADMITTING IN EVIDENCE THE FIRE

INVESTIGATION REPORT DONE BY THE FIRE DEPARTMENT OFFICIAL.
 III

THE TRIAL COURT ERRED IN AWARDING DAMAGES TO DEFENDANTS-APPELLEES

(PRIVATE RESPONDENTS HEREIN).

IV

ASSUMING ARGUENDO THAT DEFENDANTS-APPELLEES COULD LAWFULLY

PRESENT EVIDENCE ON THEIR COUNTERCLAIM, THE TRIAL COURT SERIOUSLY
ERRED IN AWARDING ASTRONOMICAL DAMAGES.

THE TRIAL COURT ERRED IN NOT FINDING A CASE FOR DAMAGES IN FAVOR OF
PLAINTIFFS (HEREIN PETITIONERS).5

Respondent Court of Appeals summarized the antecedents in this case as follows:

On March 15, 1989, a fire broke out which razed two apartment buildings, owned by plaintiffs-
appellants Abdulia Rodriguez, Leonora Rodriguez Nolasco and Juanita Rodriguez, and partially
destroying a commercial building.

Plaintiffs-appellants, with co-plaintiffs-appellants Leonora Prietos and Luzviminda Antig who

were lessees of the apartment units, filed a case for damages against defendants-appellees Harry
John Viloriam [sic], Margarita Milagros Viloria, and John P. Young. The complaint alleged that
by reason of the gross negligence and want of care of the construction workers and employees of
the defendants-appellees, the bunkhouse or workers' quarters in the construction site caught fire
spreading rapidly, burning the adjacent buildings owned by plaintiffs-appellants. Due to the
negligence of defendants-appellees which resulted in the fire, plaintiffs-appellants suffered actual
damages representing the value of the buildings and other personal properties.

Defendant-appellee John Young, the building contractor, in his answer, contended that he can
not be held responsible even if there was negligence on the part of the employees for he had
exercised the diligence of a good father of a family in the selection and supervision of his
workers. Plaintiffs-appellants had no cause of action against him. As counterclaim, defendant-
appellee Young sought for moral damages in the amount of P200,000.00, and exemplary
damages of P50,000.00 and attorney's fees of P10,000.00.

Defendants-appell[ees] Harry and Margarita Viloria also alleged that plaintiffs-appellants had no
cause of action against them. The fire court not have been caused by gross negligence of their
workers for they did not have any worker in the construction of their building. The said
construction was being undertaken by the independent contractor, John Young, who hired and
supervised his own workers. The newly constructed building was partially destroyed by the fire.
As counterclaim, defendants-appell[ees] prayed for moral damages in the sum of P2,500,000.00,
exemplary damages of P100,000.00 and attorney's fees of P20,000.00.

After trial and reception of evidence, the court a quo resolved that the fire was not caused by an
instrumentality within the exclusive control of the defendants-appellants. The decision stated that
plaintiffs-appellants failed to establish that the fire was the result of defendants-appellees' or their
workers' negligence.6
Respondent Court of Appeals sustained petitioners only on the third assigned error. Its discussion on the
assigned errors was as follows:

As to the first assigned error, the trial court did not err in the evaluation of the testimonies of the
witnesses, specially in the testimony of applicants' witness, Noel Villarin. It seemed unbelievable
that witness Villarin was able to see Paner pour gasoline on the generator through a five-inch
wide hole which was four meters away from where the former was eating. As pointed out by the
appellees how could Villarin see what was going on at the ground floor which is about ten or
eleven feet below. No other witness had testified having seen the same. No one had even
pinpointed the real source of the fire. As it is, the conclusions reached by the trial court which
has the opportunity to observe the witnesses when they testified as to what transpired [is] entitled
to full respect7 is applied. Where the issue is on the credibility of witnesses, generally the
findings of a court a quo will not be disturbed on appeal.8

As to the second assigned error stating that the report was an exception to the hearsay rule is [sic]
untenable. The report was not obtained from informants who had the duty to do so. Even the
reporting officer had no personal knowledge of what actually took place. Admittedly, the said
report was merely hearsay as it failed to comply with the third requisite of admissibility pursuant
to Sec. 35, Rule 123, to the effect that a public officer or other person had sufficient knowledge
of the facts by him stated, which must have been acquired by him personally or through official
information.9 To qualify the statements as "official information" acquired by the officers who
prepared the reports, the persons who made the statements not only must have personal
knowledge of the facts stated but must have the duty to give such statements for [the] record. 10

We find the third assigned error to be meritorious. In the absence of a wrongful act or omission
or of fraud or bad faith, moral damages cannot be awarded and that the adverse result of an
action does not per se make the action wrongful and subject the actor to the payment of damages
for the law could not have meant to impose a penalty on the right to litigate. 11 Neither may
exemplary damages be awarded where there is no evidence of the other party having acted in [a]
wanton, fraudulent or reckless or oppressive manner. 12 Since the award of exemplary damages
is unwarranted, the award of attorney's fees must necessarily be disallowed. 13 We find the
award of damages to be without adequate evidential [sic] basis.

And more, appellants failed to establish that the proximate cause of their loss was due to
defendants-appellees' negligence. Strangely however, it was not even ascertained with
definiteness the actual cause or even source of the fire. In sum, appellants failed to prove that the
fire which damaged their apartment buildings was due to the fault of the appellees.

Considering the foregoing premises, We find as proper the dismissal of the complaint, however,
as to the damages awarded to defendants-appellees, We find no legal basis to grant the same.

In Dela Paz vs. Intermediate Appellate Court, [G.R. No. L-71537, 17 September 1987] it was
held that —

The questioned decision, however, is silent as to how the court arrived at these
damages. Nowhere in the decision did the trial court discuss the merit of the
damages prayed for by the petitioners. There should be clear factual and legal
bases for any award of considerable damages. 14

The Court of Appeals thus decreed:

 ACCORDINGLY, the decision dated September 19, 1991 is hereby AFFIRMED. The award of
damages in favor of defendants-appellees including the award of attorney's fees are hereby
DELETED and SET ASIDE. 15

Rebuffed in their bid for reconsideration of the decision, petitioners filed the instant petition, and as grounds
therefor allege that:

THE COURT OF APPEALS ERRED IN MISAPPLYING FACTS OF WEIGHT AND

SUBSTANCE AFFECTING THE CASE AT BAR.

II

THE COURT OF APPEALS ERRED IN RULING THAT THE FIRE INVESTIGATION

REPORT IS INADMISSIBLE IN EVIDENCE.

III

THE COURT OF APPEALS ERRED IN RULING THAT SECTION 44, RULE 130 OF THE
RULES OF COURT IS NOT APPLICABLE TO THE CASE AT BAR.

After private respondents filed their respective comments to the petition as required, we resolved to give due
course to the petition and required the parties to submit their respective memoranda, which they subsequently
did.

Under the first assigned error petitioners want us to give full credit to the testimony of Noel Villarin, their
principal witness, who, they claimed, "maintained his straight-forward and undisguised manner of answering
the questions" despite the "intense cross-examination." The trial court, however, refused to believe Villarin, not
only because he had an ulterior motive to testify against private respondent Young, for which reason the trial
court observed:

It may be worth recalling that principal and lone plaintiff's witness Noel Villarin did testify that
only during the hearing did he tell his story about the fire because all his tools were burned, and
John Young neither had replenish [sic] those tools with sympathy on [sic] him nor had visited
him in the hospital (supra, p. 4). The Court, observing Villarin, could only sense the spitful tone
in his voice, manifesting released pent-up'ill-will against defendant Young. 16

but more importantly, because the trial court found that "defendants" witnesses have belied Villarin's
word," thus:

"Talino" Reville told the Court that it was impossible to see the generator when one was upstairs
of the bunkhouse — "it could not be seen because it was under the floor of the bunkhouse; it was
not possible for Villarin to see it." He was with Villarin eating their supper then, and they were
"already through eating but we were still sitting down" and so, how could Villarin have "peeped"
through that "hole on the wall" high above them? All defendants's [sic] witnesses testified that
the generator never caught fire, and no one at all had heard any explosion anywhere before the
fire was discerned. Exhibit 1 (a photograph of the fire while it was raging) reveals that the
bunkhouse was intact.
 And Paner — who, said Villarin, brought the gasoline which caught fire from a stove as it was
poured by Villarin to [sic] the generator — was neither impleaded as another defendant nor
called as a witness, or charged as an accused in a criminal action. Which omission also strikes
the Court as strange. Such suppression of evidence gives rise to the presumption that if presented
Paner would prove to be adverse to the plaintiffs (by analogy: People v. Camalog, G.R. 77116,
31 January 1989). 17

The trial court explained why it had to accept the version of defendants' witnesses in this wise:

The Court needs [sic] not suffer a paralysis of analysis as it compares the two conflicting claims.
Plaintiffs have relied so much on their own assessment of the integrity and weight of Villarin's
testimony. But the court has found the same to be, under close scrutiny, not only less weighty but
also a piece of evidence that taxes belief. Villarin said he saw Paner pour the gasoline, this while
he and three other fellow-workers were sitting on the second floor of the bunkhouse and eating
their supper, and Villarin elaborated by adding that he saw Paner doing this through a hole on the
wall. What wall? Paner said the hole on the wall was at least four (4) meters from the floor of the
bunkhouse on which they were eating, and he could "peep" through that hole which was higher
than by more than double his height! And he did not reveal all this to the firemen who
investigated him. The credibility of the witness may be affected where he tends to exaggerate, or
displays propensity for needlessly detailed observation (People v. Wong, 23 SCRA 146). 18

One of the highly revered dicta in our jurisprudence is that this Court will not interfere with the judgment of the
trial court in passing on the credibility of opposing witnesses unless there appears in the record some facts or
circumstances of weight and influence which have been overlooked, which, if considered, could affect the result
of the case. The reason therefor is founded on practical and empirical considerations. The trial judge is in a
better position to decide the question of credibility since he personally heard the witnesses and observed their
deportment and manner of testifying. 19 Petitioners have offered no convincing arguments to accommodate
their case within the exception; they did not even dare to refute the above observations and findings of the trial
court.

The second and third assigned error are interrelated, involving the application of Section 44 of Rule 130, which
reads as follows:

Sec. 44. Entries in official records. — Entries in official records made in the performance of his
duty by a public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated. 20

Petitioners assert that the Fire Investigation Report 21 by an official of the Cebu City Fire Station should
have been admitted in evidence as an exception to the hearsay rule. The trial and appellate courts
rejected this applying Africa v. Caltex (Phil.) Inc., 22 wherein this Court laid down the three requisites
for admissibility under the aforesaid section, viz.:

(1) that the entry was made by a police officer, or by another person especially enjoined by law
to do so;

(2) that it was made by the police officer in the performance of his duties, or by such other
person in the performance of a duty especially enjoined by law; and

(3) that the public officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information. 23
 Elaborating on the third requisite, this Court further stated that for the statements acquired by the public
officer under the third requisite to qualify as "official information," it is necessary that the persons who
gave the statements "not only must have personal knowledge of the facts stated but must have the duty
to give such statements for record." 24

The Court of Appeals ruled here that the reporting officer who prepared the Fire Investigation Report "had no
personal knowledge of what actually took place;" besides, the information he received did not qualify as
"official information" since those who gave the statements to the reporting officer had no personal knowledge
of the facts stated and no duty to give such statements for the record.

Some confusion surrounds the issue of admissibility of the Fire Investigation Report (Exhibits "A," "A-1" to
"A-4" inclusive). The record discloses that the officer who signed the report, Fire Major Eduardo P. Enriquez,
was subpoenaed at the request of and testified in open court for petitioners. He identified the Report, which
petitioners offered in their Offer of Exhibits 25 as:

(1) Part of the testimony of Major Eduardo P. Enriquez;

(2) To prove that an impartial investigation has determined that the "fire started at the generator .
. . within the construction site" (Exhibit "A-3").

Private respondents objected to Exhibits "A," "A-1" to "A-4," inclusive, for being "hearsay and
incompetent evidence." 26 The trial court then denied their admission "for being hearsay, this fact
admitted by witness himself, F/Maj. Eduardo Enriquez, as part of whose testimony said exhibits were
offered." 27

In light of the purposes for which the exhibits in question were offered, as aforestated, the trial court erred in
rejecting all of them as hearsay. Since Major Enriquez himself took the witness stand and was available for
cross-examination, the portions of the report which were of his personal knowledge or which consisted of his
perceptions and conclusions were not hearsay. The rest of the report, such as the summary of the statements of
the parties based on their sworn statements (which were annexed to the Report) as well as the latter, having
been included in the first purpose of the offer, may then be considered as independently relevant statements
which were gathered in the course of the investigation and may thus be admitted as such, but not necessarily to
prove the truth thereof. It has been said that:

Where, regardless of the truth or falsity of a statement, the fact that it has been made is relevant,
the hearsay rule does not apply, but the statement may be shown. Evidence as to the making of
such statement is not secondary but primary, for the statement itself may constitute a fact in
issue, or be circumstantially relevant as to the existence of such a fact. 28

When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself available
for cross-examination by the adverse party, the Report, insofar as it proved that certain utterances were made
(but not their truth), was effectively removed from the ambit of the aforementioned Section 44 of Rule 130.
Properly understood, this section does away with the testimony in open court of the officer who made the
official record, considers the matter as an exception to the hearsay rule and makes the entries in said official
record admissible in evidence as prima facie evidence of the facts therein stated. The underlying reasons for this
exceptionary rule are necessity and trustworthiness, as explained in Antillon v. Barcelon. 29

The litigation is unlimited in which testimony by officials is daily needed; the occasions in which
the officials would be summoned from his ordinary duties to declare as a witness are numberless.
The public officers are few in whose daily work something is not done in which testimony is not
needed from official sources. Were there no exception for official statements, hosts of officials
would be found devoting the greater part of their time to attending as witnesses in court or
 delivering their deposition before an officer. The work of administration of government and the
interest of the public having business with officials would alike suffer in consequence. For these
reasons, and for many others, a certain verity is accorded such documents, which is not extended
to private documents. (3 Wigmore on Evidence, sec. 1631).

The law reposes a particular confidence in public officers that it presumes they will discharge
their several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge
of their duty may be given in evidence and shall be taken to be true under such a degree of
caution as the nature and circumstances of each case may appear to require.

It would have been an entirely different matter if Major Enriquez was not presented to testify on his report. In
that case the applicability of Section 44 of Rule 130 would have been ripe for determination, and this Court
would have agreed with the Court of Appeals that said report was inadmissible since the aforementioned third
requisite was not satisfied. The statements given by the sources of information of Major Enriquez failed to
qualify as "official information," there being no showing that, at the very least, they were under a duty to give
the statements for record.

What appears to us to be the underlying purpose of petitioners in soliciting affirmance of their thesis that the
Report of Major Enriquez should be admitted as an exception to the hearsay rule, is to shift the burden of
evidence to private respondents under the doctrine of res ipsa loquitur in negligence cases. They claim, as
stated in their offer of Exhibits, that "the fire started at the generator. . . within the construction site." This
quotation is based on the penultimate paragraph of page 4 of the Report of Major Enriquez and is obviously
misleading as there is nothing in said paragraph that unequivocally asserts that the generator was located within
the construction site. The paragraph reads:

After analyzing the evidences [sic] and the circumstances underlying the situation, one can easily
came [sic] to the conclusion that the fire started at the generator and extended to the bunkhouse
and spread among the combustible stored materials within the construction site. Among the
combustible materials were the plastic (PVC) pipes and plywoods [sic].

Clearly, the phrase within the construction site could only refer to the immediately preceding term
"combustible stored materials."

The trial court itself concluded that the fire could not have started at the generator and that the bunkhouse was
not burned, thus:

All the defendants's witness testified that the generator never caught fire, and no one at all had
heard any explosion anywhere before the fire was discerned. Exhibit 1 (a photograph of the fire
while it was raging reveals that the bunkhouse was intact. 30 (emphasis supplied)

It then declared that "the fire was not caused by an instrumentality within the exclusive control of
defendants," 31 which is one of the requisites for the application of the doctrine of res ipsa loquitur in
the law of negligence. 32 It may further be emphasized that this doctrine is not intended to and does not
dispense with the requirement of proof of culpable negligence on the party charged. It merely
determines and regulates what shall be prima facie evidence thereof and facilitates the burden of
plaintiff of proving a breach of the duty of due care. The doctrine can be invoked when and only when,
under the circumstances involved, direct evidence is absent or not readily available. 33

More damaging to petitioners, which could have been enough reason for them to desist from insisting that the
Report of Major Enriquez be admitted as an exception to the hearsay rule, are the officer's conclusion and
recommendation in his report, viz.:
 V. CONCLUSION:

From the foregoing facts and all other evidences [sic] on hand, the investigator discerned that the
cause of the fire was ACCIDENTAL in nature.

VI. RECOMMENDATION:

It is hereby recommended that the investigation of the case shall be closed.

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

IN VIEW OF THE FOREGOING, the instant petition is DENIED and the challenged decision of respondent
Court of Appeals in CA-G.R CV No. 36247 is AFFIRMED in toto.

Cost against petitioners.

SO ORDERED.

G.R. No. 141910 August 6, 2002

FGU INSURANCE CORPORATION, petitioner,

vs.
G.P. SARMIENTO TRUCKING CORPORATION and LAMBERT M. EROLES, respondents.

VITUG, J.:

G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver on 18 June 1994 thirty (30) units of Condura
S.D. white refrigerators aboard one of its Isuzu truck, driven by Lambert Eroles, from the plant site of
Concepcion Industries, Inc., along South Superhighway in Alabang, Metro Manila, to the Central Luzon
Appliances in Dagupan City. While the truck was traversing the north diversion road along McArthur highway
in Barangay Anupol, Bamban, Tarlac, it collided with an unidentified truck, causing it to fall into a deep canal,
resulting in damage to the cargoes.

FGU Insurance Corporation (FGU), an insurer of the shipment, paid to Concepcion Industries, Inc., the value of
the covered cargoes in the sum of P204,450.00. FGU, in turn, being the subrogee of the rights and interests of
Concepcion Industries, Inc., sought reimbursement of the amount it had paid to the latter from GPS. Since the
trucking company failed to heed the claim, FGU filed a complaint for damages and breach of contract of
carriage against GPS and its driver Lambert Eroles with the Regional Trial Court, Branch 66, of Makati City. In
its answer, respondents asserted that GPS was the exclusive hauler only of Concepcion Industries, Inc., since
1988, and it was not so engaged in business as a common carrier. Respondents further claimed that the cause of
damage was purely accidental.1âwphi1.nêt

The issues having thus been joined, FGU presented its evidence, establishing the extent of damage to the
cargoes and the amount it had paid to the assured. GPS, instead of submitting its evidence, filed with leave of
court a motion to dismiss the complaint by way of demurrer to evidence on the ground that petitioner had failed
to prove that it was a common carrier.

The trial court, in its order of 30 April 1996,1 granted the motion to dismiss, explaining thusly:

"Under Section 1 of Rule 131 of the Rules of Court, it is provided that ‘Each party must prove his own
affirmative allegation, xxx.’
 "In the instant case, plaintiff did not present any single evidence that would prove that defendant is a
common carrier.

"x x x xxx xxx

"Accordingly, the application of the law on common carriers is not warranted and the presumption of
fault or negligence on the part of a common carrier in case of loss, damage or deterioration of goods
during transport under 1735 of the Civil Code is not availing.

"Thus, the laws governing the contract between the owner of the cargo to whom the plaintiff was
subrogated and the owner of the vehicle which transports the cargo are the laws on obligation and
contract of the Civil Code as well as the law on quasi delicts.

"Under the law on obligation and contract, negligence or fault is not presumed. The law on quasi delict
provides for some presumption of negligence but only upon the attendance of some circumstances.
Thus, Article 2185 provides:

‘Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.’

