G.R. No.
L-12219 March 15, 1918 exposed the horse and rider to this danger he was, in our opinion,
AMADO PICART vs. FRANK SMITH, JR.
Facts: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.
Issue: 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;
Ruling: 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 excited and jump under
the conditions which here confronted him. When the defendant
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. 159617 August 8, 2007
ROBERTO C. SICAM and AGENCIA de R.C. SICAM, INC., vs. LULU V.
JORGE and CESAR JORGE
Before us is a Petition for Review on Certiorari filed by Roberto C.
Sicam, Jr. (petitioner Sicam) and Agencia de R.C. Sicam, Inc. (petitioner
corporation) seeking to annul the Decision1 of the Court of Appeals
dated March 31, 2003, and its Resolution2 dated August 8, 2003, in CA
G.R. CV No. 56633.
It appears that on different dates from September to October 1987,
Lulu V. Jorge (respondent Lulu) pawned several pieces of jewelry with
Agencia de R. C. Sicam located at No. 17 Aguirre Ave., BF Homes
Parañaque, Metro Manila, to secure a loan in the total amount of
P59,500.00.
On October 19, 1987, two armed men entered the pawnshop and took
away whatever cash and jewelry were found inside the pawnshop
vault. The incident was entered in the police blotter of the Southern
Police District, Parañaque Police Station as follows:
Investigation shows that at above TDPO, while victims were inside the
office, two (2) male unidentified persons entered into the said office
with guns drawn. Suspects(sic) (1) went straight inside and poked his
gun toward Romeo Sicam and thereby tied him with an electric wire
while suspects (sic) (2) poked his gun toward Divina Mata and Isabelita
Rodriguez and ordered them to lay (sic) face flat on the floor. Suspects
asked forcibly the case and assorted pawned jewelries items
mentioned above.
Suspects after taking the money and jewelries fled on board a Marson
Toyota unidentified plate number.3
Petitioner Sicam sent respondent Lulu a letter dated October 19, 1987
informing her of the loss of her jewelry due to the robbery incident in
the pawnshop. On November 2, 1987, respondent Lulu then wrote a
letter4 to petitioner Sicam expressing disbelief stating that when the
robbery happened, all jewelry pawned were deposited with Far East
Bank near the pawnshop since it had been the practice that before
they could withdraw, advance notice must be given to the pawnshop
so it could withdraw the jewelry from the bank. Respondent Lulu then
requested petitioner Sicam to prepare the pawned jewelry for
withdrawal on November 6, 1987 but petitioner Sicam failed to return
the jewelry.
On September 28, 1988, respondent Lulu joined by her husband, Cesar
Jorge, filed a complaint against petitioner Sicam with the Regional Trial
Court of Makati seeking indemnification for the loss of pawned jewelry
and payment of actual, moral and exemplary damages as well as
attorney's fees. The case was docketed as Civil Case No. 88-2035.
Petitioner Sicam filed his Answer contending that he is not the real
party-in-interest as the pawnshop was incorporated on April 20, 1987
and known as Agencia de R.C. Sicam, Inc; that petitioner corporation
had exercised due care and diligence in the safekeeping of the articles
pledged with it and could not be made liable for an event that is
fortuitous.
Respondents subsequently filed an Amended Complaint to include
petitioner corporation.
Thereafter, petitioner Sicam filed a Motion to Dismiss as far as he is
concerned considering that he is not the real party-in-interest.
Respondents opposed the same. The RTC denied the motion in an
Order dated November 8, 1989.5
After trial on the merits, the RTC rendered its Decision6 dated January
12, 1993, dismissing respondents’ complaint as well as petitioners’
counterclaim. The RTC held that petitioner Sicam could not be made
personally liable for a claim arising out of a corporate transaction; that
in the Amended Complaint of respondents, they asserted that "plaintiff
pawned assorted jewelries in defendants' pawnshop"; and that as a
consequence of the separate juridical personality of a corporation, the
corporate debt or credit is not the debt or credit of a stockholder.
The RTC further ruled that petitioner corporation could not be held
liable for the loss of the pawned jewelry since it had not been rebutted
by respondents that the loss of the pledged pieces of jewelry in the
possession of the corporation was occasioned by armed robbery; that
robbery is a fortuitous event which exempts the victim from liability for
the loss, citing the case of Austria v. Court of Appeals;7 and that the
parties’ transaction was that of a pledgor and pledgee and under Art.
1174 of the Civil Code, the pawnshop as a pledgee is not responsible
for those events which could not be foreseen.
Respondents appealed the RTC Decision to the CA. In a Decision dated
March 31, 2003, the CA reversed the RTC, the dispositive portion of
which reads as follows:
WHEREFORE, premises considered, the instant Appeal is GRANTED,
and the Decision dated January 12, 1993,of the Regional Trial Court of
Makati, Branch 62, is hereby REVERSED and SET ASIDE, ordering the
appellees to pay appellants the actual value of the lost jewelry
amounting to P272,000.00, and attorney' fees of P27,200.00.8
In finding petitioner Sicam liable together with petitioner corporation,
the CA applied the doctrine of piercing the veil of corporate entity
reasoning that respondents were misled into thinking that they were
dealing with the pawnshop owned by petitioner Sicam as all the
pawnshop tickets issued to them bear the words "Agencia de R.C.
Sicam"; and that there was no indication on the pawnshop tickets that
it was the petitioner corporation that owned the pawnshop which
explained why respondents had to amend their complaint impleading
petitioner corporation.
The CA further held that the corresponding diligence required of a
pawnshop is that it should take steps to secure and protect the
pledged items and should take steps to insure itself against the loss of
articles which are entrusted to its custody as it derives earnings from
the pawnshop trade which petitioners failed to do; that Austria is not
applicable to this case since the robbery incident happened in 1961
when the criminality had not as yet reached the levels attained in the
present day; that they are at least guilty of contributory negligence and
should be held liable for the loss of jewelries; and that robberies and
hold-ups are foreseeable risks in that those engaged in the pawnshop
business are expected to foresee.
The CA concluded that both petitioners should be jointly and severally
held liable to respondents for the loss of the pawned jewelry.
Petitioners’ motion for reconsideration was denied in a Resolution
dated August 8, 2003.
Hence, the instant petition for review with the following assignment of
errors:
THE COURT OF APPEALS ERRED AND WHEN IT DID, IT OPENED ITSELF
TO REVERSAL, WHEN IT ADOPTED UNCRITICALLY (IN FACT IT
REPRODUCED AS ITS OWN WITHOUT IN THE MEANTIME
ACKNOWLEDGING IT) WHAT THE RESPONDENTS ARGUED IN THEIR
BRIEF, WHICH ARGUMENT WAS PALPABLY UNSUSTAINABLE.
THE COURT OF APPEALS ERRED, AND WHEN IT DID, IT OPENED ITSELF
TO REVERSAL BY THIS HONORABLE COURT, WHEN IT AGAIN ADOPTED
UNCRITICALLY (BUT WITHOUT ACKNOWLEDGING IT) THE
SUBMISSIONS OF THE RESPONDENTS IN THEIR BRIEF WITHOUT
ADDING ANYTHING MORE THERETO DESPITE THE FACT THAT THE SAID
ARGUMENT OF THE RESPONDENTS COULD NOT HAVE BEEN
SUSTAINED IN VIEW OF UNREBUTTED EVIDENCE ON RECORD.9
Anent the first assigned error, petitioners point out that the CA’s
finding that petitioner Sicam is personally liable for the loss of the
pawned jewelries is "a virtual and uncritical reproduction of the
arguments set out on pp. 5-6 of the Appellants’ brief."10
Petitioners argue that the reproduced arguments of respondents in
their Appellants’ Brief suffer from infirmities, as follows:
(1) Respondents conclusively asserted in paragraph 2 of their Amended
Complaint that Agencia de R.C. Sicam, Inc. is the present owner of
Agencia de R.C. Sicam Pawnshop, and therefore, the CA cannot rule
against said conclusive assertion of respondents;
(2) The issue resolved against petitioner Sicam was not among those
raised and litigated in the trial court; and
(3) By reason of the above infirmities, it was error for the CA to have
pierced the corporate veil since a corporation has a personality distinct
and separate from its individual stockholders or members.
Anent the second error, petitioners point out that the CA finding on
their negligence is likewise an unedited reproduction of respondents’
brief which had the following defects:
(1) There were unrebutted evidence on record that petitioners had
observed the diligence required of them, i.e, they wanted to open a
vault with a nearby bank for purposes of safekeeping the pawned
articles but was discouraged by the Central Bank (CB) since CB rules
provide that they can only store the pawned articles in a vault inside
the pawnshop premises and no other place;
(2) Petitioners were adjudged negligent as they did not take insurance
against the loss of the pledged jelweries, but it is judicial notice that
due to high incidence of crimes, insurance companies refused to cover
pawnshops and banks because of high probability of losses due to
robberies;
(3) In Hernandez v. Chairman, Commission on Audit (179 SCRA 39, 45-
46), the victim of robbery was exonerated from liability for the sum of
money belonging to others and lost by him to robbers.
Respondents filed their Comment and petitioners filed their Reply
thereto. The parties subsequently submitted their respective
Memoranda.
We find no merit in the petition.
To begin with, although it is true that indeed the CA findings were
exact reproductions of the arguments raised in respondents’
(appellants’) brief filed with the CA, we find the same to be not fatally
infirmed. Upon examination of the Decision, we find that it expressed
clearly and distinctly the facts and the law on which it is based as
required by Section 8, Article VIII of the Constitution. The discretion to
decide a case one way or another is broad enough to justify the
adoption of the arguments put forth by one of the parties, as long as
these are legally tenable and supported by law and the facts on
records.11
Our jurisdiction under Rule 45 of the Rules of Court is limited to the
review of errors of law committed by the appellate court. Generally,
the findings of fact of the appellate court are deemed conclusive and
we are not duty-bound to analyze and calibrate all over again the
evidence adduced by the parties in the court a quo.12 This rule,
however, is not without exceptions, such as where the factual findings
of the Court of Appeals and the trial court are conflicting or
contradictory13 as is obtaining in the instant case.
However, after a careful examination of the records, we find no
justification to absolve petitioner Sicam from liability.
The CA correctly pierced the veil of the corporate fiction and adjudged
petitioner Sicam liable together with petitioner corporation. The rule is
that the veil of corporate fiction may be pierced when made as a shield
to perpetrate fraud and/or confuse legitimate issues. 14 The theory of
corporate entity was not meant to promote unfair objectives or
otherwise to shield them.15
Notably, the evidence on record shows that at the time respondent
Lulu pawned her jewelry, the pawnshop was owned by petitioner
Sicam himself. As correctly observed by the CA, in all the pawnshop
receipts issued to respondent Lulu in September 1987, all bear the
words "Agencia de R. C. Sicam," notwithstanding that the pawnshop
was allegedly incorporated in April 1987. The receipts issued after such
alleged incorporation were still in the name of "Agencia de R. C.
Sicam," thus inevitably misleading, or at the very least, creating the
wrong impression to respondents and the public as well, that the
pawnshop was owned solely by petitioner Sicam and not by a
corporation.
Even petitioners’ counsel, Atty. Marcial T. Balgos, in his letter16 dated
October 15, 1987 addressed to the Central Bank, expressly referred to
petitioner Sicam as the proprietor of the pawnshop notwithstanding
the alleged incorporation in April 1987.
We also find no merit in petitioners' argument that since respondents
had alleged in their Amended Complaint that petitioner corporation is
the present owner of the pawnshop, the CA is bound to decide the
case on that basis.
Section 4 Rule 129 of the Rules of Court provides that an admission,
verbal or written, made by a party in the course of the proceedings in
the same case, does not require proof. The admission may be
contradicted only by showing that it was made through palpable
mistake or that no such admission was made.
Thus, the general rule that a judicial admission is conclusive upon the
party making it and does not require proof, admits of two exceptions,
to wit: (1) when it is shown that such admission was made through
palpable mistake, and (2) when it is shown that no such admission was
in fact made. The latter exception allows one to contradict an
admission by denying that he made such an admission.17
The Committee on the Revision of the Rules of Court explained the
second exception in this wise:
x x x if a party invokes an "admission" by an adverse party, but cites
the admission "out of context," then the one making the "admission"
may show that he made no "such" admission, or that his admission
was taken out of context.
x x x that the party can also show that he made no "such admission",
i.e., not in the sense in which the admission is made to appear.
That is the reason for the modifier "such" because if the rule simply
states that the admission may be contradicted by showing that "no
admission was made," the rule would not really be providing for a
contradiction of the admission but just a denial.18 (Emphasis supplied).
While it is true that respondents alleged in their Amended Complaint
that petitioner corporation is the present owner of the pawnshop, they
did so only because petitioner Sicam alleged in his Answer to the
original complaint filed against him that he was not the real party-in-
interest as the pawnshop was incorporated in April 1987. Moreover, a
reading of the Amended Complaint in its entirety shows that
respondents referred to both petitioner Sicam and petitioner
corporation where they (respondents) pawned their assorted pieces of
jewelry and ascribed to both the failure to observe due diligence
commensurate with the business which resulted in the loss of their
pawned jewelry.
Markedly, respondents, in their Opposition to petitioners’ Motion to
Dismiss Amended Complaint, insofar as petitioner Sicam is concerned,
averred as follows:
Roberto C. Sicam was named the defendant in the original complaint
because the pawnshop tickets involved in this case did not show that
the R.C. Sicam Pawnshop was a corporation. In paragraph 1 of his
Answer, he admitted the allegations in paragraph 1 and 2 of the
Complaint. He merely added "that defendant is not now the real party
in interest in this case."
It was defendant Sicam's omission to correct the pawnshop tickets
used in the subject transactions in this case which was the cause of the
instant action. He cannot now ask for the dismissal of the complaint
against him simply on the mere allegation that his pawnshop business
is now incorporated. It is a matter of defense, the merit of which can
only be reached after consideration of the evidence to be presented in
due course.19
Unmistakably, the alleged admission made in respondents' Amended
Complaint was taken "out of context" by petitioner Sicam to suit his
own purpose. Ineluctably, the fact that petitioner Sicam continued to
issue pawnshop receipts under his name and not under the
corporation's name militates for the piercing of the corporate veil.
We likewise find no merit in petitioners' contention that the CA erred
in piercing the veil of corporate fiction of petitioner corporation, as it
was not an issue raised and litigated before the RTC.
Petitioner Sicam had alleged in his Answer filed with the trial court that
he was not the real party-in-interest because since April 20, 1987, the
pawnshop business initiated by him was incorporated and known as
Agencia de R.C. Sicam. In the pre-trial brief filed by petitioner Sicam, he
submitted that as far as he was concerned, the basic issue was
whether he is the real party in interest against whom the complaint
should be directed.20 In fact, he subsequently moved for the dismissal
of the complaint as to him but was not favorably acted upon by the
trial court. Moreover, the issue was squarely passed upon, although
erroneously, by the trial court in its Decision in this manner:
x x x The defendant Roberto Sicam, Jr likewise denies liability as far as
he is concerned for the reason that he cannot be made personally
liable for a claim arising from a corporate transaction.
This Court sustains the contention of the defendant Roberto C. Sicam,
Jr. The amended complaint itself asserts that "plaintiff pawned
assorted jewelries in defendant's pawnshop." It has been held that " as
a consequence of the separate juridical personality of a corporation,
the corporate debt or credit is not the debt or credit of the
stockholder, nor is the stockholder's debt or credit that of a
corporation.21
Clearly, in view of the alleged incorporation of the pawnshop, the issue
of whether petitioner Sicam is personally liable is inextricably
connected with the determination of the question whether the
doctrine of piercing the corporate veil should or should not apply to
the case.
The next question is whether petitioners are liable for the loss of the
pawned articles in their possession.
Petitioners insist that they are not liable since robbery is a fortuitous
event and they are not negligent at all.
We are not persuaded.
Article 1174 of the Civil Code provides:
Art. 1174. Except in cases expressly specified by the law, or when it is
otherwise declared by stipulation, or when the nature of the obligation
requires the assumption of risk, no person shall be responsible for
those events which could not be foreseen or which, though foreseen,
were inevitable.
Fortuitous events by definition are extraordinary events not
foreseeable or avoidable. It is therefore, not enough that the event
should not have been foreseen or anticipated, as is commonly believed
but it must be one impossible to foresee or to avoid. The mere
difficulty to foresee the happening is not impossibility to foresee the
same. 22
To constitute a fortuitous event, the following elements must concur:
(a) the cause of the unforeseen and unexpected occurrence or of the
failure of the debtor to comply with obligations must be independent
of human will; (b) it must be impossible to foresee the event that
constitutes the caso fortuito or, if it can be foreseen, it must be
impossible to avoid; (c) the occurrence must be such as to render it
impossible for the debtor to fulfill obligations in a normal manner; and,
(d) the obligor must be free from any participation in the aggravation
of the injury or loss. 23
The burden of proving that the loss was due to a fortuitous event rests
on him who invokes it.24 And, in order for a fortuitous event to
exempt one from liability, it is necessary that one has committed no
negligence or misconduct that may have occasioned the loss. 25
It has been held that an act of God cannot be invoked to protect a
person who has failed to take steps to forestall the possible adverse
consequences of such a loss. One's negligence may have concurred
with an act of God in producing damage and injury to another;
nonetheless, showing that the immediate or proximate cause of the
damage or injury was a fortuitous event would not exempt one from
liability. When the effect is found to be partly the result of a person's
participation -- whether by active intervention, neglect or failure to act
-- the whole occurrence is humanized and removed from the rules
applicable to acts of God. 26
Petitioner Sicam had testified that there was a security guard in their
pawnshop at the time of the robbery. He likewise testified that when
he started the pawnshop business in 1983, he thought of opening a
vault with the nearby bank for the purpose of safekeeping the
valuables but was discouraged by the Central Bank since pawned
articles should only be stored in a vault inside the pawnshop. The very
measures which petitioners had allegedly adopted show that to them
the possibility of robbery was not only foreseeable, but actually
foreseen and anticipated. Petitioner Sicam’s testimony, in effect,
contradicts petitioners’ defense of fortuitous event.
Moreover, petitioners failed to show that they were free from any
negligence by which the loss of the pawned jewelry may have been
occasioned.
Robbery per se, just like carnapping, is not a fortuitous event. It does
not foreclose the possibility of negligence on the part of herein
petitioners. In Co v. Court of Appeals,27 the Court held:
It is not a defense for a repair shop of motor vehicles to escape liability
simply because the damage or loss of a thing lawfully placed in its
possession was due to carnapping. Carnapping per se cannot be
considered as a fortuitous event. The fact that a thing was unlawfully
and forcefully taken from another's rightful possession, as in cases of
carnapping, does not automatically give rise to a fortuitous event. To
be considered as such, carnapping entails more than the mere forceful
taking of another's property. It must be proved and established that
the event was an act of God or was done solely by third parties and
that neither the claimant nor the person alleged to be negligent has
any participation. In accordance with the Rules of Evidence, the burden
of proving that the loss was due to a fortuitous event rests on him who
invokes it — which in this case is the private respondent. However,
other than the police report of the alleged carnapping incident, no
other evidence was presented by private respondent to the effect that
the incident was not due to its fault. A police report of an alleged
crime, to which only private respondent is privy, does not suffice to
establish the carnapping. Neither does it prove that there was no fault
on the part of private respondent notwithstanding the parties'
agreement at the pre-trial that the car was carnapped. Carnapping
does not foreclose the possibility of fault or negligence on the part of
private respondent.28
Just like in Co, petitioners merely presented the police report of the
Parañaque Police Station on the robbery committed based on the
report of petitioners' employees which is not sufficient to establish
robbery. Such report also does not prove that petitioners were not at
fault.
On the contrary, by the very evidence of petitioners, the CA did not err
in finding that petitioners are guilty of concurrent or contributory
negligence as provided in Article 1170 of the Civil Code, to wit:
Art. 1170. Those who in the performance of their obligations are guilty
of fraud, negligence, or delay, and those who in any manner
contravene the tenor thereof, are liable for damages.29
Article 2123 of the Civil Code provides that with regard to pawnshops
and other establishments which are engaged in making loans secured
by pledges, the special laws and regulations concerning them shall be
observed, and subsidiarily, the provisions on pledge, mortgage and
antichresis.
The provision on pledge, particularly Article 2099 of the Civil Code,
provides that the creditor shall take care of the thing pledged with the
diligence of a good father of a family. This means that petitioners must
take care of the pawns the way a prudent person would as to his own
property.
In this connection, Article 1173 of the Civil Code further provides:
Art. 1173. The fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the persons, of
time and of the place. When negligence shows bad faith, the provisions
of Articles 1171 and 2201, paragraph 2 shall apply.
If the law or contract does not state the diligence which is to be
observed in the performance, that which is expected of a good father
of a family shall be required.
We expounded in Cruz v. Gangan30 that negligence is the omission to
do something which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs, would do; or
the doing of something which a prudent and reasonable man would
not do.31 It is want of care required by the circumstances.
A review of the records clearly shows that petitioners failed to exercise
reasonable care and caution that an ordinarily prudent person would
have used in the same situation. Petitioners were guilty of negligence
in the operation of their pawnshop business. Petitioner Sicam testified,
thus:
Court:
Q. Do you have security guards in your pawnshop?
A. Yes, your honor.
Q. Then how come that the robbers were able to enter the premises
when according to you there was a security guard?
A. Sir, if these robbers can rob a bank, how much more a pawnshop.
Q. I am asking you how were the robbers able to enter despite the fact
that there was a security guard?
A. At the time of the incident which happened about 1:00 and 2:00
o'clock in the afternoon and it happened on a Saturday and everything
was quiet in the area BF Homes Parañaque they pretended to pawn an
article in the pawnshop, so one of my employees allowed him to come
in and it was only when it was announced that it was a hold up.
Q. Did you come to know how the vault was opened?
A. When the pawnshop is official (sic) open your honor the pawnshop
is partly open. The combination is off.
Q. No one open (sic) the vault for the robbers?
A. No one your honor it was open at the time of the robbery.
Q. It is clear now that at the time of the robbery the vault was open
the reason why the robbers were able to get all the items pawned to
you inside the vault.
A. Yes sir.32
revealing that there were no security measures adopted by petitioners
in the operation of the pawnshop. Evidently, no sufficient precaution
and vigilance were adopted by petitioners to protect the pawnshop
from unlawful intrusion. There was no clear showing that there was
any security guard at all. Or if there was one, that he had sufficient
training in securing a pawnshop. Further, there is no showing that the
alleged security guard exercised all that was necessary to prevent any
untoward incident or to ensure that no suspicious individuals were
allowed to enter the premises. In fact, it is even doubtful that there
was a security guard, since it is quite impossible that he would not
have noticed that the robbers were armed with caliber .45 pistols
each, which were allegedly poked at the employees.33 Significantly,
the alleged security guard was not presented at all to corroborate
petitioner Sicam's claim; not one of petitioners' employees who were
present during the robbery incident testified in court.
Furthermore, petitioner Sicam's admission that the vault was open at
the time of robbery is clearly a proof of petitioners' failure to observe
the care, precaution and vigilance that the circumstances justly
demanded. Petitioner Sicam testified that once the pawnshop was
open, the combination was already off. Considering petitioner Sicam's
testimony that the robbery took place on a Saturday afternoon and the
area in BF Homes Parañaque at that time was quiet, there was more
reason for petitioners to have exercised reasonable foresight and
diligence in protecting the pawned jewelries. Instead of taking the
precaution to protect them, they let open the vault, providing no
difficulty for the robbers to cart away the pawned articles.
We, however, do not agree with the CA when it found petitioners
negligent for not taking steps to insure themselves against loss of the
pawned jewelries.
Under Section 17 of Central Bank Circular No. 374, Rules and
Regulations for Pawnshops, which took effect on July 13, 1973, and
which was issued pursuant to Presidential Decree No. 114, Pawnshop
Regulation Act, it is provided that pawns pledged must be insured, to
wit:
Sec. 17. Insurance of Office Building and Pawns- The place of business
of a pawnshop and the pawns pledged to it must be insured against
fire and against burglary as well as for the latter(sic), by an insurance
company accredited by the Insurance Commissioner.
However, this Section was subsequently amended by CB Circular No.
764 which took effect on October 1, 1980, to wit:
Sec. 17 Insurance of Office Building and Pawns – The office
building/premises and pawns of a pawnshop must be insured against
fire. (emphasis supplied).
where the requirement that insurance against burglary was deleted.
Obviously, the Central Bank considered it not feasible to require
insurance of pawned articles against burglary.
The robbery in the pawnshop happened in 1987, and considering the
above-quoted amendment, there is no statutory duty imposed on
petitioners to insure the pawned jewelry in which case it was error for
the CA to consider it as a factor in concluding that petitioners were
negligent.
Nevertheless, the preponderance of evidence shows that petitioners
failed to exercise the diligence required of them under the Civil Code.
The diligence with which the law requires the individual at all times to
govern his conduct varies with the nature of the situation in which he
is placed and the importance of the act which he is to perform.34 Thus,
the cases of Austria v. Court of Appeals,35 Hernandez v. Chairman,
Commission on Audit36 and Cruz v. Gangan37 cited by petitioners in
their pleadings, where the victims of robbery were exonerated from
liability, find no application to the present case.
In Austria, Maria Abad received from Guillermo Austria a pendant with
diamonds to be sold on commission basis, but which Abad failed to
subsequently return because of a robbery committed upon her in
1961. The incident became the subject of a criminal case filed against
several persons. Austria filed an action against Abad and her husband
(Abads) for recovery of the pendant or its value, but the Abads set up
the defense that the robbery extinguished their obligation. The RTC
ruled in favor of Austria, as the Abads failed to prove robbery; or, if
committed, that Maria Abad was guilty of negligence. The CA,
however, reversed the RTC decision holding that the fact of robbery
was duly established and declared the Abads not responsible for the
loss of the jewelry on account of a fortuitous event. We held that for
the Abads to be relieved from the civil liability of returning the pendant
under Art. 1174 of the Civil Code, it would only be sufficient that the
unforeseen event, the robbery, took place without any concurrent
fault on the debtor’s part, and this can be done by preponderance of
evidence; that to be free from liability for reason of fortuitous event,
the debtor must, in addition to the casus itself, be free of any
concurrent or contributory fault or negligence.38
We found in Austria that under the circumstances prevailing at the
time the Decision was promulgated in 1971, the City of Manila and its
suburbs had a high incidence of crimes against persons and property
that rendered travel after nightfall a matter to be sedulously avoided
without suitable precaution and protection; that the conduct of Maria
Abad in returning alone to her house in the evening carrying jewelry of
considerable value would have been negligence per se and would not
exempt her from responsibility in the case of robbery. However we did
not hold Abad liable for negligence since, the robbery happened ten
years previously; i.e., 1961, when criminality had not reached the level
of incidence obtaining in 1971.
In contrast, the robbery in this case took place in 1987 when robbery
was already prevalent and petitioners in fact had already foreseen it as
they wanted to deposit the pawn with a nearby bank for safekeeping.
Moreover, unlike in Austria, where no negligence was committed, we
found petitioners negligent in securing their pawnshop as earlier
discussed.
In Hernandez, Teodoro Hernandez was the OIC and special disbursing
officer of the Ternate Beach Project of the Philippine Tourism in Cavite.
In the morning of July 1, 1983, a Friday, he went to Manila to encash
two checks covering the wages of the employees and the operating
expenses of the project. However for some reason, the processing of
the check was delayed and was completed at about 3 p.m.
Nevertheless, he decided to encash the check because the project
employees would be waiting for their pay the following day; otherwise,
the workers would have to wait until July 5, the earliest time, when the
main office would open. At that time, he had two choices: (1) return to
Ternate, Cavite that same afternoon and arrive early evening; or (2)
take the money with him to his house in Marilao, Bulacan, spend the
night there, and leave for Ternate the following day. He chose the
second option, thinking it was the safer one. Thus, a little past 3 p.m.,
he took a passenger jeep bound for Bulacan. While the jeep was on
Epifanio de los Santos Avenue, the jeep was held up and the money
kept by Hernandez was taken, and the robbers jumped out of the jeep
and ran. Hernandez chased the robbers and caught up with one robber
who was subsequently charged with robbery and pleaded guilty. The
other robber who held the stolen money escaped. The Commission on
Audit found Hernandez negligent because he had not brought the cash
proceeds of the checks to his office in Ternate, Cavite for safekeeping,
which is the normal procedure in the handling of funds. We held that
Hernandez was not negligent in deciding to encash the check and
bringing it home to Marilao, Bulacan instead of Ternate, Cavite due to
the lateness of the hour for the following reasons: (1) he was moved by
unselfish motive for his co-employees to collect their wages and
salaries the following day, a Saturday, a non-working, because to
encash the check on July 5, the next working day after July 1, would
have caused discomfort to laborers who were dependent on their
wages for sustenance; and (2) that choosing Marilao as a safer
destination, being nearer, and in view of the comparative hazards in
the trips to the two places, said decision seemed logical at that time.
We further held that the fact that two robbers attacked him in broad
daylight in the jeep while it was on a busy highway and in the presence
of other passengers could not be said to be a result of his imprudence
and negligence.
Unlike in Hernandez where the robbery happened in a public utility,
the robbery in this case took place in the pawnshop which is under the
control of petitioners. Petitioners had the means to screen the persons
who were allowed entrance to the premises and to protect itself from
unlawful intrusion. Petitioners had failed to exercise precautionary
measures in ensuring that the robbers were prevented from entering
the pawnshop and for keeping the vault open for the day, which paved
the way for the robbers to easily cart away the pawned articles.

In Cruz, Dr. Filonila O. Cruz, Camanava District Director of

Technological Education and Skills Development Authority (TESDA),
boarded the Light Rail Transit (LRT) from Sen. Puyat Avenue to
Monumento when her handbag was slashed and the contents were
stolen by an unidentified person. Among those stolen were her wallet
and the government-issued cellular phone. She then reported the
incident to the police authorities; however, the thief was not located,
and the cellphone was not recovered. She also reported the loss to the
Regional Director of TESDA, and she requested that she be freed from
accountability for the cellphone. The Resident Auditor denied her
request on the ground that she lacked the diligence required in the
custody of government property and was ordered to pay the purchase
value in the total amount of P4,238.00. The COA found no sufficient
justification to grant the request for relief from accountability. We
reversed the ruling and found that riding the LRT cannot per se be
denounced as a negligent act more so because Cruz’s mode of transit
was influenced by time and money considerations; that she boarded
the LRT to be able to arrive in Caloocan in time for her 3 pm meeting;
that any prudent and rational person under similar circumstance can
reasonably be expected to do the same; that possession of a cellphone
should not hinder one from boarding the LRT coach as Cruz did
considering that whether she rode a jeep or bus, the risk of theft
would have also been present; that because of her relatively low
position and pay, she was not expected to have her own vehicle or to
ride a taxicab; she did not have a government assigned vehicle; that
placing the cellphone in a bag away from covetous eyes and holding on
to that bag as she did is ordinarily sufficient care of a cellphone while
traveling on board the LRT; that the records did not show any specific
act of negligence on her part and negligence can never be presumed.

Unlike in the Cruz case, the robbery in this case happened in

petitioners' pawnshop and they were negligent in not exercising the
precautions justly demanded of a pawnshop.

WHEREFORE, except for the insurance aspect, the Decision of the

Court of Appeals dated March 31, 2003 and its Resolution dated
August 8, 2003, are AFFIRMED.

Costs against petitioners.

SO ORDERED.
G.R. No. 160795 June 27, 2008
CORINTHIAN GARDENS ASSOCIATION, INC. vs. SPOUSES REYNALDO
and MARIA LUISA TANJANGCO
Before this Court is a Petition for Review on Certiorari1 under Rule 45
of the Rules of Civil Procedure seeking the reversal of the Court of
Appeals (CA) Decision2 dated January 31, 2003 in CA-G.R. CV No.
43217, which reversed and set aside the Decision3 of the Regional Trial
Court (RTC) of Quezon City, dated March 30, 1993.
The Antecedents:
Respondents-spouses Reynaldo and Maria Luisa Tanjangco (the
Tanjangcos) own Lots 68 and 69 covered by Transfer Certificates of
Title (TCT) No. 2422454 and 2829615 respectively, located at
Corinthian Gardens Subdivision, Quezon City, which is managed by
petitioner Corinthian Gardens Association, Inc. (Corinthian). On the
other hand, respondents-spouses Frank and Teresita Cuaso (the
Cuasos) own Lot 65 which is adjacent to the Tanjangcos’ lots.
Before the Cuasos constructed their house on Lot 65, a relocation
survey was necessary. As Geodetic Engineer Democrito De Dios (Engr.
De Dios), operating under the business name D.M. De Dios Realty and
Surveying, conducted all the previous surveys for the subdivision's
developer, Corinthian referred Engr. De Dios to the Cuasos. Before,
during and after the construction of the said house, Corinthian
conducted periodic ocular inspections in order to determine
compliance with the approved plans pursuant to the Manual of Rules
and Regulations of Corinthian.6 Unfortunately, after the Cuasos
constructed their house employing the services of C.B. Paraz &
Construction Co., Inc. (C.B. Paraz) as builder, their perimeter fence
encroached on the Tanjangcos’ Lot 69 by 87 square meters.
No amicable settlement was reached between the parties. Thus, the
Tanjangcos demanded that the Cuasos demolish the perimeter fence
but the latter failed and refused, prompting the Tanjangcos to file with
the RTC a suit against the Cuasos for Recovery of Possession with
Damages.7
Eventually, the Cuasos filed a Third-Party Complaint8 against
Corinthian, C.B. Paraz and Engr. De Dios. The Cuasos ascribed
negligence to C.B. Paraz for its failure to ascertain the proper
specifications of their house, and to Engr. De Dios for his failure to
undertake an accurate relocation survey, thereby, exposing them to
litigation. The Cuasos also faulted Corinthian for approving their
relocation survey and building plans without verifying their accuracy
and in making representations as to Engr. De Dios' integrity and
competence. The Cuasos alleged that had Corinthian exercised
diligence in performing its duty, they would not have been involved in
a boundary dispute with the Tanjangcos. Thus, the Cuasos opined that
Corinthian should also be held answerable for any damages that they
might incur as a result of such construction.
On March 30, 1993, the RTC rendered a Decision in favor of the
Tanjangcos. It ruled that the Cuasos’ perimeter wall encroached on the
land of the Tanjangos by 87 square meters. It, however, ruled that the
Cuasos were builders in good faith, and gave the Tanjangcos the option
to sell and the Cuasos the option to buy the encroaching portion of the
land, at a price to be agreed upon by the parties within sixty (60) days
from receipt of the said Decision. In the event that the Cuasos were
unable and unwilling to purchase the said portion, the perimeter wall
should be demolished at the latter’s expense. The RTC also ordered the
Cuasos to pay monthly rentals of P2,000.00 commencing from the time
of the filing of the complaint. The RTC likewise held that C.B. Paraz was
grossly negligent in not taking into account the correct boundaries of
Cuasos’ lot when it constructed the house. It, thus, ordered C.B. Paraz
to pay moral and exemplary damages as well as attorney’s fees to the
Tanjangcos and the Cuasos. The third-party complaint against
Corinthian and Engr. De Dios, on the other hand, was dismissed for lack
of cause of action.
The Tanjangcos filed a Motion for Reconsideration9 of the said RTC
Decision which the RTC, however, denied in its Order10 dated June 28,
1993.
Dissatisfied with the RTC ruling, the Tanjangcos, the Cuasos, and C.B.
Paraz all appealed to the CA.
On appeal, the CA reversed and set aside the RTC Decision. It held that
the Cuasos acted in bad faith in land-grabbing the 87 square meter-
portion of Lot 69 as of April 5, 1989. Correlatively, the CA allowed the
Tanjangcos to exercise the rights granted under Articles 449, 450, 451
and 549 of the New Civil Code, which include the right to demand the
demolition of the offending perimeter wall after reimbursing the
Cuasos the necessary expenses for the preservation of the encroached
area. The Cuasos were ordered to pay monthly rentals of P10,000.00
for the use, enjoyment and occupancy of the lot from 1989 up to the
time they vacate the property considering the location and category of
the same. They were, likewise, ordered to pay the Tanjangcos
P100,000.00, as moral damages, P50,000.00 as exemplary damages,
and P150,000.00 as attorney’s fees. The CA also imposed six percent
(6%) interest per annum on all the awards. The Cuasos’ appeal against
the Tanjangcos, on the other hand, was dismissed for lack of merit. On
the third-party complaints, Corinthian, C.B. Paraz and Engr. De Dios
were all found negligent in performing their respective duties and so
they were ordered to contribute five percent (5%) each, or a total of
fifteen percent (15%) to all judgment sums and amounts that the
Cuasos shall eventually pay under the decision, also with interest of six
percent (6%) per annum.
Only Corinthian filed a Motion for Reconsideration11 of the CA
Decision within the 15-day reglementary period. No motion for
reconsideration was filed by the Cuasos, C.B. Paraz and/or Engr. De
Dios.
About six (6) months later, or on August 12, 2003, the Cuasos filed a
Comment/Manifestation12 praying that they be allowed to adopt
Corinthian’s Motion for Reconsideration.
In its Resolution13 dated November 14, 2003, the CA denied
Corinthian’s Motion for Reconsideration.
Hence, Corinthian filed the instant Petition for Review on Certiorari
assailing the CA Decision and Resolution, and impleading the Cuasos as
one of the respondents being the third-party plaintiffs in the RTC.
This Court gave due course to Corinthian’s petition and required the
parties to submit their respective memorandum.14 In compliance, the
Cuasos submitted their Memorandum15 and Supplement to
Memorandum,16 which were both noted by this Court in its
Resolutions dated January 10, 200517 and February 2, 2005, 18
respectively.
In the meantime, the Tanjangcos moved for partial entry of judgment
of the CA Decision which was granted by the CA in its Resolution19
dated May 26, 2006, directing the issuance of an Entry of Judgment
and a Certification that its Decision dated January 31 2003 has become
final and executory with respect to the Cuasos, C.B. Paraz and Engr. De
Dios for their failure to file an appeal assailing the said Decision before
this Court.
The Tanjangcos then moved for the execution of the judgment against
the Cuasos, specifically the demolition of the perimeter fence,20 which
was also granted by the RTC in its Order21 dated December 18, 2006.

Other than the filing of an Opposition22 and a Motion for
Reconsideration23 before the RTC, the Cuasos prayed for the issuance
of a temporary restraining order (TRO) and/or preliminary injunction
before this Court to enjoin the demolition of the perimeter fence. They
averred that the premature demolition of the alleged encroaching
perimeter wall and other improvements will cause grave and
irreparable damage to them, because what is sought to be demolished
is part of their residence. They claimed that no amount of money will
compensate for the damage they stand to suffer should any demolition
subsequently prove to be wrongful. They argued that before any
execution can be carried out, it is necessary to first determine whether
or not Corinthian was negligent in approving the building plan and
whether or not it acted in good faith in doing so. Such determination,
according to the Cuasos, will in turn determine whether or not they
were in good faith in constructing the house.24
The Tanjangcos opposed the Cuasos' application for TRO. They
countered that the only pending matter with this Court is the appeal
by Corinthian; hence, the implementation of the January 31, 2003
Decision of the CA against the Cuasos will not preempt the outcome of
the said pending incidents. Also, any action taken by this Court on
Corinthian’s petition would not benefit the Cuasos for they did not
appeal the adverse decision against them. Accordingly, they cannot
obtain affirmative relief from this Court by reason or on account of the
appeal taken by Corinthian. The appeal, they added, is personal to
Corinthian. Finally, they argued that the Cuasos are now estopped
from questioning the enforcement of the CA Decision since they issued
a manager’s check to pay the money judgment.25
In this Court's Resolution dated July 18, 2007, we denied the Cuasos'
application for TRO and/or writ of preliminary injunction for lack of
merit.
The denial was based on sound legal principles. It is axiomatic that to
be entitled to the injunctive writ, one must show that there exists a
right to be protected which is directly threatened by the act sought to
be enjoined. Furthermore, there must be a showing that the invasion
of the right is material and substantial, that the right of complainant is
clear and unmistakable, and that there is an urgent and paramount
necessity for the writ to issue in order to prevent serious damage.26
In the Cuasos’ case, their right to injunctive relief had not been clearly
and unmistakably demonstrated. They failed to show proof that there
is material and substantial invasion of their right to warrant the
issuance of an injunctive writ. Indeed, the enforcement of the writ of
execution, which would demolish the Cuasos’ perimeter fence, is
manifestly prejudicial to their interest. However, they possess no clear
and unmistakable legal right that merits protection through the writ of
preliminary injunction.27 Their right to maintain the said fence had
been declared inferior to the Tanjangcos’ right to the demolition of the
fence, after the CA judgment had become final and executory as to the
Cuasos.
It bears stressing that the Cuasos failed to appeal the ruling of the CA.
This failure to contest the CA decision before this Court was fatal to
their cause. It had the effect of an admission that they indeed acted in
bad faith, as they accepted the CA ruling. The decision of the CA,
therefore, became binding and final as to them.28 As a matter of fact,
the CA already issued a partial entry of judgment against the Cuasos.
An injunction to stay a final and executory decision is unavailing except
only after a showing that facts and circumstances exist which would
render execution unjust or inequitable, or that a change in the
situation of the parties occurred. Here, no such exception exists as
shown by the facts earlier narrated.29
While it is true that this Court noted the Memorandum and
Supplemental Memorandum filed by the Cuasos, such notation was
made only insofar as Corinthian made them respondents in this
petition. This Court cannot grant to the Cuasos any affirmative relief as
they did not file a petition questioning the CA ruling. Consequently, the
Decision of the CA holding that the Cuasos acted in bad faith and that
the perimeter fence may now be demolished cannot be put in issue by
the Cuasos. It is a fundamental principle that a party who does not
appeal, or file a petition for certiorari, is not entitled to any affirmative
relief.30 An appellee who is not an appellant may assign errors in his
brief where his purpose is to maintain the judgment, but he cannot
seek modification or reversal of the judgment or claim affirmative
relief unless he has also appealed.31 This applies to C.B. Paraz and
Engr. De Dios who likewise failed to assail the aforementioned CA
Decision.
With this matter put to rest, we now go to the main issues raised by
Corinthian, the sole petitioner in this case, to wit:
a) Whether or not there is legal basis for the Court of Appeals to hold
petitioner Corinthian Gardens Association, Inc. liable to pay 5% of the
judgment money to Sps. Tanjangco on account of the encroachment
made by Sps. Cuaso[; and]
b) Whether or not the Court of Appeals has legal basis to increase
unilaterally and without proof the amount prayed for in the Complaint,
i.e., P2,000.00, as reasonable compensation for the use and enjoyment
of the portion of the lot encroached upon, to P10,000.00.32
Corinthian claims that the approval of the building plan of the Cuasos
was not tainted with negligence as it did not approve the survey
relocation plan but merely the architectural, structural and sanitary
plans for Cuasos' house; that the purpose of the said approval is not to
ensure that the house to be erected on a particular lot is constructed
within its boundaries but only to ensure compliance with the Manual
of Rules and Regulations; that while Corinthian conducts actual site
inspections, the inspection and approval of the building plans are
limited to "table inspection" only; that the survey relocation plan was
never submitted for Corinthian's approval; that the acceptance of the
builder's bond did not make Corinthian automatically liable for the
encroachment and for damages; and that Corinthian approved the
building plan with the good faith and due diligence required under the
circumstances. It, thus, concludes that it cannot be held liable to pay
five
percent (5%) of the money judgment to the Tanjangcos on account of
the encroachment made by the Cuasos. Likewise, it finds no legal basis
for the CA to unilaterally increase the amount of the adjudged rent
from P2,000.00 to P10,000.00 which was not prayed for by the
Tanjangcos in their complaint and in the absence of evidence adduced
by the parties.33
On the other hand, the Tanjangcos stand by the ruling of the CA and
opine that Corinthian was negligent in approving the building plan of
the Cuasos. They submit that Corinthian's claim that it merely conducts
"table inspections" of buildings further bolsters their argument that
Corinthian was negligent in conveniently and unilaterally restricting
and limiting the coverage of its approval, contrary to its own Manual of
Rules and Regulations; that the acceptance of a builder's bond does
not automatically make Corinthian liable but the same affirms the fact
that a homeowner can hold it liable for the consequences of the
approval of a building plan; and that Corinthian, by regularly
demanding and accepting membership dues, must be wary of its
responsibility to protect the rights and interests of its members. Lastly,
the Tanjangcos contend that a court can take judicial notice of the
general increase in the rentals of real estate, as in this case, where the
CA considered the value of their lot in the "posh-and-swank"
Corinthian Gardens Subdivision and the fact that they were deprived of
it for almost two decades. The Tanjangcos pray that this Court sustain
the ruling of the CA.34
The instant case is obviously one for tort, as governed by Article 2176
of the Civil Code, which provides:
ART. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
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.
In every tort case filed under this provision, plaintiff has to prove by a
preponderance of evidence: (1) the damages suffered by the plaintiff;
(2) the fault or negligence of the defendant or some other person for
whose act he must respond; and (3) the connection of cause and effect
between the fault or negligence and the damages incurred.35
Undeniably, the perimeter fence of the Cuasos encroached on Lot 69
owned by the Tanjangcos by 87 square meters as duly found by both
the RTC and the CA in accordance with the evidence on record. As a
result, the Tanjangcos suffered damage in having been deprived of the
use of that portion of their lot encroached upon. Thus, the primordial
issue to be resolved in this case is whether Corinthian was negligent
under the circumstances and, if so, whether such negligence
contributed to the injury suffered by the Tanjangcos.
A negligent act is an inadvertent act; it may be merely carelessly done
from a lack of ordinary prudence and may be one which creates a
situation involving an unreasonable risk to another because of the
expectable action of the other, a third person, an animal, or a force of
nature. A negligent act is one from which an ordinary prudent person
in the actor's position, in the same or similar circumstances, would
foresee such an appreciable risk of harm to others as to cause him not
to do the act or to do it in a more careful manner.36
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 that reasonable care and caution which an ordinary
person would have used in the same situation? If not, then he is guilty
of negligence. The law, in effect, adopts the standard supplied by the
imaginary conduct of the discreet paterfamilias in 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 a
man of ordinary intelligence and prudence, and determines liability
according to that standard.37
By this test, we find Corinthian negligent.
While the issue of Corinthian's alleged negligence is factual in
character,38 a review by this Court is proper because the CA's factual
findings differ from those of the RTC's.39 Thus, after a meticulous
review of the evidence on record, we hold that the CA committed no
reversible error when it deviated from the findings of fact of the RTC.
The CA's findings and conclusions are substantiated by the evidence on
record and are more in accord with law and reason. Indeed, it is clear
that Corinthian failed to exercise the requisite diligence in insuring that
the Cuasos abide by its Manual of Rules and Regulations, thereby
resulting in the encroachment on the Tanjangcos’ property.
We agree with the CA when it aptly held:
Corinthian cannot and should not be allowed to justify or excuse its
negligence by claiming that its approval of the Cuasos’ building plans
was only limited to a so-called "table inspection;" and not actual site
measurement. To accept some such postulate is to put a premium on
negligence. Corinthian was not organized solely for the defendants
Cuasos. It is also the subdivision of the plaintiffs-spouses Tanjangcos -
and of all others who have their dwelling units or abodes therein.
Pertinently, its Manual of Rules and Regulations stipulates in Section 3
thereof (under the heading Construction), thus:
A. Rules and Regulations
No new construction can be started unless the building plans are
approved by the Association and the appropriate Builder’s cash bond
and pre-construction fees are paid. The Association will not allow the
entry of construction materials and process identification cards for
workers if the above conditions are not complied with. Likewise, all
renovations, repairs, additions and improvements to a finished house
except electrical wiring, will have to be approved by the Association.
Water service connection of a homeowner who undertakes
construction work without prior approval of the Association will be
cut-off in addition to the sanctions previously mentioned.
It goes without saying that this Manual of Rules and Regulations
applies to all - or it does not apply at all. To borrow a popular
expression, what is sauce for the gander is sauce for the goose - or
ought to be. To put it matter-of-factly and bluntly, thus, its so-called
"table inspection" approval of the Cuasos’ building plans is no less of
an approval, as approvals come and go. And since it is an approval
tainted with negligence, the necessary and inevitable consequences
which law and justice attach to such negligence must, as a matter of
law and justice, also necessarily attach to Corinthian.
And then again third party defendant-appellee Corinthian Garden
required the posting of a builder’s cash bond (Exh. 5-Corinthian) from
the defendants-appellants Cuasos and the third-party defendant C.B.
Paraz Construction to secure the performance of their undertaking.
Surely, Corinthian does not imply that while it may take the benefits
from the Builder’s cash bond, it may, Pilate-like, wash its hands of any
responsibility or liability that would or might arise from the
construction or building of the structure for which the cash bond was
in the first place posted. That is not only unjust and immoral, but
downright unchristian and iniquitous.
Under the same parity of reasoning, the payment by the appellants-
Cuasos to the appellee Corinthian of pre-construction and membership
fees in the Association must necessarily entail the creation of certain
obligations on the part of Corinthian. For duties and responsibilities
always go hand in hand with rights and privileges. That is the law of life
- and that is the law of every civilized society. It is an axiom of equity
that he who receives the benefits must share the burdens.40
By its Manual of Rules and Regulations, it is reasonable to assume that
Corinthian, through its representative, in the approval of building
plans, and in the conduct of periodic inspections of on-going
construction projects within the subdivision, is responsible in insuring
compliance with the approved plans, inclusive of the construction of
perimeter walls, which in this case is the subject of dispute between
the Tanjangcos and the Cuasos.41 It is not just or equitable to relieve
Corinthian of any liability when, by its very own rules, it imposes its
authority over all its members to the end that "no new construction
can be started unless the plans are approved by the Association and
the appropriate cash bond and pre-construction fees are paid."
Moreover, Corinthian can impose sanctions for violating these rules.
Thus, the proposition that the inspection is merely a "table inspection"
and, therefore, should exempt Corinthian from liability, is
unacceptable. After all, if the supposed inspection is merely a "table
inspection" and the approval granted to every member is a mere
formality, then the purpose of the rules would be defeated.
Compliance therewith would not be mandatory, and sanctions
imposed for violations could be disregarded. Corinthian's imprimatur SO ORDERED.
on the construction of the Cuasos' perimeter wall over the property of
the Tanjangcos assured the Cuasos that everything was in order.

In sum, Corinthian’s failure to prevent the encroachment of the

Cuasos’ perimeter wall into Tanjangcos’ property – despite the
inspection conducted – constitutes negligence and, at the very least,
contributed to the injury suffered by the Tanjangcos.

On the second issue, our ruling in Spouses Badillo v. Tayag42 is

instructive:

Citing Sia v. Court of Appeals [272 SCRA 141, May 5, 1997], petitioners
argue that the MTC may take judicial notice of the reasonable rental or
the general price increase of land in order to determine the amount of
rent that may be awarded to them. In that case, however, this Court
relied on the CA's factual findings, which were based on the evidence
presented before the trial court. In determining reasonable rent,

the RTC therein took account of the following factors: 1) the realty
assessment of the land, 2) the increase in realty taxes, and 3) the
prevailing rate of rentals in the vicinity. Clearly, the trial court relied,
not on mere judicial notice, but on the evidence presented before it.

Indeed, courts may fix the reasonable amount of rent for the use and
occupation of a disputed property. However, petitioners herein erred
in assuming that courts, in determining the amount of rent, could
simply rely on their own appreciation of land values without
considering any evidence. As we have said earlier, a court may fix the
reasonable amount of rent, but it must still base its action on the
evidence adduced by the parties.

In Herrera v. Bollos [G.R. No. 138258, January 18, 2002], the trial court
awarded rent to the defendants in a forcible entry case. Reversing the
RTC, this Court declared that the reasonable amount of rent could be
determined not by mere judicial notice, but by supporting evidence:

x x x A court cannot take judicial notice of a factual matter in

controversy. The court may take judicial notice of matters of public
knowledge, or which are capable of unquestionable demonstration, or
ought to be known to judges because of their judicial functions. Before
taking such judicial notice, the court must "allow the parties to be
heard thereon." Hence, there can be no judicial notice on the rental
value of the premises in question without supporting evidence.

Truly, mere judicial notice is inadequate, because evidence is required

for a court to determine the proper rental value. But contrary to
Corinthian's arguments, both the RTC and the CA found that indeed
rent was due the Tanjangcos because they were deprived of
possession and use of their property. This uniform factual finding of
the RTC and the CA was based on the evidence presented below.
Moreover, in Spouses Catungal v. Hao,43 we considered the increase
in the award of rentals as reasonable given the particular
circumstances of each case. We noted therein that the respondent
denied the petitioners the benefits, including rightful possession, of
their property for almost a decade.

Similarly, in the instant case, the Tanjangcos were deprived of

possession and use of their property for more than two decades
through no fault of their own. Thus, we find no cogent reason to
disturb the monthly rental fixed by the CA.

All told, the CA committed no reversible error.

WHEREFORE, the petition is DENIED. The Decision of the Court of

Appeals is AFFIRMED. Costs against petitioner.
G.R. No. 172200 July 6, 2010
THE HEIRS OF REDENTOR COMPLETO and ELPIDIO ABIAD, Petitioners,
vs.
SGT. AMANDO C. ALBAYDA, JR., Respondent.
DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of
the Rules of Court, assailing the Decision1 dated January 2, 2006 and
the Resolution2 dated March 30, 2006 of the Court of Appeals (CA) in
CA-G.R. CV No. 68405.
The Facts
The facts of the case are as follows:
Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant of
the Philippine Air Force, 527th Base Security Squadron, 520th Airbase,
Philippine Air Force, located at Villamor Air Base (VAB), Pasay City.
Petitioner Redentor Completo (Completo), now represented by his
heirs, was the taxi driver of a Toyota Corolla, bearing Plate No. PYD-
128, owned and operated by co-petitioner Elpidio Abiad (Abiad).3
Albayda and Completo figured in an accident along the intersection of
8th and 11th Streets, VAB. Albayda filed a complaint for damages
before the Regional Trial Court (RTC) of Pasay City. The case was
docketed as Civil Case No. 98-1333.4
The amended complaint alleged that, on August 27, 1997, while
Albayda was on his way to the office to report for duty, riding a bicycle
along 11th Street, the taxi driven by Completo bumped and sideswiped
him, causing serious physical injuries. Albayda was brought to the
Philippine Air Force General Hospital (PAFGH) inside VAB. However, he
was immediately transferred to the Armed Forces of the Philippines
Medical Center (AFPMC) on V. Luna Road, Quezon City, because there
was a fracture in his left knee and there was no orthopedic doctor
available at PAFGH. From August 27, 1997 until February 11, 1998, he
was confined therein. He was again hospitalized at PAFGH from
February 23, 1998 until March 22, 1998.5
Conciliation between the parties before the barangay failed. Thus,
Albayda filed a complaint for physical injuries through reckless
imprudence against Completo before the Office of the City Prosecutor
of Pasay City. On the other hand, Completo filed a counter-charge of
damage to property through reckless imprudence against Albayda. On
January 13, 1998, the Office of the City Prosecutor issued a
resolution,6 recommending the filing of an information for reckless
imprudence resulting in physical injuries against Completo. The
counter-charge of damage to property was recommended dismissed.7
The case was raffled to the Metropolitan Trial Court of Pasay City,
Branch 45, where Albayda manifested his reservation to file a separate
civil action for damages against petitioners Completo and Abiad.8
Albayda alleged that the proximate cause of the incident which
necessitated his stay in the hospital for approximately seven (7)
months was the negligence of Completo who, at the time of the
accident, was in the employ of Abiad. The pain he suffered required
him to undergo medical physiotherapy for a number of years to regain
normality of his left knee joint, and he claimed that he incurred actual
damages totaling Two Hundred Seventy-Six Thousand Five Hundred
Fifty Pesos (₱276,550.00), inclusive of his anticipated operations.9
He further stated that aggravating the physical sufferings, mental
anguish, frights, serious anxiety, besmirched reputation, wounded
feelings, moral shock, and social humiliation resulting from his injuries,
his wife abandoned him in May 1998, and left their children in his
custody. He thus demanded the amount of Six Hundred Thousand
Pesos (₱600,000.00) as moral damages. He likewise asked for
exemplary damages in the amount of Two Hundred Thousand Pesos
(₱200,000.00) and attorney’s fees of Twenty-Five Thousand Pesos
(₱25,000.00), plus One Thousand Pesos (₱1,000.00) per court
appearance.10
In his answer to the amended complaint, Completo alleged that, on
August 27, 1997, he was carefully driving the taxicab along 8th Street,
VAB, when suddenly he heard a strange sound from the rear right side
of the taxicab. When he stopped to investigate, he found Albayda lying
on the road and holding his left leg. He immediately rendered
assistance and brought Albayda to PAFGH for emergency treatment.11
Completo also asserted that he was an experienced driver who, in
accordance with traffic rules and regulations and common courtesy to
his fellow motorists, had already reduced his speed to twenty (20)
kilometers per hour even before reaching the intersection of 8th and
11th Streets. In contrast, Albayda rode his bicycle at a very high speed,
causing him to suddenly lose control of the bicycle and hit the rear
door on the right side of the taxicab.12
The deep indentation on the rear right door of the taxicab was caused
by the impact of Albayda’s body that hit the taxicab after he had lost
control of the bicycle; while the slight indentation on the right front
door of the taxicab was caused by the impact of the bike that hit the
taxicab after Albayda let go of its handles when he had lost control of
it.13
Completo maintained that Albayda had no cause of action. The
accident and the physical injuries suffered by Albayda were caused by
his own negligence, and his purpose in filing the complaint was to
harass petitioners and unjustly enrich himself at their expense.14
After submission of the parties’ respective pleadings, a pretrial
conference was held. On December 8, 1998, the RTC issued a pretrial
order. Thereafter, trial on the merits ensued.15
Albayda presented himself, Michael Navarro (Navarro), Dr. Rito
Barrosa, Jr. (Dr. Barrosa), Dr. Armando Sta. Ana, Jr., Dr. Ranny Santiago,
(Dr. Santiago), and Dr. Manuel Fidel Magtira (Dr. Magtira) as witnesses
in open court.16
On direct examination, Navarro testified that, on August 27, 1997, at
around 1:45 p.m., he saw a taxicab, with Plate No. PYD-128, coming
from 11th Street, running at an unusual speed. The normal speed
should have been twenty-five (25) kilometers per hour. He was at the
corner of 9th and 8th Streets when the taxicab passed by him. The side
of the bicycle was hit by the taxicab at the intersection of 11th and 8th
Streets. He saw Albayda fall to the ground, grimacing in pain. The
taxicab at that moment was about ten (10) meters away from Albayda.
On cross-examination, Navarro reiterated that the taxicab was running
quite fast. The bicycle ridden by Albayda reached the intersection of
8th and 11th Streets before the taxicab hit it.17
Dr. Santiago, the orthopedic surgeon who treated Albayda when the
latter was admitted at AFPMC, testified that the cause of the injury
was "hard impact," and recommended an operation to alleviate the
suffering. On cross-examination, he said that there was a separation of
the fragments of the proximal leg, the injured extremity, called levia.
They placed the victim on knee traction or calcaneal traction,18 in
order to avoid further swelling. They bore the calcanean bone with a
stainless steel pin so that they could put five percent (5%) of the body
weight of the patient to cool down the leg. He treated Albayda for
three (3) months. He recommended surgery, but the victim had other
medical problems, like an increase in sugar level, and they were
waiting for the availability of the implant. The implant was supposed to
be placed on the lateral aspect of the proximal leg or the levia, the part
with the separation. It was a long implant with screws.19
Dr. Magtira testified that Albayda was readmitted at AFPMC on
January 25, 1999 because of complaints of pain and limitation of
motion on the knee joint. Upon evaluation, the pain was caused by
traumatic arthritis brought about by malunion of the lateral trivial
condial. An operation of the soft tissue release was conducted for him
to mobilize his knee joint and attain proper range of motion. After the
operation, Albayda attained functional range of motion, but because of
subsisting pain, they had to do osteoplasty20 of the malunion, which
was another operation. On cross-examination, Dr. Magtira testified
that he rendered free medical service at AFPMC.21
Albayda testified that he was thirty-six (36) years old and a soldier of
the Armed Forces of the Philippines. On August 27, 1997, at around
1:40 p.m., he was riding his bike on his way to the office, located on
916 Street, VAB. He had to stop at the corner of 11th and 8th Streets
because an oncoming taxicab was moving fast. However, the taxicab
still bumped the front tire of his bike, hit his left knee and threw him
off until he fell down on the road. The taxicab stopped about ten
meters away, and then moved backwards. Its driver, Completo, just
stared at him. When somebody shouted to bring him to the hospital,
two (2) persons, one of whom was Dr. Barrosa, helped him and carried
him into the taxicab driven by Completo, who brought him to
PAFGH.22
Upon examination, it was found that Albayda suffered fracture in his
left knee and that it required an operation. No orthopedic doctor was
available at PAFGH. Thus, he was transferred that same afternoon to
AFPMC, where he was confined until February 11, 1998.23
At AFPMC, Albayda’s left leg was drilled on and attached to traction.
When his leg was drilled, it was so painful that he had to shout. After
his release from the hospital, he continued to suffer pain in his leg. He
underwent reflexology and therapy which offered temporary relief
from pain. But after some time, he had to undergo therapy and
reflexology again.24
On January 25, 1999, Albayda was readmitted at AFPMC and operated
on. On June 24, 1999, he was operated on again. Wire and screw were
installed so that he could bend his knee. Nonetheless, he continued to
suffer pain. As of the date of his testimony in court, he was scheduled
for another operation in January 2000, when the steel that would be
installed in his leg arrives.25
For his food, Albayda spent Thirty Pesos (₱30.00) each day during his
six (6) months of confinement; for his bed pan, One Thousand Pesos
(₱1,000.00); for his twice weekly reflexology, Three Hundred Pesos
(₱300.00) every session since April 1997; for his caretaker, ₱300.00 per
day for six months. He also asked for ₱600,000.00 in moral damages
because Completo did not lend him a helping hand, and he would be
suffering deformity for the rest of his life. He demanded ₱25,000.00 as
attorney’s fees and ₱1,000.00 for every court appearance of his
lawyer.26
On cross-examination, Albayda testified that, on the date of the
incident, he was the base guard at VAB, and his duty was from 2 p.m.
to 8 p.m. That afternoon, he was not in a hurry to go to his place of
work because it was only about 1:45 p.m., and his place of work was
only six (6) meters away. After the accident, he was brought to PAFGH,
and at 3:00 p.m., he was brought to the AFPMC. When he was
discharged from the hospital, he could no longer walk.27
Dr. Barrosa’s testimony during cross-examination emphasized that he
was with 2 other persons when he carried Albayda into the taxicab
driven by Completo. He was certain that it was not Completo who
carried the victim into the taxicab. It was only a matter of seconds
when he rushed to the scene of the accident. The taxicab backed up
fifteen (15) seconds later. Albayda lay 2 meters away from the corner
of 8th and 11th Streets.28
Completo, Abiad, and Benjamin Panican (Panican) testified for the
defense.29
Completo alleged that he had been employed as taxi driver of FOJS
Transport, owned by Abiad, since February 1997. On August 27, 1997,
he was driving the taxicab, with Plate No. PYD-128, from 10:00 a.m. At
around 1:45 p.m., he was on his way home when a bicycle bumped his
taxicab at the intersection of 8th and 11th Streets, VAB. The bicycle
was travelling from south to north, and he was going east coming from
the west. The bicycle was coming from 11th Street, while he was
travelling along 8th Street.30
On cross-examination, Completo testified that when Albayda hit the
rear right door of the taxicab, the latter fell to the ground. When he
heard a noise, he immediately alighted from the taxicab. He denied
that he stopped about 10 meters away from the place where Albayda
fell. He carried Albayda and drove him to the hospital.31
Panican testified that he worked as an airconditioner technician in a
shop located on 8th Street corner 11th Street. On the date and time of
the incident, he was working in front of the shop near the roadside. He
saw a bicycle bump the rear right side of the taxicab. Then, the driver
of the taxicab alighted, carried Albayda, and brought him to the
hospital.32
When questioned by the trial court, Panican testified that the bicycle
was running fast and that he saw it bump the taxicab. The taxicab
already passed the intersection of 11th and 8th Streets when the
bicycle arrived.33
Abiad testified that, aside from being a soldier, he was also a franchise
holder of taxicabs and passenger jeepneys. When Completo applied as
a driver of the taxicab, Abiad required the former to show his bio-data,
NBI clearance, and driver’s license. Completo never figured in a
vehicular accident since the time he was employed in February 1997.
Abiad averred that Completo was a good driver and a good man. Being
the operator of taxicab, Abiad would wake up early and personally
check all the taxicabs.34
On July 31, 2000, the trial court rendered a decision,35 the dispositive
portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff
[Albayda] and against the defendants [Completo and Abiad].
Accordingly, the defendants [Completo and Abiad] are hereby ordered
to pay the plaintiff [Albayda] the following sum:
1. ₱46,000.00 as actual damages;
2. ₱400,000.00 as moral damages; [and]
3. ₱25,000.00 as attorney’s fees.
Costs against the defendants [Completo and Abiad].
SO ORDERED.36
Completo and Abiad filed an appeal. The CA affirmed the trial court
with modification in a Decision37 dated January 2, 2006, viz.:

WHEREFORE, premises considered, the appeal is DENIED for lack of
merit. The assailed Decision dated 31 July 2000 rendered by the
Regional Trial Court of Pasay City, Branch 117, in Civil Case No. 98-1333
is hereby AFFIRMED with the following MODIFICATIONS:
1. the award of Php 46,000.00 as actual damages is DELETED;
2. temperate damages in the amount of Php 40,000.00 is awarded in
favor of appellee;
3. moral damages in favor of appellee is REDUCED to Php 200,000.00;
4. appellants Redentor Completo and Elpidio Abiad are solidarily liable
to pay appellee Amando C. Albayda, Jr. said temperate and moral
damages, as well as the attorney’s fees in the amount of Php 25,000.00
awarded by the trial court;
5. the temperate and moral damages shall earn legal interest at 6% per
annum computed from the date of promulgation of Our Decision;
6. upon finality of Our Decision, said moral and temperate damages
shall earn legal interest at the rate of 12% per annum, in lieu of 6% per
annum, until full payment. Costs against appellants.
SO ORDERED.38
Hence, this petition.
The Issues
Petitioners presented the following issues for resolution: (1) whether
the CA erred in finding that Completo was the one who caused the
collision;
(2) whether Abiad failed to prove that he observed the diligence of a
good father of the family; and (3) whether the award of moral and
temperate damages and attorney’s fees to Albayda had no basis.39
The Ruling of the Court
The petition is bereft of merit.
I. On Negligence
The issues raised by petitioners essentially delve into factual matters
which were already passed upon by the RTC and the CA. Conclusions
and findings of fact of the trial court are entitled to great weight on
appeal and should not be disturbed unless for strong and cogent
reasons, because the trial court is in a better position to examine real
evidence, as well as to observe the demeanor of the witnesses while
testifying in the case. The fact that the CA adopted the findings of fact
of the trial court makes the same binding upon this Court. Well-settled
is the rule that the Supreme Court is not a trier of facts.40 To be sure,
findings of fact of lower courts are deemed conclusive and binding
upon the Supreme Court, save only for clear and exceptional
reasons,41 none of which is present in the case at bar.
The instant case involved a collision between a taxicab and a bicycle
which resulted in serious physical injuries to the bicycle rider, Albayda.
It is a rule in negligence suits that the plaintiff has the burden of
proving by a preponderance of evidence the motorist’s breach in his
duty of care owed to the plaintiff, that the motorist was negligent in
failing to exercise the diligence required to avoid injury to the plaintiff,
and that such negligence was the proximate cause of the injury
suffered.42
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
preexisting contractual relation between the parties, is called a quasi-
delict. In this regard, the question of the motorist's negligence is a
question of fact.
It was proven by a preponderance of evidence that Completo failed to
exercise reasonable diligence in driving the taxicab because he was
over-speeding at the time he hit the bicycle ridden by Albayda. Such
negligence was the sole and proximate cause of the serious physical
injuries sustained by Albayda. Completo did not slow down even when
he approached the intersection of 8th and 11th Streets of VAB. It was
also proven that Albayda had the right of way, considering that he
reached the intersection ahead of Completo.
The bicycle occupies a legal position that is at least equal to that of
other vehicles lawfully on the highway, and it is fortified by the fact
that usually more will be required of a motorist than a bicyclist in
discharging his duty of care to the other because of the physical
advantages the automobile has over the bicycle.43
At the slow speed of ten miles per hour, a bicyclist travels almost
fifteen feet per second, while a car traveling at only twenty-five miles
per hour covers almost thirty-seven feet per second, and split-second
action may be insufficient to avoid an accident. It is obvious that a
motor vehicle poses a greater danger of harm to a bicyclist than vice
versa. Accordingly, while the duty of using reasonable care falls alike
on a motorist and a bicyclist, due to the inherent differences in the two
vehicles, more care is required from the motorist to fully discharge the
duty than from the bicyclist.44 Simply stated, the physical advantages
that the motor vehicle has over the bicycle make it more dangerous to
the bicyclist than vice versa.45
Under Article 2180 of the Civil Code, the obligation imposed by Article
2176 is demandable not only for one’s own acts or omissions, but also
for those persons for whom one is responsible. Employers shall be
liable for the damages caused by their employees, but the employers’
responsibility shall cease upon proof that they observed all the
diligence of a good father of the family in the selection and supervision
of their employees.
When an injury is caused by the negligence of an employee, a legal
presumption instantly arises that the employer was negligent. This
presumption may be rebutted only by a clear showing on the part of
the employer that he exercised the diligence of a good father of a
family in the selection and supervision of his employee. If the employer
successfully overcomes the legal presumption of negligence, he is
relieved of liability. In other words, the burden of proof is on the
employer.46
The trial court’s finding that Completo failed to exercise reasonable
care to avoid collision with Albayda at the intersection of 11th and 8th
Streets of VAB gives rise to liability on the part of Completo, as driver,
and his employer Abiad. The responsibility of two or more persons
who are liable for quasi-delict is solidary.47 The civil liability of the
employer for the negligent acts of his employee is also primary and
direct, owing to his own negligence in selecting and supervising his
employee.48 The civil liability of the employer attaches even if the
employer is not inside the vehicle at the time of the collision.49
In the selection of prospective employees, employers are required to
examine them as to their qualifications, experience, and service
records. On the other hand, with respect to the supervision of
employees, employers should formulate standard operating
procedures, monitor their implementation, and impose disciplinary
measures for breaches thereof. To establish these factors in a trial
involving the issue of vicarious liability, employers must submit
concrete proof, including documentary evidence.50
Abiad testified that before he hired Completo, he required the latter to
show his bio-data, NBI clearance, and driver’s license. Abiad likewise
stressed that Completo was never involved in a vehicular accident prior
to the instant case, and that, as operator of the taxicab, he would wake
up early to personally check the condition of the vehicle before it is
used.
The protestation of Abiad to escape liability is short of the diligence
required under the law. Abiad’s evidence consisted entirely of
testimonial evidence, and the unsubstantiated and self-serving
testimony of Abiad was insufficient to overcome the legal presumption
that he was negligent in the selection and supervision of his driver.
II. On Damages
The CA rightfully deleted the award of actual damages by the RTC
because Albayda failed to present documentary evidence to establish
with certainty the amount that he incurred during his hospitalization
and treatment for the injuries he suffered. In the absence of
stipulation, actual damages are awarded only for such pecuniary loss
suffered that was duly proved.51
The award of attorney’s fees is hereby deleted for failure to prove that
petitioners acted in bad faith in refusing to satisfy respondent’s just
and valid claim.
WHEREFORE, in view of the foregoing, the Decision dated January 2,
2006 and the Resolution dated March 30, 2006 of the Court of Appeals
in CA-G.R. CV No. 68405 are hereby AFFIRMED with MODIFICATION,
viz.:
(1) The estate of the late Redentor Completo and Elpidio Abiad are
solidarily liable to pay One Hundred Thousand Pesos (₱100,000.00), as
temperate damages, and Five Hundred Thousand Pesos (₱500,000.00),
as moral damages;
(2) The temperate and moral damages hereby awarded shall earn legal
interest at the rate of six percent (6%) per annum from the date of the
promulgation of this Decision. Upon finality of this Decision, an interest
rate of twelve percent (12%) per annum shall be imposed on the
amount of the temperate and moral damages until full payment
thereof.
Costs against petitioners.
SO ORDERED.