"Evidence for the plaintiff shows no proof that defendant was violating any traffic regulation. Hence, the
presumption of negligence is not obtaining.

"Considering that plaintiff failed to adduce evidence that defendant is a common carrier and defendant’s
driver was the one negligent, defendant cannot be made liable for the damages of the subject cargoes." 2

The subsequent motion for reconsideration having been denied, 3 plaintiff interposed an appeal to the Court of
Appeals, contending that the trial court had erred (a) in holding that the appellee corporation was not a common
carrier defined under the law and existing jurisprudence; and (b) in dismissing the complaint on a demurrer to
evidence.

The Court of Appeals rejected the appeal of petitioner and ruled in favor of GPS. The appellate court, in its
decision of 10 June 1999,4 discoursed, among other things, that -

"x x x in order for the presumption of negligence provided for under the law governing common carrier
(Article 1735, Civil Code) to arise, the appellant must first prove that the appellee is a common carrier.
Should the appellant fail to prove that the appellee is a common carrier, the presumption would not
arise; consequently, the appellant would have to prove that the carrier was negligent.

"x x x xxx xxx

"Because it is the appellant who insists that the appellees can still be considered as a common carrier,
despite its `limited clientele,’ (assuming it was really a common carrier), it follows that it (appellant) has
the burden of proving the same. It (plaintiff-appellant) `must establish his case by a preponderance of
evidence, which means that the evidence as a whole adduced by one side is superior to that of the other.’
(Summa Insurance Corporation vs. Court of Appeals, 243 SCRA 175). This, unfortunately, the appellant
failed to do -- hence, the dismissal of the plaintiff’s complaint by the trial court is justified.

"x x x xxx xxx

 "Based on the foregoing disquisitions and considering the circumstances that the appellee trucking
corporation has been `its exclusive contractor, hauler since 1970, defendant has no choice but to comply
with the directive of its principal,’ the inevitable conclusion is that the appellee is a private carrier.

"x x x xxx xxx

"x x x the lower court correctly ruled that 'the application of the law on common carriers is not
warranted and the presumption of fault or negligence on the part of a common carrier in case of loss,
damage or deterioration of good[s] during transport under [article] 1735 of the Civil Code is not
availing.' x x x.

"Finally, We advert to the long established rule that conclusions and findings of fact of a trial court are
entitled to great weight on appeal and should not be disturbed unless for strong and valid reasons." 5

Petitioner's motion for reconsideration was likewise denied;6 hence, the instant petition,7 raising the following
issues:

WHETHER RESPONDENT GPS MAY BE CONSIDERED AS A COMMON CARRIER AS

DEFINED UNDER THE LAW AND EXISTING JURISPRUDENCE.

II

WHETHER RESPONDENT GPS, EITHER AS A COMMON CARRIER OR A PRIVATE CARRIER,

MAY BE PRESUMED TO HAVE BEEN NEGLIGENT WHEN THE GOODS IT UNDERTOOK TO
TRANSPORT SAFELY WERE SUBSEQUENTLY DAMAGED WHILE IN ITS PROTECTIVE
CUSTODY AND POSSESSION.

III

WHETHER THE DOCTRINE OF RES IPSA LOQUITUR IS APPLICABLE IN THE INSTANT CASE.

On the first issue, the Court finds the conclusion of the trial court and the Court of Appeals to be amply
justified. GPS, being an exclusive contractor and hauler of Concepcion Industries, Inc., rendering or offering its
services to no other individual or entity, cannot be considered a common carrier. Common carriers are persons,
corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or
both, by land, water, or air, for hire or compensation, offering their services to the public,8 whether to the public
in general or to a limited clientele in particular, but never on an exclusive basis. 9 The true test of a common
carrier is the carriage of passengers or goods, providing space for those who opt to avail themselves of its
transportation service for a fee.10 Given accepted standards, GPS scarcely falls within the term "common
carrier."

The above conclusion nothwithstanding, GPS cannot escape from liability.

In culpa contractual, upon which the action of petitioner rests as being the subrogee of Concepcion Industries,
Inc., the mere proof of the existence of the contract and the failure of its compliance justify, prima facie, a
corresponding right of relief.11 The law, recognizing the obligatory force of contracts, 12 will not permit a party
to be set free from liability for any kind of misperformance of the contractual undertaking or a contravention of
the tenor thereof.13 A breach upon the contract confers upon the injured party a valid cause for recovering that
which may have been lost or suffered. The remedy serves to preserve the interests of the promisee that may
include his "expectation interest," which is his interest in having the benefit of his bargain by being put in as
good a position as he would have been in had the contract been performed, or his "reliance interest," which is
his interest in being reimbursed for loss caused by reliance on the contract by being put in as good a position as
he would have been in had the contract not been made; or his "restitution interest," which is his interest in
having restored to him any benefit that he has conferred on the other party. 14 Indeed, agreements can
accomplish little, either for their makers or for society, unless they are made the basis for action. 15 The effect of
every infraction is to create a new duty, that is, to make recompense to the one who has been injured by the
failure of another to observe his contractual obligation16 unless he can show extenuating circumstances, like
proof of his exercise of due diligence (normally that of the diligence of a good father of a family or,
exceptionally by stipulation or by law such as in the case of common carriers, that of extraordinary diligence) or
of the attendance of fortuitous event, to excuse him from his ensuing liability.

Respondent trucking corporation recognizes the existence of a contract of carriage between it and petitioner’s
assured, and admits that the cargoes it has assumed to deliver have been lost or damaged while in its custody. In
such a situation, a default on, or failure of compliance with, the obligation – in this case, the delivery of the
goods in its custody to the place of destination - gives rise to a presumption of lack of care and corresponding
liability on the part of the contractual obligor the burden being on him to establish otherwise. GPS has failed to
do so.

Respondent driver, on the other hand, without concrete proof of his negligence or fault, may not himself be
ordered to pay petitioner. The driver, not being a party to the contract of carriage between petitioner’s principal
and defendant, may not be held liable under the agreement. A contract can only bind the parties who have
entered into it or their successors who have assumed their personality or their juridical position. 17 Consonantly
with the axiom res inter alios acta aliis neque nocet prodest, such contract can neither favor nor prejudice a
third person. Petitioner’s civil action against the driver can only be based on culpa aquiliana, which, unlike
culpa contractual, would require the claimant for damages to prove negligence or fault on the part of the
defendant.18

A word in passing. Res ipsa loquitur, a doctrine being invoked by petitioner, holds a defendant liable where the
thing which caused the injury complained of is shown to be under the latter’s management and the accident is
such that, in the ordinary course of things, cannot be expected to happen if those who have its management or
control use proper care. It affords reasonable evidence, in the absence of explanation by the defendant, that the
accident arose from want of care. 19 It is not a rule of substantive law and, as such, it does not create an
independent ground of liability. Instead, it is regarded as a mode of proof, or a mere procedural convenience
since it furnishes a substitute for, and relieves the plaintiff of, the burden of producing specific proof of
negligence. The maxim simply places on the defendant the burden of going forward with the proof. 20 Resort to
the doctrine, however, may be allowed only when (a) the event is of a kind which does not ordinarily occur in
the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons,
are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the
defendant's duty to the plaintiff.21 Thus, it is not applicable when an unexplained accident may be attributable to
one of several causes, for some of which the defendant could not be responsible. 22

Res ipsa loquitur generally finds relevance whether or not a contractual relationship exists between the plaintiff
and the defendant, for the inference of negligence arises from the circumstances and nature of the occurrence
and not from the nature of the relation of the parties. 23 Nevertheless, the requirement that responsible causes
other than those due to defendant’s conduct must first be eliminated, for the doctrine to apply, should be
understood as being confined only to cases of pure (non-contractual) tort since obviously the presumption of
negligence in culpa contractual, as previously so pointed out, immediately attaches by a failure of the covenant
or its tenor. In the case of the truck driver, whose liability in a civil action is predicated on culpa acquiliana,
while he admittedly can be said to have been in control and management of the vehicle which figured in the
accident, it is not equally shown, however, that the accident could have been exclusively due to his negligence,
a matter that can allow, forthwith, res ipsa loquitur to work against him.
If a demurrer to evidence is granted but on appeal the order of dismissal is reversed, the movant shall be
deemed to have waived the right to present evidence. 24 Thus, respondent corporation may no longer offer proof
to establish that it has exercised due care in transporting the cargoes of the assured so as to still warrant a
remand of the case to the trial court.1âwphi1.nêt

WHEREFORE, the order, dated 30 April 1996, of the Regional Trial Court, Branch 66, of Makati City, and
the decision, dated 10 June 1999, of the Court of Appeals, are AFFIRMED only insofar as respondent Lambert
M. Eroles is concerned, but said assailed order of the trial court and decision of the appellate court are
REVERSED as regards G.P. Sarmiento Trucking Corporation which, instead, is hereby ordered to pay FGU
Insurance Corporation the value of the damaged and lost cargoes in the amount of P204,450.00. No costs.

SO ORDERED.

G.R. No. 147746 October 25, 2005

PERLA COMPANIA DE SEGUROS, INC. and BIENVENIDO S. PASCUAL, Petitioners,

vs.
SPS. GAUDENCIO SARANGAYA III and PRIMITIVA B. SARANGAYA, Respondents.

DECISION

CORONA, J.:

This is an appeal by certiorari under Rule 45 of the 1997 Rules of Civil Procedure seeking to annul the
decisions of the Court of Appeals (CA) dated June 29, 2000 and March 31, 2001, respectively, which affirmed
the decision of the Regional Trial Court (RTC), Branch 21 of Santiago, Isabela.

In 1986, respondent spouses Gaudencio Sarangaya III and Primitiva Sarangaya erected a semi-concrete, semi-
narra, one-storey commercial building fronting the provincial road of Santiago, Isabela. The building was
known as "Super A Building" and was subdivided into three doors, each of which was leased out. The two-
storey residence of the Sarangayas was behind the second and third doors of the building. On the left side of the
commercial building stood the office of the Matsushita Electric Philippine Corporation (Matsushita).

In 1988, petitioner Perla Compania de Seguros, Inc. (petitioner-corporation), through its branch manager and
co-petitioner Bienvenido Pascual, entered into a contract of lease of the first door of the "Super A Building,"
abutting the office of Matsushita. Petitioner-corporation renovated its rented space and divided it into two. The
left side was converted into an office while the right was used by Pascual as a garage for a 1981 model 4-door
Ford Cortina, a company-provided vehicle he used in covering the different towns within his area of
supervision.

On July 7, 1988, Pascual left for San Fernando, Pampanga but did not bring the car with him. Three days later,
he returned to Santiago and, after checking his appointments the next day, decided to "warm up" the car. When
he pulled up the handbrake and switched on the ignition key, the engine made an "odd" sound and did not start.
Thinking it was just the gasoline percolating into the engine, he again stepped on the accelerator and started the
car. This revved the engine but petitioner again heard an unusual sound. He then saw a small flame coming out
of the engine. Startled, he turned it off, alighted from the vehicle and started to push it out of the garage when
suddenly, fire spewed out of its rear compartment and engulfed the whole garage. Pascual was trapped inside
and suffered burns on his face, legs and arms.

Meanwhile, respondents were busy watching television when they heard two loud explosions. The smell of
gasoline permeated the air and, in no time, fire spread inside their house, destroying all their belongings,
furniture and appliances.
The city fire marshall conducted an investigation and thereafter submitted a report to the provincial fire
marshall. He concluded that the fire was "accidental." The report also disclosed that petitioner-corporation had
no fire permit as required by law.

Based on the same report, a criminal complaint for "Reckless Imprudence Resulting to (sic) Damage in (sic)
Property"1 was filed against petitioner Pascual. On the other hand, petitioner-corporation was asked to pay the
amount of ₱7,992,350, inclusive of the value of the commercial building. At the prosecutor’s office, petitioner
Pascual moved for the withdrawal of the complaint, which was granted.

Respondents later on filed a civil complaint based on quasi-delict against petitioners for a "sum of money and
damages," alleging that Pascual acted with gross negligence while petitioner-corporation lacked the required
diligence in the selection and supervision of Pascual as its employee. They prayed for payment of the following
damages:

1. ₱2,070,000.00 - representing the value of the 2-storey residential building and the 3-door apartment;

2. ₱5,922,350.00 - representing the value of the jewelries, appliances, [furniture], fixtures and cash;

3. ₱8,300.00 – a month for [lost rental] income from July 1995 until such time that the premises is restored to its
former condition or payment for its value, whichever comes first;

4. ₱2,000,000.00 – for moral damages;

5. ₱1,000,000.00 – for exemplary damages, and

6. Attorney’s fees equivalent to 15% of the total amount to be awarded to the plaintiffs. 2

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

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

After the trial, the court a quo ruled in favor of respondents. The decretal portion of the decision read:

WHEREFORE, in the light of the foregoing considerations judgment is hereby rendered ORDERING the
defendants, Bienvenido Pascual and Perla Compania de Seguros, Inc. to pay jointly and solidarily to the
plaintiffs spouses Gaudencio and Primitiva Sarangaya the total sum of Two Million Nine Hundred Four
Thousand Eight Hundred and Eighty Pesos ([₱]2,904,880.00) as actual damages with legal interest thereon from
December 12, 1995 until fully paid.3 (emphasis supplied)

The court a quo declared that, although the respondents failed to prove the precise cause of the fire that
engulfed the garage, Pascual was nevertheless negligent based on the doctrine of res ipsa loquitur. 4 It did not,
however, categorically rule that the gasoline container allegedly placed in the rear compartment of the car
caused the fire. The trial court instead declared that both petitioners failed to adduce sufficient evidence to
prove that they employed the necessary care and diligence in the upkeep of the car. 5 Contrary to the claims of
petitioner-corporation, the trial court also found that it failed to employ the diligence of a good father of a
family, as required by law, in the selection and supervision of Pascual.
With respect to the amount of damages, the trial court awarded to respondents no more than their claim for
actual damages covering the cost of the 2-storey residential building and the commercial building, including
their personal properties. It explained:

According to the plaintiff Gaudencio Sarangaya III, he made a list of what was lost. His list includes the
commercial building that was burned which he valued at ₱2,070,000.00. The defendants take exception to the
value given by the plaintiff and for this purpose they submitted the tax declaration of the building which states
that the market value is ₱183,770.00. The Court takes judicial notice that the valuation appearing on the tax
declaration of property is always lower [than] the correct value thereof. Considering that the building that was
burned was a two-storey residential house with a commercial building annex with a total floor area of 241
square meters as stated in the tax declaration, mostly concrete mixed with narra and other lumber materials, the
value given by the plaintiffs of ₱2,070,000.00 is reasonable and credible and it shall be awarded to the
plaintiffs.

The other items listed are assorted [furniture] and fixtures totaling ₱307,000.00 assorted appliances worth
₱358,350.00; two filing cabinets worth ₱7,000.00 and clothing and other personal effects costing ₱350,000.00,
household utensils costing ₱15,000.00. The Court finds them reasonable and credible considering the social and
financial stature of the plaintiffs who are businessmen. There could be no question that they were able to
acquire and own quite a lot of home furnishings and personal belongings. The costing however is high
considering that these belongings were already used for quite some time so a 20% depreciation should be
equitably deducted from the cost of acquisition submitted by plaintiffs. Thus, the total amount recoverable
would be ₱1,037,350.00 less 20% or a total of ₱829,880.00. The ₱5,000.00 representing foodstock can also be
ordered paid to the plaintiffs. x x x.6

On appeal to the Court of Appeals, the appellate court again ruled in favor of respondents but modified the
amount of damages awarded by the trial court. It held:

x x x the Decision of the Court a quo is AFFIRMED, with the modification that the Appellants are hereby
ordered to pay the Appellees, jointly and severally, the total amount of ₱600,000.00 by way of nominal
damages under Articles 2222 and 2223 of the New Civil Code, with interest thereon, at the rate of 6% per
annum from the date of the Decision of this Court.7

The appellate court was in accord with the trial court’s findings that the doctrine of res ipsa loquitur was
correctly applied in determining the liability of Pascual and that petitioner-corporation, as the employer, was
vicariously liable to respondents. Nonetheless, for respondents’ failure to substantiate their actual loss, the
appellate court granted nominal damages of ₱600,000 to them.

Petitioners and respondents filed their respective motions for reconsideration.

In their MR, petitioners contested the findings of fact of the appellate court. They denied any liability
whatsoever to respondents but this was rejected by the CA for lack of merit. Thus, the present appeal.

Respondents, on the other hand, argued in their MR that the award of nominal damages was erroneous. They
prayed that, in lieu of the award of nominal damages, the case should instead be remanded to the trial court for
reception of additional evidence on their claim for actual damages. The CA granted respondents’ MR. Hence
they did not appeal the CA’s decision to us. According to the CA:

Anent Plaintiffs-Appellees’ plea that, in lieu of the Court’s award of nominal damages, the case be remanded to
the Court a quo, in the interest of justice, to enable them to adduce evidence to prove their claim for actual
damages, we find the same meritorious.

Accordingly, the Decision of the Court is hereby amended to read as follows:

IN THE LIGHT OF ALL THE FOREGOING, the Decision of the Court a quo appealed from is AFFIRMED.
The award of nominal damages is set aside. Let the records be remanded to the Court a quo for the
reception of additional evidence by the Plaintiffs-Appellees and the Defendants-Appellants anent
Plaintiffs-Appellees’ claim for actual damages.8 (emphasis supplied)

Via this petition, petitioners ascribe the following errors to the appellate court:

(a) THE COURT OF APPEALS ERRED IN APPLYING THE DOCTRINE OF ["RES IPSA LOQUITUR"] IN
THE PRESENT CASE;

(b) THE COURT OF APPEALS ERRED WHEN IT FOUND PERLA NEGLIGENT IN THE SUPERVISION
OF PASCUAL, AND CONSEQUENTLY, VICARIOUSLY LIABLE FOR THE FIRE BECAUSE PERLA
FAILED TO ADDUCE EVIDENCE OF SUPERVISION OF EMPLOYEE’S CARE AND UPKEEP OF
COMPANY VEHICLES REQUIRED BY THE SUPREME COURT ON TRANSPORTATION COMPANIES;
AND

(c) THE COURT OF APPEALS ERRED WHEN IT ORDERED THE REMAND OF THE CASE TO RTC
ISABELA FOR RECEPTION OF ADDITIONAL EVIDENCE BY THE SARANGAYA SPOUSES ON
THEIR CLAIM FOR ACTUAL DAMAGES.9

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." 10 It
relates to the fact of an injury that sets out an inference to the cause thereof or establishes the plaintiff’s prima
facie case.11 The doctrine rests on inference and not on presumption. 12 The facts of the occurrence warrant the
supposition of negligence and they furnish circumstantial evidence of negligence when direct evidence is
lacking.13

The doctrine is based on the theory that the defendant either knows the cause of the accident or has the best
opportunity of ascertaining it and the plaintiff, having no knowledge thereof, is compelled to allege negligence
in general terms.14 In such instance, the plaintiff relies on proof of the happening of the accident alone to
establish negligence.15

The doctrine provides a means by which a plaintiff can pin liability on a defendant who, if innocent, should be
able to explain the care he exercised to prevent the incident complained of. Thus, it is the defendant’s
responsibility to show that there was no negligence on his part. 16

To sustain the allegation of negligence based on the doctrine of res ipsa loquitur, the following requisites must
concur:

1) the accident is of a kind which does not ordinarily occur unless someone is negligent;

2) the cause of the injury was under the exclusive control of the person in charge and

3) the injury suffered must not have been due to any voluntary action or contribution on the part of the person
injured.17

Under the first requisite, the occurrence must be one that does not ordinarily occur unless there is negligence.
"Ordinary" refers to the usual course of events. 18 Flames spewing out of a car engine, when it is switched on, is
obviously not a normal event. Neither does an explosion usually occur when a car engine is revved. Hence, in
this case, without any direct evidence as to the cause of the accident, the doctrine of res ipsa loquitur comes into
play and, from it, we draw the inference that based on the evidence at hand, someone was in fact negligent and
responsible for the accident.
The test to determine the existence of negligence in a particular case may be stated as follows: did the defendant
in committing the alleged negligent act, use reasonable care and caution which an ordinarily prudent person in
the same situation would have employed?19 If not, then he is guilty of negligence.