While the amount of actual damages was not duly established with
certainty, the Court recognizes the fact that, indeed, Albayda incurred
a considerable amount for the necessary and reasonable medical
expenses, loss of salary and wages, loss of capacity to earn increased
wages, cost of occupational therapy, and harm from conditions caused
by prolonged immobilization. Temperate damages, more than nominal
but less than compensatory damages, may be recovered when the
court finds that some pecuniary loss has been suffered but its amount
cannot, from the nature of the case, be proved with certainty.52
Temperate damages must be reasonable under the circumstances.53
Thus, the Court finds the award of One Hundred Thousand Pesos
(₱100,000.00) as temperate damages reasonable under the
circumstances.

Doubtless, Albayda suffered immeasurable pain because of the

incident caused by petitioners’ negligence. The CA explained:

The court vicariously feels the pain the plaintiff [Albayda] suffered a
number of times. After he was bumped by defendants’ cab, he cried in
pain. When the doctors bore holes into his left knee, he cried in pain.
When he was tractioned, when he was subjected to an operation after
operation he suffered pain. When he took the witness stand to testify,
he walked with crutches, his left knee in bandage, stiff and unfuctional.
Pain was written [on] his face. He does deserve moral damages.54

Moral damages are awarded in quasi-delicts causing physical injuries.

The permanent deformity and the scar left by the wounds suffered by
Albayba will forever be a reminder of the pain and suffering that he
had endured and continues to endure because of petitioners’
negligence. Thus, the award of moral damages in the amount of Five
Hundred Thousand Pesos (₱500,000.00) is proper.

Finally, an interest rate of six percent (6%) per annum is due on the
amount of ₱100,000.00, as temperate damages, and ₱500,000.00, as
moral damages, which we have awarded. The 6% per annum interest
rate on the temperate and moral damages shall commence to run
from the date of the promulgation of this Decision. Upon finality of the
Decision, an interest rate of twelve percent (12%) per annum shall be
imposed on the amount of the temperate and moral damages until full
payment thereof.55
G.R. No. 169467 February 25, 2010
ALFREDO P. PACIS and CLEOPATRA D. PACIS, Petitioners,
vs.
JEROME JOVANNE MORALES, Respondent.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 11 May 2005 Decision2 and the 19
August 2005 Resolution of the Court of Appeals in CA-G.R. CV No.
60669.
The Facts
On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D. Pacis
(petitioners) filed with the trial court a civil case for damages against
respondent Jerome Jovanne Morales (respondent). Petitioners are the
parents of Alfred Dennis Pacis, Jr. (Alfred), a 17-year old student who
died in a shooting incident inside the Top Gun Firearms and
Ammunitions Store (gun store) in Baguio City. Respondent is the owner
of the gun store.
The facts as found by the trial court are as follows:
On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a first
year student at the Baguio Colleges Foundation taking up BS Computer
Science, died due to a gunshot wound in the head which he sustained
while he was at the Top Gun Firearm[s] and Ammunition[s] Store
located at Upper Mabini Street, Baguio City. The gun store was owned
and operated by defendant Jerome Jovanne Morales.
With Alfred Pacis at the time of the shooting were Aristedes Matibag
and Jason Herbolario. They were sales agents of the defendant, and at
that particular time, the caretakers of the gun store.
The bullet which killed Alfred Dennis Pacis was fired from a gun
brought in by a customer of the gun store for repair.
The gun, an AMT Automag II Cal. 22 Rimfire Magnum with Serial No.
SN-H34194 (Exhibit "Q"), was left by defendant Morales in a drawer of
a table located inside the gun store.
Defendant Morales was in Manila at the time. His employee Armando
Jarnague, who was the regular caretaker of the gun store was also not
around. He left earlier and requested sales agents Matibag and
Herbolario to look after the gun store while he and defendant Morales
were away. Jarnague entrusted to Matibag and Herbolario a bunch of
keys used in the gun store which included the key to the drawer where
the fatal gun was kept.
It appears that Matibag and Herbolario later brought out the gun from
the drawer and placed it on top of the table. Attracted by the sight of
the gun, the young Alfred Dennis Pacis got hold of the same. Matibag
asked Alfred Dennis Pacis to return the gun. The latter followed and
handed the gun to Matibag. It went off, the bullet hitting the young
Alfred in the head.
A criminal case for homicide was filed against Matibag before branch
VII of this Court. Matibag, however, was acquitted of the charge
against him because of the exempting circumstance of "accident"
under Art. 12, par. 4 of the Revised Penal Code.
By agreement of the parties, the evidence adduced in the criminal case
for homicide against Matibag was reproduced and adopted by them as
part of their evidence in the instant case.3
On 8 April 1998, the trial court rendered its decision in favor of
petitioners. The dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of the plaintiffs [Spouses Alfredo P. Pacis and Cleopatra D. Pacis]
and against the defendant [Jerome Jovanne Morales] ordering the
defendant to pay plaintiffs —
(1) ₱30,000.00 as indemnity for the death of Alfred Pacis;
(2) ₱29,437.65 as actual damages for the hospitalization and burial
expenses incurred by the plaintiffs;
(3) ₱100,000.00 as compensatory damages;
(4) ₱100,000.00 as moral damages;
(5) ₱50,000.00 as attorney’s fees.
SO ORDERED.4
Respondent appealed to the Court of Appeals. In its Decision5 dated 11
May 2005, the Court of Appeals reversed the trial court’s Decision and
absolved respondent from civil liability under Article 2180 of the Civil
Code.6
Petitioners filed a motion for reconsideration, which the Court of
Appeals denied in its Resolution dated 19 August 2005.
Hence, this petition.
The Trial Court’s Ruling
The trial court held respondent civilly liable for the death of Alfred
under Article 2180 in relation to Article 2176 of the Civil Code.7 The
trial court held that the accidental shooting of Alfred which caused his
death was partly due to the negligence of respondent’s employee
Aristedes Matibag (Matibag). Matibag and Jason Herbolario
(Herbolario) were employees of respondent even if they were only
paid on a commission basis. Under the Civil Code, respondent is liable
for the damages caused by Matibag on the occasion of the
performance of his duties, unless respondent proved that he observed
the diligence of a good father of a family to prevent the damage. The
trial court held that respondent failed to observe the required
diligence when he left the key to the drawer containing the loaded
defective gun without instructing his employees to be careful in
handling the loaded gun.
The Court of Appeals’ Ruling
The Court of Appeals held that respondent cannot be held civilly liable
since there was no employer-employee relationship between
respondent and Matibag. The Court of Appeals found that Matibag was
not under the control of respondent with respect to the means and
methods in the performance of his work. There can be no employer-
employee relationship where the element of control is absent. Thus,
Article 2180 of the Civil Code does not apply in this case and
respondent cannot be held liable.
Furthermore, the Court of Appeals ruled that even if respondent is
considered an employer of Matibag, still respondent cannot be held
liable since no negligence can be attributed to him. As explained by the
Court of Appeals:
Granting arguendo that an employer-employee relationship existed
between Aristedes Matibag and the defendant-appellant, we find that
no negligence can be attributed to him.
Negligence is best exemplified in the case of Picart vs. Smith (37 Phil.
809). The test of negligence is this:
"x x x. Could a prudent man, in the position of the person to whom
negligence is attributed, foresee harm to the person injured as a
reasonable consequence of the course about to be pursued? If so, the
law imposes a duty on the actor to refrain from that course or take
precaution against its mischievous results, and the failure to do so
constitutes negligence. x x x."
Defendant-appellant maintains that he is not guilty of negligence and
lack of due care as he did not fail to observe the diligence of a good
father of a family. He submits that he kept the firearm in one of his
table drawers, which he locked and such is already an indication that
he took the necessary diligence and care that the said gun would not
be accessible to anyone. He puts [sic] that his store is engaged in
selling firearms and ammunitions. Such items which are per se
dangerous are kept in a place which is properly secured in order that
the persons coming into the gun store would not be able to take hold
of it unless it is done intentionally, such as when a customer is
interested to purchase any of the firearms, ammunitions and other
related items, in which case, he may be allowed to handle the same.
We agree. Much as We sympathize with the family of the deceased,
defendant-appellant is not to be blamed. He exercised due diligence in
keeping his loaded gun while he was on a business trip in Manila. He
placed it inside the drawer and locked it. It was taken away without his
knowledge and authority. Whatever happened to the deceased was
purely accidental.8
The Issues
Petitioners raise the following issues:
I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN RENDERING
THE DECISION AND RESOLUTION IN QUESTION IN DISREGARD OF LAW
AND JURISPRUDENCE BY REVERSING THE ORDER OF THE REGIONAL
TRIAL COURT (BRANCH 59) OF BAGUIO CITY NOTWITHSTANDING
CLEAR, AUTHENTIC RECORDS AND TESTIMONIES PRESENTED DURING
THE TRIAL WHICH NEGATE AND CONTRADICT ITS FINDINGS.
II. THE APPELLATE COURT COMMITTED GRAVE, REVERSIBLE ERROR IN
RENDERING THE DECISION AND RESOLUTION IN QUESTION BY
DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS THEREBY IGNORING THE FACTUAL FINDINGS OF THE
REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO CITY SHOWING
PETITIONER’S CLEAR RIGHTS TO THE AWARD OF DAMAGES.9
The Ruling of the Court
We find the petition meritorious.
This case for damages arose out of the accidental shooting of
petitioners’ son. Under Article 116110 of the Civil Code, petitioners
may enforce their claim for damages based on the civil liability arising
from the crime under Article 10011 of the Revised Penal Code or they
may opt to file an independent civil action for damages under the Civil
Code. In this case, instead of enforcing their claim for damages in the
homicide case filed against Matibag, petitioners opted to file an
independent civil action for damages against respondent whom they
alleged was Matibag’s employer. Petitioners based their claim for
damages under Articles 2176 and 2180 of the Civil Code.
Unlike the subsidiary liability of the employer under Article 10312 of
the Revised Penal Code,13 the liability of the employer, or any person
for that matter, under Article 2176 of the Civil Code is primary and
direct, based on a person’s own negligence. Article 2176 states:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called quasi-delict and is governed by the
provisions of this Chapter.
This case involves the accidental discharge of a firearm inside a gun
store.1avvphi1 Under PNP Circular No. 9, entitled the "Policy on
Firearms and Ammunition Dealership/Repair," a person who is in the
business of purchasing and selling of firearms and ammunition must
maintain basic security and safety requirements of a gun dealer,
otherwise his License to Operate Dealership will be suspended or
canceled.14
Indeed, a higher degree of care is required of someone who has in his
possession or under his control an instrumentality extremely
dangerous in character, such as dangerous weapons or substances.
Such person in possession or control of dangerous instrumentalities
has the duty to take exceptional precautions to prevent any injury
being done thereby.15 Unlike the ordinary affairs of life or business
which involve little or no risk, a business dealing with dangerous
weapons requires the exercise of a higher degree of care.
As a gun store owner, respondent is presumed to be knowledgeable
about firearms safety and should have known never to keep a loaded
weapon in his store to avoid unreasonable risk of harm or injury to
others. Respondent has the duty to ensure that all the guns in his store
are not loaded. Firearms should be stored unloaded and separate from
ammunition when the firearms are not needed for ready-access
defensive use.16 With more reason, guns accepted by the store for
repair should not be loaded precisely because they are defective and
may cause an accidental discharge such as what happened in this case.
Respondent was clearly negligent when he accepted the gun for repair
and placed it inside the drawer without ensuring first that it was not
loaded. In the first place, the defective gun should have been stored in
a vault. Before accepting the defective gun for repair, respondent
should have made sure that it was not loaded to prevent any untoward
accident. Indeed, respondent should never accept a firearm from
another person, until the cylinder or action is open and he has
personally checked that the weapon is completely unloaded.17 For
failing to insure that the gun was not loaded, respondent himself was
negligent. Furthermore, it was not shown in this case whether
respondent had a License to Repair which authorizes him to repair
defective firearms to restore its original composition or enhance or
upgrade firearms.18
Clearly, respondent did not exercise the degree of care and diligence
required of a good father of a family, much less the degree of care
required of someone dealing with dangerous weapons, as would
exempt him from liability in this case.
WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May 2005
Decision and the 19 August 2005 Resolution of the Court of Appeals in
CA-G.R. CV No. 60669. We REINSTATE the trial court’s Decision dated 8
April 1998.
SO ORDERED.
G.R. No. L-4977 March 22, 1910
DAVID TAYLOR, plaintiff-appellee,
vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-
appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J.:
An action to recover damages for the loss of an eye and other injuries,
instituted by David Taylor, a minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a
street railway and an electric light system in the city of Manila. Its
power plant is situated at the eastern end of a small island in the Pasig
River within the city of Manila, known as the Isla del Provisor. The
power plant may be reached by boat or by crossing a footbridge,
impassable for vehicles, at the westerly end of the island.
The plaintiff, David Taylor, was at the time when he received the
injuries complained of, 15 years of age, the son of a mechanical
engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel
Claparols, about 12 years of age, crossed the footbridge to the Isla del
Provisor, for the purpose of visiting one Murphy, an employee of the
defendant, who and promised to make them a cylinder for a miniature
engine. Finding on inquiry that Mr. Murphy was not in his quarters, the
boys, impelled apparently by youthful curiosity and perhaps by the
unusual interest which both seem to have taken in machinery, spent
some time in wandering about the company's premises. The visit was
made on a Sunday afternoon, and it does not appear that they saw or
spoke to anyone after leaving the power house where they had asked
for Mr. Murphy.
After watching the operation of the travelling crane used in handling
the defendant's coal, they walked across the open space in the
neighborhood of the place where the company dumped in the cinders
and ashes from its furnaces. Here they found some twenty or thirty
brass fulminating caps scattered on the ground. These caps are
approximately of the size and appearance of small pistol cartridges and
each has attached to it two long thin wires by means of which it may
be discharged by the use of electricity. They are intended for use in the
explosion of blasting charges of dynamite, and have in themselves a
considerable explosive power. After some discussion as to the
ownership of the caps, and their right to take them, the boys picked up
all they could find, hung them on stick, of which each took end, and
carried them home. After crossing the footbridge, they met a little girl
named Jessie Adrian, less than 9 years old, and all three went to the
home of the boy Manuel. The boys then made a series of experiments
with the caps. They trust the ends of the wires into an electric light
socket and obtained no result. They next tried to break the cap with a
stone and failed. Manuel looked for a hammer, but could not find one.
Then they opened one of the caps with a knife, and finding that it was
filled with a yellowish substance they got matches, and David held the
cap while Manuel applied a lighted match to the contents. An
explosion followed, causing more or less serious injuries to all three.
Jessie, who when the boys proposed putting a match to the contents
of the cap, became frightened and started to run away, received a
slight cut in the neck. Manuel had his hand burned and wounded, and
David was struck in the face by several particles of the metal capsule,
one of which injured his right eye to such an extent as to the
necessitate its removal by the surgeons who were called in to care for
his wounds.
The evidence does definitely and conclusively disclose how the caps
came to be on the defendant's premises, nor how long they had been
there when the boys found them. It appears, however, that some
months before the accident, during the construction of the
defendant's plant, detonating caps of the same size and kind as those
found by the boys were used in sinking a well at the power plant near
the place where the caps were found; and it also appears that at or
about the time when these caps were found, similarly caps were in use
in the construction of an extension of defendant's street car line to
Fort William McKinley. The caps when found appeared to the boys who
picked them up to have been lying for a considerable time, and from
the place where they were found would seem to have been discarded
as detective or worthless and fit only to be thrown upon the rubbish
heap.
No measures seems to have been adopted by the defendant company
to prohibit or prevent visitors from entering and walking about its
premises unattended, when they felt disposed so to do. As admitted in
defendant counsel's brief, "it is undoubtedly true that children in their
play sometimes crossed the foot bridge to the islands;" and, we may
add, roamed about at will on the uninclosed premises of the
defendant, in the neighborhood of the place where the caps were
found. There is evidence that any effort ever was made to forbid these
children from visiting the defendant company's premises, although it
must be assumed that the company or its employees were aware of
the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a
cabin boy on one of the interisland transports. Later he took up work in
his father's office, learning mechanical drawing and mechanical
engineering. About a month after his accident he obtained
employment as a mechanical draftsman and continued in that
employment for six months at a salary of P2.50 a day; and it appears
that he was a boy of more than average intelligence, taller and more
mature both mentally and physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and
conclusively established by the evidence of record, and are
substantially admitted by counsel. The only questions of fact which are
seriously disputed are plaintiff's allegations that the caps which were
found by plaintiff on defendant company's premises were the property
of the defendant, or that they had come from its possession and
control, and that the company or some of its employees left them
exposed on its premises at the point where they were found.
The evidence in support of these allegations is meager, and the
defendant company, apparently relying on the rule of law which places
the burden of proof of such allegations upon the plaintiff, offered no
evidence in rebuttal, and insists that plaintiff failed in his proof. We
think, however, that plaintiff's evidence is sufficient to sustain a finding
in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were used,
more or less extensively, on the McKinley extension of the defendant
company's track; that some of these caps were used in blasting a well
on the company's premises a few months before the accident; that not
far from the place where the caps were found the company has a
storehouse for the materials, supplies and so forth, used by it in its
operations as a street railway and a purveyor of electric light; and that
the place, in the neighborhood of which the caps were found, was
being used by the company as a sort of dumping ground for ashes and
cinders. Fulminating caps or detonators for the discharge by electricity
of blasting charges by dynamite are not articles in common use by the
average citizen, and under all the circumstances, and in the absence of
all evidence to the contrary, we think that the discovery of twenty or
thirty of these caps at the place where they were found by the plaintiff
on defendant's premises fairly justifies the inference that the
defendant company was either the owner of the caps in question or
had the caps under its possession and control. We think also that the
evidence tends to disclose that these caps or detonators were willfully
and knowingly thrown by the company or its employees at the spot
where they were found, with the expectation that they would be
buried out of the sight by the ashes which it was engaged in dumping
in that neighborhood, they being old and perhaps defective; and,
however this may be, we are satisfied that the evidence is sufficient to
sustain a finding that the company or some of its employees either
willfully or through an oversight left them exposed at a point on its
premises which the general public, including children at play, where
not prohibited from visiting, and over which the company knew or
ought to have known that young boys were likely to roam about in
pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative
value of the facts on which these conclusions are based by intimidating
or rather assuming that the blasting work on the company's well and
on its McKinley extension was done by contractors. It was conclusively
proven, however, that while the workman employed in blasting the
well was regularly employed by J. G. White and Co., a firm of
contractors, he did the work on the well directly and immediately
under the supervision and control of one of defendant company's
foremen, and there is no proof whatever in the record that the blasting
on the McKinley extension was done by independent contractors. Only
one witness testified upon this point, and while he stated that he
understood that a part of this work was done by contract, he could not
say so of his own knowledge, and knew nothing of the terms and
conditions of the alleged contract, or of the relations of the alleged
contractor to the defendant company. The fact having been proven
that detonating caps were more or less extensively employed on work
done by the defendant company's directions and on its behalf, we
think that the company should have introduced the necessary
evidence to support its contention if it wished to avoid the not
unreasonable inference that it was the owner of the material used in
these operations and that it was responsible for tortious or negligent
acts of the agents employed therein, on the ground that this work had
been intrusted to independent contractors as to whose acts the maxim
respondent superior should not be applied. If the company did not in
fact own or make use of caps such as those found on its premises, as
intimated by counsel, it was a very simple matter for it to prove that
fact, and in the absence of such proof we think that the other evidence
in the record sufficiently establishes the contrary, and justifies the
court in drawing the reasonable inference that the caps found on its
premises were its property, and were left where they were found by
the company or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his
decision in plaintiff's favor, upon the provisions of article 1089 of the
Civil Code read together with articles 1902, 1903, and 1908 of that
code.
ART. 1089 Obligations are created by law, by contracts, by quasi-
contracts, and illicit acts and omissions or by those in which any kind of
fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage to
another when there is fault or negligence shall be obliged to repair the
damage so done.
ART. 1903 The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but also for
those of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the
damages caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally
liable for damages caused by their employees in the service of the
branches in which the latter may be employed or on account of their
duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a
good father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused —
1 By the explosion of machines which may not have been cared for
with due diligence, and for kindling of explosive substances which may
not have been placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly upon
his contention that the facts proven at the trial do not established the
liability of the defendant company under the provisions of these
articles, and since we agree with this view of the case, it is not
necessary for us to consider the various questions as to form and the
right of action (analogous to those raised in the case of Rakes vs.
Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps,
be involved in a decision affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as
under the generally accepted doctrine in the United States, the
plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent
evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or
some person for whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the
damage.
These proposition are, of course, elementary, and do not admit of
discussion, the real difficulty arising in the application of these
principles to the particular facts developed in the case under
consideration.
It is clear that the accident could not have happened and not the
fulminating caps been left exposed at the point where they were
found, or if their owner had exercised due care in keeping them in an
appropriate place; but it is equally clear that plaintiff would not have
been injured had he not, for his own pleasure and convenience,
entered upon the defendant's premises, and strolled around thereon
without the express permission of the defendant, and had he not
picked up and carried away the property of the defendant which he
found on its premises, and had he not thereafter deliberately cut open
one of the caps and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and
inexperience, his entry upon defendant company's premises, and the
intervention of his action between the negligent act of defendant in
leaving the caps exposed on its premises and the accident which
resulted in his injury should not be held to have contributed in any
wise to the accident, which should be deemed to be the direct result of
defendant's negligence in leaving the caps exposed at the place where
they were found by the plaintiff, and this latter the proximate cause of
the accident which occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine
laid down in many of the courts of last resort in the United States in
the cases known as the "Torpedo" and "Turntable" cases, and the
cases based thereon.
In a typical cases, the question involved has been whether a railroad
company is liable for an injury received by an infant of tender years,
who from mere idle curiosity, or for the purposes of amusement,
enters upon the railroad company's premises, at a place where the
railroad company knew, or had good reason to suppose, children
would be likely to come, and there found explosive signal torpedoes
left unexposed by the railroad company's employees, one of which
when carried away by the visitor, exploded and injured him; or where
such infant found upon the premises a dangerous machine, such as a
turntable, left in such condition as to make it probable that children in
playing with it would be exposed to accident or injury therefrom and
where the infant did in fact suffer injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of
authority holds the owner of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein
the principal question was whether a railroad company was liable for
in injury received by an infant while upon its premises, from idle
curiosity, or for purposes of amusement, if such injury was, under
circumstances, attributable to the negligence of the company), the
principles on which these cases turn are that "while a railroad
company is not bound to the same degree of care in regard to mere
strangers who are unlawfully upon its premises that it owes to
passengers conveyed by it, it is not exempt from responsibility to such
strangers for injuries arising from its negligence or from its tortious
acts;" and that "the conduct of an infant of tender years is not to be
judged by the same rule which governs that of adult. While it is the
general rule in regard to an adult that to entitle him to recover
damages for an injury resulting from the fault or negligence of another
he must himself have been free from fault, such is not the rule in
regard to an infant of tender years. The care and caution required of a
child is according to his maturity and capacity only, and this is to be
determined in each case by the circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously
controverted and sharply criticized in several state courts, and the
supreme court of Michigan in the case of Ryan vs. Towar (128 Mich.,
463) formally repudiated and disapproved the doctrine of the
Turntable cases, especially that laid down in Railroad Company vs.
Stout, in a very able decision wherein it held, in the language of the
syllabus: (1) That the owner of the land is not liable to trespassers
thereon for injuries sustained by them, not due to his wanton or willful
acts; (2) that no exception to this rule exists in favor of children who
are injured by dangerous machinery naturally calculated to attract
them to the premises; (3) that an invitation or license to cross the
premises of another can not be predicated on the mere fact that no
steps have been taken to interfere with such practice; (4) that there is
no difference between children and adults as to the circumstances that
will warrant the inference of an invitation or a license to enter upon
another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs.
Stout were indulged in by the courts in Connecticut and
Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349).
And the doctrine has been questioned in Wisconsin, Pennsylvania,
New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in the
United States, citing and approving the doctrine laid down in England
in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down
the rule in these cases in accord with that announced in the Railroad
Company vs. Stout (supra), and the Supreme Court of the United
States, in a unanimous opinion delivered by Justice Harlan in the case
of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine
laid down in Railroad Co. vs. Stout, and after an exhaustive and critical
analysis and review of many of the adjudged cases, both English and
American, formally declared that it adhered "to the principles
announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts
were as follows: The plaintiff, a boy 12 years of age, out of curiosity
and for his own pleasure, entered upon and visited the defendant's
premises, without defendant's express permission or invitation, and
while there, was by accident injured by falling into a burning slack pile
of whose existence he had no knowledge, but which had been left by
defendant on its premises without any fence around it or anything to
give warning of its dangerous condition, although defendant knew or
had reason the interest or curiosity of passers-by. On these facts the
court held that the plaintiff could not be regarded as a mere
trespasser, for whose safety and protection while on the premises in
question, against the unseen danger referred to, the defendant was
under no obligation to make provision.
We quote at length from the discussion by the court of the application
of the principles involved to the facts in that case, because what is said
there is strikingly applicable in the case at bar, and would seem to
dispose of defendant's contention that, the plaintiff in this case being a
trespasser, the defendant company owed him no duty, and in no case
could be held liable for injuries which would not have resulted but for
the entry of plaintiff on defendant's premises.
We adhere to the principles announced in Railroad Co. vs. Stout
(supra). Applied to the case now before us, they require us to hold that
the defendant was guilty of negligence in leaving unguarded the slack
pile, made by it in the vicinity of its depot building. It could have
forbidden all persons from coming to its coal mine for purposes merely
of curiosity and pleasure. But it did not do so. On the contrary, it
permitted all, without regard to age, to visit its mine, and witness its
operation. It knew that the usual approach to the mine was by a
narrow path skirting its slack pit, close to its depot building, at which
the people of the village, old and young, would often assemble. It
knew that children were in the habit of frequenting that locality and
playing around the shaft house in the immediate vicinity of the slack
pit. The slightest regard for the safety of these children would have
suggested that they were in danger from being so near a pit, beneath
the surface of which was concealed (except when snow, wind, or rain
prevailed) a mass of burning coals into which a child might accidentally
fall and be burned to death. Under all the circumstances, the railroad
company ought not to be heard to say that the plaintiff, a mere lad,
moved by curiosity to see the mine, in the vicinity of the slack pit, was
a trespasser, to whom it owed no duty, or for whose protection it was
under no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man
dangerous traps, baited with flesh, in his own ground, so near to a
highway, or to the premises of another, that dogs passing along the
highway, or kept in his neighbors premises, would probably be
attracted by their instinct into the traps, and in consequence of such
act his neighbor's dogs be so attracted and thereby injured, an action
on the case would lie. "What difference," said Lord Ellenborough, C.J.,
"is there in reason between drawing the animal into the trap by means
of his instinct which he can not resist, and putting him there by manual
force?" What difference, in reason we may observe in this case, is
there between an express license to the children of this village to visit
the defendant's coal mine, in the vicinity of its slack pile, and an
implied license, resulting from the habit of the defendant to permit
them, without objection or warning, to do so at will, for purposes of
curiosity or pleasure? Referring it the case of Townsend vs. Wathen,
Judge Thompson, in his work on the Law of Negligence, volume 1, page
305, note, well says: "It would be a barbarous rule of law that would
make the owner of land liable for setting a trap thereon, baited with
stinking meat, so that his neighbor's dog attracted by his natural
instinct, might run into it and be killed, and which would exempt him
from liability for the consequence of leaving exposed and unguarded
on his land a dangerous machine, so that his neighbor's child attracted
to it and tempted to intermeddle with it by instincts equally strong,
might thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of
Michigan, in the case of Powers vs. Harlow (53 Mich., 507), said that (p.
515):
Children, wherever they go, must be expected to act upon childlike
instincts and impulses; and others who are chargeable with a duty of
care and caution toward them must calculate upon this, and take
precautions accordingly. If they leave exposed to the observation of
children anything which would be tempting to them, and which they in
their immature judgment might naturally suppose they were at liberty
to handle or play with, they should expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the
doctrine of implied invitation to visit the premises of another, says:
In the case of young children, and other persons not fully sui juris, an
implied license might sometimes arise when it would not on behalf of
others. Thus leaving a tempting thing for children to play with exposed,
where they would be likely to gather for that purpose, may be
equivalent to an invitation to them to make use of it; and, perhaps, if
one were to throw away upon his premises, near the common way,
things tempting to children, the same implication should arise. (Chap.
10, p. 303.)
The reasoning which led the Supreme Court of the United States to its
conclusion in the cases of Railroad Co. vs. Stout (supra) and Union
Pacific Railroad Co. vs. McDonald (supra) is not less cogent and
convincing in this jurisdiction than in that wherein those cases
originated. Children here are actuated by similar childish instincts and
impulses. Drawn by curiosity and impelled by the restless spirit of
youth, boys here as well as there will usually be found whenever the
public is permitted to congregate. The movement of machinery, and
indeed anything which arouses the attention of the young and
inquiring mind, will draw them to the neighborhood as inevitably as
does the magnet draw the iron which comes within the range of its
magnetic influence. The owners of premises, therefore, whereon
things attractive to children are exposed, or upon which the public are
expressly or impliedly permitted to enter or upon which the owner
knows or ought to know children are likely to roam about for pastime
and in play, " must calculate upon this, and take precautions
accordingly." In such cases the owner of the premises can not be heard
to say that because the child has entered upon his premises without
his express permission he is a trespasser to whom the owner owes no
duty or obligation whatever. The owner's failure to take reasonable
precautions to prevent the child from entering his premises at a place
where he knows or ought to know that children are accustomed to
roam about of to which their childish instincts and impulses are likely
to attract them is at least equivalent to an implied license to enter, and
where the child does enter under such conditions the owner's failure
to take reasonable precautions to guard the child against injury from
unknown or unseen dangers, placed upon such premises by the owner,
is clearly a breach of duty, responsible, if the child is actually injured,
without other fault on its part than that it had entered on the premises
of a stranger without his express invitation or permission. To hold
otherwise would be expose all the children in the community to
unknown perils and unnecessary danger at the whim of the owners or
occupants of land upon which they might naturally and reasonably be
expected to enter.
This conclusion is founded on reason, justice, and necessity, and
neither is contention that a man has a right to do what will with his
own property or that children should be kept under the care of their
parents or guardians, so as to prevent their entering on the premises
of others is of sufficient weight to put in doubt. In this jurisdiction as
well as in the United States all private property is acquired and held
under the tacit condition that it shall not be so used as to injure the
equal rights and interests of the community (see U. S. vs. Toribio,1 No.
5060, decided January 26, 1910), and except as to infants of very
tender years it would be absurd and unreasonable in a community
organized as is that in which we lived to hold that parents or guardian
are guilty of negligence or imprudence in every case wherein they
permit growing boys and girls to leave the parental roof unattended,
even if in the event of accident to the child the negligence of the
parent could in any event be imputed to the child so as to deprive it a
right to recover in such cases — a point which we neither discuss nor
decide.
But while we hold that the entry of the plaintiff upon defendant's
property without defendant's express invitation or permission would
not have relieved defendant from responsibility for injuries incurred
there by plaintiff, without other fault on his part, if such injury were
attributable to the negligence of the defendant, we are of opinion that
under all the circumstances of this case the negligence of the
defendant in leaving the caps exposed on its premises was not the
proximate cause of the injury received by the plaintiff, which therefore
was not, properly speaking, "attributable to the negligence of the
defendant," and, on the other hand, we are satisfied that plaintiffs
action in cutting open the detonating cap and putting match to its
contents was the proximate cause of the explosion and of the resultant
injuries inflicted upon the plaintiff, and that the defendant, therefore is
not civilly responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo
cases, that because of plaintiff's youth the intervention of his action
between the negligent act of the defendant in leaving the caps
exposed on its premises and the explosion which resulted in his injury
should not be held to have contributed in any wise to the accident; and
it is because we can not agree with this proposition, although we
accept the doctrine of the Turntable and Torpedo cases, that we have
thought proper to discuss and to consider that doctrine at length in
this decision. As was said in case of Railroad Co. vs. Stout (supra),
"While it is the general rule in regard to an adult that to entitle him to
recover damages for an injury resulting from the fault or negligence of
another he must himself have been free from fault, such is not the rule
in regard to an infant of tender years. The care and caution required of
a child is according to his maturity and capacity only, and this is to be
determined in each case by the circumstances of the case." As we think
we have shown, under the reasoning on which rests the doctrine of the
Turntable and Torpedo cases, no fault which would relieve defendant
of responsibility for injuries resulting from its negligence can be
attributed to the plaintiff, a well-grown boy of 15 years of age, because
of his entry upon defendant's uninclosed premises without express
permission or invitation' but it is wholly different question whether
such youth can be said to have been free from fault when he willfully
and deliberately cut open the detonating cap, and placed a match to
the contents, knowing, as he undoubtedly did, that his action would
result in an explosion. On this point, which must be determined by
"the particular circumstances of this case," the doctrine laid down in
the Turntable and Torpedo cases lends us no direct aid, although it is
worthy of observation that in all of the "Torpedo" and analogous cases
which our attention has been directed, the record discloses that the
plaintiffs, in whose favor judgments have been affirmed, were of such
tender years that they were held not to have the capacity to
understand the nature or character of the explosive instruments which
fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown
youth of 15, more mature both mentally and physically than the
average boy of his age; he had been to sea as a cabin boy; was able to
earn P2.50 a day as a mechanical draftsman thirty days after the injury
was incurred; and the record discloses throughout that he was
exceptionally well qualified to take care of himself. The evidence of
record leaves no room for doubt that, despite his denials on the
witness stand, he well knew the explosive character of the cap with
which he was amusing himself. The series of experiments made by him
in his attempt to produce an explosion, as described by the little girl
who was present, admit of no other explanation. His attempt to
discharge the cap by the use of electricity, followed by his efforts to
explode it with a stone or a hammer, and the final success of his
endeavors brought about by the application of a match to the contents
of the caps, show clearly that he knew what he was about. Nor can
there be any reasonable doubt that he had reason to anticipate that
the explosion might be dangerous, in view of the fact that the little girl,
9 years of age, who was within him at the time when he put the match
to the contents of the cap, became frightened and ran away.
True, he may not have known and probably did not know the precise
nature of the explosion which might be expected from the ignition of
the contents of the cap, and of course he did not anticipate the
resultant injuries which he incurred; but he well knew that a more or
less dangerous explosion might be expected from his act, and yet he
willfully, recklessly, and knowingly produced the explosion. It would be
going far to say that "according to his maturity and capacity" he
exercised such and "care and caution" as might reasonably be required
of him, or that defendant or anyone else should be held civilly
responsible for injuries incurred by him under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the
necessary capacity to understand and appreciate the nature and
consequences of his own acts, so as to make it negligence on his part
to fail to exercise due care and precaution in the commission of such
acts; and indeed it would be impracticable and perhaps impossible so
to do, for in the very nature of things the question of negligence
necessarily depends on the ability of the minor to understand the
character of his own acts and their consequences; and the age at which
a minor can be said to have such ability will necessarily depends of his
own acts and their consequences; and at the age at which a minor can
be said to have such ability will necessarily vary in accordance with the
varying nature of the infinite variety of acts which may be done by him.
But some idea of the presumed capacity of infants under the laws in
force in these Islands may be gathered from an examination of the
varying ages fixed by our laws at which minors are conclusively
presumed to be capable of exercising certain rights and incurring
certain responsibilities, though it can not be said that these provisions
of law are of much practical assistance in cases such as that at bar,
except so far as they illustrate the rule that the capacity of a minor to
become responsible for his own acts varies with the varying
circumstances of each case. Under the provisions of the Penal Code a
minor over fifteen years of age is presumed to be capable of
committing a crime and is to held criminally responsible therefore,
although the fact that he is less than eighteen years of age will be
taken into consideration as an extenuating circumstance (Penal Code,
arts. 8 and 9). At 10 years of age a child may, under certain
circumstances, choose which parent it prefers to live with (Code of Civil
Procedure, sec. 771). At 14 may petition for the appointment of a
guardian (Id., sec. 551), and may consent or refuse to be adopted (Id.,
sec. 765). And males of 14 and females of 12 are capable of contracting
a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity
and understanding to be sensible of the danger to which he exposed
himself when he put the match to the contents of the cap; that he was
sui juris in the sense that his age and his experience qualified him to
understand and appreciate the necessity for the exercise of that
degree of caution which would have avoided the injury which resulted
from his own deliberate act; and that the injury incurred by him must
be held to have been the direct and immediate result of his own willful
and reckless act, so that while it may be true that these injuries would
not have been incurred but for the negligence act of the defendant in
leaving the caps exposed on its premises, nevertheless plaintiff's own
act was the proximate and principal cause of the accident which
inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum
sentit, non intelligitur sentire. (Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to
him through his own fault, and that he can not demand reparation
therefor from another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his
own acts the grievance should be against himself and not against
another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his
own acts the grievance should be against himself and not against
another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which
expressly lays down the law touching contributory negligence in this
jurisdiction, nevertheless, the interpretation placed upon its provisions
by the supreme court of Spain, and by this court in the case of Rakes
vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly deny to the
plaintiff in the case at bar the right to recover damages from the
defendant, in whole or in part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902
(93 Jurisprudencia Civil, 391), is directly in point. In that case the court
said:
According to the doctrine expressed in article 1902 of the Civil Code,
fault or negligence is a source of obligation when between such
negligence and the injury there exists the relation of cause and effect;
but if the injury produced should not be the result of acts or omissions
of a third party, the latter has no obligation to repair the same,
although such acts or omission were imprudent or unlawful, and much
less when it is shown that the immediate cause of the injury was the
negligence of the injured party himself.
The same court, in its decision of June 12, 1900, said that "the
existence of the alleged fault or negligence is not sufficient without
proof that it, and no other cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under
that title in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455),
commenting on the decision of March 7, 1902 of the Civil Code, fault
or negligence gives rise to an obligation when between it and the
damage there exists the relation of cause and effect; but if the damage
caused does not arise from the acts or omissions of a third person,
there is no obligation to make good upon the latter, even though such
acts or omissions be imprudent or illegal, and much less so when it is
shown that the immediate cause of the damage has been the
recklessness of the injured party himself.
And again —
In accordance with the fundamental principle of proof, that the burden
thereof is upon the plaintiff, it is apparent that it is duty of him who
shall claim damages to establish their existence. The decisions of April
9, 1896, and March 18, July, and September 27, 1898, have especially
supported the principle, the first setting forth in detail the necessary
points of the proof, which are two: An act or omission on the part of
the person who is to be charged with the liability, and the production
of the damage by said act or omission.
This includes, by inference, the establishment of a relation of cause or
effect between the act or omission and the damage; the latter must be
the direct result of one of the first two. As the decision of March 22,
1881, said, it is necessary that the damages result immediately and
directly from an act performed culpably and wrongfully; "necessarily
presupposing a legal ground for imputability." (Decision of October 29,
1887.)
Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23,
1900.)
responsible for the event should pay for such injury, less a sum
deemed a suitable equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the
immediate cause of the explosion, the accident which resulted in
plaintiff's injury, was in his own act in putting a match to the contents
of the cap, and that having "contributed to the principal occurrence, as
one of its determining factors, he can not recover."
We have not deemed it necessary to examine the effect of plaintiff's
action in picking up upon defendant's premises the detonating caps,
the property of defendant, and carrying the relation of cause and
effect between the negligent act or omission of the defendant in
leaving the caps exposed on its premises and the injuries inflicted upon
the plaintiff by the explosion of one of these caps. Under the doctrine
of the Torpedo cases, such action on the part of an infant of very
tender years would have no effect in relieving defendant of
responsibility, but whether in view of the well-known fact admitted in
defendant's brief that "boys are snappers-up of unconsidered trifles," a
youth of the age and maturity of plaintiff should be deemed without
fault in picking up the caps in question under all the circumstances of
this case, we neither discuss nor decide.
Twenty days after the date of this decision let judgment be entered
reversing the judgment of the court below, without costs to either
party in this instance, and ten days thereafter let the record be
returned to the court wherein it originated, where the judgment will
be entered in favor of the defendant for the costs in first instance and
the complaint dismissed without day. So ordered.

Finally we think the doctrine in this jurisdiction applicable to the case

at bar was definitely settled in this court in the maturely considered
case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra), wherein we held
that while "There are many cases (personal injury cases) was
exonerated," on the ground that "the negligence of the plaintiff was
the immediate cause of the casualty" (decisions of the 15th of January,
the 19th of February, and the 7th of March, 1902, stated in Alcubilla's
Index of that year); none of the cases decided by the supreme court of
Spain "define the effect to be given the negligence of its causes,
though not the principal one, and we are left to seek the theory of the
civil law in the practice of other countries;" and in such cases we
declared that law in this jurisdiction to require the application of "the
principle of proportional damages," but expressly and definitely denied
the right of recovery when the acts of the injured party were the
immediate causes of the accident.

The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the

injured party shall be considered immediate causes of the accident.
The test is simple. Distinction must be made between the accident and
the injury, between the event itself, without which there could have
been no accident, and those acts of the victim not entering into it,
independent of it, but contributing to his own proper hurt. For
instance, the cause of the accident under review was the displacement
of the crosspiece or the failure to replace it. This produces the event
giving occasion for damages—that is, the sinking of the track and the
sliding of the iron rails. To this event, the act of the plaintiff in walking
by the side of the car did not contribute, although it was an element of
the damage which came to himself. Had the crosspiece been out of
place wholly or partly through his act or omission of duty, that would
have been one of the determining causes of the event or accident, for
which he would have been responsible. Where he contributes to the
principal occurrence, as one of its determining factors, he can not
recover. Where, in conjunction with the occurrence, he contributes
only to his own injury, he may recover the amount that the defendant
G.R. No. 129792 December 21, 1999
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and
ELISA PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA
R. AGUILAR, respondents.
DAVIDE, JR., J.:
In this petition for review on certiorari under Rule 45 of the Rules of
Court, petitioners seek the reversal of the 17 June 1996 decision 1 of
the Court of Appeals in C.A. G.R. No. CV 37937 and the resolution 2
denying their motion for reconsideration. The assailed decision set
aside the 15 January 1992 judgment of the Regional Trial Court (RTC),
Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners
to pay damages and attorney's fees to private respondents Conrado
and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's
Department Store, Makati City. Petitioners Leonardo Kong, Jose Tiope
and Elisa Panelo are the store's branch manager, operations manager,
and supervisor, respectively. Private respondents are spouses and the
parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the
2nd floor of Syvel's Department Store, Makati City. CRISELDA was
signing her credit card slip at the payment and verification counter
when she felt a sudden gust of wind and heard a loud thud. She looked
behind her. She then beheld her daughter ZHIENETH on the floor, her
young body pinned by the bulk of the store's gift-wrapping
counter/structure. ZHIENETH was crying and screaming for help.
Although shocked, CRISELDA was quick to ask the assistance of the
people around in lifting the counter and retrieving ZHIENETH from the
floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where she
was operated on. The next day ZHIENETH lost her speech and
thereafter communicated with CRISELDA by writing on a magic slate.
The injuries she sustained took their toil on her young body. She died
fourteen (14) days after the accident or on 22 May 1983, on the
hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained.
The provisional medical certificate 5 issued by ZHIENETH's attending
doctor described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt
injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L)
lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon
petitioners the reimbursement of the hospitalization, medical bills and
wake and funeral expenses 6 which they had incurred. Petitioners
refused to pay. Consequently, private respondents filed a complaint for
damages, docketed as Civil Case No. 7119 wherein they sought the
payment of P157,522.86 for actual damages, P300,000 for moral
damages, P20,000 for attorney's fees and an unspecified amount for
loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for
the injuries and consequent death of ZHIENETH. They claimed that
CRISELDA was negligent in exercising care and diligence over her
daughter by allowing her to freely roam around in a store filled with
glassware and appliances. ZHIENETH too, was guilty of contributory
negligence since she climbed the counter, triggering its eventual
collapse on her. Petitioners also emphasized that the counter was
made of sturdy wood with a strong support; it never fell nor collapsed
for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it
observed the diligence of a good father of a family in the selection,
supervision and control of its employees. The other petitioners
likewise raised due care and diligence in the performance of their
duties and countered that the complaint was malicious for which they
suffered besmirched reputation and mental anguish. They sought the
dismissal of the complaint and an award of moral and exemplary
damages and attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and
counterclaim after finding that the preponderance of the evidence
favored petitioners. It ruled that the proximate cause of the fall of the
counter on ZHIENETH was her act of clinging to it. It believed
petitioners' witnesses who testified that ZHIENETH clung to the
counter, afterwhich the structure and the girl fell with the structure
falling on top of her, pinning her stomach. In contrast, none of private
respondents' witnesses testified on how the counter fell. The trial
court also held that CRISELDA's negligence contributed to ZHIENETH's
accident.
In absolving petitioners from any liability, the trial court reasoned that
the counter was situated at the end or corner of the 2nd floor as a
precautionary measure hence, it could not be considered as an
attractive nuisance. 8 The counter was higher than ZHIENETH. It has
been in existence for fifteen years. Its structure was safe and well-
balanced. ZHIENETH, therefore, had no business climbing on and
clinging to it.
Private respondents appealed the decision, attributing as errors of the
trial court its findings that: (1) the proximate cause of the fall of the
counter was ZHIENETH's misbehavior; (2) CRISELDA was negligent in
her care of ZHIENETH; (3) petitioners were not negligent in the
maintenance of the counter; and (4) petitioners were not liable for the
death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be
entitled to the conclusive presumption that a child below nine (9) years
is incapable of contributory negligence. And even if ZHIENETH, at six
(6) years old, was already capable of contributory negligence, still it
was physically impossible for her to have propped herself on the
counter. She had a small frame (four feet high and seventy pounds)
and the counter was much higher and heavier than she was. Also, the
testimony of one of the store's former employees, Gerardo Gonzales,
who accompanied ZHIENETH when she was brought to the emergency
room of the Makati Medical Center belied petitioners' theory that
ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH
was asked by the doctor what she did, ZHIENETH replied, "[N]othing, I
did not come near the counter and the counter just fell on me." 9
Accordingly, Gonzales' testimony on ZHIENETH's spontaneous
declaration should not only be considered as part of res gestae but also
accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was
reasonable for her to have let go of ZHIENETH at the precise moment
that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate
cause of ZHIENETH's death, was petitioners' negligence in failing to
institute measures to have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised
purely factual issues which could no longer be disturbed. They
explained that ZHIENETH's death while unfortunate and tragic, was an
accident for which neither CRISELDA nor even ZHIENETH could entirely
be held faultless and blameless. Further, petitioners adverted to the
trial court's rejection of Gonzales' testimony as unworthy of credence.
As to private respondent's claim that the counter should have been
nailed to the ground, petitioners justified that it was not necessary.
The counter had been in existence for several years without any prior
accident and was deliberately placed at a corner to avoid such
accidents. Truth to tell, they acted without fault or negligence for they
had exercised due diligence on the matter. In fact, the criminal case 10
for homicide through simple negligence filed by private respondents
against the individual petitioners was dismissed; a verdict of acquittal
was rendered in their favor.
The Court of Appeals, however, decided in favor of private
respondents and reversed the appealed judgment. It found that
petitioners were negligent in maintaining a structurally dangerous
counter. The counter was shaped like an inverted "L" 11 with a top
wider than the base. It was top heavy and the weight of the upper
portion was neither evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable and dangerous; a
downward pressure on the overhanging portion or a push from the
front could cause the counter to fall. Two former employees of
petitioners had already previously brought to the attention of the
management the danger the counter could cause. But the latter
ignored their concern. The Court of Appeals faulted the petitioners for
this omission, and concluded that the incident that befell ZHIENETH
could have been avoided had petitioners repaired the defective
counter. It was inconsequential that the counter had been in use for
some time without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven
(7) years old at the time of the incident, was absolutely incapable of
negligence or other tort. It reasoned that since a child under nine (9)
years could not be held liable even for an intentional wrong, then the
six-year old ZHIENETH could not be made to account for a mere
mischief or reckless act. It also absolved CRISELDA of any negligence,
finding nothing wrong or out of the ordinary in momentarily allowing
ZHIENETH to walk while she signed the document at the nearby
counter.
The Court of Appeals also rejected the testimonies of the witnesses of
petitioners. It found them biased and prejudiced. It instead gave credit
to the testimony of disinterested witness Gonzales. The Court of
Appeals then awarded P99,420.86 as actual damages, the amount
representing the hospitalization expenses incurred by private
respondents as evidenced by the hospital's statement of account. 12 It
denied an award for funeral expenses for lack of proof to substantiate
the same. Instead, a compensatory damage of P50,000 was awarded
for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision, 13 thus:
WHEREFORE, premises considered, the judgment of the lower court is
SET ASIDE and another one is entered against [petitioners], ordering
them to pay jointly and severally unto [private respondents] the
following:
1. P50,000.00 by way of compensatory damages for the death
of Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses
incurred; with legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorney's fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the
same was denied in the Court of Appeals' resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals' decision and
the reinstatement of the judgment of the trial court. Petitioners
primarily argue that the Court of Appeals erred in disregarding the
factual findings and conclusions of the trial court. They stress that since
the action was based on tort, any finding of negligence on the part of
the private respondents would necessarily negate their claim for
damages, where said negligence was the proximate cause of the injury
sustained. The injury in the instant case was the death of ZHIENETH.
The proximate cause was ZHIENETH's act of clinging to the counter.
This act in turn caused the counter to fall on her. This and CRISELDA's
contributory negligence, through her failure to provide the proper care
and attention to her child while inside the store, nullified private
respondents' claim for damages. It is also for these reasons that
parents are made accountable for the damage or injury inflicted on
others by their minor children. Under these circumstances, petitioners
could not be held responsible for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already
separated from Syvel's at the time he testified; hence, his testimony
might have been tarnished by ill-feelings against them.
For their part, private respondents principally reiterated their
arguments that neither ZHIENETH nor CRISELDA was negligent at any
time while inside the store; the findings and conclusions of the Court of
Appeals are substantiated by the evidence on record; the testimony of
Gonzales, who heard ZHIENETH comment on the incident while she
was in the hospital's emergency room should receive credence; and
finally, ZHIENETH's part of the res gestae declaration "that she did
nothing to cause the heavy structure to fall on her" should be
considered as the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH
was accidental or attributable to negligence; and (2) in case of a finding
of negligence, whether the same was attributable to private
respondents for maintaining a defective counter or to CRISELDA and
ZHIENETH for failing to exercise due and reasonable care while inside
the store premises.
An accident pertains to an unforeseen event in which no fault or
negligence attaches to the defendant. 15 It is "a fortuitous
circumstance, event or happening; an event happening without any
human agency, or if happening wholly or partly through human
agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens." 16

On the other hand, negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do. 17
Negligence is "the failure to observe, for the protection of the interest
of another person, that degree of care, precaution and vigilance which
the circumstances justly demand, whereby such other person suffers
injury." 18
Accident and negligence are intrinsically contradictory; one cannot
exist with the other. Accident occurs when the person concerned is
exercising ordinary care, which is not caused by fault of any person and
which could not have been prevented by any means suggested by
common prudence. 19
The test in determining the existence of negligence is enunciated in the
landmark case of Plicart v. Smith, 20 thus: Did the defendant in doing
the alleged negligent act use that reasonable care and caution which
an ordinarily prudent person would have used in the same situation? If
not, then he is guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH was no accident and
that ZHIENETH's death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of
the incident and accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice
anything while the child was being treated?
A At the emergency room we were all surrounding the child.
And when the doctor asked the child "what did you do," the child said
"nothing, I did not come near the counter and the counter just fell on
me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta
bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's statement formed
(and should be admitted as) part of the res gestae under Section 42,
Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto
with respect to the circumstances thereof, may be given in evidence as
part of the res gestae. So, also, statements accompanying an equivocal
act material to the issue, and giving it a legal significance, may be
received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering
and statements made to a physician are generally considered
declarations and admissions. 23 All that is required for their
admissibility as part of the res gestae is that they be made or uttered
under the influence of a startling event before the declarant had the
time to think and concoct a falsehood as witnessed by the person who
testified in court. Under the circumstances thus described, it is
unthinkable for ZHIENETH, a child of such tender age and in extreme
pain, to have lied to a doctor whom she trusted with her life. We
therefore accord credence to Gonzales' testimony on the matter, i.e.,
ZHIENETH performed no act that facilitated her tragic death. Sadly,
petitioners did, through their negligence or omission to secure or make
stable the counter's base.
Gonzales' earlier testimony on petitioners' insistence to keep and
maintain the structurally unstable gift-wrapping counter proved their
negligence, thus:
Q When you assumed the position as gift wrapper at the
second floor, will you please describe the gift wrapping counter, were
you able to examine?
A Because every morning before I start working I used to clean
that counter and since not nailed and it was only standing on the floor,
it was shaky.
xxx xxx xxx
Q Will you please describe the counter at 5:00 o'clock [sic] in
the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing
beside the verification counter. And since the top of it was heavy and
considering that it was not nailed, it can collapse at anytime, since the
top is heavy.
xxx xxx xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky
and since Mr. Maat is fond of putting display decorations on tables, he
even told me that I would put some decorations. But since I told him
that it not [sic] nailed and it is shaky he told me "better inform also the
company about it." And since the company did not do anything about
the counter, so I also did not do anything about the counter. 24
[Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the
testimony of Gonzales, thus:
Q Will you please described [sic] to the honorable Court the
counter where you were assigned in January 1983?
xxx xxx xxx
A That counter assigned to me was when my supervisor
ordered me to carry that counter to another place. I told him that the
counter needs nailing and it has to be nailed because it might cause
injury or accident to another since it was shaky.
Q When that gift wrapping counter was transferred at the
second floor on February 12, 1983, will you please describe that to the
honorable Court?
A I told her that the counter wrapper [sic] is really in good [sic]
condition; it was shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her
that the counter was shaky?

A She told me "Why do you have to teach me. You are only my
subordinate and you are to teach me?" And she even got angry at me
when I told her that.
xxx xxx xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did
Ms. Panelo or any employee of the management do to that (sic)
xxx xxx xxx
Witness:
None, sir. They never nailed the counter. They only nailed the counter
after the accident happened. 25 [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were
personally informed of the danger posed by the unstable counter. Yet,
neither initiated any concrete action to remedy the situation nor
ensure the safety of the store's employees and patrons as a reasonable
and ordinary prudent man would have done. Thus, as confronted by
the situation petitioners miserably failed to discharge the due diligence
required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners
failed to establish that the former's testimonies were biased and
tainted with partiality. Therefore, the allegation that Gonzales and
Guevarra's testimonies were blemished by "ill feelings" against
petitioners — since they (Gonzales and Guevarra) were already
separated from the company at the time their testimonies were
offered in court — was but mere speculation and deserved scant
consideration.
we accept petitioners' theory that the counter was stable and sturdy.
For if that was the truth, a frail six-year old could not have caused the
counter to collapse. The physical analysis of the counter by both the
trial court and Court of Appeals and a scrutiny of the evidence 29 on
record reveal otherwise, i.e., it was not durable after all. Shaped like an
inverted "L," the counter was heavy, huge, and its top laden with
formica. It protruded towards the customer waiting area and its base
was not secured. 30
CRISELDA too, should be absolved from any contributory negligence.
Initially, ZHIENETH held on to CRISELDA's waist, later to the latter's
hand. 31 CRISELDA momentarily released the child's hand from her
clutch when she signed her credit card slip. At this precise moment, it
was reasonable and usual for CRISELDA to let go of her child. Further,
at the time ZHIENETH was pinned down by the counter, she was just a
foot away from her mother; and the gift-wrapping counter was just
four meters away from CRISELDA. 32 The time and distance were both
significant. ZHIENETH was near her mother and did not loiter as
petitioners would want to impress upon us. She even admitted to the
doctor who treated her at the hospital that she did not do anything;
the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED
and the challenged decision of the Court of Appeals of 17 June 1996 in
C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.

It is settled that when the issue concerns the credibility of witnesses,

the appellate courts will not as a general rule disturb the findings of
the trial court, which is in a better position to determine the same. The
trial court has the distinct advantage of actually hearing the testimony
of and observing the deportment of the witnesses. 26 However, the
rule admits of exceptions such as when its evaluation was reached
arbitrarily or it overlooked or failed to appreciate some facts or
circumstances of weight and substance which could affect the result of
the case. 27 In the instant case, petitioners failed to bring their claim
within the exception.

Anent the negligence imputed to ZHIENETH, we apply the conclusive

presumption that favors children below nine (9) years old in that they
are incapable of contributory negligence. In his book, 28 former Judge
Cezar S. Sangco stated:

In our jurisdiction, a person under nine years of age is conclusively

presumed to have acted without discernment, and is, on that account,
exempt from criminal liability. The same presumption and a like
exemption from criminal liability obtains in a case of a person over
nine and under fifteen years of age, unless it is shown that he has
acted with discernment. Since negligence may be a felony and a quasi-
delict and required discernment as a condition of liability, either
criminal or civil, a child under nine years of age is, by analogy,
conclusively presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence in the
case of a child over nine but under fifteen years of age is a rebuttable
one, under our law. The rule, therefore, is that a child under nine years
of age must be conclusively presumed incapable of contributory
negligence as a matter of law. [Emphasis supplied]