Here, the fact that Pascual, as the caretaker of the car, failed to submit any proof that he had it periodically
checked (as its year-model and condition required) revealed his negligence. A prudent man should have known
that a 14-year-old car, constantly used in provincial trips, was definitely prone to damage and other defects. For
failing to prove care and diligence in the maintenance of the vehicle, the necessary inference was that Pascual
had been negligent in the upkeep of the car.

Pascual attempted to exculpate himself from liability by insisting that the incident was a caso fortuito. We
disagree.

The exempting circumstance of caso fortuito may be availed only when: (a) the cause of the unforeseen and
unexpected occurrence was independent of the human will; (b) it was impossible to foresee the event which
constituted the caso fortuito or, if it could be foreseen, it was impossible to avoid; (c) the occurrence must be
such as to render it impossible to perform an obligation in a normal manner and (d) the person tasked to perform
the obligation must not have participated in any course of conduct that aggravated the accident. 20

In fine, human agency must be entirely excluded as the proximate cause or contributory cause of the injury or
loss.21 In a vehicular accident, for example, a mechanical defect will not release the defendant from liability if it
is shown that the accident could have been prevented had he properly maintained and taken good care of the
vehicle.22

The circumstances on record do not support the defense of Pascual. Clearly, there was no caso fortuito because
of his want of care and prudence in maintaining the car.

Under the second requisite, the instrumentality or agency that triggered the occurrence must be one that falls
under the exclusive control of the person in charge thereof. In this case, the car where the fire originated was
under the control of Pascual. Being its caretaker, he alone had the responsibility to maintain it and ensure its
proper functioning. No other person, not even the respondents, was charged with that obligation except him.

Where the circumstances which caused the accident are shown to have been under the management or control
of a certain person and, in the normal course of events, the incident would not have happened had that person
used proper care, the inference is that it occurred because of lack of such care. 23 The burden of evidence is thus
shifted to defendant to establish that he observed all that was necessary to prevent the accident from happening.
In this aspect, Pascual utterly failed.

Under the third requisite, there is nothing in the records to show that respondents contributed to the incident.
They had no access to the car and had no responsibility regarding its maintenance even if it was parked in a
building they owned.

On the second assigned error, we find no reason to reverse the decision of the Court of Appeals. The
relationship between the two petitioners was based on the principle of pater familias according to which the
employer becomes liable to the party aggrieved by its employee if he fails to prove due diligence of a good
father of a family in the selection and supervision of his employees. 24 The burden of proof that such diligence
was observed devolves on the employer who formulated the rules and procedures for the selection and hiring of
his employees.

In the selection of prospective employees, employers are required to examine them as to their qualifications,
experience and service records.25 While the petitioner-corporation does not appear to have erred in considering
Pascual for his position, its lack of supervision over him made it jointly and solidarily liable for the fire.
In the supervision of employees, the employer must formulate standard operating procedures, monitor their
implementation and impose disciplinary measures for the breach thereof. 26 To fend off vicarious liability,
employers must submit concrete proof, including documentary evidence, that they complied with everything
that was incumbent on them.27 Here, petitioner-corporation’s evidence hardly included any rule or regulation
that Pascual should have observed in performing his functions. It also did not have any guidelines for the
maintenance and upkeep of company property like the vehicle that caught fire. Petitioner-corporation did not
require periodic reports on or inventories of its properties either. Based on these circumstances, petitioner-
corporation clearly did not exert effort to be apprised of the condition of Pascual’s car or its serviceability.

Petitioner-corporation’s argument that the liability attached to employers only applies in cases involving the
supervision of employees in the transportation business is incorrect. Article 2180 of the Civil Code states that
employers shall be liable for the damage caused by their employees. The liability is imposed on all those who
by their industry, profession or other enterprise have other persons in their service or supervision. 28 Nowhere
does it state that the liability is limited to employers in the transportation business.

WHEREFORE, the petition is hereby DENIED and the

decision29 of the Court of Appeals affirmed in toto.

Costs against petitioners.

SO ORDERED.

G.R. No. L-22533 February 9, 1967

PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners,

vs.
PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES BONIFACIO, respondents.

Placido B. Ramos and Renato L. Ramos for petitioners.

Trinidad & Borromeo for respondents.

BENGZON, J.P., J.:

On June 30, 1958 Placido and Augusto Ramos sued Pepsi-Cola Bottling Co. of the P.I. 1 and Andres Bonifacio
in the Court of First Instance of Manila as a consequence of a collision, on May 10, 1958, involving the car of
Placido Ramos and a tractor-truck and trailer of PEPESI-COLA. Said car was at the time of the collision driven
by Augusto Ramos, son and co-plaintiff of Placido. PEPSI-COLA's tractor-truck was then driven by its driver
and co-defendant Andres Bonifacio.

After trial the Court of First Instance rendered judgment on April 15, 1961, finding Bonifacio negligent and
declaring that PEPSI-COLA had not sufficiently proved its having exercised the due diligence of a good father
of a family to prevent the damage. PEPSI-COLA and Bonifacio, solidarily, were ordered to pay the plaintiffs
P2,638.50 actual damages; P2,000.00 moral damages; P2,000.00 as exemplary damages; and, P1,000.00
attorney's fees, with costs.

Not satisfied with this decision, the defendants appellee to the Court of Appeals.

Said Court, on January 15, 1964, affirmed the trial court's judgment insofar as it found defendant Bonifacio
negligent, but modified it by absolving defendant PEPSI-COLA from liability, finding that, contrary to the
plaintiffs' contention, PEPSI-COLA sufficiently proved due diligence in the selection of its driver Bonifacio.
Plaintiffs thereupon appealed to Us through this petition for review of the Court of Appeals' decision. And
appellants would argue before this Court that defendant PEPSI-COLA's evidence failed to show that it had
exercised due diligence in the selection of its driver in question.

Said point, as stated, was resolved by the Court of Appeals in PEPSI-COLA's favor, thus:

The uncontradicted testimony of Juan T. Anasco, personnel manager of defendant company, was to the
effect that defendant driver was first hired as a member of the bottle crop in the production department;
that when he was hired as a driver, 'we had size [sic] him by looking into his background, asking him to
submit clearances, previous experience, physical examination and later on, he was sent to the pool house
to take the usual driver's examination, consisting of: First, theoretical examination and second, the
practical driving examination, all of which he had undergone, and that the defendant company was a
member of the Safety Council. In view hereof, we are of the sense that defendant company had
exercised the diligence of a good father of a family in the choice or selection of defendant driver'. In the
case of Campo vs. Camarote No. L-9147 (1956), 53 O.G. 2794, cited in appellee's brief, our Supreme
Court had occasion to put it down as a rule that "In order that the defendant may be considered as having
exercised all the diligence of a good father of a family, he should not have been satisfied with the mere
possession of a professional driver's license; he should have carefully examined the applicant for
employment as to his qualifications, his experiences and record of service." Defendant Company has
taken all these steps.2

Appellants herein seek to assail the foregoing portion of the decision under review by taking issue with the
testimony of Anasco upon which the findings of due diligence aforestated are rested. Thus, it is now contended
that Añasco being PEPSI-COLA's employee, is a biased and interested witness; and that his testimony is not
believable.

It is rather clear, therefore, that appellants would raise herein an issue of fact and credibility, something as to
which this Court has consistently respected the findings of the Court of Appeals, with some few exceptions,
which do not obtain herein.3

Stated differently, Añascos credibility is not for this Court now to re-examine. And said witness having been
found credible by the Court of Appeals, his testimony, as accepted by said Court, cannot at this stage be
assailed. As We said in Co Tao vs. Court of Appeals, L-9194, April 25, 1957, assignments of error involving the
credibility of witnesses and which in effect dispute the findings of fact of the Court of Appeals, cannot be
reviewed in these proceedings. For a question to be one of law it must involve no examination of the probative
value of the evidence presented by the litigants or any of them. 4 And the distinction is well-known: There is a
question of law in a given case when the doubt or difference arises as to what the law is on a certain state of
facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of alleged
facts.5

From all this it follows that for the purposes of this appeal, it must be taken as established that, as testified to by
Añasco, PEPSI-COLA did in fact carefully examine the driver-applicant Bonifacio as to his qualifications,
experiences and record of service, taking all steps mentioned by the Court of Appeals in its decision already
quoted.1äwphï1.ñët

Such being the case, there can be no doubt that PEPSI-COLA exercised the required due diligence in the
selection of its driver. As ruled by this Court in Campo vs. Camarote 53 O.G. 2794, 2797: "In order that the
defendant may be considered as having exercised all diligence of a good father of a family, he should not be
satisfied with the mere possession of a professional driver's license; he should have carefully examined the
applicant for employment as to his qualifications, his experience and record of service."
It should perhaps be stated that in the instant case no question is raised as to due diligence in the supervision by
PEPSI-COLA of its driver. Article 2180 of the Civil Code provides inter alia:

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

xxx xxx xxx

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

And construing a similar provision of the old Civil Code, this Court said in Bahia vs. Litonjua, 30 Phil.
624, 627:

From this article two things are apparent: (1) That when an injury is caused by the negligence of a
servant or employee there instantly arises a presumption of law that there was negligence on the part of
the master or employer either in the selection of the servant or employee, or in supervision over him
after the selection, or both; and (2) that the presumption is juris tantum and not juris et de jure, and
consequently may be rebutted. It follows necessarily that if the employer shows to the satisfaction of the
court that in selection and supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved from liability.

As pointed out, what appellants here contend as not duly proved by PEPSI-COLA is only due diligence in the
selection of its driver. And, parenthetically, it is not surprising that appellants thus confine their arguments to
this aspect of due diligence, since the record — as even appellants' brief (pp. 13-17) reflects in quoting in part
the testimony of PEPSI-COLA's witness — would show sufficient evidence to establish due diligence in the
supervision by PEPSI-COLA of its drivers, including Bonifacio.

Appellants' other assignment of errors are likewise outside the purview of this Court's reviewing power. Thus,
the question of whether PEPSI- COLA violated the Revised Motor Vehicle Law and rules and regulations
related thereto, not having been raised and argued in the Court of Appeals, cannot be ventilated herein for the
first time. 6 And the matter of whether or not PEPSI-COLA did acts to ratify the negligent act of its driver is a
factual issue not proper herein.

Wherefore, the decision of the Court of Appeals is hereby affirmed, with costs against appellants. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

RESOLUTION ON MOTION FOR RECONSIDERATION

May 16, 1967

BENGZON, J.P., J.:

Petitioners seek a reconsideration1 of Our decision2 in the instant case affirming in toto the challenged decision
of the Court of Appeals absolving respondent PEPSI-COLA from liability. In Our decision, We refrained from
passing on the merits of the question whether PEPSI-COLA, in operating the tractor-truck and trailer, violated
the Rev. Motor Vehicle Law3 and the rules and regulations related thereto, for the procedural reason that it did
not appear to have been raised before the Court of Appeals.
It now appears, however, that said question was raised in a motion to reconsider filed with the Court of Appeals
which resolved the same against petitioners. Due consideration of the matter on its merits, convinces Us that the
decision of the Court of Appeals should still be affirmed in toto.

Petitioners impute to PEPSI-COLA the violation of subpars. 1 and 4(d), par. (a), Sec. 27 of M.V.O.
Administrative Order No. 1, dated Sept. 1, 1951, in that at the time of the collision, the trailer-truck, which had
a total weight of 30,000 kgms., was (a) being driven at a speed of about 30 k.p.h. or beyond the 15 k.p.h. limit
set and (b) was not equipped with a rear-vision mirror nor provided with a helper for the driver.

The cited provisions read:

SECTION 27. Registration, operation, and inspection of truck-trailer combinations, semi-trailers, and
tractors.

(a) No trailer or semi-trailer having a gross weight of more than 2,000 kilograms and is not equipped
with effective brakes on at least two opposite wheels of the rear axle and are so controlled that the
brakes will act in unison with or preceding the effective action of the brakes of the tractor-truck shall be
registered for operation on public highways of the Philippines; provided, that the trialers without brakes
may be registered from year to year for operation under the following conditions:

1. No such trailer shall be operated at any time at a speed in excess of 15 kilometers per hour in
conjunction with a tractor-truck, the actual gross weight of which is less than twice the weight of the
trailer.

xxx xxx xxx

4(d) Tractor-trucks shall be either equipped with rear-vision mirror to enable the driver to see vehicles
approaching mirror the rear or shall carry a helper who shall be so stationed on the truck or trailer that he
will constantly have a view of the rear. He shall be provided with means of effectively signalling to the
driver to give way to overtaking vehicles.

4(e) No truck and trailer combination shall be operated at a speed greater than 30 kilometers per hour.

It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refers only to trailers or semi-trailers having a
gross weight of more than 2,000 kgms., AND which are "not equipped with effective brakes on at least
two opposite wheels, of the rear axle and are so controlled that the brakes will act in unison with or
preceding the effective action of the brakes of the tractor-truck..." This is the condition set in the proviso
in par. (a), supra, wherein "trailers without [such] brakes may be registered from year to year for
operation ..." i.e., they should not "be operated at any time at a speed in excess of 15 kilometers per hour
in conjunction with a tractor-truck ...". But there was no finding by the Court of Appeals that the truck-
trailer here did not have such brakes. In the absence of such fact, it is subpar. 4(e), supra, that will apply.
And petitioners admit that the truck-trailer was being driven at about 30 k.p.h.

It is a fact that driver Bonifacio was not accompanied by a helper on the night of the collision since he was
found to be driving alone. However, there is no finding that the tractor-truck did not have a rear-vision mirror.
To be sure, the records disclose that Pat. Rodolfo Pahate, the traffic policeman who went to the collision scene,
testified that he saw the tractor-truck there but he does not remember if it had any rear vision mirror.4 This
cannot prove lack of rear-vision mirror. And the cited provision — subpar. 4(d) — is complied if either of the
two alternatives, i.e., having a rear-vision mirror or a helper, is present. Stated otherwise, said provision is
violated only where there is a positive finding that the tractor-truck did not have both rear-vision mirror and a
helper for the driver.
Petitioners also charge PEPSI-COLA with having violated par. (b) of Sec. 8-A of the Rev. Motor Vehicle Law,
providing that:

No motor vehicle operating as a single unit shall exceed the following dimensions:

Overall width ................ 2.5 meters.

xxx xxx xxx

since there was an express finding that the truck-trailer was 3 meters wide. However, Sec. 9 (d) of the
same law, as amended, providing that —

SEC. 9. Special permits, fees for.-The chief of the Motor Vehicles Office with the approval of the
Secretary of Public Works and Communications shall establish regulations and a tariff of additional
fees under which special permits may be issued in the discretion of the Chief of the Motor Vehicles
Office or his deputies, for each of the following special cases, and without such special permit, no such
motor vehicles shall be operated on the public highways.

xxx xxx xxx

(d) For registration or use of a motor vehicle exceeding the limit of permissible dimensions specified in
subsections (b) and (c) of section eight-A hereof. (Emphasis supplied)

xxx xxx xxx

expressly allows the registration, or use of motor vehicles exceeding the limits of permissible
dimensions specified in subsec. (b) of Sec. 8-A. So, to conclude that there was a violation of law —
which undisputably constitutes negligence, at the very least — it is not enough that the width of the
tractor-truck exceed the limit in Sec. 8-A; in addition, it must also appear that there was no special
permit granted under Sec. 9. Unfortunately for petitioners, that vital factual link is missing. There was
no proof much less any finding to that effect. And it was incumbent upon petitioners-appellants to have
proved lack of such permit since the tractor-truck and the trailer were registered. 5 Compliance with law
and regularity in the performance of official duty — in this case, the issuance of proper registration
papers — are presumed6 and prevail over mere surmises. Having charged a violation of law, the onus of
substantiating the same fell upon petitioners-appellants. Hence, the conclusion that there was a violation
of the law lacks factual basis.

Petitioners would also have Us abandon the Bahia ruling.7 In its stead, We are urged to apply the Anglo-
American doctrine of respondent superior. We cannot however, abandon the Bahia ruling without going against
the explicit mandate of the law. A motor vehicle owner is not an absolute insurer against all damages caused by
its driver. Article 2180 of our Civil Code is very explicit that the owner's responsibility shall cease once it
proves that it has observed the diligence of a good father of a family to prevent damage. The Bahia case merely
clarified what that diligence consists of, namely, diligence in the selection and supervision of the driver-
employee.

Neither could We apply the respondent superior principle. Under Article 2180 of the Civil Code, the basis of an
employer's liability is his own negligence, not that of his employees. The former is made responsible for failing
to properly and diligently select and supervise his erring employees. We do not — and have never — followed
the respondent superior rule.8 So, the American rulings cited by petitioners, based as they are on said doctrine,
are not authoritative here.

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

G.R. No. 118231 July 5, 1996

DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners,

vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents.

DAVIDE, JR., J.:p

Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this
trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi1 then already
provided: "If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or
operate on the eye socket of a man with his bronze lancet and destroy the man's eyes, they shall cut off his
hand." 2 Subsequently, Hippocrates3 wrote what was to become part of the healer's oath: "I will follow that
method of treatment which according to my ability and judgment, I consider for the benefit of my patients, and
abstain from whatever is deleterious and mischievous. . . . While I continue to keep this oath unviolated may it
be granted me to enjoy life and practice the art, respected by all men at all times but should I trespass and
violate this oath, may the reverse be my lot." At present, the primary objective of the medical profession if the
preservation of life and maintenance of the health of the people.4

Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient,
he must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted
out by the ancients, neither will it and this Court, as this case would show, let the act go uncondemned.

The petitioners appeal from the decision5 of the Court of Appeals of 11 May 1994 in CA-G.R. CV No. 30851,
which reversed the decision6 of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros
Oriental in Civil Case No. 9492.

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

Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete
City from January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also
the Actg. Head of the Department of Obstetrics and Gynecology at the said Hospital.

Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's
private patient sometime before September 21, 1988.

In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy
who was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and
some student nurses performed a simple caesarean section on Mrs. Villegas at the Negros
Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered her first child, Rachel
Acogido, at about 11:45 that morning. Thereafter, Plaintiff remained confined at the Hospital
until September 27, 1988 during which period of confinement she was regularly visited by Dr.
Batiquin. On September 28, 1988 Mrs. Villegas checked out of the Hospital. . . and on that same
day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as "professional
fee". . . .

Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of
being feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's
polyclinic who prescribed for her certain medicines. . . which she had been taking up to
December, 1988.
 In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31,
1988. . . certifying to her physical fitness to return to her work on November 7, 1988. So, on the
second week of November, 1988 Mrs. Villegas returned to her work at the Rural Bank of
Ayungon, Negros Oriental.

The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end despite the
medications administered by Dr. Batiquin. When the pains became unbearable and she was
rapidly losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in
Dumaguete City on January 20, 1989.

The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the
Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was
breathing fast. Upon examination she felt an abdominal mass one finger below the umbilicus
which she suspected to be either a tumor of the uterus or an ovarian cyst, either of which could
be cancerous. She had an x-ray taken of Mrs. Villegas' chest, abdomen and kidney. She also took
blood tests of Plaintiff. A blood count showed that Mrs. Villegas had [an] infection inside her
abdominal cavity. The results of all those examinations impelled Dr. Kho to suggest that Mrs.
Villegas submit to another surgery to which the latter agreed.