Even if we attribute contributory negligence to ZHIENETH and assume

that she climbed over the counter, no injury should have occurred if
G.R. No. L-33722 July 29, 1988
FEDERICO YLARDE and ADELAIDA DORONIO petitioners,
vs.
EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS,
respondents.
Buenaventura C. Evangelista for petitioners.
Modesto V. Cabanela for respondent Edgardo Aquino.
Manuel P. Pastor for respondent Mauro Soriano.
GANCAYCO, J.:
In this petition for review on certiorari seeking the reversal of the
decision of the Court of Appeals in CA-G.R. No. 36390-R entitled
"Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a case which
originated from the Court of First Instance of Pangasinan, We are again
caned upon determine the responsibility of the principals and teachers
towards their students or pupils.
In 1963, private respondent Mariano Soriano was the principal of the
Gabaldon Primary School, a public educational institution located in
Tayug, Pangasinan-Private respondent Edgardo Aquino was a teacher
therein. At that time, the school was fittered with several concrete
blocks which were remnants of the old school shop that was destroyed
in World War II. Realizing that the huge stones were serious hazards to
the schoolchildren, another teacher by the name of Sergio Banez
started burying them one by one as early as 1962. In fact, he was able
to bury ten of these blocks all by himself.
Deciding to help his colleague, private respondent Edgardo Aquino
gathered eighteen of his male pupils, aged ten to eleven, after class
dismissal on October 7, 1963. Being their teacher-in-charge, he
ordered them to dig beside a one-ton concrete block in order to make
a hole wherein the stone can be buried. The work was left unfinished.
The following day, also after classes, private respondent Aquino called
four of the original eighteen pupils to continue the digging. These four
pupils — Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and
Novelito Ylarde, dug until the excavation was one meter and forty
centimeters deep. At this point, private respondent Aquino alone
continued digging while the pupils remained inside the pit throwing
out the loose soil that was brought about by the digging.
When the depth was right enough to accommodate the concrete
block, private respondent Aquino and his four pupils got out of the
hole. Then, said private respondent left the children to level the loose
soil around the open hole while he went to see Banez who was about
thirty meters away. Private respondent wanted to borrow from Banez
the key to the school workroom where he could get some rope. Before
leaving. , private respondent Aquino allegedly told the children "not to
touch the stone."
A few minutes after private respondent Aquino left, three of the four
kids, Alonso, Alcantara and Ylarde, playfully jumped into the pit. Then,
without any warning at all, the remaining Abaga jumped on top of the
concrete block causing it to slide down towards the opening. Alonso
and Alcantara were able to scramble out of the excavation on time but
unfortunately fo Ylarde, the concrete block caught him before he could
get out, pinning him to the wall in a standing position. As a result
thereof, Ylarde sustained the following injuries:
1. Contusion with hematoma, left inguinal region and
suprapubic region.
2. Contusion with ecchymosis entire scrotal region.
3. Lacerated wound, left lateral aspect of penile skin with
phimosis
4. Abrasion, gluteal region, bilateral.
5. Intraperitoneal and extrapertitoneal extravasation of blood and
urine about 2 liters.
6. Fracture, simple, symphesis pubis
7. Ruptured (macerated) urinary bladder with body of bladder
almost entirely separated from its neck.
REMARKS:
1. Above were incurred by crushing injury.
2. Prognosis very poor.
(Sgd.) MELQUIADES A. BRAVO
Physician on Duty. 1
Three days later, Novelito Ylarde died.
Ylarde's parents, petitioners in this case, filed a suit for damages
against both private respondents Aquino and Soriano. The lower court
dismissed the complaint on the following grounds: (1) that the digging
done by the pupils is in line with their course called Work Education;
(2) that Aquino exercised the utmost diligence of a very cautious
person; and (3) that the demise of Ylarde was due to his own reckless
imprudence. 2
On appeal, the Court of Appeals affirmed the Decision of the lower
court.
Petitioners base their action against private respondent Aquino on
Article 2176 of the Civil Code for his alleged negligence that caused
their son's death while the complaint against respondent Soriano as
the head of school is founded on Article 2180 of the same Code.
Article 2176 of the Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
damage done. 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.
On the other hand, the applicable provision of Article 2180 states:
Art. 2180. x x x
xxx xxx xxx
Lastly, teachers or heads of establishments of arts and trades shall be
liable for damages caused by their pupils and students or apprentices,
so long as they remain in their custody. 3
The issue to be resolved is whether or not under the cited provisions,
both private respondents can be held liable for damages.
As regards the principal, We hold that he cannot be made responsible
for the death of the child Ylarde, he being the head of an academic
school and not a school of arts and trades. This is in line with Our ruling
in Amadora vs. Court of Appeals, 4 wherein this Court thoroughly
discussed the doctrine that under Article 2180 of the Civil Code, it is
only the teacher and not the head of an academic school who should
be answerable for torts committed by their students. This Court went
on to say that in a school of arts and trades, it is only the head of the
school who can be held liable. In the same case, We explained:
After an exhaustive examination of the problem, the Court has come
to the conclusion that the provision in question should apply to all
schools, academic as well as non-academic. Where the school is
academic rather than technical or vocational in nature, responsibility
for the tort committed by the student will attach to the teacher in
charge of such student, following the first part of the provision. This is
the general rule. In the case of establishments of arts and trades, it is
the head thereof, and only he, who shall be held liable as an exception
to the general rule. In other words, teachers in general shall be liable
for the acts of their students except where the school is technical in
nature, in which case it is the head thereof who shall be answerable.
Following the canon of reddendo singula sinquilis 'teachers' should
apply to the words "pupils and students' and 'heads of establishments
of arts and trades to the word "apprentices."
Hence, applying the said doctrine to this case, We rule that private
respondent Soriano, as principal, cannot be held liable for the reason
that the school he heads is an academic school and not a school of arts
and trades. Besides, as clearly admitted by private respondent Aquino,
private respondent Soriano did not give any instruction regarding the
digging.
From the foregoing, it can be easily seen that private respondent
Aquino can be held liable under Article 2180 of the Civil Code as the
teacher-in-charge of the children for being negligent in his supervision
over them and his failure to take the necessary precautions to prevent
any injury on their persons. However, as earlier pointed out,
petitioners base the alleged liability of private respondent Aquino on
Article 2176 which is separate and distinct from that provided for in
Article 2180.
With this in mind, the question We need to answer is this: Were there
acts and omissions on the part of private respondent Aquino
amounting to fault or negligence which have direct causal relation to
the death of his pupil Ylarde? Our answer is in the affirmative. He is
liable for damages.
From a review of the record of this case, it is very clear that private
respondent Aquino acted with fault and gross negligence when he: (1)
failed to avail himself of services of adult manual laborers and instead
utilized his pupils aged ten to eleven to make an excavation near the
one-ton concrete stone which he knew to be a very hazardous task; (2)
required the children to remain inside the pit even after they had
finished digging, knowing that the huge block was lying nearby and
could be easily pushed or kicked aside by any pupil who by chance may
go to the perilous area; (3) ordered them to level the soil around the
excavation when it was so apparent that the huge stone was at the
brink of falling; (4) went to a place where he would not be able to
check on the children's safety; and (5) left the children close to the
excavation, an obviously attractive nuisance.
The negligent act of private respondent Aquino in leaving his pupils in
such a dangerous site has a direct causal connection to the death of
the child Ylarde. Left by themselves, it was but natural for the children
to play around. Tired from the strenuous digging, they just had to
amuse themselves with whatever they found. Driven by their playful
and adventurous instincts and not knowing the risk they were facing
three of them jumped into the hole while the other one jumped on the
stone. Since the stone was so heavy and the soil was loose from the
digging, it was also a natural consequence that the stone would fall
into the hole beside it, causing injury on the unfortunate child caught
by its heavy weight. Everything that occurred was the natural and
probable effect of the negligent acts of private respondent Aquino.
Needless to say, the child Ylarde would not have died were it not for
the unsafe situation created by private respondent Aquino which
exposed the lives of all the pupils concerned to real danger.
We cannot agree with the finding of the lower court that the injuries
which resulted in the death of the child Ylarde were caused by his own
reckless imprudence, It should be remembered that he was only ten
years old at the time of the incident, As such, he is expected to be
playful and daring. His actuations were natural to a boy his age. Going
back to the facts, it was not only him but the three of them who
jumped into the hole while the remaining boy jumped on the block.
From this, it is clear that he only did what any other ten-year old child
would do in the same situation.
In ruling that the child Ylarde was imprudent, it is evident that the
lower court did not consider his age and maturity. This should not be
the case. The degree of care required to be exercised must vary with
the capacity of the person endangered to care for himself. A minor
should not be held to the same degree of care as an adult, but his
conduct should be judged according to the average conduct of persons
of his age and experience. 5 The standard of conduct to which a child
must conform for his own protection is that degree of care ordinarily
exercised by children of the same age, capacity, discretion, knowledge
and experience under the same or similar circumstances. 6 Bearing this
in mind, We cannot charge the child Ylarde with reckless imprudence.
The court is not persuaded that the digging done by the pupils can pass
as part of their Work Education. A single glance at the picture showing
the excavation and the huge concrete block 7 would reveal a
dangerous site requiring the attendance of strong, mature laborers
and not ten-year old grade-four pupils. We cannot comprehend why
the lower court saw it otherwise when private respondent Aquino
himself admitted that there were no instructions from the principal
requiring what the pupils were told to do. Nor was there any showing
that it was included in the lesson plan for their Work Education. Even
the Court of Appeals made mention of the fact that respondent Aquino
decided all by himself to help his co-teacher Banez bury the concrete
remnants of the old school shop. 8 Furthermore, the excavation should
not be placed in the category of school gardening, planting trees, and
the like as these undertakings do not expose the children to any risk
that could result in death or physical injuries.
The contention that private respondent Aquino exercised the utmost
diligence of a very cautious person is certainly without cogent basis. A
reasonably prudent person would have foreseen that bringing children
to an excavation site, and more so, leaving them there all by
themselves, may result in an accident. An ordinarily careful human
being would not assume that a simple warning "not to touch the
stone" is sufficient to cast away all the serious danger that a huge
concrete block adjacent to an excavation would present to the
children. Moreover, a teacher who stands in loco parentis to his pupils
would have made sure that the children are protected from all harm in
his company.
We close by categorically stating that a truly careful and cautious
person would have acted in all contrast to the way private respondent
Aquino did. Were it not for his gross negligence, the unfortunate
incident would not have occurred and the child Ylarde would probably
be alive today, a grown- man of thirty-five. Due to his failure to take
the necessary precautions to avoid the hazard, Ylarde's parents
suffered great anguish all these years.
WHEREFORE, in view of the foregoing, the petition is hereby GRANTED
and the questioned judgment of the respondent court is REVERSED
and SET ASIDE and another judgment is hereby rendered ordering
private respondent Edagardo Aquino to pay petitioners the following:

(1) Indemnity for the death of Child Ylarde P30,000.00

(2) Exemplary damages 10,000.00

(3) Moral damages 20,000.00

SO ORDERED.
G.R. No. L-32611 November 3, 1930
CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,
vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.
Gibbs and McDonough for appellant.
Benj. S. Ohnick for appellee.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by the
Culion Ice, Fish & Electric Co., Inc., for the purpose of recovering from
the Philippine Motors Corporation the sum of P11,350, with interest
and costs. Upon hearing the cause the trial court gave judgment in
favor of the plaintiff to recover of the defendant the sum of P9,850,
with interest at 6 per centum per annum from March 24,1927, the
date of the filing of the complaint, until satisfaction of the judgment,
with costs. From this judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time
of the incident with which we are here concerned, H.D. Cranston was
the representative of the plaintiff in the City of Manila. At the same
time the plaintiff was the registered owner of the motor schooner
Gwendoline, which was used in the fishing trade in the Philippine
Islands. In January, 1925, Cranston decided, if practicable, to have the
engine on the Gwendoline changed from a gasoline consumer to a
crude oil burner, expecting thereby to effect economy in the cost of
running the boat. He therefore made known his desire to McLeod &
Co., a firm dealing in tractors, and was told by Mc Kellar, of said
company, that he might make inquiries of the Philippine Motors
Corporations, which had its office on Ongpin Street, in the City of
Manila. Cranston accordingly repaired to the office of the Philippine
Motors Corporation and had a conference with C.E. Quest, its
manager, who agreed to do the job, with the understanding that
payment should be made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in
business as an automobile agency, but, under its charter, it had
authority to deal in all sorts of machinery engines and motors, as well
as to build, operate, buy and sell the same and the equipment therof.
Quest, as general manager, had full charge of the corporations in all its
branches.
As a result of the aforesaid interview, Quest, in company with
Cranston, visited the Gwendoline while it lay at anchor in the Pasig
River, and the work of effecting the change in the engine was begun
and conducted under the supervision of Quest, chiefly by a mechanic
whom Quest took with him to the boat. In this work Quest had the
assistance of the members of the crew of the Gwendoline, who had
been directed by Cranston to place themselves under Quest's
directions.
Upon preliminary inspection of the engine, Quest came to the
conclusion that the principal thing necessary to accomplish the end in
view was to install a new carburetor, and a Zenith carburetor was
chosen as the one most adapted to the purpose. After this appliance
had been installed, the engine was tried with gasoline as a fuel,
supplied from the tank already in use. The result of this experiment
was satisfactory. The next problem was to introduce into the
carburetor the baser fuel, consisting of a low grade of oil mixed with
distillate. For this purpose a temporary tank to contain the mixture was
placed on deck above and at a short distance from the compartment
covering the engine. This tank was connected with the carburetor by a
piece of tubing, which was apparently not well fitted at the point
where it was connected with the tank. Owing to this fact the fuel
mixture leaked from the tank and dripped sown into the engine
compartment. The new fuel line and that already in use between the
gasoline tank and carburetor were so fixed that it was possible to
change from the gasoline fuel to the mixed fuel. The purpose of this
arrangement was to enable the operator to start the engine on
gasoline and then, after the engine had been operating for a few
moments, to switch to the new fuel supply. lawphil.net
In the course of the preliminary work upon the carburetor and its
connections, it was observed that the carburetor was flooding, and
that the gasoline, or other fuel, was trickling freely from the lower part
to the carburetor to the floor. This fact was called to Quest's attention,
but he appeared to think lightly of the matter and said that, when the
engine had gotten to running well, the flooding would disappear.
After preliminary experiments and adjustments had been made the
boat was taken out into the bay for a trial run at about 5 p.m. or a little
later, on the evening of January 30,1925. The first part of the course
was covered without any untoward development, other than he fact
that the engine stopped a few times, owing no doubt to the use of an
improper mixture of fuel. In the course of the trial Quest remained
outside of the engine compartment and occupied himself with making
distillate, with a view to ascertaining what proportion of the two
elements would give best results in the engine.
As the boat was coming in from this run, at about 7:30 p.m. and when
passing near Cavite, the engine stopped, and connection again had to
be made with the gasoline line to get a new start. After this had been
done the mechanic, or engineer, switched to the tube connecting with
the new mixture. A moment later a back fire occurred in the cylinder
chamber. This caused a flame to shoot back into the carburetor, and
instantly the carburetor and adjacent parts were covered with a mass
of flames, which the members of the crew were unable to subdue.
They were therefore compelled, as the fire spread, to take to a boat,
and their escape was safely effected, but the Gwendoline was reduced
to a mere hulk. The salvage from, the wreck, when sold, brought only
the sum of P150. The value of the boat, before the accident occured,
as the court found, was P10,000.
A study of the testimony lead us to the conclusion that the loss of this
boat was chargeable to the negligence and lack of skill of Quest. The
temporary tank in which the mixture was prepared was apparently at
too great an elevation from the carburetor, with the result that when
the fuel line was opened, the hydrostatic pressure in the carburetor
was greater than the delicate parts of the carburetor could sustain.
This was no doubt the cause of the flooding of the carburetor; and the
result was that; when the back fire occurred, the external parts of the
carburetor, already saturated with gasoline, burst into flames, whence
the fire was quickly communicated to the highly inflammable material
near-by. Ordinarily a back fire from an engine would not be followed
by any disaster, but in this case the leak along the pipe line and the
flooding of the carburetor had created a dangerous situation, which a
prudent mechanic, versed in repairs of this nature, would have taken
precautions to avoid. The back fire may have been due either to the
fact that the spark was too advanced or the fuel improperly mixed.
In this connection it must be remembered that when a person holds
himself out as being competent to do things requiring professional
skill, he will be held liable for negligence if he fails to exhibit the care
and skill of one ordinarily skilled in the particular work which he
attempts to do. The proof shows that Quest had had ample experience
in fixing the engines of automobiles and tractors, but it does not
appear that he was experienced in the doing of similar work on boats.
For this reason, possibly the dripping of the mixture form the tank on
deck and the flooding of the carburetor did not convey to his mind an
adequate impression of the danger of fire. But a person skilled in that
particular sort of work would, we think have been sufficiently warned
from those circumstances to cause him to take greater and adequate
precautions against the danger. In other words Quest did not use the
skill that would have been exhibited by one ordinarily expert in
repairing gasoline engines on boats. There was here, in our opinion, on
the part of Quest, a blameworthy antecedent inadvertence to possible
harm, and this constitutes negligence. The burning of the Gwendoline
may be said to have resulted from accident, but this accident was in no
sense an unavoidable accident. It would not have occured but for
Quest's carelessness or lack of skill. The test of liability is not whether
the injury was accidental in a sense, but whether Quest was free from
blame.

We therefore see no escape from the conclusion that this accident is

chargeable to lack of skill or negligence in effecting the changes which
Quest undertook to accomplish; and even supposing that our theory as
to the exact manner in which the accident occurred might appear to be
in some respects incorrect, yet the origin of the fire in not so
inscrutable as to enable us to say that it was casus fortuitus.

The trial judge seems to have proceeded on the idea that, inasmuch as
Quest had control of the Gwendoline during the experimental run, the
defendant corporation was in the position of a bailee and that, as a
consequence, the burden of proof was on the defendant to exculpate
itself from responsibility by proving that the accident was not due to
the fault of Quest. We are unable to accede to this point of view.
Certainly, Quest was not in charge of the navigation of the boat on this
trial run. His employment contemplated the installation of new parts in
the engine only, and it seems rather strained to hold that the
defendant corporation had thereby become bailee of the boat. As a
rule workmen who make repairs on a ship in its owner's yard, or a
mechanic who repairs a coach without taking it to his shop, are not
bailees, and their rights and liabilities are determined by the general
rules of law, under their contract. The true bailee acquires possession
and what is usually spoken of as special property in the chattel bailed.
As a consequence of such possession and special property, the bailee is
given a lien for his compensation. These ideas seem to be incompatible
with the situation now under consideration. But though defendant
cannot be held liable in the supposition that the burden of proof had
not been sustained by it in disproving the negligence of its manager,
we are nevertheless of the opinion that the proof shows by a clear
preponderance that the accident to the Gwendoline and the damages
resulting therefrom are chargeable to the negligence or lack of skill of
Quest.

This action was instituted about two years after the accident in
question had occured, and after Quest had ceased to be manager of
the defendant corporation and had gone back to the United States.
Upon these facts, the defendant bases the contention that the action
should be considered stale. It is sufficient reply to say that the action
was brought within the period limited by the statute of limitations and
the situation is not one where the defense of laches can be properly
invoked.

It results that the judgment appealed from, awarding damages to the

plaintiff in the amount of P9,850, with interest, must be affirmed; and
it is so ordered, with costs against the appellant.
G.R. No. L-12858 January 22, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
SANTIAGO PINEDA, defendant-appellant.
Francisco and Lualhati for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This appeal requires a construction and an application, for the first
time, of the penal provisions of the Pharmacy Law.
Santiago Pineda, the defendant, is a registered pharmacist of long
standing and the owner of a drug store located at Nos. 442, 444, Calle
Santo Cristo, city of Manila. One Feliciano Santos, having some sick
horses, presented a copy of a prescription obtained from Dr.
Richardson, and which on other occasions Santos had given to his
horses with good results, at Pineda's drug store for filling. The
prescription read — "clorato de potasa — 120 gramos — en seis
papelitos de 20 gramos, para caballo." Under the supervision of
Pineda, the prescription was prepared and returned to Santos in the
form of six papers marked, "Botica Pineda — Clorato potasa — 120.00
— en seis papeles — para caballo — Sto. Cristo 442, 444, Binondo,
Manila." Santos, under the belief that he had purchased the potassium
chlorate which he had asked for, put two of the packages in water the
doses to two of his sick horses. Another package was mixed with water
for another horse, but was not used. The two horses, to which had
been given the preparation, died shortly afterwards. Santos,
thereupon, took the three remaining packages to the Bureau of
Science for examination. Drs. Peña and Darjuan, of the Bureau of
Science, on analysis found that the packages contained not potassium
chlorate but barium chlorate. At the instance of Santos, the two
chemists also went to the drug store of the defendant and bought
potassium chlorate, which when analyzed was found to be barium
chlorate. (Barium chlorate, it should be noted, is a poison; potassium
chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy
on the horses, and found that death was the result of poisoning.
Four assignments of error are made. The first is that the lower court
erred in admitting the testimony of the chemist Pena and Darjuan as to
their purchase of potassium chlorate at the drug store of the accused,
which substance proved on analysis to be barium chlorate. What the
appellant is here relying on is the maxim res inter alios acta. As a
general rule, the evidence of other offenses committed by a defendant
is inadmissible. But appellant has confused this maxim and this rule
with certain exceptions thereto. The effort is not to convict the
accused of a second offense. Nor is there an attempt to draw the mind
away from the point at issue and thus to prejudice defendant's case.
The purpose is to ascertain defendant's knowledge and intent, and to
fix his negligence. If the defendant has on more than one occasion
performed similar acts, accident in good faith is possibly excluded,
negligence is intensified, and fraudulent intent may even be
established. It has been said that there is no better evidence of
negligence than the frequency of accidents. (See 10 R. C. L., pp. 938,
940.) The United States Supreme Court has held that:
On the trial of a criminal case the question relates to the tendency of
certain testimony to throw light upon a particular fact, or to explain
the conduct of a particular person, there is a certain discretion on the
part of the trial judge which a court of errors will not interfere with,
unless it manifestly appear that the testimony has no legitimate
bearing upon the question at issue, and is calculated to prejudice the
accused.
Whenever the necessity arises for a resort to circumstantial evidence,
either from the nature of the inquiry or the failure of direct proof,
objections to the testimony on the ground of irrelevancy are not
favored.
Evidence is admissible in a criminal action which tends to show motive,
although it tends to prove the commission of another offense by the
defendant. (Moore vs. U. S. [1893], 150 U. S., 57.)
The second assignment of error is that the lower court erred in finding
that the substance sold by the accused to Feliciano Santos on the 22d
of June, 1916, was barium chlorate and not potassium chlorate. The
proof demonstrates the contrary.
The third and fourth assignments of error that the lower court erred in
finding that the accused has been proved guilty beyond a reasonable
doubt of an infraction of Act No. 597, section 17, as amended. The
third assignment contains the points we should consider, including, we
may remark, a somewhat difficult question concerning which the briefs
have given little assistance.
The Pharmacy Law was first enacted as Act No. 597, was later
amended by Act Nos. 1921, 2236, and 2382, and is now found as
Chapter 30 of the Administrative Code. The law provides for a board of
pharmaceutical examiners, and the examination and registration of
pharmacists, and finally contains sundry provisions relative to the
practice of pharmacy. High qualification for applicants for the
pharmaceutical; examination are established. The program of subjects
for the examination is wide. Responsibility for the quality of drugs is
fixed by section 17 of the Pharmacy Law, as amended (now
Administrative Code [1917], section 751), in the following term:
Every pharmacist shall be responsible for the quality of all drugs,
chemicals, medicines, and poisons he may sell or keep for sale; and it
shall be unlawful for any person whomsoever to manufacture,
prepare, sell, or administer any prescription, drug, chemical, medicine,
or poison under any fraudulent name, direction, or pretense, or to
adulterate any drug, chemical, medicine, or poison so used, sold or
offered for sale. Any drug, chemical, medicine, or poison shall be held
to be adulterated or deteriorated within the meaning of this section if
it differs from the standard of quality or purity given in the United
States Pharmacopoeia.
The same section of the Pharmacy Law also contains the following
penal provision: "Any person violating the provisions of this Act shall,
upon conviction, be punished by a fine of not more than five hundred
dollar." The Administrative Code, section 2676, changes the penalty
somewhat by providing that:
Any person engaging in the practice of pharmacy in the Philippine
Islands contrary to any provision of the Pharmacy Law or violating any
provisions of said law for which no specific penalty s provided shall, for
each offense, be punished by a fine not to exceed two hundred pesos,
or by imprisonment for not more than ninety days, or both, in the
discretion of the court.
These are the provisions of law, pursuant to which prosecution has
been initiated and which it is now incumbent upon us to construe.
Turning to the law, certain points therein as bearing on our present
facts must be admitted. Thus, defendant is a pharmacist. As a
pharmacist, he is made responsible for the quality of all drugs and
poisons which he sells. And finally it is provided that it shall be
unlawful for him to sell any drug or poison under any "fraudulent
name." It is the one word "fraudulent" which has given the court
trouble. What did the Legislature intend to convey by this restrictive
adjective?

Were we to adhere to the technical definition of fraud, which the
appellant vigorously insists upon, it would be difficult, if not
impossible, to convict any druggist of a violation of the law. The
prosecution would have to prove to a reasonable degree of certainty
that the druggist made a material representation; that it was false; that
when he made it he knew that it was false or made it recklessly
without any knowledge of its truth and as positive assertion; that he
made it with the intention that it should be acted upon by the
purchaser; that the purchaser acted in reliance upon it, and that the
purchased thereby suffered injury. Such a construction with a literal
following of well-known principles on the subject of fraud would strip
the law of at least much of its force. It would leave the innocent
purchaser of drugs, who must blindly trust in the good faith and
vigilance of the pharmacist, at the mercy of any unscrupulous vendor.
We should not, therefore, without good reason so devitalize the law.
The profession of pharmacy, it has been said again and again, is one
demanding care and skill. The responsibility of the druggist to use care
has been variously qualified as "ordinary care," "care of a special high
degree," "the highest degree of care known to practical men." Even
under the first conservative expression, "ordinary care" with reference
to the business of a druggist, the Supreme Court of Connecticut has
said must be held to signify "the highest practicable degree of
prudence, thoughtfulness, and vigilance, and most exact and reliable
safeguards consistent with the reasonable conduct of the business, in
order that human life may not be constantly be exposed to the danger
flowing from the substitution of deadly poisons for harmless
medicine." (Tombari vs. Connors [1912], 85 Conn., 235. See also
Willson vs. Faxon, Williams and Faxon [1913], 208 N. Y., 108; Knoefel
vs. Atkins [1907], 81 N. E., 600.) The "skill" required of a druggist is
denominated as "high" or "ample." (Peters vs. Jackson [1902], 50 W.
Va., 644; 57 L. R. A., 428.) In other words, the care required must be
commensurate with the danger involved, and the skill employed must
correspond with the superior knowledge of the business which the law
demands.
Under one conception, and it should not be forgotten that the case we
consider are civil in nature, the question of negligence or ignorance is
irrelevant. The druggist is responsible as an absolute guarantor of what
he sells. In a decision which stands alone, the Supreme Court of
Kentucky said:
As applicable to the owners of drug stores, or persons engaged in
vending drugs and medicines by retail, the legal maxim should be
reversed. Instead of caveat emptor, it should be caveat venditor. That
is to say, let him be certain that he does not sell to a purchaser or send
to a patient one drug for another, as arsenic for calomel, cantharides
for or mixed with snakeroot and Peruvian bark, or even one innocent
drug, calculated to produce a certain effect, in place of another sent
for and designed to produce a different effect. If he does these things,
he cannot escape civil responsibility, upon the alleged pretext that it
was an accidental or an innocent mistake; that he had been very
careful and particular, and had used extraordinary care and diligence in
preparing or compounding the medicines as required, etc. Such
excuses will not avail him. (Fleet vs. Hollenkemp [1852], 56 Am. Dec.,
563.)
Under the other conception, in which the proof of negligence is
considered as material, where a customer calls upon a druggist for a
harmless remedy, delivery of a poisonous drug by mistake by the
druggist is prima facie negligence, placing the burden on him to show
that the mistake was under the circumstances consistent with the
exercise of due care. (See Knoefel vs. Atkins, supra,) The druggist
cannot, for example in filling a prescription calling for potassium
chlorate give instead to the customer barium chlorate, a poison, place
this poison in a package labeled "potassium chlorate," and expect to
escape responsibility on plea of mistake. His mistake, under the most
favorable aspect for himself, was negligence. So in a case where a
druggist filled an order for calomel tablets with morphine and placed
the morphine in a box labeled calomel, it was said:
It is not suggested, nor can we apprehend that it is in any wise
probable, that the act of furnishing the wrong drug in this case was
willful. If it was furnished by the clerk, it was undoubtedly a mistake
and unintentional. However, it was a mistake of the gravest kind, and
of the most disastrous effect. We cannot say that one holding himself
out as competent to handle such drugs, and who does so, having
rightful access to them, and relied upon by those dealing with him to
exercise that high degree of caution and care called for by the
peculiarly dangerous nature of this business, can be heard to say that
his mistakes by which he furnishes a customer the most deadly of
drugs for those comparatively harmless is not, in and of itself, gross
negligence, and that of an aggravated form. (Smith's Admrx. vs.
Middleton [1902], 56 L. R. A., 484.)
The rule of caveat emptor cannot apply to the purchase and sale of
drugs. The vendor and the vendee do not stand at arms length as in
ordinary transactions. An imperative duty is on the druggist to take
precautions to prevent death or serious injury to anyone who relies on
his absolute honesty and peculiar leaning. The nature of drugs is such
that examination would not avail the purchaser anything. It would be
idle mockery for the customer to make an examination of a compound
of which he can know nothing. Consequently, it must be that the
druggist warrants that he will deliver the drug called for.
In civil cases, the druggist is made liable for any injury approximately
resulting from his negligence. If B negligently sells poison under the
guise of a beneficial drug to A, he is liable for the injury done to A. In a
case, which has repeatedly been termed the leading case on the
subject and which has been followed by the United States Supreme
Court, it was said, "Pharmacists or apothecaries who compound or sell
medicines, if they carelessly label a poison as a harmless medicine, and
sent it so labeled into the market, are liable to all persons who,
without fault on their part, are injured by using it as such medicine, in
consequence of the false label; the rule being that the liability in such a
case arises not out of any contract or direct privity between the wrong-
doer and the person injured, but out of the duty which the law
imposes on him to avoid acts in their nature dangerous to the lives of
others." (Nat. Savings Bank vs. Ward [1879], 100 U. S., 195, following
Thomas vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In reality, for the
druggist, mistake is negligence and care is no defense. Throughout the
criminal law, run the same rigorous rules. For example, apothecaries or
apothecary clerks, who are guilty of negligence in the sale of medicine
when death ensues in consequence, have been held guilty of
manslaughter. (See Tessymond's Case [1828], 1 Lewin, C. C., 169.)
Bearing these general principles in mind, and remembering particularly
the care and skill which are expected of druggist, that in some
jurisdictions they are liable even for their mistake and in others have
the burden placed upon them to establish that they were not
negligent, it cannot be that the Philippine Legislature intended to use
the word "fraudulent" in all its strictness. A plea of accident and
mistake cannot excuse for they cannot take place unless there be
wanton and criminal carelessness and neglect. How the misfortune
occurs is unimportant, if under all the circumstances the fact of
occurrence is attributed to the druggist as a legal fault. Rather
considering the responsibility for the quality of drugs which the law
imposes on druggists and the position of the word "fraudulent" in
juxtaposition to "name," what is made unlawful is the giving of a false
name to the drug asked for. This view is borne out by Spanish
translation, which we are permitted to consult to explain the English
text. In the Spanish "supuesto" is used, and this word is certainly not
synonymous with "fraudulent." The usual badges of fraud, falsify,
deception, and injury must be present-but not scienter.

In view of the tremendous an imminent danger to the public from the

careless sale of poisons and medicines, we do not deem it too rigid a
rule to hold that the law penalizes any druggist who shall sell one drug
for another whether it be through negligence or mistake.

The judgment of the lower court, sentencing the defendant to pay a

fine of P100, with subsidiary imprisonment in case of insolvency, and
to pay the costs, is affirmed with the cost of this instance against the
appellant, without prejudice to any civil action which may be
instituted. So ordered.
G.R. No. 165622 October 17, 2008
MERCURY DRUG CORPORATION and AURMELA GANZON, petitioners,
vs.
RAUL DE LEON, respondents.
DECISION
REYES, R.T., J.:
IN REALITY, for the druggist, mistake is negligence and care is no
defense.1 Sa isang parmasyutika, ang pagkakamali ay kapabayaan at
ang pagkalinga ay hindi angkop na dipensa.
This is a petition for review on certiorari2 of two Resolutions3 of the
Court of Appeals (CA). The first Resolution granted respondent’s
motion to dismiss while the second denied petitioner’s motion for
reconsideration.
The Facts
Respondent Raul T. De Leon was the presiding judge of Branch 258,
Regional Trial Court (RTC) in Parañaque.4 On October 17, 1999, he
noticed that his left eye was reddish. He also had difficulty reading.5
On the same evening, he met a friend for dinner at the Foohyui
Restaurant. The same friend happened to be a doctor, Dr. Charles
Milla, and had just arrived from abroad.6
Aside from exchanging pleasantries, De Leon consulted Dr. Milla about
his irritated left eye.7 The latter prescribed the drugs "Cortisporin
Opthalmic" and "Ceftin" to relieve his eye problems.8 Before heading
to work the following morning, De Leon went to the Betterliving,
Parañaque, branch of Mercury Drug Store Corporation to buy the
prescribed medicines.9 He showed his prescription to petitioner
Aurmela Ganzon, a pharmacist assistant.10 Subsequently, he paid for
and took the medicine handed over by Ganzon.11
At his chambers, De Leon requested his sheriff to assist him in using
the eye drops.12 As instructed, the sheriff applied 2-3 drops on
respondent’s left eye.13 Instead of relieving his irritation, respondent
felt searing pain.14 He immediately rinsed the affected eye with water,
but the pain did not subside.15 Only then did he discover that he was
given the wrong medicine, "Cortisporin Otic Solution."16
De Leon returned to the same Mercury Drug branch, with his left eye
still red and teary.17 When he confronted Ganzon why he was given
ear drops, instead of the prescribed eye drops,18 she did not apologize
and instead brazenly replied that she was unable to fully read the
prescription.19 In fact, it was her supervisor who apologized and
informed De Leon that they do not have stock of the needed
Cortisporin Opthalmic.20
De Leon wrote Mercury Drug, through its president, Ms. Vivian K.
Askuna, about the day’s incident.21 It did not merit any response.22
Instead, two sales persons went to his office and informed him that
their supervisor was busy with other matters.23 Having been denied
his simple desire for a written apology and explanation,24 De Leon
filed a complaint for damages against Mercury Drug.25
Mercury Drug denied that it was negligent and therefore liable for
damages.26 It pointed out that the proximate cause of De Leon’s
unfortunate experience was his own negligence.27 He should have first
read and checked to see if he had the right eye solution before he used
any on his eye.28 He could have also requested his sheriff to do the
same before the latter applied the medicine on such a delicate part of
his body.29
Also, Mercury Drug explained that there is no available medicine
known as "Cortisporin Opthalmic" in the Philippine market.30
Furthermore, what was written on the piece of paper De Leon
presented to Ganzon was "Cortisporin Solution."31 Accordingly, she
gave him the only available "Cortisporin Solution" in the market.
Moreover, even the piece of paper De Leon presented upon buying the
medicine can not be considered as proper prescription.32 It lacked the
required information concerning the attending doctor’s name and
license number.33 According to Ganzon, she entertained De Leon’s
purchase request only because he was a regular customer of their
branch.34
RTC Disposition
On April 30, 2003, the RTC rendered judgment in favor of respondent,
the dispositive portion of which reads:
WHEREFORE, the court finds for the plaintiff.
For pecuniary loss suffered, Mercury Drug Store is to pay ONE
HUNDRED FIFTY-THREE PESOS AND TWENTY-FIVE CENTAVOS (Php
153.25), the value of the medicine.
As moral damages defendants is (sic) ordered to pay ONE HUNDRED
THOUSAND PESOS (Php 100,000.00).
To serve as a warning to those in the field of dispensing medicinal
drugs discretion of the highest degree is expected of them, Mercury
Drug Store and defendant Aurmila (sic) Ganzon are ordered to pay
plaintiff the amount of THREE HUNDRED THOUSAND PESOS (Php
300,000.00) as exemplary damages.
Due to defendants callous reaction to the mistake done by their
employee which forced plaintiff to litigate, Defendant (sic) Mercury
Drug Store is to pay plaintiff attorney’s fees of ₱50,000.00 plus
litigation expenses.
SO ORDERED.35
In ruling in favor of De Leon, the RTC ratiocinated:
The proximate cause of the ill fate of plaintiff was defendant Aurmila
(sic) Ganzon’s negligent exercise of said discretion. She gave a
prescription drug to a customer who did not have the proper form of
prescription, she did not take a good look at said prescription, she
merely presumed plaintiff was looking for Cortisporin Otic Solution
because it was the only one available in the market and she further
presumed that by merely putting the drug by the counter wherein
plaintiff looked at it, paid and took the drug without any objection
meant he understood what he was buying.36
The RTC ruled that although De Leon may have been negligent by
failing to read the medicine’s label or to instruct his sheriff to do so,
Mercury Drug was first to be negligent.37 Ganzon dispensed a drug
without the requisite prescription.38 Moreover, she did so without
fully reading what medicine was exactly being bought.39 In fact, she
presumed that since what was available was the drug Cortisporin Otic
Solution, it was what De Leon was attempting to buy.40 Said the court:
When the 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 employer or employer either in the selection of the
servant or employee, or in the supervision over him after the selection
or both.
xxxx
The theory bases the responsibility of the master ultimately on his own
negligence and not on that of his servant.41
Dissatisfied with the RTC ruling, Mercury Drug and Ganzon elevated
the matter to the CA. Accordingly, they filed their respective briefs.
Raising technical grounds, De Leon moved for the appeal’s dismissal.
CA Disposition
On July 4, 2008, the CA issued a resolution which granted De Leon’s
motion and dismissed the appeal. Said the appellate court:
As pointed out by the plaintiff-appellee, the Statement of Facts,
Statement of the Case, Assignment of Errors/issues, Arguments/
Discussions in the Brief make no references to the pages of the
records. We find this procedural lapse justify the dismissal of the
appeal, pursuant to Section 1(f), Rule 50 of the 1997 Rules of Civil
Procedure x x x.42
xxxx
"The premise that underlies all appeals is that they are merely rights
which arise form a statute; therefore, they must be exercised in the
manner prescribed by law. It is to this end that rules governing
pleadings and practice before the appellate court were imposed. These
rules were designed to assist the appellate court in the
accomplishment of its tasks, and overall, to enhance the orderly
administration of justice."
xxxx
x x x If the statement of fact is unaccompanied by a page reference to
the record, it may be stricken or disregarded all together.43
On October 5, 2004, the CA denied Mercury Drug’s and Ganzon’s joint
motion for reconsideration. Although mindful that litigation is not a
game of technicalities,44 the CA found no persuasive reasons to relax
procedural rules in favor of Mercury Drug and Ganzon.45 The CA
opined:
In the case under consideration, We find no faithful compliance on the
part of the movants that will call for the liberal application of the Rules.
Section 1(f) of Rule 50 of the 1997 Rules of Civil Procedure explicitly
provides that an appeal may be dismissed by the Court of Appeals, on
its own motion or on that of the appellee, for want of page references
to the records as required in Section 13 of Rule 44 of the same rules46
Issues
Petitioner has resorted to the present recourse and assigns to the CA
the following errors:
I
THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING
PETITIONER’S APPEAL BASED ON THE CASES OF DE LIANA VS. CA (370
SCRA 349) AND HEIRS OF PALOMINIQUE VS. CA (134 SCRA 331).
II
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION IN DISMISSING PETITIONER’S APPEAL DESPITE
SUBSTANTIAL COMPLIANCE WITH SECTION 1(F), RULE 60 AND SECTION
13, RULE 44 OF THE RULES OF COURT.
III
THE HONORABLE COURT OF APPEALS ERRED WHEN IT FAVORED MERE
TECHNICALITY OVER SUBSTANTIAL JUSTICE WHICH WILL CERTAINLY
CAUSE GRAVE INJUSTICE AND GREAT PREJUDICE TO PETITIONER
CONSIDERING THAT THE ASSAILED DECISION ON APPEAL IS CLUSTERED
WITH ERRORS AND IN CONTRAST with the DECISIONS OF THIS
HONORABLE SUPREME COURT.47 (Underscoring supplied)
Our Ruling
The appeal succeeds in part.
Dismissal of an appeal under Rule 50 is discretionary.
In several cases,48 this Court stressed that the grounds for dismissal of
an appeal under Section 1 of Rule 5049 are discretionary upon the
appellate court. The very wording of the rule uses the word "may"
instead of "shall." This indicates that it is only directory and not
mandatory.50 Sound discretion must be exercised in consonance with
the tenets of justice and fair play, keeping in mind the circumstances
obtaining in each case.51
The importance of an appellant’s brief cannot be gainsaid. Its purpose
is two-fold: (1) to present to the court in coherent and concise form
the point and questions in controversy; and (2) to assist the court in
arriving at a just and proper conclusion.52 It is considered a vehicle of
counsel to convey to the court the essential facts of a client’s case, a
statement of the questions of law involved, the law to be applied, and
the application one desires of it by the court.53
The absence of page reference to the record is a ground for dismissal.
It is a requirement intended to ultimately aid the appellate court in
arriving at a just and proper conclusion of the case.54 However, as
earlier discussed, such dismissal is not mandatory, but discretionary on
the part of the appellate court.
This Court has held that the failure to properly cite reference to the
original records is not a fatal procedural lapse.55 When citations found
in the appellant’s brief enable the court to expeditiously locate the
portions of the record referred to, there is substantial compliance with
the requirements of Section 13(c), (d), and (f) of Rule 44.56
In De Leon v. CA,57 this Court ruled that the citations contained in the
appellant’s brief sufficiently enabled the appellate court to
expeditiously locate the portions of the record referred to. They were
in substantial compliance with the rules. The Court said:
Nothing in the records indicate that it was exercised capriciously,
whimsically, or with a view of permitting injury upon a party litigant.
For the same reasons, we hold that the respondent Court of Appeals
did not err when it did not dismiss the appeal based on the allegation
that appellant’s brief failed to comply with the internal rules of said
court.58
Similar to the instant case, the appellant’s brief in Yuchengco v. Court
of Appeals59 contained references to Exhibits and Transcript of
Stenographic Notes and attachments. These were found to have
substantially complied with the requirements of Section 13(c) and (d)
of Rule 44.
x x x The Appellant’s brief may not have referred to the exact pages of
the records, however, the same is not fatal to their cause since the
references they made enabled the appellate court to expeditiously
locate the portions referred to. x x x60
It is true that in De Liano v. Court of Appeals,61 this Court held that a
statement of facts unaccompanied by a page reference to the record
may be presumed to be without support in the record and may be
stricken or disregarded altogether. However, the instant case is not on
all fours with De Liano.
In De Liano, the appellant’s brief lacked a Subject Index and a Table of
Cases and Authorities.62 Moreover, the Statement of the Case,
Statements of Facts, and Statements of Arguments had no page
references to the record.63 When notified of such defects, defendants-
appellants failed to amend their brief to conform to the rules.64
Instead, they continued to argue that their errors were harmless.65 All
these omissions and non-compliance justified the dismissal of the
appeal by the CA.66
In the case under review, although there were no page references to
the records, Mercury Drug and Ganzon referred to the exhibits, TSN,
and attachments of the case. Despite its deficiencies, the brief is
sufficient in form and substance as to apprise the appellate court of
the essential facts, nature of the case, the issues raised, and the laws
necessary for the disposition of the same.
Reliance on Heirs of Palomique v. Court of Appeals67 is likewise
misplaced. In Heirs of Palomique, the appellant’s brief did not at all
contain a separate statement of facts.68 This critical omission,
together with the failure to make page references to the record to
support the factual allegations, justified the dismissal of the appeal.69
Rules of procedure are intended to promote, not to defeat, substantial
justice. They should not be applied in a very rigid and technical
sense.70 For reasons of justice and equity, this Court has allowed
exceptions to the stringent rules governing appeals.71 It has, in the
past, refused to sacrifice justice for technicality.72
However, brushing aside technicalities, petitioners are still liable.
Mercury Drug and Ganzon failed to exercise the highest degree of
diligence expected of them.
Denying that they were negligent, Mercury Drug and Ganzon pointed
out that De Leon’s own negligence was the proximate cause of his
injury. They argued that any injury would have been averted had De
Leon exercised due diligence before applying the medicine on his eye.
Had he cautiously read the medicine bottle label, he would have
known that he had the wrong medicine.
Mercury Drug and Ganzon can not exculpate themselves from any
liability. As active players in the field of dispensing medicines to the
public, the highest degree of care and diligence is expected of them.73
Likewise, numerous decisions, both here and abroad, have laid salutary
rules for the protection of human life and human health.74 In the
United States case of Tombari v. Conners,75 it was ruled that the
profession of pharmacy demands care and skill, and druggists must
exercise care of a specially high degree, the highest degree of care
known to practical men. In other words, druggists must exercise the
highest practicable degree of prudence and vigilance, and the most
exact and reliable safeguards consistent with the reasonable conduct
of the business, so that human life may not constantly be exposed to
the danger flowing from the substitution of deadly poisons for
harmless medicines.76
In Fleet v. Hollenkemp,77 the US Supreme Court ruled that a druggist
that sells to a purchaser or sends to a patient one drug for another or
even one innocent drug, calculated to produce a certain effect, in place
of another sent for and designed to produce a different effect, cannot
escape responsibility, upon the alleged pretext that it was an
accidental or innocent mistake. His mistake, under the most favorable
aspect for himself, is negligence. And such mistake cannot be
countenanced or tolerated, as it is a mistake of the gravest kind and of
the most disastrous effect.78
Smith’s Admrx v. Middelton79 teaches Us that one holding himself out
as competent to handle drugs, having rightful access to them, and
relied upon by those dealing with him to exercise that high degree of
caution and care called for by the peculiarly dangerous nature of the
business, cannot be heard to say that his mistake by which he
furnishes a customer the most deadly of drugs for those comparatively
harmless, is not in itself gross negligence.80
In our own jurisdiction, United States v. Pineda81 and Mercury Drug
Corporation v. Baking are illustrative.82 In Pineda, the potassium
chlorate demanded by complainant had been intended for his race
horses. When complainant mixed with water what he thought and
believed was potassium chlorate, but which turned out to be the
potently deadly barium chlorate, his race horses died of poisoning only
a few hours after.
The wisdom of such a decision is unquestionable. If the victims had
been human beings instead of horses, the damage and loss would have
been irreparable.83
In the more recent Mercury Drug, involving no less than the same
petitioner corporation, Sebastian Baking went to the Alabang branch of
Mercury Drug84 and presented his prescription for Diamicron, which
the pharmacist misread as Dormicum.85 Baking was given a potent
sleeping tablet, instead of medicines to stabilize his blood sugar.86 On
the third day of taking the wrong medicine, Baking figured in a
vehicular accident.87 He fell asleep while driving.88
This Court held that the proximate cause of the accident was the gross
negligence of the pharmacist who gave the wrong medicine to Baking.
The Court said:
x x x Considering that a fatal mistake could be a matter of life and
death for a buying patient, the said employee should have been very
cautious in dispensing medicines. She should have verified whether the
medicine she gave respondent was indeed the one prescribed by his
physician. The care required must be commensurate with the danger
involved, and the skill employed must correspond with the superior
knowledge of the business which the law demands.89
This Court once more reiterated that the profession of pharmacy
demands great care and skill. It reminded druggists to exercise the
highest degree of care known to practical men.
In cases where an injury is caused by the negligence of an employee,
there instantly arises a presumption of law that there has been
negligence on the part of the employer, either in the selection or
supervision of one’s employees. This presumption may be rebutted by
a clear showing that the employer has exercised the care and diligence
of a good father of the family.90 Mercury Drug failed to overcome such
presumption.91
Petitioners Mercury Drug and Ganzon have similarly failed to live up to
high standard of diligence expected of them as pharmacy
professionals. They were grossly negligent in dispensing ear drops
instead of the prescribed eye drops to De Leon. Worse, they have once
again attempted to shift the blame to their victim by underscoring his
own failure to read the label.
As a buyer, De Leon relied on the expertise and experience of Mercury
Drug and its employees in dispensing to him the right medicine.92 This
Court has ruled that in the purchase and sale of drugs, the buyer and
seller do not stand at arms length.93 There exists an imperative duty
on the seller or the druggist to take precaution to prevent death or
injury to any person who relies on one’s absolute honesty and peculiar
learning.94 The Court emphasized:
x x x The nature of drugs is such that examination would not avail the
purchaser anything. It would be idle mockery for the customer to make
an examination of a compound of which he can know nothing.
Consequently, it must be that the druggist warrants that he will deliver
the drug called for.95

Mercury Drug and Ganzon’s defense that the latter gave the only
available Cortisporin solution in the market deserves scant
consideration. Ganzon could have easily verified whether the medicine
she gave De Leon was, indeed, the prescribed one or, at the very least,
consulted her supervisor. Absent the required certainty in the
dispensation of the medicine, she could have refused De Leon’s
purchase of the drug.

The award of damages is proper and shall only be reduced considering

the peculiar facts of the case. Moral damages include physical
suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and
similar injury. Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of
defendant’s wrongful act or omission.96

Moral damages are not intended to impose a penalty to the

wrongdoer or to enrich the claimant at the expense of defendant.97
There is no hard and fast rule in determining what would be a fair and
reasonable amount of moral damages since each case must be
governed by its peculiar circumstances.98 However, the award of
damages must be commensurate to the loss or injury suffered.99

Taking into consideration the attending facts of the case under review,
We find the amount awarded by the trial court to be excessive.
Following the precedent case of Mercury Drug, We reduce the amount
from ₱100,000.00 to ₱50,000.00 only.100 In addition, We also deem it
necessary to reduce the award of exemplary damages from the
exorbitant amount of ₱300,000.00 to ₱25,000.00 only.

This Court explained the propriety of awarding exemplary damages in

the earlier Mercury Drug case:

x x x Article 2229 allows the grant of exemplary damages by way of

example or correction for the public good. As mentioned earlier, the
drugstore business is affected by public interest. Petitioner should
have exerted utmost diligence in the selection and supervision of its
employees. On the part of the employee concerned, she should have
been extremely cautious in dispensing pharmaceutical products. Due
to the sensitive nature of its business, petitioner must at all times
maintain a high level of meticulousness. Therefore, an award of
exemplary damages in the amount of ₱25,000.00 is in order.101
(Emphasis supplied)

It is generally recognized that the drugstore business is imbued with

public interest. This can not be more real for Mercury Drug, the
country’s biggest drugstore chain. This Court can not tolerate any form
of negligence which can jeopardize the health and safety of its loyal
patrons. Moreover, this Court will not countenance the cavalier
manner it treated De Leon. Not only does a pharmacy owe a customer
the duty of reasonable care, but it is also duty-bound to accord one
with respect.

WHEREFORE, the petition is PARTIALLY GRANTED. The Decisions of the

CA and the RTC in Parañaque City are AFFIRMED WITH MODIFICATION,
in that the award of moral and exemplary damages is reduced to
₱50,000.00 and ₱25,000.00, respectively.

SO ORDERED.
G.R. No. 122445 November 18, 1997
DR. NINEVETCH CRUZ, petitioner,
vs.
COURT OF APPEALS and LYDIA UMALI, respondents.
FRANCISCO, J.:
Doctors are protected by a special rule of law. They are not guarantors
of care. They do not even warrant a good result. They are not insurers
against mishaps or unusual consequences. Furthermore they are not
liable for honest mistakes of judgment . . . 1
The present case against petitioner is in the nature of a medical
malpractice suit, which in simplest terms is the 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. 2 In this
jurisdiction, however, such claims are most often brought as a civil
action for damages under Article 2176 of the Civil Code, 3 and in some
instances, as a criminal case under Article 365 of the Revised Penal
Code 4 with which the civil action for damages is impliedly instituted. It
is via the latter type of action that the heirs of the deceased sought
redress for the petitioner's alleged imprudence and negligence in
treating the deceased thereby causing her death. The petitioner and
one Dr. Lina Ercillo who was the attending anaesthesiologist during the
operation of the deceased were charged with "reckless imprudence
and negligence resulting to (sic) homicide" in an information which
reads:
That on or about March 23, 1991, in the City of San Pablo, Republic of
the Philippines and within the jurisdiction of this Honorable Court, the
accused above named, being then the attending anaesthesiologist and
surgeon, respectively, did then and there, in a negligence (sic),
careless, imprudent, and incompetent manner, and failing to supply or
store sufficient provisions and facilities necessary to meet any and all
exigencies apt to arise before, during and/or after a surgical operation
causing by such negligence, carelessness, imprudence, and
incompetence, and causing by such failure, including the lack of
preparation and foresight needed to avert a tragedy, the untimely
death of said Lydia Umali on the day following said surgical operation.
5 Thereafter, a person arrived to donate blood which was later
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not
guilty to the above-mentioned charge. On March 4, 1994, the
Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a
decision, the dispositive portion of which is hereunder quoted as
follows:
WHEREFORE, the court finds the accused Dra. Lina Ercillo not guilty of
the offense charged for insufficiency of evidence while her co-accused
Dra. Ninevetch Cruz is hereby held responsible for the death of Lydia
Umali on March 24, 1991, and therefore guilty under Art. 365 of the
Revised Penal Code, and she is hereby sentenced to suffer the penalty
of 2 months and 1 day imprisonment of arresto mayor with costs. 6
The petitioner appealed her conviction to the Regional Trial Court
(RTC) which affirmed in toto the decision of the MTCC 7 prompting the
petitioner to file a petition for review with the Court of Appeals but to
no avail. Hence this petition for review on certiorari assailing the
decision promulgated by the Court of Appeals on October 24, 1995
affirming petitioner's conviction with modification that she is further
directed to pay the heirs of Lydia Umali P50,000.00 as indemnity for
her death.8
In substance, the petition brought before this Court raises the issue of
whether or not petitioner's conviction of the crime of reckless
imprudence resulting in homicide, arising from an alleged medical
malpractice, is supported by the evidence on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De Ocampo,
accompanied her mother to the Perpetual Help Clinic and General
Hospital situated in Balagtas Street, San Pablo City, Laguna. They
arrived at the said hospital at around 4:30 in the afternoon of the same
day. 9 Prior to
March 22, 1991, Lydia was examined by the petitioner who found a
"myoma" 10 in her uterus, and scheduled her for a hysterectomy
operation on March 23,
1991. 11 Rowena and her mother slept in the clinic on the evening of
March 22, 1991 as the latter was to be operated on the next day at
1:00 o'clock in the afternoon. 12 According to Rowena, she noticed
that the clinic was untidy and the window and the floor were very
dusty prompting her to ask the attendant for a rag to wipe the window
and the floor with. 13 Because of the untidy state of the clinic, Rowena
tried to persuade her mother not to proceed with the operation. 14
The following day, before her mother was wheeled into the operating
room, Rowena asked the petitioner if the operation could be
postponed. The petitioner called Lydia into her office and the two had
a conversation. Lydia then informed Rowena that the petitioner told
her that she must be operated on as scheduled. 15
Rowena and her other relatives, namely her husband, her sister and
two aunts waited outside the operating room while Lydia underwent
operation. While they were waiting, Dr. Ercillo went out of the
operating room and instructed them to buy tagamet ampules which
Rowena's sister immediately bought. About one hour had passed when
Dr. Ercillo came out again this time to ask them to buy blood for Lydia.
They bought type "A" blood from the St. Gerald Blood Bank and the
same was brought by the attendant into the operating room. After the
lapse of a few hours, the petitioner informed them that the operation
was finished. The operating staff then went inside the petitioner's
clinic to take their snacks. Some thirty minutes after, Lydia was
brought out of the operating room in a stretcher and the petitioner
asked Rowena and the other relatives to buy additional blood for
Lydia. Unfortunately, they were not able to comply with petitioner's
order as there was no more type "A" blood available in the blood bank.
transfused to Lydia. Rowena then noticed her mother, who was
attached to an oxygen tank, gasping for breath. Apparently the oxygen
supply had run out and Rowena's husband together with the driver of
the accused had to go to the San Pablo District Hospital to get oxygen.
Lydia was given the fresh supply of oxygen as soon as it arrived. 16 But
at around 10:00 o'clock P.M. she went into shock and her blood
pressure dropped to 60/50. Lydia's unstable condition necessitated her
transfer to the San Pablo District Hospital so she could be connected to
a respirator and further examined. 17 The transfer to the San Pablo
District Hospital was without the prior consent of Rowena nor of the
other relatives present who found out about the intended transfer
only when an ambulance arrived to take Lydia to the San Pablo District
Hospital. Rowena and her other relatives then boarded a tricycle and
followed the ambulance. 18
Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled
into the operating room and the petitioner and Dr. Ercillo re-operated
on her because there was blood oozing from the abdominal incision.
19 The attending physicians summoned Dr. Bartolome Angeles, head
of the Obstetrics and Gynecology Department of the San Pablo District
Hospital. However, when Dr. Angeles arrived, Lydia was already in
shock and possibly dead as her blood pressure was already 0/0. Dr.
Angeles then informed petitioner and Dr. Ercillo that there was nothing
he could do to help save the patient. 20 While the petitioner was
closing the abdominal wall, the patient died. 21 Thus, on March 24,
1991, at 3:00 o'clock in the morning, Lydia Umali was pronounced
dead. Her death certificate states "shock" as the immediate cause of
death and "Disseminated Intravascular Coagulation (DIC)" as the
antecedent cause. 22
In convicting the petitioner, the MTCC found the following
circumstances as sufficient basis to conclude that she was indeed
negligent in the performance of the operation:
. . . , the clinic was untidy, there was lack of provision like blood and
oxygen to prepare for any contingency that might happen during the
operation. The manner and the fact that the patient was brought to
the San Pablo District Hospital for reoperation indicates that there was
something wrong in the manner in which Dra. Cruz conducted the
operation. There was no showing that before the operation, accused
Dra. Cruz had conducted a cardio pulmonary clearance or any typing of
the blood of the patient. It was (sic) said in medical parlance that the
"the abdomen of the person is a temple of surprises" because you do
not know the whole thing the moment it was open (sic) and surgeon
must be prepared for any eventuality thereof. The patient (sic) chart
which is a public document was not presented because it is only there
that we could determine the condition of the patient before the
surgery. The court also noticed in Exh. "F-1" that the sister of the
deceased wished to postpone the operation but the patient was
prevailed upon by Dra. Cruz to proceed with the surgery. The court
finds that Lydia Umali died because of the negligence and carelessness
of the surgeon Dra. Ninevetch Cruz because of loss of blood during the
operation of the deceased for evident unpreparedness and for lack of
skill, the reason why the patient was brought for operation at the San
Pablo City District Hospital. As such, the surgeon should answer for
such negligence. With respect to Dra. Lina Ercillo, the
anaesthesiologist, there is no evidence to indicate that she should be
held jointly liable with Dra. Cruz who actually did the operation. 23
The RTC reiterated the abovementioned findings of the MTCC and
upheld the latter's declaration of "incompetency, negligence and lack
of foresight and skill of appellant (herein petitioner) in handling the
subject patient before and after the operation." 24 And likewise
affirming the petitioner's conviction, the Court of Appeals echoed
similar observations, thus:
. . . While we may grant that the untidiness and filthiness of the clinic
may not by itself indicate negligence, it nevertheless shows the
absence of due care and supervision over her subordinate employees.
Did this unsanitary condition permeate the operating room? Were the
surgical instruments properly sterilized? Could the conditions in the OR
have contributed to the infection of the patient? Only the petitioner
could answer these, but she opted not to testify. This could only give
rise to the presumption that she has nothing good to testify on her
defense. Anyway, the alleged "unverified statement of the prosecution
witness" remains unchallenged and unrebutted.
Likewise undisputed is the prosecution's version indicating the
following facts: that the accused asked the patient's relatives to buy
Tagamet capsules while the operation was already in progress; that
after an hour, they were also asked to buy type "A" blood for the
patient; that after the surgery, they were again asked to procure more
type "A" blood, but such was not anymore available from the source;
that the oxygen given to the patient was empty; and that the son-in-
law of the patient, together with a driver of the petitioner, had to rush
to the San Pablo City District Hospital to get the much-needed oxygen.
All these conclusively show that the petitioner had not prepared for
any unforeseen circumstances before going into the first surgery,
which was not emergency in nature, but was elective or pre-scheduled;
she had no ready antibiotics, no prepared blood, properly typed and
cross-matched, and no sufficient oxygen supply.
Moreover, there are a lot of questions that keep nagging Us. Was the
patient given any cardio-pulmonary clearance, or at least a clearance
by an internist, which are standard requirements before a patient is
subjected to surgery. Did the petitioner determine as part of the pre-
operative evaluation, the bleeding parameters of the patient, such as
bleeding time and clotting time? There is no showing that these were
done. The petitioner just appears to have been in a hurry to perform
the operation, even as the family wanted a postponement to April 6,
1991. Obviously, she did not prepare the patient; neither did she get
the family's consent to the operation. Moreover, she did not prepare a
medical chart with instructions for the patient's care. If she did all
these, proof thereof should have been offered. But there is none.
Indeed, these are overwhelming evidence of recklessness and
imprudence. 25
This Court, however, holds differently and finds the foregoing
circumstances insufficient to sustain a judgment of conviction against
the petitioner for the crime of reckless imprudence resulting in
homicide. The elements of reckless imprudence are: (1) that the
offender does or fails to do an act; (2) that the doing or the failure to
do that act is voluntary; (3) that it be without malice; (4) that material
damage results from the reckless imprudence; and (5) that there is
inexcusable lack of precaution on the part of the offender, taking into
consideration his employment or occupation, degree of intelligence,
physical condition, and other circumstances regarding persons, time
and place.
Whether or not a physician has committed an "inexcusable lack of
precaution" in the treatment of his patient is to be determined
according to the standard of care observed by other members of the
profession in good standing under similar circumstances bearing in
mind the advanced state of the profession at the time of treatment or
the present state of medical science. 26 In the recent case of Leonila
Garcia-Rueda v. Wilfred L. Pascasio, et al., 27 this Court stated that in
accepting a case, a doctor in effect represents that, having the needed
training and skill possessed by physicians and surgeons practicing in
the same field, he will employ such training, care and skill in the
treatment of his patients. He therefore has 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. It is in this
aspect of medical malpractice that expert testimony is essential to
establish not only the standard of care of the profession but also that
the physician's conduct in the treatment and care falls below such
standard. 28 Further, inasmuch as the causes of the injuries involved in
malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually
necessary to support the conclusion as to causation. 29
Immediately apparent from a review of the records of this case is the
absence of any expert testimony on the matter of the standard of care
employed by other physicians of good standing in the conduct of
similar operations. The prosecution's expert witnesses in the persons
of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National
Bureau of Investigation (NBI) only testified as to the possible cause of
death but did not venture to illuminate the court on the matter of the
standard of care that petitioner should have exercised.
All three courts below bewail the inadequacy of the facilities of the
clinic and its untidiness; the lack of provisions such as blood, oxygen,
and certain medicines; the failure to subject the patient to a cardio-
pulmonary test prior to the operation; the omission of any form of
blood typing before transfusion; and even the subsequent transfer of
Lydia to the San Pablo Hospital and the reoperation performed on her
by the petitioner. But while it may be true that the circumstances
pointed out by the courts below seemed beyond cavil to constitute
reckless imprudence on the part of the surgeon, this conclusion is still
best arrived at not through the educated surmises nor conjectures of
laymen, including judges, but by the unquestionable knowledge of
expert witnesses. For whether a physician or surgeon has exercised the
requisite degree of skill and care in the treatment of his patient is, in
the generality of cases, a matter of expert opinion. 30 The deference of
courts to the expert opinion of qualified physicians stems from its
realization that the latter possess unusual technical skills which laymen
in most instances are incapable of intelligently evaluating. 31 Expert
testimony should have been offered to prove that the circumstances
cited by the courts below are constitutive of conduct falling below the
standard of care employed by other physicians in good standing when
performing the same operation. It must be remembered that when the
qualifications of a physician are admitted, as in the instant case, there
is an inevitable presumption that in proper cases he takes the
necessary precaution and employs the best of his knowledge and skill
in attending to his clients, unless the contrary is sufficiently
established. 32 This presumption is rebuttable by expert opinion which
is so sadly lacking in the case at bench.
Q. You mentioned on your "Post Mortem Findings" about
surgical incision, 14:0 cm., infraumbilical area, anterior abdominal
area, midline, will you please explain that in your own language?
A. There was incision wound (sic) the area just below the navel,
sir.
Q. And the last paragraph of the postmortem findings which I
read: Uterus, pear-shaped and pale measuring 7.5 x 5.5 x 5.0 cm. with
some surface nodulation of the fundic area posteriorly. Cut-section
shows diffusely pale myometrium with areas of streak induration. The
ovaries and adnexal structures are missing with the raw surfaces
patched with clotted blood. Surgical sutures were noted on the
operative site.
Intestines and mesenteries are pale with blood clots noted between
the mesentric folds.

Even granting arguendo that the inadequacy of the facilities and Hemoperitoneum: 300 s.s.,
untidiness of the clinic; the lack of provisions; the failure to conduct right paracolic gutter,
pre-operation tests on the patient; and the subsequent transfer of 50 c.c., left paracolic gutter
Lydia to the San Pablo Hospital and the reoperation performed on her 200 c.c., mesentric area,
by the petitioner do indicate, even without expert testimony, that 100 c.c., right pelvic gutter
petitioner was recklessly imprudent in the exercise of her duties as a stomach empty.
surgeon, no cogent proof exists that any of these circumstances caused
petitioner's death. Thus, the absence of the fourth element of reckless Other visceral organs, pale.,
imprudence: that the injury to the person or property was a
consequence of the reckless imprudence. will you please explain that on (sic) your own language or in ordinary. .
..........
In litigations involving medical negligence, the plaintiff has the burden
of establishing appellant's negligence and for a reasonable conclusion A. There was a uterus which was not attached to the adnexal
of negligence, there must be proof of breach of duty on the part of the structures namely ovaries which were not present and also sign of
surgeon as well as a causal connection of such breach and the resulting previous surgical operation and there were (sic) clotted blood, sir.
death of his patient. 33 In Chan Lugay v. St. Luke's Hospital, Inc., 34
where the attending physician was absolved of liability for the death of Q. How about the ovaries and adnexal structures?
the complainant's wife and newborn baby, this Court held that:
A. They are missing, sir.
In order that there may be a recovery for an injury, however, it must
be shown that the "injury for which recovery is sought must be the Q. You mean to say there are no ovaries?
legitimate consequence of the wrong done; the connection between
the negligence and the injury must be a direct and natural sequence of A. During that time there are no ovaries, sir.
events, unbroken by intervening efficient causes." In other words, the
negligence must be the proximate cause of the injury. For, "negligence, Q. And there were likewise sign of surgical sutures?
no matter in what it consists, cannot create a right of action unless it is
the proximate cause of the injury complained of ." And "the proximate A. Yes, sir.
cause of an injury is that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the Q. How about the intestines and mesenteries are place (sic)
injury, and without which the result would not have occurred." 35 with blood clots noted between the mesenteric folds, will you please
(Emphasis supplied.) explain on (sic) this?

Dr. Arizala who conducted an autopsy on the body of the deceased A. In the peritoneal cavity, they are mostly perritonial blood . . .
summarized his findings as follows: .....

Atty. Cachero: Q. And what could have caused this blood?

Q. You mentioned about your Autopsy Report which has been A. Well, ordinarily blood is found inside the blood vessel. Blood
marked as Exh. "A-1-b". There appears here a signature above the were (sic) outside as a result of the injuries which destroyed the
typewritten name Floresto Arizala, Jr., whose signature is that? integrity of the vessel allowing blood to sip (sic) out, sir.