When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside,
an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the
uterus, and a piece of rubber material on the right side of the uterus embedded on [sic] the
ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described
as a "foreign body" looked like a piece of a "rubber glove". . . and which is [sic] also "rubber-
drain like". . . . It could have been a torn section of a surgeon's gloves or could have come from
other sources. And this foreign body was the cause of the infection of the ovaries and
consequently of all the discomfort suffered by Mrs. Villegas after her delivery on September 21,
1988.7

The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented in
court, and although Dr. Ma. Salud Kho Testified that she sent it to a pathologist in Cebu City for examination,8
it was not mentioned in the pathologist's Surgical Pathology Report.9

Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate,10
a Progress Record,11 an Anesthesia Record,12 a Nurse's Record,13 and a Physician's Discharge Summary.14
The trial court, however, regarded these documentary evidence as mere hearsay, "there being no showing that
the person or persons who prepared them are deceased or unable to testify on the facts therein stated. . . . Except
for the Medical Certificate (Exhibit "F"), all the above documents were allegedly prepared by persons other than
Dr. Kho, and she merely affixed her signature on some of them to express her agreement thereto. . . ."15 The
trial court also refused to give weight to Dr. Kho's testimony regarding the subject piece of rubber as Dr. Kho
"may not have had first-hand knowledge" thereof,16 as could be gleaned from her statement, thus:

A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that
goes with the tissues but unluckily I don't know where the rubber was. 17

The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the
piece of rubber, "Dr. Kho answered that there was rubber indeed but that she threw it away."18 This statement,
the trial court noted, was never denied nor disputed by Dr. Kho, leading it to conclude:

There are now two different versions on the whereabouts of that offending "rubber" — (1) that it
was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw
 it away as told by her to Defendant. The failure of the Plaintiffs to reconcile these two different
versions serve only to weaken their claim against Defendant Batiquin.19

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

The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private
respondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of
rubber was found near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the decision of
the trial court, holding:

4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence.

The trial court itself had narrated what happened to appellant Flotilde after the caesarean
operation made by appellee doctor. . . . After the second operation, appellant Flotilde became
well and healthy. Appellant Flotilde's troubles were caused by the infection due to the "rubber"
that was left inside her abdomen. Both appellant; testified that after the operation made by
appellee doctor, they did not go to any other doctor until they finally decided to see another
doctor in January, 1989 when she was not getting any better under the care of appellee Dr.
Batiquin. . . . Appellee Dr. Batiquin admitted on the witness stand that she alone decided when to
close the operating area; that she examined the portion she operated on before closing the same. .
. Had she exercised due diligence, appellee Dr. Batiquin would have found the rubber and
removed it before closing the operating area.20

The appellate court then ruled:

Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-
1-A) plus hospital and medical expenses together with doctor's fees in the total amount
P9,900.00 (Exhs. G and G-2)] for the second operation that saved her life.

For the miseries appellants endured for more than three (3) months, due to the negligence of
appellee Dr. Batiquin they are entitled to moral damages in the amount of P100,000.00;
exemplary damages in the amount of P20,000.00 and attorney's fees in the amount of
P25,000.00.

The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were
removed by Dr. Kho is not taken into consideration as it is not shown that the removal of said
organs were the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is
established is that the rubber left by appellee caused infection, placed the life of appellant
Flotilde in jeopardy and caused appellant fear, worry and anxiety. . . .

WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED
and SET ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay
plaintiffs-appellants the amounts of P17,000.00 as and for actual damages; P100,000.00 as and
for moral damages; P20,000.00 as and for exemplary damages; and P25,000.00 as and for
attorney's fees plus the costs of litigation.

SO ORDERED.21

From the above judgment, the petitioners appealed to this Court claiming that the appellate court: (1) committed
grave abuse of discretion by resorting to findings of fact not supported by the evidence on record, and (2)
exceeded its discretion, amounting to lack or excess of jurisdiction, when it gave credence to testimonies
punctured with contradictions and falsities.
The private respondents commented that the petition raised only questions of fact, which were not proper for
review by this Court.

While the rule is that only questions of law may be raised in a petition for review on certiorari, there are
exceptions, among which are when the factual findings of the trial court and the appellate court conflict, when
the appealed decision is clearly contradicted by the evidence on record, or when the appellate court
misapprehended the facts.22

After deciphering the cryptic petition, we find that the focal point of the instant appeal is the appreciation of Dr.
Kho's testimony. The petitioners contend that the Court of Appeals misappreciated the following portion of Dr.
Kho's testimony:

Q What is the purpose of the examination?

A Just in case, I was just thinking at the back of my mind, just in case this would
turn out to be a medico-legal case, I have heard somebody that [sic] says [sic]
there is [sic] a foreign body that goes with the tissues but unluckily I don't know
where the rubber was. It was not in the Lab, it was not in Cebu. 23 (emphasis
supplied)

The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's
knowledge of the piece of rubber was based on hearsay. The Court of Appeals, on the other hand,
concluded that the underscored phrase was taken out of context by the trial court. According to the Court
of Appeals, the trial court should have likewise considered the other portions of Dr. Kho's testimony,
especially the following:

Q So you did actually conduct the operation on her?

A Yes, I did.

Q And what was the result?

A Opening up her abdomen, there was whitish-yellow discharge inside the

abdomen, there was an ovarian cyst on the left and side and there was also an
ovarian cyst on the right which, on opening up or freeing it up from the uterus,
turned out to be pus. Both ovaries turned out. . . to have pus. And then, cleaning
up the uterus, at the back of the uterus it was very dirty, it was full of pus. And
there was a [piece of] rubber, we found a [piece of] rubber on the right
side. 24

We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr.
Kho saw a piece of rubber in private respondent Villegas's abdomen, and that she sent it to a laboratory and then
to Cebu City for examination by a pathologist.25 Not even the Pathologist's Report, although devoid of any
mention of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of
rubber could not be based on other than first-hand knowledge for, as she asserted before the trial court:

Q But you are sure you have seen [the piece of rubber]?

A Oh yes. I was not the only one who saw it. 26

The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's
claim on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said
that there was a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not
objected to, and hence, the same is admissible27 but it carries no probative value.28 Nevertheless, assuming
otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near private
respondent Villegas's uterus. And even if we were to doubt Dr. Kho as to what she did to the piece of rubber,
i.e., whether she threw it away or sent it to Cebu City, we are not justified in distrusting her as to her recovery
of a piece of rubber from private respondent Villegas's abdomen. On this score, it is perfectly reasonable to
believe the testimony of a witness with respect to some facts and disbelieve his testimony with respect to other
facts. And it has been aptly said that even when a witness is found to have deliberately falsified in some
material particulars, it is not required that the whole of his uncorroborated testimony be rejected, but such
portions thereof deemed worthy of belief may be credited.29

It is here worth noting that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no
rubber drain was used in the operation,30 and that there was neither any tear on Dr. Batiquin's gloves after the
operation nor blood smears on her hands upon removing her gloves.31 Moreover, the trial court pointed out that
the absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on
private respondent Villegas.32 But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy
were denials or negative testimonies. Well-settled is the rule that positive testimony is stronger than negative
testimony.33 Of course, as the petitioners advocate, such positive testimony must come from a credible source,
which leads us to the second assigned error.

While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a regarding of the
said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank
throughout her turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against
Dr. Kho, leaving her trustworthiness unimpaired.34 The trial court's following declaration shows that while it
was critical of the lack of care with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr.
Kho's credibility, thus only supporting our appraisal of Dr. Kho's trustworthiness:

This is not to say that she was less than honest when she testified about her findings, but it can
also be said that she did not take the most appropriate precaution to preserve that "piece of
rubber" as an eloquent evidence of what she would reveal should there be a "legal problem"
which she claim[s] to have anticipated.35

Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of
rubber was indeed found in private respondent Villega's abdomen] prevails over the negative testimony in favor
of the petitioners.

As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and
operation of this doctrine:

This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to
be under the management of the defendant, and the accident is such as in the ordinary course of
things does not happen in those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the accident arose from want of
care." Or as Black's Law Dictionary puts it:

Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption or
inference that defendant was negligent, which arises upon proof that [the]
instrumentality causing injury was in defendant's exclusive control, and that the
accident was one which ordinary does not happen in absence of negligence. Res
ipsa loquitur is [a] rule of evidence whereby negligence of [the] alleged
 wrongdoer may be inferred from [the] mere fact that [the] accident happened
provided [the] character of [the] accident and circumstances attending it lead
reasonably to belief that in [the] absence of negligence it would not have occurred
and that thing which caused injury is shown to have been under [the] management
and control of [the] alleged wrongdoer. . . . Under [this] doctrine
. . . the happening of an injury permits an inference of negligence where plaintiff
produces substantial evidence that [the] injury was caused by an agency or
instrumentality under [the] exclusive control and management of defendant, and
that the occurrence [sic] was such that in the ordinary course of things would not
happen if reasonable care had been used.

xxx xxx xxx

The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of
negligence which recognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of negligence.
The doctrine is not a rule of substantive law, but merely a mode of proof or a
mere procedural convenience. The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and does not dispense with
the requirement of proof of culpable negligence on the party charged. It merely
determines and regulates what shall be prima facie evidence thereof and
facilitates the burden of plaintiff of proving a breach of the duty of due care. The
doctrine can be invoked when and only when, under the circumstances involved,
direct evidence is absent and not readily available.36

In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the
caesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were
bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into
private respondent Villegas's body, which, needless to say, does not occur unless through the intersection of
negligence. Second, since aside from the caesarean section, private respondent Villegas underwent no other
operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason that
such could only have been a by-product of the caesarean section performed by Dr. Batiquin. The petitioners, in
this regard, failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa
loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent
Villegas's abdomen and for all the adverse effects thereof.

As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of
the people,3 7 and the State's compelling interest to enact measures to protect the public from "the potentially
deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for
disease or trauma."38 Indeed, a physician is bound to serve the interest of his patients "with the greatest of
solicitude, giving them always his best talent and skill."39 Through her tortious conduct, the petitioner
endangered the life of Flotilde Villegas, in violation of her profession's rigid ethical code and in contravention
of the legal standards set forth for professionals, in general,40 and members of the medical profession,41 in
particular.

WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No. 30851 is
hereby AFFIRMED in toto.

Costs against the petitioners.

SO ORDERED.
G.R. No. 118141 September 5, 1997

LEONILA GARCIA-RUEDA, petitioner,

vs.
WILFRED L. PASCASIO, RAUL R. ARNAU, ABELARDO L. APORTADERA JR., Honorable
CONRADO M. VASQUEZ, all of the Office of the Ombudsman; JESUS F. GUERRERO, PORFIRIO
MACARAEG, and GREGORIO A. ARIZALA, all of the Office of the City Prosecutor, Manila,
respondents.

ROMERO, J.:

May this Court review the findings of the Office of the Ombudsman? The general rule has been
enunciated in Ocampo v. Ombudsman1 which states:

In the exercise of its investigative power, this Court has consistently held that courts will
not interfere with the discretion of the fiscal or the Ombudsman to determine the
specificity and adequacy of the averments of the offense charged. He may dismiss the
complaint forthwith if he finds it to be insufficient in form and substance or if he otherwise
finds no ground to continue with the inquiry; or he may proceed with the investigation of
the complaint if, in his view, it is in due and proper form.

Does the instant case warrant a departure from the foregoing general rule? When a patient dies soon
after surgery under circumstances which indicate that the attending surgeon and anaesthesiologist may
have been guilty of negligence but upon their being charged, a series of nine prosecutors toss the
responsibility of conducting a preliminary investigation to each other with contradictory
recommendations, "ping-pong" style, perhaps the distraught widow is not to be blamed if she finally
decides to accuse the City Prosecutors at the end of the line for partiality under the Anti-Graft and
Corrupt Practices Act. Nor may she be entirely faulted for finally filing a petition before this Court
against the Ombudsman for grave abuse of discretion in dismissing her complaint against said City
Prosecutors on the ground of lack of evidence. Much as we sympathize with the bereaved widow,
however, this Court is of the opinion that the general rule still finds application in instant case. In other
words, the respondent Ombudsman did not commit grave abuse of discretion in deciding against filing
the necessary information against public respondents of the Office of the City Prosecutor.

The following facts are borne out by the records.

Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical operation at the
UST hospital for the removal of a stone blocking his ureter. He was attended by Dr. Domingo Antonio,
Jr. who was the surgeon, while Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. Six hours after the
surgery, however, Florencio died of complications of "unknown cause," according to officials of the UST
Hospital.2

Not satisfied with the findings of the hospital, petitioner requested the National Bureau of Investigation (NBI)
to conduct an autopsy on her husband's body. Consequently, the NBI ruled that Florencio's death was due to
lack of care by the attending physician in administering anaesthesia. Pursuant to its findings, the NBI
recommended that Dr. Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged for Homicide through
Reckless Imprudence before the Office of the City Prosecutor.

During the preliminary investigation, what transpired was a confounding series of events which we shall try to
disentangle. The case was initially assigned to Prosecutor Antonio M. Israel, who had to inhibit himself because
he was related to the counsel of one of the doctors. As a result, the case was re-raffled to Prosecutor Norberto G.
Leono who was, however, disqualified on motion of the petitioner since he disregarded prevailing laws and
jurisprudence regarding preliminary investigation. The case was then referred to Prosecutor Ramon O. Carisma,
who issued a resolution recommending that only Dr. Reyes be held criminally liable and that the complaint
against Dr. Antonio be dismissed.

The case took another perplexing turn when Assistant City Prosecutor Josefina Santos Sioson, in the "interest of
justice and peace of mind of the parties," recommended that the case be re-raffled on the ground that Prosecutor
Carisma was partial to the petitioner. Thus, the case was transferred to Prosecutor Leoncia R. Dimagiba, where
a volte face occurred again with the endorsement that the complaint against Dr. Reyes be dismissed and instead,
a corresponding information be filed against Dr. Antonio. Petitioner filed a motion for reconsideration,
questioning the findings of Prosecutor Dimagiba.

Pending the resolution of petitioner's motion for reconsideration regarding Prosecutor Dimagiba's resolution, the
investigative "pingpong" continued when the case was again assigned to another prosecutor, Eudoxia T.
Gualberto, who recommended that Dr. Reyes be included in the criminal information of Homicide through
Reckless Imprudence. While the recommendation of Prosecutor Gualberto was pending, the case was
transferred to Senior State Prosecutor Gregorio A. Arizala, who resolved to exonerate Dr. Reyes from any
wrongdoing, a resolution which was approved by both City Prosecutor Porfirio G. Macaraeg and City
Prosecutor Jesus F. Guerrero.

Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) of Republic Act No. 30193
against Prosecutors Guerrero, Macaraeg, and Arizala for manifest partiality in favor of Dr. Reyes before the
Office of the Ombudsman. However, on July 11, 1994, the Ombudsman issued the assailed resolution
dismissing the complaint for lack of evidence.

In fine, petitioner assails the exercise of the discretionary power of the Ombudsman to review the
recommendations of the government prosecutors and to approve and disapprove the same. Petitioner faults the
Ombudsman for, allegedly in grave abuse of discretion, refusing to find that there exists probable cause to hold
public respondent City Prosecutors liable for violation of Section 3(e) of R.A. No. 3019.

Preliminarily, the powers and functions of the Ombudsman have generally been categorized into the following:
investigatory powers, prosecutory power, public assistance function, authority to inquire and obtain
information, and function to adopt, institute and implement preventive measures.4

As protector of the people, the Office of the Ombudsman has the power, function and duty "to act promptly on
complaints filed in any form or manner against public officials" and "to investigate any act or omission of any
public official when such act or omission appears to be illegal, unjust, improper or inefficient."5

While the Ombudsman has the full discretion to determine whether or not a criminal case should be filed, this
Court is not precluded from reviewing the Ombudsman's action when there is an abuse of discretion, in which
case Rule 65 of the Rules of Court may exceptionally be invoked pursuant to Section I, Article VIII of the 1987
Constitution.6

In this regard, "grave abuse of discretion" has been defined as "where a power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of
positive duty or virtual refusal to perform a duty enjoined by, or in contemplation of law.7

From a procedural standpoint, it is certainly odd why the successive transfers from one prosecutor to another
were not sufficiently explained in the Resolution of the Ombudsman. Being the proper investigating authority
with respect to misfeasance, non-feasance and malfeasance of public officials, the Ombudsmans should have
been more vigilant and assiduous in determining the reasons behind the "buckpassing" to ensure that no
irregularity took place.

Whether such transfers were due to any outside pressure or ulterior motive is a matter of evidence. One would
have expected the Ombudsman, however, to inquire into what could hardly qualify as "standard operating
procedure," given the surrounding circumstances of the case.

While it is true that a preliminary investigation is essentially inquisitorial, and is often the only means to
discover who may be charged with a crime, its function is merely to determine the existence of probable cause.8
Probable cause has been defined as "the existence of such fact and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the knowledge of the prosecution, that the person charged was guilty
of the crime for which he was prosecuted."9

"Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of
facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or
entertain an honest or strong suspicion, that a thing is so." The term does not mean actual and positive cause
nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of
probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is
enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there
is a trial for the reception of evidence of the prosecution in support of the charge. 10

In the instant case, no less than the NBI pronounced after conducting an autopsy that there was indeed
negligence on the part of the attending physicians in administering the anaesthesia. 11 The fact of want of
competence or diligence is evidentiary in nature, the veracity of which can best be passed upon after a full-
blown trial for it is virtually impossible to ascertain the merits of a medical negligence case without extensive
investigation, research, evaluation and consultations with medical experts. Clearly, the City Prosecutors are not
in a competent position to pass judgment on such a technical matter, especially when there are conflicting
evidence and findings. The bases of a party's accusation and defenses are better ventilated at the trial proper
than at the preliminary investigation.

A word on medical malpractice or negligence cases.

In its simplest terms, the type of lawsuit which has been called medical malpractice or, more
appropriately, medical negligence, is that type of claim which a victim has available to him or
her to redress a wrong committed by a medical professional which has caused bodily harm.

In order to successfully pursue such a claim, a patient must prove that a health care provider, in
most cases a physician, either failed to do something which a reasonably prudent health care
provider would have done, or that he or she did something that a reasonably prudent provider
would not have done; and that that failure or action caused injury to the patient. 12

Hence, there are four elements involved in medical negligence cases: duty, breach, injury and proximate
causation.

Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-patient
relationship was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that, having the
needed training and skill possessed by physicians and surgeons practicing in the same field, they will employ
such training, care and skill in the treatment of their patients. 13 They have a duty to use at least the same level
of care that any other reasonably competent doctor would use to treat a condition under the same circumstances.
The breach of these professional duties of skill and care, or their improper performance, by a physician surgeon
whereby the patient is injured in body or in health, constitutes actionable malpractice. 14 Consequently, in the
event that any injury results to the patient from want of due care or skill during the operation, the surgeons may
be held answerable in damages for negligence. 15

Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the necessity of
expert testimony and the availability of the charge of res ipsa loquitur to the plaintiff; have been applied in
actions against anaesthesiologists to hold the defendant liable for the death or injury of a patient under excessive
or improper anaesthesia. 16 Essentially, it requires two-pronged evidence: evidence as to the recognized
standards of the medical community in the particular kind of case, and a showing that the physician in question
negligently departed from this standard in his treatment. 17

Another element in medical negligence cases is causation which is divided into two inquiries: whether the
doctor's actions in fact caused the harm to the patient and whether these were the proximate cause of the
patient's
injury. 18 Indeed here, a causal connection is discernible from the occurrence of the victim's death after the
negligent act of the anaesthesiologist in administering the anesthesia, a fact which, if confirmed, should warrant
the filing of the appropriate criminal case. To be sure, the allegation of negligence is not entirely baseless.
Moreover, the NBI deduced that the attending surgeons did not conduct the necessary interview of the patient
prior to the operation. It appears that the cause of the death of the victim could have been averted had the proper
drug been applied to cope with the symptoms of malignant hyperthermia. Also, we cannot ignore the fact that
an antidote was readily available to counteract whatever deleterious effect the anaesthesia might produce. 19
Why these precautionary measures were disregarded must be sufficiently explained.