A. That is my signature, sir. Q. By the nature of the postmortem findings indicated in Exh. A-
1-B, can you tell the court the cause of death?
Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?
A. Yes, sir. The cause of death is: Gross findings are compatible
A. Only as to the autopsy report no. 91-09, the time and place with hemorrhagic shock.
and everything after the post mortem findings, sir.
Q. Can you tell the us what could have caused this hemorrhagic
shock?
A. Well hemorrhagic shock is the result of blood loss.
Q. What could have the effect of that loss of blood?
A. Unattended hemorrhage, sir. 36 (Emphasis supplied.)
The foregoing was corroborated by Dr. Nieto Salvador:
Q. And were you able to determine the cause of death by virtue
of the examination of the specimen submitted by Dr. Arizala?
A. Without knowledge of the autopsy findings it would be
difficult for me to determine the cause of death, sir.
Q. Have you also examined the post mortem of Dr. Arizala?
A. Yes, sir, and by virtue of the autopsy report in connection
with your pathology report.
Q. What could have caused the death of the victim?
A. This pathologic examination are (sic) compatible with the
person who died, sir.
Q. Will you explain to us the meaning of hemorrhagic
compatible?
A. It means that a person died of blood loss. Meaning a person
died of non-replacement of blood and so the victim before she died
there was shock of diminish of blood of the circulation. She died most
probably before the actual complete blood loss, sir.
Court: Is it possible doctor that the loss of the blood was due on
(sic) operation?
A. Based on my pathologist finding, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone surgery. Another
may be a blood vessel may be cut while on operation and this cause
(sic) bleeding, or may be set in the course of operation, or may be (sic)
he died after the operation. Of course there are other cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood replacement?
A. Yes, sir. 37 (Emphasis supplied.)
The testimonies of both doctors establish hemorrhage or hemorrhagic
shock as the cause of death. However, as likewise testified to by the
expert witnesses in open court, hemorrhage or hemorrhagic shock
during surgery may be caused by several different factors. Thus, Dr.
Salvador's elaboration on the matter:
Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that you
mentioned you said that it could be at the moment of operation when
one losses (sic) control of the presence, is that correct? During the
operation there is lost (sic) of control of the cut vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may have slipped
later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible also to some
clotting defect, is that correct?
A. May be (sic). 38 (Emphasis supplied).
Defense witness, Dr. Bu C. Castro also gave the following expert
opinion:
Q. Doctor even a patient after an operations (sic) would suffer
hemorrage what would be the possible causes of such hemorrage
(sic)?
A. Among those would be what we call Intravascular
Coagulation and this is the reason for the bleeding, sir, which cannot
be prevented by anyone, it will happen to anyone, anytime and to any
persons (sic), sir.
COURT:
What do you think of the cause of the bleeding, the cutting or the
operations done in the body?
A. Not related to this one, the bleeding here is not related to
any cutting or operation that I (sic) have done.
Q. Aside from the DIC what could another causes (sic) that
could be the cause for the hemorrhage or bleeding in a patient by an
operations (sic)?
A. In general sir, if there was an operations (sic) and it is
possible that the ligature in the suture was (sic) become (sic) loose, it is
(sic) becomes loose if proven..
xxx xxx xxx
Q. If the person who performed an autopsy does not find any
untight (sic) clot (sic) blood vessel or any suture that become (sic) loose
the cause of the bleeding could not be attributed to the fault of the
subject?
A. Definitely, sir. 39 (Emphasis supplied.)
According to both doctors, the possible causes of hemorrhage during
an operation are: (1) the failure of the surgeon to tie or suture a cut
blood vessel; (2) allowing a cut blood vessel to get out of control; (3)
the subsequent loosening of the tie or suture applied to a cut blood
vessel; and (4) and a clotting defect known as DIC. It is significant to
state at this juncture that the autopsy conducted by Dr. Arizala on the
body of Lydia did not reveal any untied or unsutured cut blood vessel
nor was there any indication that the tie or suture of a cut blood vessel
had become loose thereby causing the hemorrhage. 40 Hence the
following pertinent portion of Dr. Arizala's testimony:
Q: Doctor, in examining these structures did you know whether
these were sutured ligature or plain ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if the cut
structures were tied by first suturing it and then tying a knot or the tie
was merely placed around the cut structure and tied?
A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall because you did not
even bothered (sic) to examine, is that correct?
A: Well, I bothered enough to know that they were sutured, sir.
Q: So, therefore, Doctor, you would not know whether any of
the cut structures were not sutured or tied neither were you able to
determine whether any loose suture was found in the peritoneal
cavity?
A: I could not recall any loose sutured (sic), sir. 41
On the other hand, the findings of all three doctors do not preclude
the probability that DIC caused the hemorrhage and consequently,
Lydia's death. DIC which is a clotting defect creates a serious bleeding
tendency and when massive DIC occurs as a complication of surgery
leaving raw surface, major hemorrhage occurs. 42 And as testified to
by defense witness, Dr. Bu C. Castro, hemorrhage due to DIC "cannot
be prevented, it will happen to anyone,
anytime." 43 He testified further:
Q. Now, under that circumstance one of the possibility as you
mentioned in (sic) DIC?
A. Yes, sir.
Q. And you mentioned that this cannot be prevented?
A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that will tell you
whether this patient suffered among such things as DIC?
A. Well, I did reserve because of the condition of the patient.
Q. Now, Doctor you said that you went through the record of
the deceased Lydia Umali looking for the chart, the operated (sic)
records, the post mortem findings on the histophanic (sic) examination
based on your examination of record, doctor, can you more or less says
(sic) what part are (sic) concerned could have been the caused (sic) of
death of this Lydia Umali?
A. As far as the medical record is concern (sic) the caused (sic)
of death is dessimulated (sic) Intra Vascular Coagulation or the DIC
which resulted to hemorrhage or bleedings, sir.
Q. Doctor based on your findings then there is knowing (sic) the
doctor would say whether the doctor her (sic) has been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on finding they just
read the chart as well as the other record.
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the surgeon, sir. 44
This Court has no recourse but to rely on the expert testimonies
rendered by both prosecution and defense witnesses that substantiate
rather than contradict petitioner's allegation that the cause of Lydia's
death was DIC which, as attested to by an expert witness, cannot be
attributed to the petitioner's fault or negligence. The probability that
Lydia's death was caused by DIC was unrebutted during trial and has
engendered in the mind of this Court a reasonable doubt as to the
petitioner's guilt. Thus, her acquittal of the crime of reckless
imprudence resulting in homicide. While we condole with the family of
Lydia Umali, our hands are bound by the dictates of justice and fair
dealing which hold inviolable the right of an accused to be presumed
innocent until proven guilty beyond reasonable doubt. Nevertheless,
this Court finds the petitioner civilly liable for the death of Lydia Umali,
for while a conviction of a crime requires proof beyond reasonable
doubt, only a preponderance of evidence is required to establish civil
liability. 45
The petitioner is a doctor in whose hands a patient puts his life and
limb. For insufficiency of evidence this Court was not able to render a
sentence of conviction but it is not blind to the reckless and imprudent
manner in which the petitioner carried out her duties. A precious life
has been lost and the circumstances leading thereto exacerbated the
grief of those left behind. The heirs of the deceased continue to feel
the loss of their mother up to the present time 46 and this Court is
aware that no amount of compassion and commiseration nor words of
bereavement can suffice to assuage the sorrow felt for the loss of a
loved one. Certainly, the award of moral and exemplary damages in
favor of the heirs of Lydia Umali are proper in the instant case.
WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is
hereby ACQUITTED of the crime of reckless imprudence resulting in
homicide but is ordered to pay the heirs of the deceased Lydia Umali
the amount of FIFTY THOUSAND PESOS (P50,000.00) as civil liability,
ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral damages,
and FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages.
Let a copy of this decision be furnished to the Professional Regulation
Commission (PRC) for appropriate action.
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’ Decision2 dated September 6, 1996 in CA-G.R. CV
No. 42062 and CA-G.R. SP No. 32198 affirming with modification the
Decision3 dated March 17, 1993 of the Regional Trial Court (RTC),
Branch 96, Quezon City in Civil Case No. Q-43322 and nullifying its
Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical City
General Hospital (Medical City Hospital) because of difficulty of bowel
movement and bloody anal discharge. After a series of medical
examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590,
diagnosed her to be suffering from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical 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 Appeals28 that for purposes of
apportioning responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and their
attending and visiting physicians. This Court held:
"We now discuss the responsibility of the hospital in this particular
incident. The unique practice (among private hospitals) of filling up
specialist staff with attending and visiting "consultants," who are
allegedly not hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases. However,
the difficulty is more apparent than real.
In the first place, hospitals exercise significant control in the hiring and
firing of consultants and in the conduct of their work within the
hospital premises. Doctors who apply for ‘consultant’ slots, visiting or
attending, are required to submit proof of completion of residency,
their educational qualifications, generally, evidence of accreditation by
the appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully scrutinized by
members of the hospital administration or by a review committee set
up by the hospital who either accept or reject the application. x x x.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and perform other tasks
and responsibilities, for the privilege of being able to maintain a clinic
in the hospital, and/or for the privilege of admitting patients into the
hospital. In addition to these, the physician’s performance as a
specialist is generally evaluated by a peer review committee on the
basis of mortality and morbidity statistics, and feedback from patients,
nurses, interns and residents. A consultant remiss in his duties, or a
consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally
politely terminated.
In other words, private hospitals, hire, fire and exercise real control
over their attending and visiting ‘consultant’ staff. While ‘consultants’
are not, technically employees, x x x, the control exercised, the hiring,
and the right to terminate consultants all fulfill the important
hallmarks of an employer-employee relationship, with the exception of
the payment of wages. In assessing whether such a relationship in fact
exists, the control test is determining. Accordingly, on the basis of the
foregoing, we rule that for 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. 159132 December 18, 2008
FE CAYAO-LASAM, petitioner,
vs.
SPOUSES CLARO and EDITHA RAMOLETE, respondents.*
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of
the Rules of Court filed by Dr. Fe Cayao-Lasam (petitioner) seeking to
annul the Decision1 dated July 4, 2003 of the Court of Appeals (CA) in
CA-G.R. SP No. 62206.
The antecedent facts:
On July 28, 1994, respondent, three months pregnant Editha Ramolete
(Editha) was brought to the Lorma Medical Center (LMC) in San
Fernando, La Union due to vaginal bleeding. Upon advice of petitioner
relayed via telephone, Editha was admitted to the LMC on the same
day. A pelvic sonogram2 was then conducted on Editha revealing the
fetus’ weak cardiac pulsation.3 The following day, Editha’s repeat
pelvic sonogram4 showed that aside from the fetus’ weak cardiac
pulsation, no fetal movement was also appreciated. Due to persistent
and profuse vaginal bleeding, petitioner advised Editha to undergo a
Dilatation and Curettage Procedure (D&C) or "raspa."
On July 30, 1994, petitioner performed the D&C procedure. Editha was
discharged from the hospital the following day.
On September 16, 1994, Editha was once again brought at the LMC, as
she was suffering from vomiting and severe abdominal pains. Editha
was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan
V. Komiya. Dr. Mayo allegedly informed Editha that there was a dead
fetus in the latter’s womb. After, Editha underwent laparotomy,5 she
was found to have a massive intra-abdominal hemorrhage and a
ruptured uterus. Thus, Editha had to undergo a procedure for
hysterectomy6 and as a result, she has no more chance to bear a child.
On November 7, 1994, Editha and her husband Claro Ramolete
(respondents) filed a Complaint7 for Gross Negligence and Malpractice
against petitioner before the Professional Regulations Commission
(PRC).
Respondents alleged that Editha’s hysterectomy was caused by
petitioner’s unmitigated negligence and professional incompetence in
conducting the D&C procedure and the petitioner’s failure to remove
the fetus inside Editha’s womb.8 Among the alleged acts of negligence
were: first, petitioner’s failure to check up, visit or administer
medication on Editha during her first day of confinement at the LMC;9
second, petitioner recommended that a D&C procedure be performed
on Editha without conducting any internal examination prior to the
procedure;10 third, petitioner immediately suggested a D&C
procedure instead of closely monitoring the state of pregnancy of
Editha.11
In her Answer,12 petitioner denied the allegations of negligence and
incompetence with the following explanations: upon Editha’s
confirmation that she would seek admission at the LMC, petitioner
immediately called the hospital to anticipate the arrival of Editha and
ordered through the telephone the medicines Editha needed to take,
which the nurses carried out; petitioner visited Editha on the morning
of July 28, 1994 during her rounds; on July 29, 1994, she performed an
internal examination on Editha and she discovered that the latter’s
cervix was already open, thus, petitioner discussed the possible D&C
procedure, should the bleeding become more profuse; on July 30
1994, she conducted another internal examination on Editha, which
revealed that the latter’s cervix was still open; Editha persistently
complained of her vaginal bleeding and her passing out of some meaty
mass in the process of urination and bowel movement; thus, petitioner
advised Editha to undergo D&C procedure which the respondents
consented to; petitioner was very vocal in the operating room about
not being able to see an abortus;13 taking the words of Editha to mean
that she was passing out some meaty mass and clotted blood, she
assumed that the abortus must have been expelled in the process of
bleeding; it was Editha who insisted that she wanted to be discharged;
petitioner agreed, but she advised Editha to return for check-up on
August 5, 1994, which the latter failed to do.
Petitioner contended that it was Editha’s gross negligence and/or
omission in insisting to be discharged on July 31, 1994 against doctor’s
advice and her unjustified failure to return for check-up as directed by
petitioner that contributed to her life-threatening condition on
September 16, 1994; that Editha’s hysterectomy was brought about by
her very abnormal pregnancy known as placenta increta, which was an
extremely rare and very unusual case of abdominal placental
implantation. Petitioner argued that whether or not a D&C procedure
was done by her or any other doctor, there would be no difference at
all because at any stage of gestation before term, the uterus would
rupture just the same.
On March 4, 1999, the Board of Medicine (the Board) of the PRC
rendered a Decision,14 exonerating petitioner from the charges filed
against her. The Board held:
Based on the findings of the doctors who conducted the laparotomy on
Editha, hers is a case of Ectopic Pregnancy Interstitial. This type of
ectopic pregnancy is one that is being protected by the uterine muscles
and manifestations may take later than four (4) months and only
attributes to two percent (2%) of ectopic pregnancy cases.
When complainant Editha was admitted at Lorma Medical Center on
July 28, 1994 due to vaginal bleeding, an ultra-sound was performed
upon her and the result of the Sonogram Test reveals a morbid fetus
but did not specify where the fetus was located. Obstetricians will
assume that the pregnancy is within the uterus unless so specified by
the Sonologist who conducted the ultra-sound. Respondent (Dr.
Lasam) cannot be faulted if she was not able to determine that
complainant Editha is having an ectopic pregnancy interstitial. The D&C
conducted on Editha is necessary considering that her cervix is already
open and so as to stop the profuse bleeding. Simple curettage cannot
remove a fetus if the patient is having an ectopic pregnancy, since
ectopic pregnancy is pregnancy conceived outside the uterus and
curettage is done only within the uterus. Therefore, a more extensive
operation needed in this case of pregnancy in order to remove the
fetus.15
Feeling aggrieved, respondents went to the PRC on appeal. On
November 22, 2000, the PRC rendered a Decision16 reversing the
findings of the Board and revoking petitioner’s authority or license to
practice her profession as a physician.17
Petitioner brought the matter to the CA in a Petition for Review under
Rule 43 of the Rules of Court. Petitioner also dubbed her petition as
one for certiorari18 under Rule 65 of the Rules of Court.
In the Decision dated July 4, 2003, the CA held that the Petition for
Review under Rule 43 of the Rules of Court was an improper remedy,
as the enumeration of the quasi-judicial agencies in Rule 43 is
exclusive.19 PRC is not among the quasi-judicial bodies whose
judgment or final orders are subject of a petition for review to the CA,
thus, the petition for review of the PRC Decision, filed at the CA, was
improper. The CA further held that should the petition be treated as a
petition for certiorari under Rule 65, the same would still be dismissed
for being improper and premature. Citing Section 2620 of Republic Act
(R.A.) No. 2382 or the Medical Act of 1959, the CA held that the plain,
speedy and adequate remedy under the ordinary course of law which
petitioner should have availed herself of was to appeal to the Office of
the President.21
Hence, herein petition, assailing the decision of the CA on the following
grounds:
1. THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN
HOLDING THAT THE PROFESSIONAL REGULATION[S] COMMISSION
(PRC) WAS EXCLUDED AMONG THE QUASI-JUDICIAL AGENCIES
CONTEMPLATED UNDER RULE 43 OF THE RULES OF CIVIL PROCEDURE;
2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE
PURVIEW OF RULE 43 OF THE RULES OF CIVIL PROCEDURE, THE
PETITIONER WAS NOT PRECLUDED FROM FILING A PETITION FOR
CERTIORARI WHERE THE DECISION WAS ALSO ISSUED IN EXCESS OF OR
WITHOUT JURISDICTION, OR WHERE THE DECISION WAS A PATENT
NULLITY;
3. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO
APPEAL FROM THE DECISION OF THE BOARD OF MEDICINE TO THE
PROFESSIONAL REGULATION[S] COMMISSION;
4. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION
IN DENYING FOR IMPROPER FORUM THE PETITION FOR
REVIEW/PETITION FOR CERTIORARI WITHOUT GOING OVER THE
MERITS OF THE GROUNDS RELIED UPON BY THE PETITIONER;
5. PRC’S GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE
TO BE HEARD ON APPEAL IS A CLEAR VIOLATION OF HER
CONSTITUTIONAL RIGHT TO DUE PROCESS AND HAS THE EFFECT OF
RENDERING THE JUDGMENT NULL AND VOID;
6. COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED
GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF
JURISDICTION, IN ACCEPTING AND CONSIDERING THE MEMORANDUM
ON APPEAL WITHOUT PROOF OF SERVICE TO HEREIN PETITIONER, AND
IN VIOLATION OF ART. IV, SEC. 35 OF THE RULES AND REGULATIONS
GOVERNING THE REGULATION AND PRACTICE OF PROFESSIONALS;
7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING
PETITIONER’S LICENSE TO PRACTICE MEDICINE WITHOUT AN EXPERT
TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF
RESPONDENT EDITHAT [SIC] RAMOLETE’S INJURY;
8. PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN
TOTALLY DISREGARDING THE FINDING OF THE BOARD OF MEDICINE,
WHICH HAD THE NECESSARY COMPETENCE AND EXPERTISE TO
ESTABLISH THE CAUSE OF RESPONDENT EDITHA’S INJURY, AS WELL AS
THE TESTIMONY OF THE EXPERT WITNESS AUGUSTO MANALO, M.D.
;[and]
9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING
CONCLUSIONS OF FACTS THAT WERE NOT ONLY UNSUPPORTED BY
EVIDENCE BUT WERE ACTUALLY CONTRARY TO EVIDENCE ON
RECORD.22
The Court will first deal with the procedural issues.
Petitioner claims that the law does not allow complainants to appeal to
the PRC from the decision of the Board. She invokes Article IV, Section
35 of the Rules and Regulations Governing the Regulation and Practice
of Professionals, which provides:
Sec. 35. The respondent may appeal the decision of the Board within
thirty days from receipt thereof to the Commission whose decision
shall be final. Complainant, when allowed by law, may interpose an
appeal from the Decision of the Board within the same period.
(Emphasis supplied)
Petitioner asserts that a careful reading of the above law indicates that
while the respondent, as a matter of right, may appeal the Decision of
the Board to the Commission, the complainant may interpose an
appeal from the decision of the Board only when so allowed by law.23
Petitioner cited Section 26 of Republic Act No. 2382 or "The Medical
Act of 1959," to wit:
Section 26. Appeal from judgment. The decision of the Board of
Medical Examiners (now Medical Board) shall automatically become
final thirty days after the date of its promulgation unless the
respondent, during the same period, has appealed to the
Commissioner of Civil Service (now Professional Regulations
Commission) and later to the Office of the President of the Philippines.
If the final decision is not satisfactory, the respondent may ask for a
review of the case, or may file in court a petition for certiorari.
Petitioner posits that the reason why the Medical Act of 1959 allows
only the respondent in an administrative case to file an appeal with the
Commission while the complainant is not allowed to do so is double
jeopardy. Petitioner is of the belief that the revocation of license to
practice a profession is penal in nature.24
The Court does not agree.
For one, the principle of double jeopardy finds no application in
administrative cases. Double jeopardy attaches only: (1) upon a valid
indictment; (2) before a competent court; (3) after arraignment; (4)
when a valid plea has been entered; and (5) when the defendant was
acquitted or convicted, or the case was dismissed or otherwise
terminated without the express consent of the accused.25 These
elements were not present in the proceedings before the Board of
Medicine, as the proceedings involved in the instant case were
administrative and not criminal in nature. The Court has already held
that double jeopardy does not lie in administrative cases.26
Moreover, Section 35 of the Rules and Regulations Governing the
Regulation and Practice of Professionals cited by petitioner was
subsequently amended to read:
Sec. 35. The complainant/respondent may appeal the order, the
resolution or the decision of the Board within thirty (30) days from
receipt thereof to the Commission whose decision shall be final and
executory. Interlocutory order shall not be appealable to the
Commission. (Amended by Res. 174, Series of 1990).27 (Emphasis
supplied)
Whatever doubt was created by the previous provision was settled
with said amendment. It is axiomatic that the right to appeal is not a
natural right or a part of due process, but a mere statutory privilege
that may be exercised only in the manner prescribed by law.28 In this
case, the clear intent of the amendment is to render the right to
appeal from a decision of the Board available to both complainants
and respondents.
Such conclusion is bolstered by the fact that in 2006, the PRC issued
Resolution No. 06-342(A), or the New Rules of Procedure in
Administrative Investigations in the Professional Regulations
Commission and the Professional Regulatory Boards, which provides
for the method of appeal, to wit:
Sec. 1. Appeal; Period Non-Extendible.- The decision, order or
resolution of the Board shall be final and executory after the lapse of
fifteen (15) days from receipt of the decision, order or resolution
without an appeal being perfected or taken by either the respondent
or the complainant. A party aggrieved by the decision, order or
resolution may file a notice of appeal from the decision, order or
resolution of the Board to the Commission within fifteen (15) days
from receipt thereof, and serving upon the adverse party a notice of
appeal together with the appellant’s brief or memorandum on appeal,
and paying the appeal and legal research fees. x x x29
The above-stated provision does not qualify whether only the
complainant or respondent may file an appeal; rather, the new rules
provide that "a party aggrieved" may file a notice of appeal. Thus,
either the complainant or the respondent who has been aggrieved by
the decision, order or resolution of the Board may appeal to the
Commission. It is an elementary rule that when the law speaks in clear
and categorical language, there is no need, in the absence of legislative
intent to the contrary, for any interpretation.30 Words and phrases
used in the statute should be given their plain, ordinary, and common
usage or meaning.31
Petitioner also submits that appeals from the decisions of the PRC
should be with the CA, as Rule 4332 of the Rules of Court was precisely
formulated and adopted to provide for a uniform rule of appellate
procedure for quasi-judicial agencies.33 Petitioner further contends
that a quasi-judicial body is not excluded from the purview of Rule 43
just because it is not mentioned therein.34
On this point, the Court agrees with the petitioner.
Sec. 1, Rule 43 of the Rules of Court provides:
Section 1. Scope. - This Rule shall apply to appeals from judgments or
final orders of the Court of Tax Appeals, and from awards, judgments,
final orders or resolutions of or authorized by any quasi-judicial agency
in the exercise of its quasi-judicial functions. Among these agencies are
the Civil Service Commission, Central Board of Assessment Appeals,
Securities and Exchange Commission, Office of the President, Land
Registration Authority, Social Security Commission, Civil Aeronautics
Board, Bureau of Patents, Trademarks and Technology Transfer,
National Electrification Administration, Energy Regulatory Board,
National Telecommunications Commission, Department of Agrarian
Reform under Republic Act No. 6657, Government Service Insurance
System, Employees Compensation Commission, Agricultural Inventions
Board, Insurance Commission, Philippine Atomic Energy Commission,
Board of Investments, Construction Industry Arbitration Commission,
and voluntary arbitrators authorized by law. (Emphasis supplied)
Indeed, the PRC is not expressly mentioned as one of the agencies
which are expressly enumerated under Section 1, Rule 43 of the Rules
of Court. However, its absence from the enumeration does not, by this
fact alone, imply its exclusion from the coverage of said Rule.35 The
Rule expressly provides that it should be applied to appeals from
awards, judgments final orders or resolutions of any quasi-judicial
agency in the exercise of its quasi-judicial functions. The phrase
"among these agencies" confirms that the enumeration made in the
Rule is not exclusive to the agencies therein listed.36
Specifically, the Court, in Yang v. Court of Appeals,37 ruled that Batas
Pambansa (B.P.) Blg. 12938 conferred upon the CA exclusive appellate
jurisdiction over appeals from decisions of the PRC. The Court held:
The law has since been changed, however, at least in the matter of the
particular court to which appeals from the Commission should be
taken. On August 14, 1981, Batas Pambansa Bilang 129 became
effective and in its Section 29, conferred on the Court of Appeals
"exclusive appellate jurisdiction over all final judgments, decisions,
resolutions, orders or awards of Regional Trial Courts and quasi-judicial
agencies, instrumentalities, boards or commissions except those falling
under the appellate jurisdiction of the Supreme Court. x x x." In virtue
of BP 129, appeals from the Professional Regulations Commission are
now exclusively cognizable by the Court of Appeals.39 (Emphasis
supplied)
Clearly, the enactment of B.P. Blg. 129, the precursor of the present
Rules of Civil Procedure,40 lodged with the CA such jurisdiction over
the appeals of decisions made by the PRC.
Anent the substantive merits of the case, petitioner questions the PRC
decision for being without an expert testimony to support its
conclusion and to establish the cause of Editha’s injury. Petitioner
avers that in cases of medical malpractice, expert testimony is
necessary to support the conclusion as to the cause of the injury.41
Medical malpractice is a particular form of negligence which consists in
the failure of a physician or surgeon to apply to his practice of
medicine that degree of care and skill which is ordinarily employed by
the profession generally, under similar conditions, and in like
surrounding circumstances.42 In order to successfully pursue such a
claim, a patient must prove that the physician or surgeon either failed
to do something which a reasonably prudent physician or surgeon
would not have done, and that the failure or action caused injury to
the patient.43
There are four elements involved in medical negligence cases: duty,
breach, injury and proximate causation.44
A physician-patient relationship was created when Editha employed
the services of the petitioner. As Editha’s physician, petitioner was
duty-bound to use at least the same level of care that any reasonably
competent doctor would use to treat a condition under the same
circumstances.45 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.46 As to this aspect of medical malpractice, the
determination of the reasonable level of care and the breach thereof,
expert testimony is essential.47 Further, inasmuch as the causes of the
injuries involved in malpractice actions are determinable only in the
light of scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as to
causation.48
In the present case, respondents did not present any expert testimony
to support their claim that petitioner failed to do something which a
reasonably prudent physician or surgeon would have done.
Petitioner, on the other hand, presented the testimony of Dr. Augusto
M. Manalo, who was clearly an expert on the subject.
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.49
Dr. Manalo specializes in gynecology and obstetrics, authored and co-
authored various publications on the subject, and is a professor at the
University of the Philippines.50 According to him, his diagnosis of
Editha’s case was "Ectopic Pregnancy Interstitial (also referred to as
Cornual), Ruptured."51 In stating that the D&C procedure was not the
proximate cause of the rupture of Editha’s uterus resulting in her
hysterectomy, Dr. Manalo testified as follows:
Atty. Hidalgo:

Q: Doctor, we want to be clarified on this matter. The complainant
had testified here that the D&C was the proximate cause of the
rupture of the uterus. The condition which she found herself in on the
second admission. Will you please tell us whether that is true or not?
A: Yah, I do not think so for two reasons. One, as I have said earlier,
the instrument cannot reach the site of the pregnancy, for it to further
push the pregnancy outside the uterus. And, No. 2, I was thinking a
while ago about another reason- well, why I don’t think so, because it
is the triggering factor for the rupture, it could have–the rupture could
have occurred much earlier, right after the D&C or a few days after the
D&C.
Q: In this particular case, doctor, the rupture occurred to have
happened minutes prior to the hysterectomy or right upon admission
on September 15, 1994 which is about 1 ½ months after the patient
was discharged, after the D&C was conducted. Would you tell us
whether there is any relation at all of the D&C and the rupture in this
particular instance?
A: I don’t think so for the two reasons that I have just mentioned-
that it would not be possible for the instrument to reach the site of
pregnancy. And, No. 2, if it is because of the D&C that rupture could
have occurred earlier.52 (Emphases supplied)
Clearly, from the testimony of the expert witness and the reasons
given by him, it is evident that the D&C procedure was not the
proximate cause of the rupture of Editha’s uterus.
During his cross-examination, Dr. Manalo testified on how he would
have addressed Editha’s condition should he be placed in a similar
circumstance as the petitioner. He stated:
Atty. Ragonton:
Q: Doctor, as a practicing OB-Gyne, when do you consider that you
have done a good, correct and ideal dilatation and curettage
procedure?
A: Well, if the patient recovers. If the patient gets well. Because even
after the procedure, even after the procedure you may feel that you
have scraped everything, the patient stops bleeding, she feels well, I
think you should still have some reservations, and wait a little more
time.
Q: If you were the OB-Gyne who performed the procedure on
patient Editha Ramolete, would it be your standard practice to check
the fetal parts or fetal tissues that were allegedly removed?
A: From what I have removed, yes. But in this particular case, I think
it was assumed that it was part of the meaty mass which was expelled
at the time she was urinating and flushed in the toilet. So there’s no
way.
Q: There was [sic] some portions of the fetal parts that were
removed?
A: No, it was described as scanty scraping if I remember it right–
scanty.
Q: And you would not mind checking those scant or those little parts
that were removed?
A: Well, the fact that it was described means, I assume that it was
checked, ‘no. It was described as scanty and the color also, I think was
described. Because it would be very unusual, even improbable that it
would not be examined, because when you scrape, the specimens are
right there before your eyes. It’s in front of you. You can touch it. In
fact, some of them will stick to the instrument and therefore to peel it
off from the instrument, you have to touch them. So, automatically
they are examined closely.
Q: As a matter of fact, doctor, you also give telephone orders to your
patients through telephone?
A: Yes, yes, we do that, especially here in Manila because you know,
sometimes a doctor can also be tied-up somewhere and if you have to
wait until he arrive at a certain place before you give the order, then it
would be a lot of time wasted. Because if you know your patient, if you
have handled your patient, some of the symptoms you can interpret
that comes with practice. And, I see no reason for not allowing
telephone orders unless it is the first time that you will be
encountering the patient. That you have no idea what the problem is.
Q: But, doctor, do you discharge patients without seeing them?
A: Sometimes yes, depending on how familiar I am with the patient.
We are on the question of telephone orders. I am not saying that that
is the idle [sic] thing to do, but I think the reality of present day
practice somehow justifies telephone orders. I have patients whom I
have justified and then all of a sudden, late in the afternoon or late in
the evening, would suddenly call they have decided that they will go
home inasmuch as they anticipated that I will discharge them the
following day. So, I just call and ask our resident on duty or the nurse
to allow them to go because I have seen that patient and I think I have
full grasp of her problems. So, that’s when I make this telephone
orders. And, of course before giving that order I ask about how she
feels.53 (Emphases supplied)
From the foregoing testimony, it is clear that the D&C procedure was
conducted in accordance with the standard practice, with the same
level of care that any reasonably competent doctor would use to treat
a condition under the same circumstances, and that there was nothing
irregular in the way the petitioner dealt with Editha.
Medical malpractice, in our jurisdiction, is often brought as a civil
action for damages under Article 217654 of the Civil Code. The
defenses in an action for damages, provided for under Article 2179 of
the Civil Code are:
Art. 2179. When the plaintiff’s own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if his
negligence was only contributory, the immediate and proximate cause
of the injury being the defendant’s lack of due care, the plaintiff may
recover damages, but the courts shall mitigate the damages to be
awarded.
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.55 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.56
In the present case, the Court notes the findings of the Board of
Medicine:
When complainant was discharged on July 31, 1994, herein respondent
advised her to return on August 4, 1994 or four (4) days after the D&C.
This advise was clear in complainant’s Discharge Sheet. However,
complainant failed to do so. This being the case, the chain of continuity
as required in order that the doctrine of proximate cause can be validly
invoked was interrupted. Had she returned, the respondent could have
examined her thoroughly.57 x x x (Emphases supplied)
Also, in the testimony of Dr. Manalo, he stated further that assuming
that there was in fact a misdiagnosis, the same would have been
rectified if Editha followed the petitioner’s order to return for a check-
up on August 4, 1994. Dr. Manalo stated:
Granting that the obstetrician-gynecologist has been misled
(justifiably) up to thus point that there would have been ample
opportunity to rectify the misdiagnosis, had the patient returned, as
instructed for her follow-up evaluation. It was one and a half months
later that the patient sought consultation with another doctor. The
continued growth of an ectopic pregnancy, until its eventual rupture, is
a dynamic process. Much change in physical findings could be expected
in 1 ½ months, including the emergence of suggestive ones.58
It is undisputed that Editha did not return for a follow-up evaluation, in
defiance of the petitioner’s advise. Editha omitted the diligence
required by the circumstances which could have avoided the injury.
The omission in not returning for a follow-up evaluation played a
substantial part in bringing about Editha’s own injury. Had Editha
returned, petitioner could have conducted the proper medical tests
and procedure necessary to determine Editha’s health condition and
applied the corresponding treatment which could have prevented the
rupture of Editha’s uterus. The D&C procedure having been conducted
in accordance with the standard medical practice, it is clear that
Editha’s omission was the proximate cause of her own injury and not
merely a contributory negligence on her part.
asserting its existence.66 In the present case, respondents did not
present any proof that petitioner was served a copy of the
Memorandum on Appeal. Thus, respondents were not able to satisfy
the burden of proving that they had in fact informed the petitioner of
the appeal proceedings before the PRC.
In EDI-Staffbuilders International, Inc. v. National Labor Relations
Commission,67 in which the National Labor Relations Commission
failed to order the private respondent to furnish the petitioner a copy
of the Appeal Memorandum, the Court held that said failure deprived
the petitioner of procedural due process guaranteed by the
Constitution, which could have served as basis for the nullification of
the proceedings in the appeal. The same holds true in the case at bar.
The Court finds that the failure of the respondents to furnish the
petitioner a copy of the Memorandum of Appeal submitted to the PRC
constitutes a violation of due process. Thus, the proceedings before
the PRC were null and void.
All told, doctors are protected by a special rule of law. They are not
guarantors of care. They are not insurers against mishaps or unusual
consequences68 specially so if the patient herself did not exercise the
proper diligence required to avoid the injury.
WHEREFORE, the petition is GRANTED. The assailed Decision of the
Court of Appeals dated July 4, 2003 in CA-GR SP No. 62206 is hereby
REVERSED and SET ASIDE. The Decision of the Board of Medicine dated
March 4, 1999 exonerating petitioner is AFFIRMED. No
pronouncement as to costs.
SO ORDERED.

Contributory negligence is the act or omission amounting to want of

ordinary care on the part of the person injured, which, concurring with
the defendant’s negligence, is the proximate cause of the injury.59
Difficulty seems to be apprehended in deciding which acts of the
injured party shall be considered immediate causes of the accident.60
Where the immediate cause of an accident resulting in an injury is the
plaintiff’s own act, which contributed to the principal occurrence as
one of its determining factors, he cannot recover damages for the
injury.61 Again, based on the evidence presented in the present case
under review, in which no negligence can be attributed to the
petitioner, the immediate cause of the accident resulting in Editha’s
injury was her own omission when she did not return for a follow-up
check up, in defiance of petitioner’s orders. The immediate cause of
Editha’s injury was her own act; thus, she cannot recover damages
from the injury.