The City Prosecutors were charged with violating Section 3(e) of the Anti-Graft and Corrupt Practices Act
which requires the following facts:

1. The accused is a public officer discharging administrative or official functions or private

persons charged in conspiracy with them;

2. The public officer committed the prohibited act during the performance of his official duty or
in relation to his public position;

3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable
negligence; and

4. His action caused undue injury to the Government or any private party, or gave any party any
unwarranted benefit, advantage or preference to such parties. 20

Why did the complainant, petitioner in instant case, elect to charge respondents under the above law?

While a party who feels himself aggrieved is at liberty to choose the appropriate "weapon from the armory," it
is with no little surprise that this Court views the choice made by the complainant widow.

To our mind, the better and more logical remedy under the circumstances would have been to appeal the
resolution of the City Prosecutors dismissing the criminal complaint to the Secretary of Justice under the
Department of Justice's Order No. 223, 21 otherwise known as the "1993 Revised Rules on Appeals From
Resolutions In Preliminary Investigations/Reinvestigations," as amended by Department Order No. 359, Section
1 of which provides:

Sec. 1. What May Be Appealed. — Only resolutions of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of
an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof.
What action may the Secretary of Justice take on the appeal? Section 9 of Order No. 223 states: "The Secretary
of Justice may reverse, affirm or modify the appealed resolution." On the other hand, "He may motu proprio or
on motion of the appellee, dismiss outright the appeal on specified grounds." 22

In exercising his discretion under the circumstances, the Ombudsman acted within his power and authority in
dismissing the complaint against the Prosecutors and this Court will not interfere with the same.

WHEREFORE, in view of the foregoing, the instant petition is DISMISSED, without prejudice to the filing of
an appeal by the petitioner with the Secretary of Justice assailing the dismissal of her criminal complaint by the
respondent City Prosecutors. No costs.

SO ORDERED.

G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the
minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA.
PERFECTA GUTIERREZ, respondents.

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through gross
negligence or incompetence or plain human error, may spell the difference between life and death. In this sense,
the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should
be made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy. 2

Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which overturned
the decision 4 of the Regional Trial Court, dated 30 January 1992, finding private respondents liable for
damages arising from negligence in the performance of their professional duties towards petitioner Erlinda
Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A")
robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort
due to pains allegedly caused by the presence of a stone in her gall bladder (TSN, January 13,
1988, pp. 4-5), she was as normal as any other woman. Married to Rogelio E. Ramos, an
executive of Philippine Long Distance Telephone Company, she has three children whose names
are Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989,
pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought professional
advice. She was advised to undergo an operation for the removal of a stone in her gall bladder
(TSN, January 13, 1988, p. 5). She underwent a series of examinations which included blood and
urine tests (Exhs. "A" and "C") which indicated she was fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she
and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN,
February 20, 1990, p. 3), one of the defendants in this case, on June 10, 1985. They agreed that
their date at the operating table at the DLSMC (another defendant), would be on June 17, 1985 at
9:00 A.M.. Dr. Hosaka decided that she should undergo a "cholecystectomy" operation after
examining the documents (findings from the Capitol Medical Center, FEU Hospital and
DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good anesthesiologist.
Dr. Hosaka charged a fee of P16,000.00, which was to include the anesthesiologist's fee and
which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN,
February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of the
DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p. 11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the
operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the
College of Nursing at the Capitol Medical Center, was also there for moral support. She
reiterated her previous request for Herminda to be with her even during the operation. After
praying, she was given injections. Her hands were held by Herminda as they went down from her
room to the operating room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was also
with her (TSN, October 19, 1989, p. 18). At the operating room, Herminda saw about two or
three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer anesthesia.
Although not a member of the hospital staff, Herminda introduced herself as Dean of the College
of Nursing at the Capitol Medical Center who was to provide moral support to the patient, to
them. Herminda was allowed to stay inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not
yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz
about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then went back to the
patient who asked, "Mindy, wala pa ba ang Doctor"? The former replied, "Huwag kang mag-
alaala, darating na iyon" (Ibid.).

Thereafter, Herminda went out of the operating room and informed the patient's husband,
Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the operating room,
the patient told her, "Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." So, she went
out again and told Rogelio about what the patient said (id., p. 15). Thereafter, she returned to the
operating room.

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival of the
doctor" even as he did his best to find somebody who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife,
who was inside the operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon,
he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to
arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr.
Hosaka arrived as a nurse remarked, "Nandiyan na si Dr. Hosaka, dumating na raw." Upon
hearing those words, he went down to the lobby and waited for the operation to be completed
(id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard
somebody say that "Dr. Hosaka is already here." She then saw people inside the operating room
"moving, doing this and that, [and] preparing the patient for the operation" (TSN, January 13,
1988, p. 16). As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the
hapless patient. She thereafter heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the remarks of Dra. Gutierrez,
she focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw
this anesthesiologist trying to intubate the patient. The patient's nailbed became bluish and the
patient was placed in a trendelenburg position — a position where the head of the patient is
placed in a position lower than her feet which is an indication that there is a decrease of blood
supply to the patient's brain (Id., pp. 19-20). Immediately thereafter, she went out of the
operating room, and she told Rogelio E. Ramos "that something wrong was . . . happening"
(Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being
rushed towards the door of the operating room. He also saw several doctors rushing towards the
operating room. When informed by Herminda Cruz that something wrong was happening, he
told her (Herminda) to be back with the patient inside the operating room (TSN, October 19,
1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg
position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the
patient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed
the former that something went wrong during the intubation. Reacting to what was told to him,
Rogelio reminded the doctor that the condition of his wife would not have happened, had he (Dr.
Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the
patient. The doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp.
26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15,
1985, the patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25
which is the subject of a promissory note and affidavit of undertaking executed by Rogelio E.
Ramos in favor of DLSMC. Since that fateful afternoon of June 17, 1985, she has been in a
comatose condition. She cannot do anything. She cannot move any part of her body. She cannot
see or hear. She is living on mechanical means. She suffered brain damage as a result of the
absence of oxygen in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22).
After being discharged from the hospital, she has been staying in their residence, still needing
constant medical attention, with her husband Rogelio incurring a monthly expense ranging from
P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be
suffering from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21,
1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of Quezon
City against herein private respondents alleging negligence in the management and care of Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff presented
the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained by Erlinda was due
to lack of oxygen in her brain caused by the faulty management of her airway by private respondents during the
anesthesia phase. On the other hand, private respondents primarily relied on the expert testimony of Dr.
Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage was Erlinda's allergic reaction to
the anesthetic agent, Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of
petitioners, to wit:

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

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable
care in not only intubating the patient, but also in not repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10), without due regard to the fact that the patient was inside the
operating room for almost three (3) hours. For after she committed a mistake in intubating [the]
patient, the patient's nailbed became bluish and the patient, thereafter, was placed in
trendelenburg position, because of the decrease of blood supply to the patient's brain. The
evidence further shows that the hapless patient suffered brain damage because of the absence of
oxygen in her (patient's) brain for approximately four to five minutes which, in turn, caused the
patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta
Gutierrez whom he had chosen to administer anesthesia on the patient as part of his obligation to
provide the patient a good anesthesiologist', and for arriving for the scheduled operation almost
three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of
the doctors in their "practice of medicine" in the operating room. Moreover, the hospital is liable
for failing through its responsible officials, to cancel the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have acted with
due care and prudence in rendering medical services to plaintiff-patient. For if the patient was
properly intubated as claimed by them, the patient would not have become comatose. And, the
fact that another anesthesiologist was called to try to intubate the patient after her (the patient's)
nailbed turned bluish, belie their claim. Furthermore, the defendants should have rescheduled the
operation to a later date. This, they should have done, if defendants acted with due care and
prudence as the patient's case was an elective, not an emergency case.

xxx xxx xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and
against the defendants. Accordingly, the latter are ordered to pay, jointly and severally, the
former the following sums of money, to wit:
 1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda
Ramos reckoned from November 15, 1985 or in the total sum of P632,000.00 as
of April 15, 1992, subject to its being updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the further sum of
P200,000,00 by way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of the decision of
the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the
complaint below against the appellants is hereby ordered DISMISSED. The counterclaim of
appellant De Los Santos Medical Center is GRANTED but only insofar as appellees are hereby
ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal interest for justice
must be tempered with mercy.

SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by
the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the appellate
court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the
reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for extension of
time in its Resolution dated 25 July 1995. 9 Meanwhile, petitioners engaged the services of another counsel,
Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for
reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to
the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the motion
for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the
fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration
cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the
other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of the decision
as early as June 9, 1995. Computation wise, the period to file a Motion for Reconsideration
expired on June 24. The Motion for Reconsideration, in turn, was received by the Court of
Appeals already on July 4, necessarily, the 15-day period already passed. For that alone, the
latter should be denied.

Even assuming admissibility of the Motion for the Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.

SO ORDERED. 10
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April
1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition for
certiorari under Rule 45. The Court granted the motion for extension of time and gave petitioners additional
thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of the resolution of
the Court of Appeals within which to submit the petition. The due date fell on 27 May 1996. The petit ion was
filed on 9 May 1996, well within the extended period given by the Court.

Petitioners assail the decision of the Court of Appeals on the following grounds:

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA.

GUTIERREZ, DRA. CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE
UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the
petition in relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition should not be given due course since the motion for
reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed by the appellate
court for having been filed beyond the reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration
is attributable to the fact that the decision of the Court of Appeals was not sent to then counsel on record of
petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty. Rogelio
Ramos. Based on the other communications received by petitioner Rogelio Ramos, the appellate court
apparently mistook him for the counsel on record. Thus, no copy of the decision of the counsel on record.
Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration,
referred the same to a legal counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at
his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is no notice
at all. In the present case, since a copy of the decision of the appellate court was not sent to the counsel on
record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of the motion for
reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals already issued a
second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and
denied the motion for reconsideration of petitioner, we believed that the receipt of the former should be
considered in determining the timeliness of the filing of the present petition. Based on this, the petition before
us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa
loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The
phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a
plaintiff's prima facie case, and present a question of fact for defendant to meet with an explanation. 13 Where
the thing which caused the injury complained of is shown to be under the management of the defendant or his
servants and the accident is such as in ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from or was caused by the defendant's want of care. 14

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge
and experience, the very nature of certain types of occurrences may justify an inference of negligence on the
part of the person who controls the instrumentality causing the injury in the absence of some explanation by the
defendant who is charged with negligence. 15 It is grounded in the superior logic of ordinary human experience
and on the basis of such experience or common knowledge, negligence may be deduced from the mere
occurrence of the accident itself. 16 Hence, res ipsa loquitur is applied in conjunction with the doctrine of
common knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create
or constitute an independent or separate ground of liability. 17 Instead, it is considered as merely evidentiary or
in the nature of a procedural rule. 18 It is regarded as a mode of proof, or a mere procedural of convenience
since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of
negligence. 19 In other words, mere invocation and application of the doctrine does not dispense with the
requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to
present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine,
creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going
forward with the proof. 20 Still, before resort to the doctrine may be allowed, the following requisites must be
satisfactorily shown:

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

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

or defendants; and

3. The possibility of contributing conduct which would make the plaintiff

responsible is eliminated. 21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the damage.
22 Such element of control must be shown to be within the dominion of the defendant. In order to have the
benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is
applicable, and must establish that the essential elements of the doctrine were present in a particular incident. 23

Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been
applied when the circumstances attendant upon the harm are themselves of such a character as to justify an
inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in medical negligence
cases presents a question of law since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa
loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury
itself provides the proof of negligence. 27 The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the domain of medical science, and not to matters that are
within the common knowledge of mankind which may be testified to by anyone familiar with the facts. 28
Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient
has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the
statements and acts of physicians and surgeons, external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses. 29 Hence, in cases where the res ipsa loquitur is
applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court from its fund of common knowledge can determine the
proper standard of care. 30 Where common knowledge and experience teach that a resulting injury would not
have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise
to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to
show not only what occurred but how and why it occurred. 31 When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act or omission complained of and the injury sustained
while under the custody and management of the defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual
and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the body which was
not under, or in the area, of treatment, 33 removal of the wrong part of the body when another part was
intended, 34 knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils, 35
and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an
operation for appendicitis, 36 among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each
case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional care were not as such as would
ordinarily have followed if due care had been
exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of something
more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of
those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific
treatment. 38 The physician or surgeon is not required at his peril to explain why any particular diagnosis was
not correct, or why any particular scientific treatment did not produce the desired result. 39 Thus, res ipsa
loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or
treatment was not accomplished. 40 The real question, therefore, is whether or not in the process of the
operation any extraordinary incident or unusual event outside of the routine performance occurred which is
beyond the regular scope of customary professional activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence.
41 If there was such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the
defendant is called upon to explain the matter, by evidence of exculpation, if he could. 42

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the
damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the
application of res ipsa loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in
applying the res ipsa loquitur stated:
 The plaintiff herein submitted himself for a mastoid operation and delivered his person over to
the care, custody and control of his physician who had complete and exclusive control over him,
but the operation was never performed. At the time of submission he was neurologically sound
and physically fit in mind and body, but he suffered irreparable damage and injury rendering him
decerebrate and totally incapacitated. The injury was one which does not ordinarily occur in the
process of a mastoid operation or in the absence of negligence in the administration of an
anesthetic, and in the use and employment of an endoctracheal tube. Ordinarily a person being
put under anesthesia is not rendered decerebrate as a consequence of administering such
anesthesia in the absence of negligence. Upon these facts and under these circumstances a
layman would be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have followed if
due care had been exercised.

Here the plaintiff could not have been guilty of contributory negligence because he was under
the influence of anesthetics and unconscious, and the circumstances are such that the true
explanation of event is more accessible to the defendants than to the plaintiff for they had the
exclusive control of the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of
action is stated under the doctrine of res ipsa loquitur. 44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case,
Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be performed on her
gall bladder. On that fateful day she delivered her person over to the care, custody and control of private
respondents who exercised complete and exclusive control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor discomforts, was likewise physically fit in mind and body.
However, during the administration of anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating room already
decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury which
does not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not in the
absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube.
Normally, a person being put under anesthesia is not rendered decerebrate as a consequence of administering
such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the administration
of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents, who
are the physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of contributory negligence
because she was under the influence of anesthetics which rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a practical
administration of justice dictates the application of res ipsa loquitur. Upon these facts and under these
circumstances the Court would be able to say, as a matter of common knowledge and observation, if negligence
attended the management and care of the patient. Moreover, the liability of the physicians and the hospital in
this case is not predicated upon an alleged failure to secure the desired results of an operation nor on an alleged
lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda.
Thus, upon all these initial determination a case is made out for the application of the doctrine of res ipsa
loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine
is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to any and all
anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be within the res ipsa
loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed
therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation and, if in the
affirmative, whether the alleged negligence was the proximate cause of Erlinda's comatose condition. Corollary
thereto, we shall also determine if the Court of Appeals erred in relying on the testimonies of the witnesses for
the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation 45 of the patient and thus, cannot be said to be covering her negligence with falsehood.
The appellate court likewise opined that private respondents were able to show that the brain damage sustained
by Erlinda was not caused by the alleged faulty intubation but was due to the allergic reaction of the patient to
the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert witness, Dr.
Jamora. On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz offered in favor
of petitioners that the cause of the brain injury was traceable to the wrongful insertion of the tube since the
latter, being a nurse, was allegedly not knowledgeable in the process of intubation. In so holding, the appellate
court returned a verdict in favor of respondents physicians and hospital and absolved them of any liability
towards Erlinda and her family.

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

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

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As borne
by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested to by
Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's sister-in-law, who
was in the operating room right beside the patient when the tragic event occurred. Witness Cruz testified to this
effect:

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?

A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process administered by Dra.

Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

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

xxx xxx xxx

ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the
person of the patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I
was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

Q: What did [s]he do, if any?

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's
nailbed became bluish and I saw the patient was placed in trendelenburg position.

xxx xxx xxx

Q: Do you know the reason why the patient was placed in that trendelenburg
position?

A: As far as I know, when a patient is in that position, there is a decrease of blood

supply to the brain. 46

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not
taught as part of nursing procedures and techniques. Indeed, we take judicial notice of the fact
that nurses do not, and cannot, intubate. Even on the assumption that she is fully capable of
determining whether or not a patient is properly intubated, witness Herminda Cruz, admittedly,
did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is
no evidence that she ever auscultated the patient or that she conducted any type of examination
to check if the endotracheal tube was in its proper place, and to determine the condition of the
heart, lungs, and other organs. Thus, witness Cruz's categorical statements that appellant Dra.
Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who
succeeded in doing so clearly suffer from lack of sufficient factual bases. 47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in
the process of intubation, witness Cruz is not competent to testify on whether or not the intubation was a
success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the
statements and acts of the physician and surgeon, external appearances, and manifest conditions which are
observable by any one. 48 This is precisely allowed under the doctrine of res ipsa loquitur where the testimony
of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary for the proof of
negligence in non-technical matters or those of which an ordinary person may be expected to have knowledge,
or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary. 49 We take
judicial notice of the fact that anesthesia procedures have become so common, that even an ordinary person can
tell if it was administered properly. As such, it would not be too difficult to tell if the tube was properly inserted.
This kind of observation, we believe, does not require a medical degree to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable
of determining whether or not the intubation was a success. She had extensive clinical experience starting as a
staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean
of the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of
Nursing. 50 Reviewing witness Cruz' statements, we find that the same were delivered in a straightforward
manner, with the kind of detail, clarity, consistency and spontaneity which would have been difficult to
fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to demonstrate
through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlinda's trachea, to wit:

ATTY. LIGSAY:

Q: In this particular case, Doctora, while you were intubating at your first attempt
(sic), you did not immediately see the trachea?

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

 A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

Q: When you said "mahirap yata ito," what were you referring to?

A: "Mahirap yata itong i-intubate," that was the patient.

Q: So, you found some difficulty in inserting the tube?

A: Yes, because of (sic) my first attempt, I did not see right away. 51

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered
hardship in the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly
deviated from the normal anatomy of a person) 52 making it harder to locate and, since Erlinda is obese and has
a short neck and protruding teeth, it made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins
when the anesthesiologist reviews the patient's medical records and visits with the patient, traditionally, the day
before elective surgery. 53 It includes taking the patient's medical history, review of current drug therapy,
physical examination and interpretation of laboratory data. 54 The physical examination performed by the
anesthesiologist is directed primarily toward the central nervous system, cardiovascular system, lungs and upper
airway. 55 A thorough analysis of the patient's airway normally involves investigating the following: cervical
spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth, ability to
visualize uvula and the thyromental distance. 56 Thus, physical characteristics of the patient's upper airway that
could make tracheal intubation difficult should be studied. 57 Where the need arises, as when initial assessment
indicates possible problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough
examination of the patient's airway would go a long way towards decreasing patient morbidity and mortality.

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

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial
court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried
to muddle the difference between an elective surgery and an emergency surgery just so her failure to perform
the required pre-operative evaluation would escape unnoticed. In her testimony she asserted:
 ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see the patient a
day before so you can introduce yourself to establish good doctor-patient
relationship and gain the trust and confidence of the patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative procedure of

the anesthesiologist and in my case, with elective cases and normal cardio-
pulmonary clearance like that, I usually don't do it except on emergency and on
cases that have an abnormalities (sic). 58

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on the other hand, are operative procedures that can wait
for days, weeks or even months. Hence, in these cases, the anesthesiologist possesses the luxury of time to be at
the patient's beside to do a proper interview and clinical evaluation. There is ample time to explain the method
of anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent. Usually, the
pre-operative assessment is conducted at least one day before the intended surgery, when the patient is relaxed
and cooperative.

Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to make
a thorough evaluation of Erlinda's case prior to the operation and prepare her for anesthesia. However, she never
saw the patient at the bedside. She herself admitted that she had seen petitioner only in the operating room, and
only on the actual date of the cholecystectomy. She negligently failed to take advantage of this important
opportunity. As such, her attempt to exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient
which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly the
proximate cause of Erlinda's comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma was due
to bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium, introduced into her
system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and
Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced private respondents' theory
that the oxygen deprivation which led to anoxic encephalopathy, 60 was due to an unpredictable drug reaction
to the short-acting barbiturate. We find the theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not
an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly
enlightening the court about anesthesia practice and procedure and their complications. Dr. Jamora is likewise
not an allergologist and could not therefore properly advance expert opinion on allergic-mediated processes.
Moreover, he is not a pharmacologist and, as such, could not have been capable, as an expert would, of
explaining to the court the pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium
(Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the anesthetic
practice of Pentothal administration is further supported by his own admission that he formulated his opinions
on the drug not from the practical experience gained by a specialist or expert in the administration and use of
Sodium Pentothal on patients, but only from reading certain references, to wit:
 ATTY. LIGSAY:

Q: In your line of expertise on pulmonology, did you have any occasion to use
pentothal as a method of management?

DR. JAMORA:

A: We do it in conjunction with the anesthesiologist when they have to intubate

our patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on what you
have read from books and not by your own personal application of the medicine
pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my appendectomy.

Q: And because they have used it on you and on account of your own personal
experience you feel that you can testify on pentothal here with medical authority?

A: No. That is why I used references to support my claims. 61

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs
to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases are within the
expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic mediated
bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and pharmacology.
On the basis of the foregoing transcript, in which the pulmonologist himself admitted that he could not testify
about the drug with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamora's
testimony as an expert in the administration of Thiopental Sodium.

The provision in the rules of evidence 62 regarding expert witnesses states:

Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he is shown to possess, may be received in
evidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter
about which he or she is to testify, either by the study of recognized authorities on the subject or by practical
experience. 63 Clearly, Dr. Jamora does not qualify as an expert witness based on the above standard since he
lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart from submitting
testimony from a specialist in the wrong field, private respondents' intentionally avoided providing testimony by
competent and independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by triggering
an allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing
— some of the more common accompanying signs of an allergic reaction — appears on record. No laboratory
data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept private respondents' hypothesis without supporting medical
proof, and against the weight of available evidence, then every anesthetic accident would be an act of God.
Evidently, the Thiopental-allergy theory vigorously asserted by private respondents was a mere afterthought.
Such an explanation was advanced in order to advanced in order to absolve them of any and all responsibility
for the patient's condition.

In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty intubation
which was the proximate cause of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without which the result would not have occurred. 64 An injury or
damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case,
that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and
that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.
65 It is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate
cause which triggered the chain of events leading to Erlinda's brain damage and, ultimately, her comatosed
condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was
likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-
intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal
distention on the body of Erlinda. The development of abdominal distention, together with respiratory
embarrassment indicates that the endotracheal tube entered the esophagus instead of the respiratory tree. In
other words, instead of the intended endotracheal intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly cause some delay
in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place. That abdominal
distention had been observed during the first intubation suggests that the length of time utilized in inserting the
endotracheal tube (up to the time the tube was withdrawn for the second attempt) was fairly significant. Due to
the delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony
of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda were
already blue. 67 However, private respondents contend that a second intubation was executed on Erlinda and
this one was successfully done. We do not think so. No evidence exists on record, beyond private respondents'
bare claims, which supports the contention that the second intubation was successful. Assuming that the
endotracheal tube finally found its way into the proper orifice of the trachea, the same gave no guarantee of
oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after
the second intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents
insist, that the second intubation was accomplished. Even granting that the tube was successfully inserted
during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda already
suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes. 68

The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible
for one-third (1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless, ninety-eight
percent (98%) or the vast majority of difficult intubations may be anticipated by performing a thorough
evaluation of the patient's airway prior to the operation. 70 As stated beforehand, respondent Dra. Gutierrez
failed to observe the proper pre-operative protocol which could have prevented this unfortunate incident. Had
appropriate diligence and reasonable care been used in the pre-operative evaluation, respondent physician could
have been much more prepared to meet the contingency brought about by the perceived anatomic variations in
the patient's neck and oral area, defects which would have been easily overcome by a prior knowledge of those
variations together with a change in technique. 71 In other words, an experienced anesthesiologist, adequately
alerted by a thorough pre-operative evaluation, would have had little difficulty going around the short neck and
protruding teeth. 72 Having failed to observe common medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and eventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the
so-called "captain of the ship," 73 it is the surgeon's responsibility to see to it that those under him perform their
task in the proper manner. Respondent Dr. Hosaka's negligence can be found in his failure to exercise the proper
authority (as the "captain" of the operative team) in not determining if his anesthesiologist observed proper
anesthesia protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent Dr.
Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda's cholecystectomy,
and was in fact over three hours late for the latter's operation. Because of this, he had little or no time to confer
with his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professional
duties towards his patient. Thus, he shares equal responsibility for the events which resulted in Erlinda's
condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and visiting "consultants," 74 who are allegedly not
hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice
cases. However, the difficulty is only more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct
of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are
required to submit proof of completion of residency, their educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These
requirements are carefully scrutinized by members of the hospital administration or by a review committee set
up by the hospital who either accept or reject the application. 75 This is particularly true with respondent
hospital.

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

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
"consultant" staff. While "consultants" are not, technically employees, a point which respondent hospital asserts
in denying all responsibility for the patient's condition, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the
exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is
determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility
in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians. This being the case, the question now arises as to whether or not respondent
hospital is solidarily liable with respondent doctors for petitioner's condition. 76

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article
2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of
others based on the former's responsibility under a relationship of patria potestas. 77 Such responsibility ceases
when the persons or entity concerned prove that they have observed the diligence of a good father of the family
to prevent damage. 78 In other words, while the burden of proving negligence rests on the plaintiffs, once
negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should
prove that they observed the diligence of a good father of a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the
hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which
it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent
hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this,
respondent hospital is consequently solidarily responsible with its physicians for Erlinda's condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of
the witnesses for the private respondents. Indeed, as shown by the above discussions, private respondents were
unable to rebut the presumption of negligence. Upon these disquisitions we hold that private respondents are
solidarily liable for damages under Article 2176 79 of the Civil Code.

We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos
(should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated" covering the
period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care of the patient
estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be
grossly inadequate to cover the actual costs of home-based care for a comatose individual. The calculated
amount was not even arrived at by looking at the actual cost of proper hospice care for the patient. What it
reflected were the actual expenses incurred and proved by the petitioners after they were forced to bring home
the patient to avoid mounting hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in the
care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum standards of
care. In the instant case for instance, Erlinda has to be constantly turned from side to side to prevent bedsores
and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation should be normally made by a
dietitian to provide her with the correct daily caloric requirements and vitamin supplements. Furthermore, she
has to be seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist
to prevent the accumulation of secretions which can lead to respiratory complications.

Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at
least reflect the correct minimum cost of proper care, not the cost of the care the family is usually compelled to
undertake at home to avoid bankruptcy. However, the provisions of the Civil Code on actual or compensatory
damages present us with some difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as
he has duly proved. The Civil Code provides:
 Art. 2199. — Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.

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

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond
to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of
the case, be made with certainty. 80 In other words, temperate damages can and should be awarded on top of
actual or compensatory damages in instances where the injury is chronic and continuing. And because of the
unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided
for. The reason is that these damages cover two distinct phases.

As it would not be equitable — and certainly not in the best interests of the administration of justice — for the
victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the
compensatory damages previously awarded — temperate damages are appropriate. The amount given as
temperate damages, though to a certain extent speculative, should take into account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who
has remained in that condition for over a decade. Having premised our award for compensatory damages on the
amount provided by petitioners at the onset of litigation, it would be now much more in step with the interests
of justice if the value awarded for temperate damages would allow petitioners to provide optimal care for their
loved one in a facility which generally specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without the aid of professionals, for anything less would be
grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would therefore
be reasonable. 81

In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered by
the plaintiff would have led to expenses which were difficult to estimate because while they would have been a
direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they were likely to arise
only in the future. We awarded P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left
lower extremity at the distal left thigh just above the knee. Because of this, Valenzuela will
forever be deprived of the full ambulatory functions of her left extremity, even with the use of
state of the art prosthetic technology. Well beyond the period of hospitalization (which was paid
for by Li), she will be required to undergo adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational
rehabilitation and therapy. During the lifetime, the prosthetic devise will have to be replaced and
readjusted to changes in the size of her lower limb effected by the biological changes of middle-
age, menopause and aging. Assuming she reaches menopause, for example, the prosthetic will
have to be adjusted to respond to the changes in bone resulting from a precipitate decrease in
calcium levels observed in the bones of all post-menopausal women. In other words, the damage
 done to her would not only be permanent and lasting, it would also be permanently changing and
adjusting to the physiologic changes which her body would normally undergo through the years.
The replacements, changes, and adjustments will require corresponding adjustive physical and
occupational therapy. All of these adjustments, it has been documented, are painful.

xxx xxx xxx

A prosthetic devise, however technologically advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the lower limb. The sensory functions are forever
lost. The resultant anxiety, sleeplessness, psychological injury, mental and physical pain are
inestimable. 83

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more
serious than the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state
for over fourteen years now. The burden of care has so far been heroically shouldered by her husband and
children, who, in the intervening years have been deprived of the love of a wife and a mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioner's
condition remains unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the surface
of the resulting moral damage because it would be highly speculative to estimate the amount of emotional and
moral pain, psychological damage and injury suffered by the victim or those actually affected by the victim's
condition. 84 The husband and the children, all petitioners in this case, will have to live with the day to day
uncertainty of the patient's illness, knowing any hope of recovery is close to nil. They have fashioned their daily
lives around the nursing care of petitioner, altering their long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged with the moral responsibility of the care of the victim.
The family's moral injury and suffering in this case is clearly a real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued at
P100,000.00 are likewise proper.

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

Established medical procedures and practices, though in constant flux are devised for the purpose of preventing
complications. A physician's experience with his patients would sometimes tempt him to deviate from
established community practices, and he may end a distinguished career using unorthodox methods without
incident. However, when failure to follow established procedure results in the evil precisely sought to be
averted by observance of the procedure and a nexus is made between the deviation and the injury or damage,
the physician would necessarily be called to account for it. In the case at bar, the failure to observe pre-
operative assessment protocol which would have influenced the intubation in a salutary way was fatal to private
respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to
award in favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as
actual damages computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00
up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral
damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary damages and attorney's
fees; and, 5) the costs of the suit.

SO ORDERED.

G.R. No. 142625 December 19, 2006

ROGELIO P. NOGALES, for himself and on behalf of the minors, ROGER ANTHONY, ANGELICA,
NANCY, and MICHAEL CHRISTOPHER, all surnamed NOGALES, petitioners,
vs.
CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA, DR. ELY VILLAFLOR, DR. ROSA UY, DR.
JOEL ENRIQUEZ, DR. PERPETUA LACSON, DR. NOE ESPINOLA, and NURSE J. DUMLAO,
respondents.

DECISION

CARPIO, J.:

The Case

This petition for review1 assails the 6 February 1998 Decision2 and 21 March 2000 Resolution3 of the Court of
Appeals in CA-G.R. CV No. 45641. The Court of Appeals affirmed in toto the 22 November 1993 Decision4 of
the Regional Trial Court of Manila, Branch 33, finding Dr. Oscar Estrada solely liable for damages for the death
of his patient, Corazon Nogales, while absolving the remaining respondents of any liability. The Court of
Appeals denied petitioners' motion for reconsideration.

The Facts

Pregnant with her fourth child, Corazon Nogales ("Corazon"), who was then 37 years old, was under the
exclusive prenatal care of Dr. Oscar Estrada ("Dr. Estrada") beginning on her fourth month of pregnancy or as
early as December 1975. While Corazon was on her last trimester of pregnancy, Dr. Estrada noted an increase
in her blood pressure and development of leg edema5 indicating preeclampsia,6 which is a dangerous
complication of pregnancy.7

Around midnight of 25 May 1976, Corazon started to experience mild labor pains prompting Corazon and
Rogelio Nogales ("Spouses Nogales") to see Dr. Estrada at his home. After examining Corazon, Dr. Estrada
advised her immediate admission to the Capitol Medical Center ("CMC").

On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff nurse noted the written
admission request 8 of Dr. Estrada. Upon Corazon's admission at the CMC, Rogelio Nogales ("Rogelio")
executed and signed the "Consent on Admission and Agreement"9 and "Admission Agreement."10 Corazon was
then brought to the labor room of the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of CMC, conducted an internal examination of
Corazon. Dr. Uy then called up Dr. Estrada to notify him of her findings.

Based on the Doctor's Order Sheet, 11 around 3:00 a.m., Dr. Estrada ordered for 10 mg. of valium to be
administered immediately by intramuscular injection. Dr. Estrada later ordered the start of intravenous
administration of syntocinon admixed with dextrose, 5%, in lactated Ringers' solution, at the rate of eight to ten
micro-drops per minute.

According to the Nurse's Observation Notes,12 Dr. Joel Enriquez ("Dr. Enriquez"), an anesthesiologist at CMC,
was notified at 4:15 a.m. of Corazon's admission. Subsequently, when asked if he needed the services of an
anesthesiologist, Dr. Estrada refused. Despite Dr. Estrada's refusal, Dr. Enriquez stayed to observe Corazon's
condition.

At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the CMC. At 6:10 a.m., Corazon's bag of
water ruptured spontaneously. At 6:12 a.m., Corazon's cervix was fully dilated. At 6:13 a.m., Corazon started to
experience convulsions.

At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium sulfate. However, Dr. Ely Villaflor
("Dr. Villaflor"), who was assisting Dr. Estrada, administered only 2.5 grams of magnesium sulfate.

At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to extract Corazon's baby. In the
process, a 1.0 x 2.5 cm. piece of cervical tissue was allegedly torn. The baby came out in an apnic, cyanotic,
weak and injured condition. Consequently, the baby had to be intubated and resuscitated by Dr. Enriquez and
Dr. Payumo.

At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which rapidly became profuse. Corazon's
blood pressure dropped from 130/80 to 60/40 within five minutes. There was continuous profuse vaginal
bleeding. The assisting nurse administered hemacel through a gauge 19 needle as a side drip to the ongoing
intravenous injection of dextrose.

At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with bottled blood. It took approximately 30
minutes for the CMC laboratory, headed by Dr. Perpetua Lacson ("Dr. Lacson"), to comply with Dr. Estrada's
order and deliver the blood.

At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the Obstetrics-Gynecology Department of the CMC,
was apprised of Corazon's condition by telephone. Upon being informed that Corazon was bleeding profusely,
Dr. Espinola ordered immediate hysterectomy. Rogelio was made to sign a "Consent to Operation."13

Due to the inclement weather then, Dr. Espinola, who was fetched from his residence by an ambulance, arrived
at the CMC about an hour later or at 9:00 a.m. He examined the patient and ordered some resuscitative
measures to be administered. Despite Dr. Espinola's efforts, Corazon died at 9:15 a.m. The cause of death was
"hemorrhage, post partum."14

On 14 May 1980, petitioners filed a complaint for damages15 with the Regional Trial Court16 of Manila against
CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and a certain Nurse J. Dumlao
for the death of Corazon. Petitioners mainly contended that defendant physicians and CMC personnel were
negligent in the treatment and management of Corazon's condition. Petitioners charged CMC with negligence in
the selection and supervision of defendant physicians and hospital staff.

For failing to file their answer to the complaint despite service of summons, the trial court declared Dr. Estrada,
Dr. Enriquez, and Nurse Dumlao in default. 17 CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed
their respective answers denying and opposing the allegations in the complaint. Subsequently, trial ensued.
After more than 11 years of trial, the trial court rendered judgment on 22 November 1993 finding Dr. Estrada
solely liable for damages. The trial court ruled as follows:

The victim was under his pre-natal care, apparently, his fault began from his incorrect and inadequate
management and lack of treatment of the pre-eclamptic condition of his patient. It is not disputed that he
misapplied the forceps in causing the delivery because it resulted in a large cervical tear which had
caused the profuse bleeding which he also failed to control with the application of inadequate injection
of magnesium sulfate by his assistant Dra. Ely Villaflor. Dr. Estrada even failed to notice the erroneous
administration by nurse Dumlao of hemacel by way of side drip, instead of direct intravenous injection,
and his failure to consult a senior obstetrician at an early stage of the problem.

On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr. Joel Enriquez, Dr. Lacson, Dr. Espinola,
nurse J. Dumlao and CMC, the Court finds no legal justification to find them civilly liable.

On the part of Dra. Ely Villaflor, she was only taking orders from Dr. Estrada, the principal physician of
Corazon Nogales. She can only make suggestions in the manner the patient maybe treated but she
cannot impose her will as to do so would be to substitute her good judgment to that of Dr. Estrada. If she
failed to correctly diagnose the true cause of the bleeding which in this case appears to be a cervical
laceration, it cannot be safely concluded by the Court that Dra. Villaflor had the correct diagnosis and
she failed to inform Dr. Estrada. No evidence was introduced to show that indeed Dra. Villaflor had
discovered that there was laceration at the cervical area of the patient's internal organ.

On the part of nurse Dumlao, there is no showing that when she administered the hemacel as a side drip,
she did it on her own. If the correct procedure was directly thru the veins, it could only be because this
was what was probably the orders of Dr. Estrada.

While the evidence of the plaintiffs shows that Dr. Noe Espinola, who was the Chief of the Department
of Obstetrics and Gynecology who attended to the patient Mrs. Nogales, it was only at 9:00 a.m. That he
was able to reach the hospital because of typhoon Didang (Exhibit 2). While he was able to give
prescription in the manner Corazon Nogales may be treated, the prescription was based on the
information given to him by phone and he acted on the basis of facts as presented to him, believing in
good faith that such is the correct remedy. He was not with Dr. Estrada when the patient was brought to
the hospital at 2:30 o'clock a.m. So, whatever errors that Dr. Estrada committed on the patient before
9:00 o'clock a.m. are certainly the errors of Dr. Estrada and cannot be the mistake of Dr. Noe Espinola.
His failure to come to the hospital on time was due to fortuitous event.

On the part of Dr. Joel Enriquez, while he was present in the delivery room, it is not incumbent upon
him to call the attention of Dr. Estrada, Dra. Villaflor and also of Nurse Dumlao on the alleged errors
committed by them. Besides, as anesthesiologist, he has no authority to control the actuations of Dr.
Estrada and Dra. Villaflor. For the Court to assume that there were errors being committed in the
presence of Dr. Enriquez would be to dwell on conjectures and speculations.

On the civil liability of Dr. Perpetua Lacson, [s]he is a hematologist and in-charge of the blood bank of
the CMC. The Court cannot accept the theory of the plaintiffs that there was delay in delivering the
blood needed by the patient. It was testified, that in order that this blood will be made available, a
laboratory test has to be conducted to determine the type of blood, cross matching and other matters
consistent with medical science so, the lapse of 30 minutes maybe considered a reasonable time to do all
of these things, and not a delay as the plaintiffs would want the Court to believe.

Admittedly, Dra. Rosa Uy is a resident physician of the Capitol Medical Center. She was sued because
of her alleged failure to notice the incompetence and negligence of Dr. Estrada. However, there is no
evidence to support such theory. No evidence was adduced to show that Dra. Rosa Uy as a resident
 physician of Capitol Medical Center, had knowledge of the mismanagement of the patient Corazon
Nogales, and that notwithstanding such knowledge, she tolerated the same to happen.

In the pre-trial order, plaintiffs and CMC agreed that defendant CMC did not have any hand or
participation in the selection or hiring of Dr. Estrada or his assistant Dra. Ely Villaflor as attending
physician[s] of the deceased. In other words, the two (2) doctors were not employees of the hospital and
therefore the hospital did not have control over their professional conduct. When Mrs. Nogales was
brought to the hospital, it was an emergency case and defendant CMC had no choice but to admit her.
Such being the case, there is therefore no legal ground to apply the provisions of Article 2176 and 2180
of the New Civil Code referring to the vicarious liability of an employer for the negligence of its
employees. If ever in this case there is fault or negligence in the treatment of the deceased on the part of
the attending physicians who were employed by the family of the deceased, such civil liability should be
borne by the attending physicians under the principle of "respondeat superior".

WHEREFORE, premises considered, judgment is hereby rendered finding defendant Dr. Estrada of
Number 13 Pitimini St. San Francisco del Monte, Quezon City civilly liable to pay plaintiffs: 1) By way
of actual damages in the amount of P105,000.00; 2) By way of moral damages in the amount of
P700,000.00; 3) Attorney's fees in the amount of P100,000.00 and to pay the costs of suit.

For failure of the plaintiffs to adduce evidence to support its [sic] allegations against the other
defendants, the complaint is hereby ordered dismissed. While the Court looks with disfavor the filing of
the present complaint against the other defendants by the herein plaintiffs, as in a way it has caused them
personal inconvenience and slight damage on their name and reputation, the Court cannot accepts [sic]
however, the theory of the remaining defendants that plaintiffs were motivated in bad faith in the filing
of this complaint. For this reason defendants' counterclaims are hereby ordered dismissed.

SO ORDERED.18

Petitioners appealed the trial court's decision. Petitioners claimed that aside from Dr. Estrada, the remaining
respondents should be held equally liable for negligence. Petitioners pointed out the extent of each respondent's
alleged liability.

On 6 February 1998, the Court of Appeals affirmed the decision of the trial court.19 Petitioners filed a motion
for reconsideration which the Court of Appeals denied in its Resolution of 21 March 2000. 20

Hence, this petition.

Meanwhile, petitioners filed a Manifestation dated 12 April 2002 21 stating that respondents Dr. Estrada, Dr.
Enriquez, Dr. Villaflor, and Nurse Dumlao "need no longer be notified of the petition because they are
absolutely not involved in the issue raised before the [Court], regarding the liability of [CMC]." 22 Petitioners
stressed that the subject matter of this petition is the liability of CMC for the negligence of Dr. Estrada. 23

The Court issued a Resolution dated 9 September 200224 dispensing with the requirement to submit the correct
and present addresses of respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court
stated that with the filing of petitioners' Manifestation, it should be understood that they are claiming only
against respondents CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy who have filed their respective comments.
Petitioners are foregoing further claims against respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse
Dumlao.

The Court noted that Dr. Estrada did not appeal the decision of the Court of Appeals affirming the decision of
the Regional Trial Court. Accordingly, the decision of the Court of Appeals, affirming the trial court's
judgment, is already final as against Dr. Oscar Estrada.
Petitioners filed a motion for reconsideration25 of the Court's 9 September 2002 Resolution claiming that Dr.
Enriquez, Dr. Villaflor and Nurse Dumlao were notified of the petition at their counsels' last known addresses.
Petitioners reiterated their imputation of negligence on these respondents. The Court denied petitioners' Motion
for Reconsideration in its 18 February 2004 Resolution. 26

The Court of Appeals' Ruling

In its Decision of 6 February 1998, the Court of Appeals upheld the trial court's ruling. The Court of Appeals
rejected petitioners' view that the doctrine in Darling v. Charleston Community Memorial Hospital27 applies to
this case. According to the Court of Appeals, the present case differs from the Darling case since Dr. Estrada is
an independent contractor-physician whereas the Darling case involved a physician and a nurse who were
employees of the hospital.

Citing other American cases, the Court of Appeals further held that the mere fact that a hospital permitted a
physician to practice medicine and use its facilities is not sufficient to render the hospital liable for the
physician's negligence.28 A hospital is not responsible for the negligence of a physician who is an independent
contractor.29

The Court of Appeals found the cases of Davidson v. Conole30 and Campbell v. Emma Laing Stevens Hospital31
applicable to this case. Quoting Campbell, the Court of Appeals stated that where there is no proof that
defendant physician was an employee of defendant hospital or that defendant hospital had reason to know that
any acts of malpractice would take place, defendant hospital could not be held liable for its failure to intervene
in the relationship of physician-patient between defendant physician and plaintiff.

On the liability of the other respondents, the Court of Appeals applied the "borrowed servant" doctrine
considering that Dr. Estrada was an independent contractor who was merely exercising hospital privileges. This
doctrine provides that once the surgeon enters the operating room and takes charge of the proceedings, the acts
or omissions of operating room personnel, and any negligence associated with such acts or omissions, are
imputable to the surgeon.32 While the assisting physicians and nurses may be employed by the hospital, or
engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while
the operation is in progress, and liability may be imposed upon the surgeon for their negligent acts under the
doctrine of respondeat superior.33

The Court of Appeals concluded that since Rogelio engaged Dr. Estrada as the attending physician of his wife,
any liability for malpractice must be Dr. Estrada's sole responsibility.

While it found the amount of damages fair and reasonable, the Court of Appeals held that no interest could be
imposed on unliquidated claims or damages.

The Issue

Basically, the issue in this case is whether CMC is vicariously liable for the negligence of Dr. Estrada. The
resolution of this issue rests, on the other hand, on the ascertainment of the relationship between Dr. Estrada and
CMC. The Court also believes that a determination of the extent of liability of the other respondents is
inevitable to finally and completely dispose of the present controversy.

The Ruling of the Court

The petition is partly meritorious.

On the Liability of CMC

Dr. Estrada's negligence in handling the treatment and management of Corazon's condition which ultimately
resulted in Corazon's death is no longer in issue. Dr. Estrada did not appeal the decision of the Court of Appeals
which affirmed the ruling of the trial court finding Dr. Estrada solely liable for damages. Accordingly, the
finding of the trial court on Dr. Estrada's negligence is already final.

Petitioners maintain that CMC is vicariously liable for Dr. Estrada's negligence based on Article 2180 in
relation to Article 2176 of the Civil Code. These provisions pertinently state:

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.

xxxx

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.

xxxx

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

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

Similarly, in the United States, a hospital which is the employer, master, or principal of a physician employee,
servant, or agent, may be held liable for the physician's negligence under the doctrine of respondeat superior.34

In the present case, petitioners maintain that CMC, in allowing Dr. Estrada to practice and admit patients at
CMC, should be liable for Dr. Estrada's malpractice. Rogelio claims that he knew Dr. Estrada as an accredited
physician of CMC, though he discovered later that Dr. Estrada was not a salaried employee of the CMC. 35
Rogelio further claims that he was dealing with CMC, whose primary concern was the treatment and
management of his wife's condition. Dr. Estrada just happened to be the specific person he talked to
representing CMC.36 Moreover, the fact that CMC made Rogelio sign a Consent on Admission and Admission
Agreement37 and a Consent to Operation printed on the letterhead of CMC indicates that CMC considered Dr.
Estrada as a member of its medical staff.

On the other hand, CMC disclaims liability by asserting that Dr. Estrada was a mere visiting physician and that
it admitted Corazon because her physical condition then was classified an emergency obstetrics case. 38

CMC alleges that Dr. Estrada is an independent contractor "for whose actuations CMC would be a total
stranger." CMC maintains that it had no control or supervision over Dr. Estrada in the exercise of his medical
profession.

The Court had the occasion to determine the relationship between a hospital and a consultant or visiting
physician and the liability of such hospital for that physician's negligence in Ramos v. Court of Appeals,39 to
wit:

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

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

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

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
"consultant" staff. While "consultants" are not, technically employees, a point which respondent
hospital asserts in denying all responsibility for the patient's condition, the control exercised, the
hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-
employee relationship, with the exception of the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining. Accordingly, on the basis of the
foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an
employer-employee relationship in effect exists between hospitals and their attending and visiting
physicians. This being the case, the question now arises as to whether or not respondent hospital is
solidarily liable with respondent doctors for petitioner's condition.

The basis for holding an employer solidarily responsible for the negligence of its employee is found in
Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also
for those of others based on the former's responsibility under a relationship of patria potestas. x x x40
(Emphasis supplied)

While the Court in Ramos did not expound on the control test, such test essentially determines whether an
employment relationship exists between a physician and a hospital based on the exercise of control over the
physician as to details. Specifically, the employer (or the hospital) must have the right to control both the means
and the details of the process by which the employee (or the physician) is to accomplish his task. 41

After a thorough examination of the voluminous records of this case, the Court finds no single evidence
pointing to CMC's exercise of control over Dr. Estrada's treatment and management of Corazon's condition. It is
undisputed that throughout Corazon's pregnancy, she was under the exclusive prenatal care of Dr. Estrada. At
the time of Corazon's admission at CMC and during her delivery, it was Dr. Estrada, assisted by Dr. Villaflor,
who attended to Corazon. There was no showing that CMC had a part in diagnosing Corazon's condition. While
Dr. Estrada enjoyed staff privileges at CMC, such fact alone did not make him an employee of CMC. 42 CMC
merely allowed Dr. Estrada to use its facilities43 when Corazon was about to give birth, which CMC considered
an emergency. Considering these circumstances, Dr. Estrada is not an employee of CMC, but an independent
contractor.

The question now is whether CMC is automatically exempt from liability considering that Dr. Estrada is an
independent contractor-physician.

In general, a hospital is not liable for the negligence of an independent contractor-physician. There is, however,
an exception to this principle. The hospital may be liable if the physician is the "ostensible" agent of the
hospital.44 This exception is also known as the "doctrine of apparent authority." 45 In Gilbert v. Sycamore
Municipal Hospital,46 the Illinois Supreme Court explained the doctrine of apparent authority in this wise:

[U]nder the doctrine of apparent authority a hospital can be held vicariously liable for the negligent acts
of a physician providing care at the hospital, regardless of whether the physician is an independent
contractor, unless the patient knows, or should have known, that the physician is an independent
contractor. The elements of the action have been set out as follows:

"For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the
hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the
individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts
of the agent create the appearance of authority, the plaintiff must also prove that the hospital had
knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary care and prudence."

The element of "holding out" on the part of the hospital does not require an express representation by the
hospital that the person alleged to be negligent is an employee. Rather, the element is satisfied if the
hospital holds itself out as a provider of emergency room care without informing the patient that the care
is provided by independent contractors.

The element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff relies upon the
hospital to provide complete emergency room care, rather than upon a specific physician.

The doctrine of apparent authority essentially involves two factors to determine the liability of an independent-
contractor physician.

The first factor focuses on the hospital's manifestations and is sometimes described as an inquiry whether the
hospital acted in a manner which would lead a reasonable person to conclude that the individual who was
alleged to be negligent was an employee or agent of the hospital. 47 In this regard, the hospital need not make
express representations to the patient that the treating physician is an employee of the hospital; rather a
representation may be general and implied.48

The doctrine of apparent authority is a species of the doctrine of estoppel. Article 1431 of the Civil Code
provides that "[t]hrough estoppel, an admission or representation is rendered conclusive upon the person
making it, and cannot be denied or disproved as against the person relying thereon." Estoppel rests on this rule:
"Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to
believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it."49

In the instant case, CMC impliedly held out Dr. Estrada as a member of its medical staff. Through CMC's acts,
CMC clothed Dr. Estrada with apparent authority thereby leading the Spouses Nogales to believe that Dr.
Estrada was an employee or agent of CMC. CMC cannot now repudiate such authority.

First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical staff and facilities to Dr. Estrada.
Upon Dr. Estrada's request for Corazon's admission, CMC, through its personnel, readily accommodated
Corazon and updated Dr. Estrada of her condition.

Second, CMC made Rogelio sign consent forms printed on CMC letterhead. Prior to Corazon's admission and
supposed hysterectomy, CMC asked Rogelio to sign release forms, the contents of which reinforced Rogelio's
belief that Dr. Estrada was a member of CMC's medical staff. 50 The Consent on Admission and Agreement
explicitly provides:
 KNOW ALL MEN BY THESE PRESENTS:

I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar St., Malate Mla., being the
father/mother/brother/sister/spouse/relative/ guardian/or person in custody of Ma. Corazon, and
representing his/her family, of my own volition and free will, do consent and submit said Ma. Corazon
to Dr. Oscar Estrada (hereinafter referred to as Physician) for cure, treatment, retreatment, or emergency
measures, that the Physician, personally or by and through the Capitol Medical Center and/or its
staff, may use, adapt, or employ such means, forms or methods of cure, treatment, retreatment, or
emergency measures as he may see best and most expedient; that Ma. Corazon and I will comply
with any and all rules, regulations, directions, and instructions of the Physician, the Capitol
Medical Center and/or its staff; and, that I will not hold liable or responsible and hereby waive and
forever discharge and hold free the Physician, the Capitol Medical Center and/or its staff, from any and
all claims of whatever kind of nature, arising from directly or indirectly, or by reason of said cure,
treatment, or retreatment, or emergency measures or intervention of said physician, the Capitol Medical
Center and/or its staff.

x x x x51 (Emphasis supplied)

While the Consent to Operation pertinently reads, thus:

I, ROGELIO NOGALES, x x x, of my own volition and free will, do consent and submit said
CORAZON NOGALES to Hysterectomy, by the Surgical Staff and Anesthesiologists of Capitol
Medical Center and/or whatever succeeding operations, treatment, or emergency measures as may be
necessary and most expedient; and, that I will not hold liable or responsible and hereby waive and
forever discharge and hold free the Surgeon, his assistants, anesthesiologists, the Capitol Medical Center
and/or its staff, from any and all claims of whatever kind of nature, arising from directly or indirectly, or
by reason of said operation or operations, treatment, or emergency measures, or intervention of the
Surgeon, his assistants, anesthesiologists, the Capitol Medical Center and/or its staff. 52 (Emphasis
supplied)

Without any indication in these consent forms that Dr. Estrada was an independent contractor-physician, the
Spouses Nogales could not have known that Dr. Estrada was an independent contractor. Significantly, no one
from CMC informed the Spouses Nogales that Dr. Estrada was an independent contractor. On the contrary, Dr.
Atencio, who was then a member of CMC Board of Directors, testified that Dr. Estrada was part of CMC's
surgical staff.53

Third, Dr. Estrada's referral of Corazon's profuse vaginal bleeding to Dr. Espinola, who was then the Head of
the Obstetrics and Gynecology Department of CMC, gave the impression that Dr. Estrada as a member of
CMC's medical staff was collaborating with other CMC-employed specialists in treating Corazon.

The second factor focuses on the patient's reliance. It is sometimes characterized as an inquiry on whether the
plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and
prudence.54

The records show that the Spouses Nogales relied upon a perceived employment relationship with CMC in
accepting Dr. Estrada's services. Rogelio testified that he and his wife specifically chose Dr. Estrada to handle
Corazon's delivery not only because of their friend's recommendation, but more importantly because of Dr.
Estrada's "connection with a reputable hospital, the [CMC]."55 In other words, Dr. Estrada's relationship with
CMC played a significant role in the Spouses Nogales' decision in accepting Dr. Estrada's services as the
obstetrician-gynecologist for Corazon's delivery. Moreover, as earlier stated, there is no showing that before and
during Corazon's confinement at CMC, the Spouses Nogales knew or should have known that Dr. Estrada was
not an employee of CMC.
Further, the Spouses Nogales looked to CMC to provide the best medical care and support services for
Corazon's delivery. The Court notes that prior to Corazon's fourth pregnancy, she used to give birth inside a
clinic. Considering Corazon's age then, the Spouses Nogales decided to have their fourth child delivered at
CMC, which Rogelio regarded one of the best hospitals at the time. 56 This is precisely because the Spouses
Nogales feared that Corazon might experience complications during her delivery which would be better
addressed and treated in a modern and big hospital such as CMC. Moreover, Rogelio's consent in Corazon's
hysterectomy to be performed by a different physician, namely Dr. Espinola, is a clear indication of Rogelio's
confidence in CMC's surgical staff.

CMC's defense that all it did was "to extend to [Corazon] its facilities" is untenable. The Court cannot close its
eyes to the reality that hospitals, such as CMC, are in the business of treatment. In this regard, the Court agrees
with the observation made by the Court of Appeals of North Carolina in Diggs v. Novant Health, Inc.,57 to wit:

"The conception that the hospital does not undertake to treat the patient, does not undertake to act
through its doctors and nurses, but undertakes instead simply to procure them to act upon their own
responsibility, no longer reflects the fact. Present day hospitals, as their manner of operation plainly
demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary
basis a large staff of physicians, nurses and internes [sic], as well as administrative and manual
workers, and they charge patients for medical care and treatment, collecting for such services, if
necessary, by legal action. Certainly, the person who avails himself of 'hospital facilities' expects
that the hospital will attempt to cure him, not that its nurses or other employees will act on their
own responsibility." x x x (Emphasis supplied)

Likewise unconvincing is CMC's argument that petitioners are estopped from claiming damages based on the
Consent on Admission and Consent to Operation. Both release forms consist of two parts. The first part gave
CMC permission to administer to Corazon any form of recognized medical treatment which the CMC medical
staff deemed advisable. The second part of the documents, which may properly be described as the releasing
part, releases CMC and its employees "from any and all claims" arising from or by reason of the treatment and
operation.

The documents do not expressly release CMC from liability for injury to Corazon due to negligence during her
treatment or operation. Neither do the consent forms expressly exempt CMC from liability for Corazon's death
due to negligence during such treatment or operation. Such release forms, being in the nature of contracts of
adhesion, are construed strictly against hospitals. Besides, a blanket release in favor of hospitals "from any and
all claims," which includes claims due to bad faith or gross negligence, would be contrary to public policy and
thus void.

Even simple negligence is not subject to blanket release in favor of establishments like hospitals but may only
mitigate liability depending on the circumstances. 58 When a person needing urgent medical attention rushes to a
hospital, he cannot bargain on equal footing with the hospital on the terms of admission and operation. Such a
person is literally at the mercy of the hospital. There can be no clearer example of a contract of adhesion than
one arising from such a dire situation. Thus, the release forms of CMC cannot relieve CMC from liability for
the negligent medical treatment of Corazon.

On the Liability of the Other Respondents

Despite this Court's pronouncement in its 9 September 2002 59 Resolution that the filing of petitioners'
Manifestation confined petitioners' claim only against CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy, who have
filed their comments, the Court deems it proper to resolve the individual liability of the remaining respondents
to put an end finally to this more than two-decade old controversy.

a) Dr. Ely Villaflor

Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause of Corazon's bleeding and to suggest the
correct remedy to Dr. Estrada.60 Petitioners assert that it was Dr. Villaflor's duty to correct the error of Nurse
Dumlao in the administration of hemacel.

The Court is not persuaded. Dr. Villaflor admitted administering a lower dosage of magnesium sulfate.
However, this was after informing Dr. Estrada that Corazon was no longer in convulsion and that her blood
pressure went down to a dangerous level. 61 At that moment, Dr. Estrada instructed Dr. Villaflor to reduce the
dosage of magnesium sulfate from 10 to 2.5 grams. Since petitioners did not dispute Dr. Villaflor's allegation,
Dr. Villaflor's defense remains uncontroverted. Dr. Villaflor's act of administering a lower dosage of
magnesium sulfate was not out of her own volition or was in contravention of Dr. Estrada's order.

b) Dr. Rosa Uy

Dr. Rosa Uy's alleged negligence consisted of her failure (1) to call the attention of Dr. Estrada on the incorrect
dosage of magnesium sulfate administered by Dr. Villaflor; (2) to take corrective measures; and (3) to correct
Nurse Dumlao's wrong method of hemacel administration.

The Court believes Dr. Uy's claim that as a second year resident physician then at CMC, she was merely
authorized to take the clinical history and physical examination of Corazon. 62 However, that routine internal
examination did not ipso facto make Dr. Uy liable for the errors committed by Dr. Estrada. Further, petitioners'
imputation of negligence rests on their baseless assumption that Dr. Uy was present at the delivery room.
Nothing shows that Dr. Uy participated in delivering Corazon's baby. Further, it is unexpected from Dr. Uy, a
mere resident physician at that time, to call the attention of a more experienced specialist, if ever she was
present at the delivery room.

c) Dr. Joel Enriquez

Petitioners fault Dr. Joel Enriquez also for not calling the attention of Dr. Estrada, Dr. Villaflor, and Nurse
Dumlao about their errors.63 Petitioners insist that Dr. Enriquez should have taken, or at least suggested,
corrective measures to rectify such errors.

The Court is not convinced. Dr. Enriquez is an anesthesiologist whose field of expertise is definitely not
obstetrics and gynecology. As such, Dr. Enriquez was not expected to correct Dr. Estrada's errors. Besides,
there was no evidence of Dr. Enriquez's knowledge of any error committed by Dr. Estrada and his failure to act
upon such observation.

d) Dr. Perpetua Lacson

Petitioners fault Dr. Perpetua Lacson for her purported delay in the delivery of blood Corazon needed. 64
Petitioners claim that Dr. Lacson was remiss in her duty of supervising the blood bank staff.

As found by the trial court, there was no unreasonable delay in the delivery of blood from the time of the
request until the transfusion to Corazon. Dr. Lacson competently explained the procedure before blood could be
given to the patient.65 Taking into account the bleeding time, clotting time and cross-matching, Dr. Lacson
stated that it would take approximately 45-60 minutes before blood could be ready for transfusion. 66 Further, no
evidence exists that Dr. Lacson neglected her duties as head of the blood bank.

e) Dr. Noe Espinola

Petitioners argue that Dr. Espinola should not have ordered immediate hysterectomy without determining the
underlying cause of Corazon's bleeding. Dr. Espinola should have first considered the possibility of cervical
injury, and advised a thorough examination of the cervix, instead of believing outright Dr. Estrada's diagnosis
that the cause of bleeding was uterine atony.

Dr. Espinola's order to do hysterectomy which was based on the information he received by phone is not
negligence. The Court agrees with the trial court's observation that Dr. Espinola, upon hearing such information
about Corazon's condition, believed in good faith that hysterectomy was the correct remedy. At any rate, the
hysterectomy did not push through because upon Dr. Espinola's arrival, it was already too late. At the time,
Corazon was practically dead.

f) Nurse J. Dumlao

In Moore v. Guthrie Hospital Inc.,67 the US Court of Appeals, Fourth Circuit, held that to recover, a patient
complaining of injuries allegedly resulting when the nurse negligently injected medicine to him intravenously
instead of intramuscularly had to show that (1) an intravenous injection constituted a lack of reasonable and
ordinary care; (2) the nurse injected medicine intravenously; and (3) such injection was the proximate cause of
his injury.

In the present case, there is no evidence of Nurse Dumlao's alleged failure to follow Dr. Estrada's specific
instructions. Even assuming Nurse Dumlao defied Dr. Estrada's order, there is no showing that side-drip
administration of hemacel proximately caused Corazon's death. No evidence linking Corazon's death and the
alleged wrongful hemacel administration was introduced. Therefore, there is no basis to hold Nurse Dumlao
liable for negligence.

On the Award of Interest on Damages

The award of interest on damages is proper and allowed under Article 2211 of the Civil Code, which states that
in crimes and quasi-delicts, interest as a part of the damages may, in a proper case, be adjudicated in the
discretion of the court.68

WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds respondent Capitol Medical
Center vicariously liable for the negligence of Dr. Oscar Estrada. The amounts of P105,000 as actual damages
and P700,000 as moral damages should each earn legal interest at the rate of six percent (6%) per annum
computed from the date of the judgment of the trial court. The Court affirms the rest of the Decision dated 6
February 1998 and Resolution dated 21 March 2000 of the Court of Appeals in CA-G.R. CV No. 45641.

SO ORDERED.

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,
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’ Decision 2 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 staff4 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.

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;

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 Decision6 in Administrative Case
No. 1690 dismissing the case against Dr. Fuentes. The Board held that the prosecution failed to show that Dr.
Fuentes was the one who left the two pieces of gauze inside Natividad’s body; and that he concealed such fact
from Natividad.

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

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

Concomitant with the above, the petition for certiorari and prohibition filed by herein defendant-appellant Dr.
Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order of the respondent judge
dated September 21, 1993, as well as the alias writ of execution issued pursuant thereto are hereby NULLIFIED
and SET ASIDE. The bond posted by the petitioner in connection with the writ of preliminary injunction issued
by this Court on November 29, 1993 is hereby cancelled.

Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.

SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution7 dated December 19, 1996.

Hence, the instant consolidated petitions.

In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is estopped
from raising the defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is
not entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is not its employee, but a mere
consultant or independent contractor. As such, he alone should answer for his negligence.

In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes is not
guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They contend that the
pieces of gauze are prima facie proofs that the operating surgeons have been negligent.

Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for
negligence and malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina. He pointed
to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2)
the attending nurses’ failure to properly count the gauzes used during surgery; and (3) the medical intervention
of the American doctors who examined Natividad in the United States of America.

For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr. Ampil
liable for negligence and malpractice; second, whether the Court of Appeals erred in absolving Dr. Fuentes of
any liability; and third, whether PSI may be held solidarily liable for the negligence of Dr. Ampil.

I - G.R. No. 127590

Whether the Court of Appeals Erred in Holding Dr. Ampil

Liable for Negligence and Malpractice.

Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other possible causes of Natividad’s
detriment. He argues that the Court should not discount either of the following possibilities: first, Dr. Fuentes
left the gauzes in Natividad’s body after performing hysterectomy; second, the attending nurses erred in
counting the gauzes; and third, the American doctors were the ones who placed the gauzes in Natividad’s body.

Dr. Ampil’s arguments are purely conjectural and without basis. Records show that he did not present any
evidence to prove that the American doctors were the ones who put or left the gauzes in Natividad’s body.
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 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.

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

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:

"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

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.

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 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.

SO ORDERED.

G.R. No. 139008 March 13, 2002

ROBERT DEL MAR, petitioner,

vs.
COURT OF APPEALS and NORMA EBERSOLE DEL MAR, respondents.

DECISION

PANGANIBAN, J.:

The Court of Appeals cannot be faulted with reversible error, much less grave abuse of discretion, for
dismissing a petition because petitioner’s brief was not filed on time. Indeed, in so doing, the appellate court is
merely abiding by the Rules of Court.

The Case

Before us is a Petition for Certiorari and Mandamus under Rule 65 of the Rules of Court, praying for the setting
aside of the January 13, 19991 and the April 26, 19992 Resolutions of the Court of Appeals (CA) in CA-GR CV
No. 58804. The first Resolution is worded as follows:

"Upon consideration of the motion to dismiss appeal filed by plaintiff-appellee and the Judicial Records
Division’s Report that no appellant[‘]s brief has been filed as of December 9, 1998, the appeal is hereby ordered
DISMISSED pursuant to Section 1 (e), Rule 50, 1997 Rules of Civil Procedure."3

The second Resolution denied petitioner’s "Motion for Reconsideration/Petition for Relief & Motion to Admit
Appellant’s Brief."4

The Facts

In his Memorandum, Petitioner Robert del Mar alleges as follows:

"1. The private respondent, Norma Ebersole Del Mar, and her sister, Florence Ebersole Finch, inherited
three (3) parcels of land covered by TCT Nos. T-58397, T-58398 and T-58402, situated in Mabini,
Santiago City, with a total area of 29,736 square meters, more or less. On December 6, 1974, Florence
Ebersole Finch, a resident of New York, USA, executed a general power of attorney naming and
constituting private respondent as her attorney-in-fact with regard to the subject property.

"2. On January 29, 1975, private respondent, acting for herself and as attorney-in-fact of Florence
Ebersole Finch, executed Deeds of Absolute Sale in favor of petitioner covering the three
aforementioned parcels of land. The private respondent is the mother of herein petitioner.

"3. On March 25, 1976, Florence Ebersole Finch executed a Deed of Confirmation in New York, USA,
confirming and ratifying all the acts and deeds executed by Norma Ebersole del Mar, in conveying
properties to Robert E. del Mar, ‘as appearing in Document Nos. 1780, Page 57, Book No. 14, Series of
 1975; 1781, Page 58, Book No. 14, Series of 1975; and 1782, Page 58, Book No. 14, Series of 1975, of
the Notarial Registry of Paulo Pascua, a notary public for and in the Province of Isabela, Philippines’.
This document was authenticated by Wenceslao J.O. Quirolgico, Vice-Consul of the Philippine
Consulate Office in New York, USA.

"4. After x x x said parcels of land were sub-divided into several lots, x x x petitioner obtained the
following Certificates of Title in his name: TCT Nos. T-32251, T-82257, T-282260, and T-82263, all on
April 18, 1975; T-116117 on January 11, 1979; T-17549 on March 16, 1979; and T-13664 on October
15, 1981.

"5. After the peaceful and continuous possession by petitioner of the subject properties for more than
twenty-two (22) years, a complaint for reconveyance was filed by x x x private respondent against x x x
petitioner on May 15, 1997, alleging, inter-alia, that x x x petitioner obtained the aforementioned
Certificates of Title through fraud and deceit. Private respondent claimed that x x x said properties were
left by her under the administration of petitioner, who allegedly transferred the ownership of x x x said
realty in his name by causing the issuance of Certificates of Title in his name without her knowledge and
consent. However, records show that before she left for the United States, private respondent executed
the corresponding Deeds of Absolute Sale in favor of petitioner. This case, entitled ‘Norma Ebersole del
Mar represented by Gerald del Mar vs. Roberto del Mar and the Register of Deeds, Province of Isabela’
was filed before the Regional Trial Court of Santiago City, Branch 35 and docketed as Civil Case No.
2373.

"6. In his Answer, x x x petitioner claimed that x x x private respondent and her co-owner, Florence
Ebersole Finch, sold x x x said properties to him before the former left for the United States. Moreover,
the properties were transferred for good, sufficient and valuable consideration, hence the sale was lawful
and valid.

"7. During the pre-trial conference, neither x x x petitioner nor his counsel, Atty. Federico Abuan,
appeared, by reason of which the trial court issued an order declaring petitioner as in default. The non-
appearance was due to the failure of Atty. Abuan, Jr. to inform petitioner’s attorney-in-fact, Angelita
Austria, of the scheduled hearing. Said petitioner filed a motion for reconsideration but the same was
denied, and x x x private respondent was allowed to adduce her evidence ex-parte. On the same day that
x x x said motion was denied, the trial court rendered its October 21, 1997 [D]ecision in favor of x x x
private respondent and against x x x petitioner, the dispositive portion of which reads:

‘WHEREFORE, judgment is rendered against [petitioner] and in favor of [private respondent], as follows:

1. Ordering the Register of Deeds of Ilagan, Isabela to cancel Titles Nos. T-82257; T-82261, T-82260,
T-82263, T-82264, T-234664, T-116117 and T-822659;

2. Ordering Robert E. del Mar to reconvey the ownership of properties to [private respondent] and in
case of failure on the part of [petitioner], the Register of Deeds is directed to execute the necessary deed
of reconveyance in favor of [private respondent];

3. Enjoining permanently [petitioner] or any person acting for and in [his] behalf from committing or
doing any act of disposition or alienation of the properties;

4. Ordering [petitioner] to pay the amount of FIVE HUNDRED THOUSAND (₱500,000.00) as moral
damages to [private respondent];

5. Ordering [petitioner] to pay the amount of TWO HUNDRED FIFTY THOUSAND PESOS
([₱]250,000.00) as attorney’s fees.
 6. Cost of the suit."5

On the other hand, private respondent counters with the following allegations in her Memorandum:

"The parcels of land covered by the land titles that are sought to be nullified x x x are all owned by [private]
respondent NORMA EBERSOLE DEL MAR by way of inheritance from her lawful [ascendants]. The original
titles were all issued in her name and favor.

"In the early 1970’s [private] respondent x x x together with her two children, GERALD and FLORENCE went
to the United States with the intent of obtaining domicile there[i]n and leaving behind the other son x x x
petitioner x x x, and entrusting [to] his [administration] x x x their properties.

"In 1974, [private respondent] came back to the Philippines and stayed up until 1978 and thereafter went back
to the US. During her stay, the properties were intact.

"Sometime in 1996, [private respondent] discovered that the properties were already in the name of [petitioner].
[Private respondent] protested because she never had done any act of transfer of the properties in favor of
[petitioner], because her intent was to have these properties to be eventually x x x divided into THREE (3) equal
parts for her THREE (3) children x x x. The transfer was [without] the knowledge of [private respondent]. It
was fraudulent and unlawful x x x."

Private respondent also claims that petitioner had been duly served summons, but neither he nor his counsel
appeared for pretrial. Hence, petitioner was declared in default. While he did receive the Order of Default, he
never bothered to have it lifted. So, trial proceeded and evidence ex parte for private respondent was received
by the trial court.6

Petitioner filed a Notice of Appeal. On January 7, 1998, Noel T. Tomas, legal researcher and officer in charge
of the Regional Trial Court (RTC) of Santiago City (Branch 35), forwarded to the CA the records of Civil Case
No. 35-2373.7 Buenaventura B. Miguel, chief of the Judicial Records Division of the appellate court, thereafter
wrote a letter8 dated August 13, 1998, addressed to Atty. Federico Abuan Jr., counsel for petitioner, stating the
following:

"Pursuant to the resolution en banc of the Supreme Court, dated February 23, 1984, you are hereby required to
file with this court SEVEN (7) printed copies of the brief, or SEVEN (7) eleven inches in leng[th] by eight and
a half inches in width - commonly known letter size[,] written double space, copies of said brief together with
the proof of service of TWO (2) printed typewritten or mimeographed copies hereof upon the appellee. The
decision of Trial Court shall be appended to the brief."9

On December 8, 1998, Atty. Amado C. Vallejo Jr., counsel for private respondent, moved to dismiss10 the
appeal on the ground that petitioner had failed to file the required brief within the reglementary period.

Ruling of the Court of Appeals

As already stated, the CA granted the Motion to Dismiss via the first assailed Resolution.

As regards petitioner’s "Motion for Reconsideration/Petition for Relief & Motion to Admit Appellant’s Brief,"
the appellate court’s denial is justified by the following reasons:

"Clearly, the subject motion/petition can not be in the nature of a Petition for Relief for Denial of Appeal under
Rule 38 of the Rules of Court. Section 2 of Rule 38 provides that -
’When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, or
excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the
same case praying that the appeal be given due course.’

"In the present case, the appellant was not prevented from taking an appeal as in fact, notice of appeal was
timely filed by the appellant on 11 November 1997 from the challenged decision. The instant motion/petition,
though denominated as such will be properly treated simply as a motion for reconsideration [of] the order of
dismissal.

"From the allegations in the subject motion for reconsideration, this Court finds no cogent reason to disturb the
dismissal of the appellant. The appellant’s brief became due [i]n October 1998. The movant claims ignorance of
the fact that counsel failed to file the appellant’s brief. There being no showing that counsel’s failure to file the
appellant’s brief was due to gross negligence, the rule that negligence of counsel is binding upon the client must
be applied. Besides, it appears from the records that herein appellant, as party-defendant in the proceedings
below, was declared in default for his and counsel’s non-appearance during the pre-trial conference. Having lost
the opportunity to present evidence in view of the default order, the appellant, through his attorney-in-fact,
should have shown more vigor in protecting his statutory right of appeal. He should have jealously guarded this
opportunity, knowing that this could well be his last chance to protect his rights. The interest of justice so
conveniently invoked by the appellant now will be better served if this dispute will be put to an end for failure
of the appellant to observe the degree of vigilance needed to protect his remedies in law."11

Hence, this Petition.12

The Issues

Petitioner, in his Memorandum,13 raises the following issues:

"Who between the petitioner and the private respondent has a better right to the properties in question.

"Whether or not the Respondent Court of Appeals committed grave abuse of di[s]cretion in ruling in favor of
private respondent."

For reasons that will be evident later on, the issues will be tackled in reverse order.

The Court’s Ruling

The Petition has no merit.

First Issue:

Effect of Failure to File a Brief

Petitioner argues that the CA gravely abused its discretion in dismissing his appeal for his mere failure to file
his Brief within the reglementary period.

We disagree. Rule 50, Section 1(e) of the Revised Rules of Court, expressly authorizes the CA to dismiss an
appeal for, inter alia, "failure of appellant to serve and file the required number of copies of his brief or
memorandum within the time provided by these Rules."

Certiorari as a special civil action can be availed of when the following requisites concur: (a) a tribunal, board
or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or in excess of jurisdiction; and (b) there is no appeal or plain, speedy and
adequate remedy in the ordinary course of law for annulling or modifying the proceeding.14

Petitioner claims that Atty. Abuan’s failure to file the required pleading constituted fraud against him, and that
his absence from the country while the appeal was pending constituted a mistake that was excusable.

We disagree. It is well-settled that the negligence of counsel binds the client.15 Exceptions to this rule arise
when (1) such negligence is so gross, palpable, reckless and inexcusable that the client is deprived of the due
process of law; and (2) the application of such due process results in the outright deprivation of one’s property
through a technicality.16

The negligence of Atty. Abuan does not fall under these exceptions. His negligence in this case was his
inexcusable failure to file the required appellant’s Brief, thus causing the dismissal of the appeal of petitioner.
But the latter was not without fault. He was aware of Atty. Abuan’s failure to appear at the pretrial conference,
a failure that had placed him in default. Because petitioner was in default, private respondent’s evidence was
received ex parte by the RTC. No wonder, the trial court decided against him. Yet, he retained Atty. Abuan’s
services for the appeal. One is bound by the decisions of one’s counsel regarding the conduct of the case,
especially where the former does not complain against the manner in which the latter handled the case.17

In effect, petitioner consented to the shabby and negligent treatment of his case by his counsel. Hence, he
should not complain now of the negligence or "fraud" done to him by his lawyer. A party’s counsel cannot be
blamed for negligence, if the party was likewise guilty of the same.18 Clients should suffer the consequences of
the negligence, mistake or lack of competence of the counsel whom they themselves hired, and whom they had
full authority to fire at any time and replace with another.19

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

We cannot attribute grave abuse of discretion to the Court of Appeals which merely followed Rule 50 in
dismissing the appeal.

Second Issue:

Petitioner’s Defenses

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

Assuming arguendo that this Petition is granted and the CA is required to pass upon the RTC’s judgment, how
can the CA give any probative value to the above documents, when they were not presented before the trial
court? Be it remembered that petitioner had been declared in default, and that he did not even ask for the lifting
of the Default Order. Hence, the grant of the Petition will be not only legally unsound, but also practically
useless.1âwphi1 It will just clog the CA’s docket.
Finally, after the CA denied his Motion for Reconsideration, petitioner allowed the reglementary period for
filing an appeal to lapse, opting instead to file this Petition for Certiorari. Well-settled is the rule that certiorari
is not a substitute for a lost appeal.20 Even if for this reason alone, the Petition should not be given due course.

WHEREFORE, the Petition is DISMISSED. Costs against petitioner.

SO ORDERED.