Lastly, petitioner asserts that her right to due process was violated
because she was never informed by either respondents or by the PRC
that an appeal was pending before the PRC.62 Petitioner claims that a
verification with the records section of the PRC revealed that on April
15, 1999, respondents filed a Memorandum on Appeal before the PRC,
which did not attach the actual registry receipt but was merely
indicated therein.63

Respondents, on the other hand avers that if the original registry

receipt was not attached to the Memorandum on Appeal, PRC would
not have entertained the appeal or accepted such pleading for lack of
notice or proof of service on the other party.64 Also, the registry
receipt could not be appended to the copy furnished to petitioner’s
former counsel, because the registry receipt was already appended to
the original copy of the Memorandum of Appeal filed with PRC.65

It is a well-settled rule that when service of notice is an issue, the rule

is that the person alleging that the notice was served must prove the
fact of service. The burden of proving notice rests upon the party
G.R. No. 178763 April 21, 2009
PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL
LUCAS AND GILLIAN LUCAS, Petitioners,
vs.
DR. PROSPERO MA. C. TUAÑO, Respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari1 under Rule 45 of the Revised
Rules of Court, petitioners Peter Paul Patrick Lucas, Fatima Gladys
Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the 27
September 2006 Decision2 and 3 July 2007 Resolution,3 both of the
Court of Appeals in CA-G.R. CV No. 68666, entitled "Peter Paul Patrick
Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v.
Prospero Ma. C. Tuaño."
In the questioned decision and resolution, the Court of Appeals
affirmed the 14 July 2000 Decision of the Regional Trial Court (RTC),
Branch 150, Makati City, dismissing the complaint filed by petitioners
in a civil case entitled, "Peter Paul Patrick Lucas, Fatima Gladys Lucas,
Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuaño," docketed
as Civil Case No. 92-2482.
From the record of the case, the established factual antecedents of the
present petition are:
Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter)
contracted "sore eyes" in his right eye.
On 2 September 1988, complaining of a red right eye and swollen
eyelid, Peter made use of his health care insurance issued by
Philamcare Health Systems, Inc. (Philamcare), for a possible consult.
The Philamcare Coordinator, Dr. Edwin Oca, M.D., referred Peter to
respondent, Dr. Prospero Ma. C. Tuaño, M.D. (Dr. Tuaño), an
ophthalmologist at St. Luke’s Medical Center, for an eye consult.
Upon consultation with Dr. Tuaño, Peter narrated that it had been nine
(9) days since the problem with his right eye began; and that he was
already taking Maxitrol to address the problem in his eye. According to
Dr. Tuaño, he performed "ocular routine examination" on Peter’s eyes,
wherein: (1) a gross examination of Peter’s eyes and their surrounding
area was made; (2) Peter’s visual acuity were taken; (3) Peter’s eyes
were palpated to check the intraocular pressure of each; (4) the
motility of Peter’s eyes was observed; and (5) the ophthalmoscopy4 on
Peter’s eyes was used. On that particular consultation, Dr. Tuaño
diagnosed that Peter was suffering from conjunctivitis5 or "sore eyes."
Dr. Tuaño then prescribed Spersacet-C6 eye drops for Peter and told
the latter to return for follow-up after one week.
As instructed, Peter went back to Dr. Tuaño on 9 September 1988.
Upon examination, Dr. Tuaño told Peter that the "sore eyes" in the
latter’s right eye had already cleared up and he could discontinue the
Spersacet-C. However, the same eye developed Epidemic Kerato
Conjunctivitis (EKC),7 a viral infection. To address the new problem
with Peter’s right eye, Dr. Tuaño prescribed to the former a steroid-
based eye drop called Maxitrol,8 a dosage of six (6) drops per day.9 To
recall, Peter had already been using Maxitrol prior to his consult with
Dr. Tuaño.
On 21 September 1988, Peter saw Dr. Tuaño for a follow-up
consultation. After examining both of Peter’s eyes, Dr. Tuaño
instructed the former to taper down10 the dosage of Maxitrol,
because the EKC in his right eye had already resolved. Dr. Tuaño
specifically cautioned Peter that, being a steroid, Maxitrol had to be
withdrawn gradually; otherwise, the EKC might recur.11
Complaining of feeling as if there was something in his eyes, Peter
returned to Dr. Tuaño for another check-up on 6 October 1988. Dr.
Tuaño examined Peter’s eyes and found that the right eye had once
more developed EKC. So, Dr. Tuaño instructed Peter to resume the use
of Maxitrol at six (6) drops per day.
On his way home, Peter was unable to get a hold of Maxitrol, as it was
out of stock. Consequently, Peter was told by Dr. Tuano to take,
instead, Blephamide12 another steroid-based medication, but with a
lower concentration, as substitute for the unavailable Maxitrol, to be
used three (3) times a day for five (5) days; two (2) times a day for five
(5) days; and then just once a day.13
Several days later, on 18 October 1988, Peter went to see Dr. Tuaño at
his clinic, alleging severe eye pain, feeling as if his eyes were about to
"pop-out," a headache and blurred vision. Dr. Tuaño examined Peter’s
eyes and discovered that the EKC was again present in his right eye. As
a result, Dr. Tuaño told Peter to resume the maximum dosage of
Blephamide.
Dr. Tuaño saw Peter once more at the former’s clinic on 4 November
1988. Dr. Tuaño’s examination showed that only the periphery of
Peter’s right eye was positive for EKC; hence, Dr. Tuaño prescribed a
lower dosage of Blephamide.
It was also about this time that Fatima Gladys Lucas (Fatima), Peter’s
spouse, read the accompanying literature of Maxitrol and found
therein the following warning against the prolonged use of such
steroids:
WARNING:
Prolonged use may result in glaucoma, with damage to the optic nerve,
defects in visual acuity and fields of vision, and posterior, subcapsular
cataract formation. Prolonged use may suppress the host response and
thus increase the hazard of secondary ocular infractions, in those
diseases causing thinning of the cornea or sclera, perforations have
been known to occur with the use of topical steroids. In acute purulent
conditions of the eye, steroids may mask infection or enhance existing
infection. If these products are used for 10 days or longer, intraocular
pressure should be routinely monitored even though it may be difficult
in children and uncooperative patients.
Employment of steroid medication in the treatment of herpes simplex
requires great caution.
xxxx
ADVERSE REACTIONS:
Adverse reactions have occurred with steroid/anti-infective
combination drugs which can be attributed to the steroid component,
the anti-infective component, or the combination. Exact incidence
figures are not available since no denominator of treated patients is
available.
Reactions occurring most often from the presence of the anti-infective
ingredients are allergic sensitizations. The reactions due to the steroid
component in decreasing order to frequency are elevation of intra-
ocular pressure (IOP) with possible development of glaucoma,
infrequent optic nerve damage; posterior subcapsular cataract
formation; and delayed wound healing.
Secondary infection: The development of secondary has occurred after
use of combination containing steroids and antimicrobials. Fungal
infections of the correa are particularly prone to develop coincidentally
with long-term applications of steroid. The possibility of fungal
invasion must be considered in any persistent corneal ulceration where
steroid treatment has been used.
Secondary bacterial ocular infection following suppression of host
responses also occurs.
On 26 November 1988, Peter returned to Dr. Tuaño’s clinic,
complaining of "feeling worse."14 It appeared that the EKC had spread
to the whole of Peter’s right eye yet again. Thus, Dr. Tuaño instructed
Peter to resume the use of Maxitrol. Petitioners averred that Peter
already made mention to Dr. Tuaño during said visit of the above-
quoted warning against the prolonged use of steroids, but Dr. Tuaño
supposedly brushed aside Peter’s concern as mere paranoia, even
assuring him that the former was taking care of him (Peter).
Petitioners further alleged that after Peter’s 26 November 1988 visit to
Dr. Tuaño, Peter continued to suffer pain in his right eye, which
seemed to "progress," with the ache intensifying and becoming more
frequent.
Upon waking in the morning of 13 December 1988, Peter had no vision
in his right eye. Fatima observed that Peter’s right eye appeared to be
bloody and swollen.15 Thus, spouses Peter and Fatima rushed to the
clinic of Dr. Tuaño. Peter reported to Dr. Tuaño that he had been
suffering from constant headache in the afternoon and blurring of
vision.
Upon examination, Dr. Tuaño noted the hardness of Peter’s right eye.
With the use of a tonometer16 to verify the exact intraocular
pressure17 (IOP) of Peter’s eyes, Dr. Tuaño discovered that the tension
in Peter’s right eye was 39.0 Hg, while that of his left was 17.0 Hg.18
Since the tension in Peter’s right eye was way over the normal IOP,
which merely ranged from 10.0 Hg to 21.0 Hg,19 Dr. Tuaño ordered20
him to immediately discontinue the use of Maxitrol and prescribed to
the latter Diamox21 and Normoglaucon, instead.22 Dr. Tuaño also
required Peter to go for daily check-up in order for the former to
closely monitor the pressure of the latter’s eyes.
On 15 December 1988, the tonometer reading of Peter’s right eye
yielded a high normal level, i.e., 21.0 Hg. Hence, Dr. Tuaño told Peter
to continue using Diamox and Normoglaucon. But upon Peter’s
complaint of "stomach pains and tingling sensation in his fingers,"23
Dr. Tuaño discontinued Peter’s use of Diamox.24
Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal
(Dr. Batungbacal), on 21 December 1988, who allegedly conducted a
complete ophthalmological examination of Peter’s eyes. Dr.
Batungbacal’s diagnosis was Glaucoma25 O.D.26 He recommended
Laser Trabeculoplasty27 for Peter’s right eye.
When Peter returned to Dr. Tuaño on 23 December 1988,28 the
tonometer measured the IOP of Peter’s right eye to be 41.0 Hg,29
again, way above normal. Dr. Tuaño addressed the problem by
advising Peter to resume taking Diamox along with Normoglaucon.
During the Christmas holidays, Peter supposedly stayed in bed most of
the time and was not able to celebrate the season with his family
because of the debilitating effects of Diamox.30
On 28 December 1988, during one of Peter’s regular follow-ups with
Dr. Tuaño, the doctor conducted another ocular routine examination
of Peter’s eyes. Dr. Tuaño noted the recurrence of EKC in Peter’s right
eye. Considering, however, that the IOP of Peter’s right eye was still
quite high at 41.0 Hg, Dr. Tuaño was at a loss as to how to balance the
treatment of Peter’s EKC vis-à-vis the presence of glaucoma in the
same eye. Dr. Tuaño, thus, referred Peter to Dr. Manuel B. Agulto,
M.D. (Dr. Agulto), another ophthalmologist specializing in the
treatment of glaucoma.31 Dr. Tuaño’s letter of referral to Dr. Agulto
stated that:
Referring to you Mr. Peter Lucas for evaluation & possible
management. I initially saw him Sept. 2, 1988 because of conjunctivitis.
The latter resolved and he developed EKC for which I gave Maxitrol.
The EKC was recurrent after stopping steroid drops. Around 1 month of
steroid treatment, he noted blurring of vision & pain on the R.
however, I continued the steroids for the sake of the EKC. A month
ago, I noted iris atrophy, so I took the IOP and it was definitely
elevated. I stopped the steroids immediately and has (sic) been
treating him medically.
It seems that the IOP can be controlled only with oral Diamox, and at
the moment, the EKC has recurred and I’m in a fix whether to resume
the steroid or not considering that the IOP is still uncontrolled.32
On 29 December 1988, Peter went to see Dr. Agulto at the latter’s
clinic. Several tests were conducted thereat to evaluate the extent of
Peter’s condition. Dr. Agulto wrote Dr. Tuaño a letter containing the
following findings and recommendations:
Thanks for sending Peter Lucas. On examination conducted vision was
20/25 R and 20/20L. Tension curve 19 R and 15 L at 1210 H while on
Normoglaucon BID OD & Diamox ½ tab every 6h po.
Slit lamp evaluation33 disclosed subepithelial corneal defect outer OD.
There was circumferential peripheral iris atrophy, OD. The lenses were
clear.
Funduscopy34 showed vertical cup disc of 0.85 R and 0.6 L with
temporal slope R>L.
Zeiss gonioscopy35 revealed basically open angles both eyes with
occasional PAS,36 OD.
Rolly, I feel that Peter Lucas has really sustained significant glaucoma
damage. I suggest that we do a baseline visual fields and push
medication to lowest possible levels. If I may suggest further, I think we
should prescribe Timolol37 BID38 OD in lieu of Normoglaucon. If the
IOP is still inadequate, we may try D’epifrin39 BID OD (despite low
PAS). I’m in favor of retaining Diamox or similar CAI.40
If fields show further loss in say – 3 mos. then we should consider
trabeculoplasty.
I trust that this approach will prove reasonable for you and Peter.41
Peter went to see Dr. Tuaño on 31 December 1988, bearing Dr.
Agulto’s aforementioned letter. Though Peter’s right and left eyes then
had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuaño still
gave him a prescription for Timolol B.I.D. so Peter could immediately
start using said medication. Regrettably, Timolol B.I.D. was out of
stock, so Dr. Tuaño instructed Peter to just continue using Diamox and
Normoglaucon in the meantime.
Just two days later, on 2 January 1989, the IOP of Peter’s right eye
remained elevated at 21.0 Hg,42 as he had been without Diamox for
the past three (3) days.
On 4 January 1989, Dr. Tuaño conducted a visual field study43 of
Peter’s eyes, which revealed that the latter had tubular vision44 in his
right eye, while that of his left eye remained normal. Dr. Tuaño
directed Peter to religiously use the Diamox and Normoglaucon, as the
tension of the latter’s right eye went up even further to 41.0 Hg in just
a matter of two (2) days, in the meantime that Timolol B.I.D. and
D’epifrin were still not available in the market. Again, Dr. Tuaño
advised Peter to come for regular check-up so his IOP could be
monitored.
Obediently, Peter went to see Dr. Tuaño on the 7th, 13th, 16th and
20th of January 1989 for check-up and IOP monitoring.
In the interregnum, however, Peter was prodded by his friends to seek
a second medical opinion. On 13 January 1989, Peter consulted Dr.
Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in turn,
referred Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino), another
ophthalmologist who specializes in the treatment of glaucoma and
who could undertake the long term care of Peter’s eyes.
According to petitioners, after Dr. Aquino conducted an extensive
evaluation of Peter’s eyes, the said doctor informed Peter that his eyes
were relatively normal, though the right one sometimes manifested
maximum borderline tension. Dr. Aquino also confirmed Dr. Tuaño’s
diagnosis of tubular vision in Peter’s right eye. Petitioners claimed that
Dr. Aquino essentially told Peter that the latter’s condition would
require lifetime medication and follow-ups.
In May 1990 and June 1991, Peter underwent two (2) procedures of
laser trabeculoplasty to attempt to control the high IOP of his right
eye.
Claiming to have steroid-induced glaucoma45 and blaming Dr. Tuaño
for the same, Peter, joined by: (1) Fatima, his spouse46; (2) Abbeygail,
his natural child47; and (3) Gillian, his legitimate child48 with Fatima,
instituted on 1 September 1992, a civil complaint for damages against
Dr. Tuaño, before the RTC, Branch 150, Quezon City. The case was
docketed as Civil Case No. 92-2482.
In their Complaint, petitioners specifically averred that as the "direct
consequence of [Peter’s] prolonged use of Maxitrol, [he] suffered from
steroid induced glaucoma which caused the elevation of his intra-
ocular pressure. The elevation of the intra-ocular pressure of [Peter’s
right eye] caused the impairment of his vision which impairment is not
curable and may even lead to total blindness."49
Petitioners additionally alleged that the visual impairment of Peter’s
right eye caused him and his family so much grief. Because of his
present condition, Peter now needed close medical supervision
forever; he had already undergone two (2) laser surgeries, with the
possibility that more surgeries were still needed in the future; his
career in sports casting had suffered and was continuing to suffer;50
his anticipated income had been greatly reduced as a result of his
"limited" capacity; he continually suffered from "headaches, nausea,
dizziness, heart palpitations, rashes, chronic rhinitis, sinusitis,"51 etc.;
Peter’s relationships with his spouse and children continued to be
strained, as his condition made him highly irritable and sensitive; his
mobility and social life had suffered; his spouse, Fatima, became the
breadwinner in the family;52 and his two children had been deprived
of the opportunity for a better life and educational prospects.
Collectively, petitioners lived in constant fear of Peter becoming
completely blind.53
In the end, petitioners sought pecuniary award for their supposed pain
and suffering, which were ultimately brought about by Dr. Tuaño’s
grossly negligent conduct in prescribing to Peter the medicine Maxitrol
for a period of three (3) months, without monitoring Peter’s IOP, as
required in cases of prolonged use of said medicine, and
notwithstanding Peter’s constant complaint of intense eye pain while
using the same. Petitioners particularly prayed that Dr. Tuaño be
adjudged liable for the following amounts:
1. The amount of ₱2,000,000.00 to plaintiff Peter Lucas as and by way
of compensation for his impaired vision.
2. The amount of ₱300,000.00 to spouses Lucas as and by way of
actual damages plus such additional amounts that may be proven
during trial.
3. The amount of ₱1,000,000.00 as and by way of moral damages.
4. The amount of ₱500,000.00 as and by way of exemplary damages.
5. The amount of ₱200,000.00 as and by way of attorney’s fees plus
costs of suit.54
In rebutting petitioners’ complaint, Dr. Tuaño asserted that the
"treatment made by [him] more than three years ago has no causal
connection to [Peter’s] present glaucoma or condition."55 Dr. Tuaño
explained that "[d]rug-induced glaucoma is temporary and curable,
steroids have the side effect of increasing intraocular pressure.
Steroids are prescribed to treat Epidemic Kerato Conjunctivitis or EKC
which is an infiltration of the cornea as a result of conjunctivitis or sore
eyes."56 Dr. Tuaño also clarified that (1) "[c]ontrary to [petitioners’]
fallacious claim, [he] did NOT continually prescribe the drug Maxitrol
which contained steroids for any prolonged period"57 and "[t]he truth
was the Maxitrol was discontinued x x x as soon as EKC disappeared
and was resumed only when EKC reappeared"58; (2) the entire time he
was treating Peter, he "continually monitored the intraocular pressure
of [Peter’s eyes] by palpating the eyes and by putting pressure on the
eyeballs," and no hardening of the same could be detected, which
meant that there was no increase in the tension or IOP, a possible side
reaction to the use of steroid medications; and (3) it was only on 13
December 1988 that Peter complained of a headache and blurred
vision in his right eye, and upon measuring the IOP of said eye, it was
determined for the first time that the IOP of the right eye had an
elevated value.
But granting for the sake of argument that the "steroid treatment of
[Peter’s] EKC caused the steroid induced glaucoma,"59 Dr. Tuaño
argued that:
[S]uch condition, i.e., elevated intraocular pressure, is temporary. As
soon as the intake of steroids is discontinued, the intraocular pressure
automatically is reduced. Thus, [Peter’s] glaucoma can only be due to
other causes not attributable to steroids, certainly not attributable to
[his] treatment of more than three years ago x x x.
From a medical point of view, as revealed by more current
examination of [Peter], the latter’s glaucoma can only be long standing
glaucoma, open angle glaucoma, because of the large C:D ratio. The
steroids provoked the latest glaucoma to be revealed earlier as [Peter]
remained asymptomatic prior to steroid application. Hence, the steroid
treatment was in fact beneficial to [Peter] as it revealed the incipient
open angle glaucoma of [Peter] to allow earlier treatment of the
same.60
In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-
2482 "for insufficiency of evidence."61 The decretal part of said
Decision reads:
Wherefore, premises considered, the instant complaint is dismissed for
insufficiency of evidence. The counter claim (sic) is likewise dismissed
in the absence of bad faith or malice on the part of plaintiff in filing the
suit.62
The RTC opined that petitioners failed to prove by preponderance of
evidence that Dr. Tuaño was negligent in his treatment of Peter’s
condition. In particular, the record of the case was bereft of any
evidence to establish that the steroid medication and its dosage, as
prescribed by Dr. Tuaño, caused Peter’s glaucoma. The trial court
reasoned that the "recognized standards of the medical community
has not been established in this case, much less has causation been
established to render [Tuaño] liable."63 According to the RTC:
[Petitioners] failed to establish the duty required of a medical
practitioner against which Peter Paul’s treatment by defendant can be
compared with. They did not present any medical expert or even a
medical doctor to convince and expertly explain to the court the
established norm or duty required of a physician treating a patient, or
whether the non taking (sic) by Dr. Tuaño of Peter Paul’s pressure a
deviation from the norm or his non-discovery of the glaucoma in the
course of treatment constitutes negligence. It is important and
indispensable to establish such a standard because once it is
established, a medical practitioner who departed thereof breaches his
duty and commits negligence rendering him liable. Without such
testimony or enlightenment from an expert, the court is at a loss as to
what is then the established norm of duty of a physician against which
defendant’s conduct can be compared with to determine
negligence.64
The RTC added that in the absence of "any medical evidence to the
contrary, this court cannot accept [petitioners’] claim that the use of
steroid is the proximate cause of the damage sustained by [Peter’s]
eye."65
Correspondingly, the RTC accepted Dr. Tuaño’s medical opinion that
"Peter Paul must have been suffering from normal tension glaucoma,
meaning, optic nerve damage was happening but no elevation of the
eye pressure is manifested, that the steroid treatment actually
unmasked the condition that resulted in the earlier treatment of the
glaucoma. There is nothing in the record to contradict such testimony.
In fact, plaintiff’s Exhibit ‘S’ even tends to support them."
Undaunted, petitioners appealed the foregoing RTC decision to the
Court of Appeals. Their appeal was docketed as CA-G.R. CV No. 68666.
On 27 September 2006, the Court of Appeals rendered a decision in
CA-G.R. CV No. 68666 denying petitioners’ recourse and affirming the
appealed RTC Decision. The fallo of the judgment of the appellate
court states:
WHEREFORE, the Decision appealed from is AFFIRMED.66
The Court of Appeals faulted petitioners because they –
[D]id not present any medical expert to testify that Dr. Tuano’s
prescription of Maxitrol and Blephamide for the treatment of EKC on
Peter’s right eye was not proper and that his palpation of Peter’s right
eye was not enough to detect adverse reaction to steroid. Peter
testified that Dr. Manuel Agulto told him that he should not have used
steroid for the treatment of EKC or that he should have used it only for
two (2) weeks, as EKC is only a viral infection which will cure by itself.
However, Dr. Agulto was not presented by [petitioners] as a witness to
confirm what he allegedly told Peter and, therefore, the latter’s
testimony is hearsay. Under Rule 130, Section 36 of the Rules of Court,
a witness can testify only to those facts which he knows of his own
personal knowledge, x x x. Familiar and fundamental is the rule that
hearsay testimony is inadmissible as evidence.67
Like the RTC, the Court of Appeals gave great weight to Dr. Tuaño’s
medical judgment, specifically the latter’s explanation that:
[W]hen a doctor sees a patient, he cannot determine whether or not
the latter would react adversely to the use of steroids, that it was only
on December 13, 1989, when Peter complained for the first time of
headache and blurred vision that he observed that the pressure of the
eye of Peter was elevated, and it was only then that he suspected that
Peter belongs to the 5% of the population who reacts adversely to
steroids.68
Petitioners’ Motion for Reconsideration was denied by the Court of
Appeals in a Resolution dated 3 July 2007.
Hence, this Petition for Review on Certiorari under Rule 45 of the
Revised Rules of Court premised on the following assignment of errors:
I.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN
AFFIRMING THE DECISION OF THE TRIAL COURT DISMISSING THE
PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT
ON THE GROUND OF INSUFFICIENCY OF EVIDENCE;
II.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN
DISMISSING THE PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST
THE RESPONDENT ON THE GROUND THAT NO MEDICAL EXPERT WAS
PRESENTED BY THE PETITIONERS TO PROVE THEIR CLAIM FOR
MEDICAL NEGLIGENCE AGAINST THE RESPONDENT; AND
III.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN
NOT FINDING THE RESPONDENT LIABLE TO THE PETITIONERS’ FOR
ACTUAL, MORAL AND EXEMPLARY DAMAGES, ASIDE FROM
ATTORNEY’S FEES, COSTS OF SUIT, AS A RESULT OF HIS GROSS
NEGLIGENCE.69
A reading of the afore-quoted reversible errors supposedly committed
by the Court of Appeals in its Decision and Resolution would reveal
that petitioners are fundamentally assailing the finding of the Court of
Appeals that the evidence on record is insufficient to establish
petitioners’ entitlement to any kind of damage. Therefore, it could be
said that the sole issue for our resolution in the Petition at bar is
whether the Court of Appeals committed reversible error in affirming
the judgment of the RTC that petitioners failed to prove, by
preponderance of evidence, their claim for damages against Dr. Tuaño.
Evidently, said issue constitutes a question of fact, as we are asked to
revisit anew the factual findings of the Court of Appeals, as well as of
the RTC. In effect, petitioners would have us sift through the evidence
on record and pass upon whether there is sufficient basis to establish
Dr. Tuaño’s negligence in his treatment of Peter’s eye condition. This
question clearly involves a factual inquiry, the determination of which
is not within the ambit of this Court’s power of review under Rule 45 of
the 1997 Rules Civil Procedure, as amended.70
Elementary is the principle that this Court is not a trier of facts; only
errors of law are generally reviewed in petitions for review on
certiorari criticizing decisions of the Court of Appeals. Questions of fact
are not entertained.71
Nonetheless, the general rule that only questions of law may be raised
on appeal in a petition for review under Rule 45 of the Rules of Court
admits of certain exceptions, including the circumstance when the
finding of fact of the Court of Appeals is premised on the supposed
absence of evidence, but is contradicted by the evidence on record.
Although petitioners may not explicitly invoke said exception, it may be
gleaned from their allegations and arguments in the instant
Petition.1avvphi1.zw+
Petitioners contend, that "[c]ontrary to the findings of the Honorable
Court of Appeals, [they] were more than able to establish that: Dr.
Tuaño ignored the standard medical procedure for ophthalmologists,
administered medication with recklessness, and exhibited an absence
of competence and skills expected from him."72 Petitioners reject the
necessity of presenting expert and/or medical testimony to establish
(1) the standard of care respecting the treatment of the disorder
affecting Peter’s eye; and (2) whether or not negligence attended Dr.
Tuaño’s treatment of Peter, because, in their words –
That Dr. Tuaño was grossly negligent in the treatment of Peter’s simple
eye ailment is a simple case of cause and effect. With mere
documentary evidence and based on the facts presented by the
petitioners, respondent can readily be held liable for damages even
without any expert testimony. In any case, however, and contrary to
the finding of the trial court and the Court of Appeals, there was a
medical expert presented by the petitioner showing the recklessness
committed by [Dr. Tuaño] – Dr. Tuaño himself. [Emphasis supplied.]
They insist that Dr. Tuaño himself gave sufficient evidence to establish
his gross negligence that ultimately caused the impairment of the
vision of Peter’s right eye,73 i.e., that "[d]espite [Dr. Tuaño’s]
knowledge that 5% of the population reacts adversely to Maxitrol, [he]
had no qualms whatsoever in prescribing said steroid to Peter without
first determining whether or not the (sic) Peter belongs to the 5%."74
We are not convinced. The judgments of both the Court of Appeals and
the RTC are in accord with the evidence on record, and we are
accordingly bound by the findings of fact made therein.
Petitioners’ position, in sum, is that Peter’s glaucoma is the direct
result of Dr. Tuaño’s negligence in his improper administration of the
drug Maxitrol; "thus, [the latter] should be liable for all the damages
suffered and to be suffered by [petitioners]."75 Clearly, the present
controversy is a classic illustration of a medical negligence case against
a physician based on the latter’s professional negligence. In this type of
suit, the patient or his heirs, in order to prevail, is required to prove by
preponderance of evidence that the physician failed to exercise that
degree of skill, care, and learning possessed by other persons in the
same profession; and that as a proximate result of such failure, the
patient or his heirs suffered damages.
For lack of a specific law geared towards the type of negligence
committed by members of the medical profession, such claim for
damages is almost always anchored on the alleged violation of Article
2176 of the Civil Code, which states that:
ART. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
In medical negligence cases, also called medical malpractice suits,
there exist a physician-patient relationship between the doctor and the
victim. But just like any other proceeding for damages, four essential
(4) elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate
causation,76 must be established by the plaintiff/s. All the four (4)
elements must co-exist in order to find the physician negligent and,
thus, liable for damages.
When a patient engages the services of a physician, a physician-patient
relationship is generated. And in accepting a case, the physician, for all
intents and purposes, represents that he has the needed training and
skill possessed by physicians and surgeons practicing in the same field;
and that he will employ such training, care, and skill in the treatment
of the patient.77 Thus, in treating his patient, a physician is under a
duty to [the former] to exercise that degree of care, skill and diligence
which physicians in the same general neighborhood and in the same
general line of practice ordinarily possess and exercise in like cases.78
Stated otherwise, the physician has the duty to use at least the same
level of care that any other reasonably competent physician would use
to treat the condition under similar circumstances.
This standard level of care, skill and diligence is a matter best
addressed by expert medical testimony, because the standard of care
in a medical malpractice case is a matter peculiarly within the
knowledge of experts in the field.79
There is breach of duty of care, skill and diligence, or the improper
performance of such duty, by the attending physician when the patient
is injured in body or in health [and this] constitutes the actionable
malpractice.80 Proof of such breach must likewise rest upon the
testimony of an expert witness that the treatment accorded to the
patient failed to meet the standard level of care, skill and diligence
which physicians in the same general neighborhood and in the same
general line of practice ordinarily possess and exercise in like cases.
Even so, proof of breach of duty on the part of the attending physician
is insufficient, for there must be a causal connection between said
breach and the resulting injury sustained by the patient. Put in another
way, in order that there may be a recovery for an injury, it must be
shown that the "injury for which recovery is sought must be the
legitimate consequence of the wrong done; the connection between
the negligence and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes";81 that is, the
negligence must be the proximate cause of the injury. And the
proximate cause of an injury is that cause, which, in the natural and
continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred.82
Just as with the elements of duty and breach of the same, in order to
establish the proximate cause [of the injury] by a preponderance of the
evidence in a medical malpractice action, [the patient] must similarly
use expert testimony, because the question of whether the alleged
professional negligence caused [the patient’s] injury is generally one
for specialized expert knowledge beyond the ken of the average
layperson; using the specialized knowledge and training of his field, the
expert’s role is to present to the [court] a realistic assessment of the
likelihood that [the physician’s] alleged negligence caused [the
patient’s] injury.83
From the foregoing, it is apparent that medical negligence cases are
best proved by opinions of expert witnesses belonging in the same
general neighborhood and in the same general line of practice as
defendant physician or surgeon. The deference of courts to the expert
opinion of qualified physicians [or surgeons] stems from the former’s
realization that the latter possess unusual technical skills which laymen
in most instances are incapable of intelligently evaluating;84 hence,
the indispensability of expert testimonies.
In the case at bar, there is no question that a physician-patient
relationship developed between Dr. Tuaño and Peter when Peter went
to see the doctor on 2 September 1988, seeking a consult for the
treatment of his sore eyes. Admittedly, Dr. Tuaño, an ophthalmologist,
prescribed Maxitrol when Peter developed and had recurrent EKC.
Maxitrol or neomycin/polymyxin B sulfates/dexamethasone
ophthalmic ointment is a multiple-dose anti-infective steroid
combination in sterile form for topical application.85 It is the drug
which petitioners claim to have caused Peter’s glaucoma.

However, as correctly pointed out by the Court of Appeals, "[t]he onus
probandi was on the patient to establish before the trial court that the
physicians ignored standard medical procedure, prescribed and
administered medication with recklessness and exhibited an absence
of the competence and skills expected of general practitioners similarly
situated."86 Unfortunately, in this case, there was absolute failure on
the part of petitioners to present any expert testimony to establish: (1)
the standard of care to be implemented by competent physicians in
treating the same condition as Peter’s under similar circumstances; (2)
that, in his treatment of Peter, Dr. Tuaño failed in his duty to exercise
said standard of care that any other competent physician would use in
treating the same condition as Peter’s under similar circumstances;
and (3) that the injury or damage to Peter’s right eye, i.e., his
glaucoma, was the result of his use of Maxitrol, as prescribed by Dr.
Tuaño. Petitioners’ failure to prove the first element alone is already
fatal to their cause.
Petitioners maintain that Dr. Tuaño failed to follow in Peter’s case the
required procedure for the prolonged use of Maxitrol. But what is
actually the required procedure in situations such as in the case at bar?
To be precise, what is the standard operating procedure when
ophthalmologists prescribe steroid medications which, admittedly,
carry some modicum of risk?
Absent a definitive standard of care or diligence required of Dr. Tuaño
under the circumstances, we have no means to determine whether he
was able to comply with the same in his diagnosis and treatment of
Peter. This Court has no yardstick upon which to evaluate or weigh the
attendant facts of this case to be able to state with confidence that the
acts complained of, indeed, constituted negligence and, thus, should
be the subject of pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr. Tuaño should
have determined first whether Peter was a "steroid responder."87 Yet
again, petitioners did not present any convincing proof that such
determination is actually part of the standard operating procedure
which ophthalmologists should unerringly follow prior to prescribing
steroid medications.
In contrast, Dr. Tuaño was able to clearly explain that what is only
required of ophthalmologists, in cases such as Peter’s, is the conduct of
standard tests/procedures known as "ocular routine examination,"88
composed of five (5) tests/procedures – specifically, gross examination
of the eyes and the surrounding area; taking of the visual acuity of the
patient; checking the intraocular pressure of the patient; checking the
motility of the eyes; and using ophthalmoscopy on the patient’s eye –
and he did all those tests/procedures every time Peter went to see him
for follow-up consultation and/or check-up.
We cannot but agree with Dr. Tuaño’s assertion that when a doctor
sees a patient, he cannot determine immediately whether the latter
would react adversely to the use of steroids; all the doctor can do is
map out a course of treatment recognized as correct by the standards
of the medical profession. It must be remembered that a physician is
not an insurer of the good result of treatment. The mere fact that the
patient does not get well or that a bad result occurs does not in itself
indicate failure to exercise due care.89 The result is not determinative
of the performance [of the physician] and he is not required to be
infallible.90
Moreover, that Dr. Tuaño saw it fit to prescribe Maxitrol to Peter was
justified by the fact that the latter was already using the same
medication when he first came to see Dr. Tuaño on 2 September 1988
and had exhibited no previous untoward reaction to that particular
drug. 91
Also, Dr. Tuaño categorically denied petitioners’ claim that he never
monitored the tension of Peter’s eyes while the latter was on Maxitrol.
Dr. Tuaño testified that he palpated Peter’s eyes every time the latter
came for a check-up as part of the doctor’s ocular routine examination,
a fact which petitioners failed to rebut. Dr. Tuaño’s regular conduct of
examinations and tests to ascertain the state of Peter’s eyes negate
the very basis of petitioners’ complaint for damages. As to whether Dr.
Tuaño’s actuations conformed to the standard of care and diligence
required in like circumstances, it is presumed to have so conformed in
the absence of evidence to the contrary.
Even if we are to assume that Dr. Tuaño committed negligent acts in
his treatment of Peter’s condition, the causal connection between Dr.
Tuaño’s supposed negligence and Peter’s injury still needed to be
established. The critical and clinching factor in a medical negligence
case is proof of the causal connection between the negligence which
the evidence established and the plaintiff’s injuries.92 The plaintiff
must plead and prove not only that he has been injured and defendant
has been at fault, but also that the defendant’s fault caused the injury.
A verdict in a malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a reasonable medical
probability based upon competent expert testimony.93
The causation between the physician’s negligence and the patient’s
injury may only be established by the presentation of proof that
Peter’s glaucoma would not have occurred but for Dr. Tuaño’s
supposed negligent conduct. Once more, petitioners failed in this
regard.
Dr. Tuaño does not deny that the use of Maxitrol involves the risk of
increasing a patient’s IOP. In fact, this was the reason why he made it a
point to palpate Peter’s eyes every time the latter went to see him --
so he could monitor the tension of Peter’s eyes. But to say that said
medication conclusively caused Peter’s glaucoma is purely speculative.
Peter was diagnosed with open-angle glaucoma. This kind of glaucoma
is characterized by an almost complete absence of symptoms and a
chronic, insidious course.94 In open-angle glaucoma, halos around
lights and blurring of vision do not occur unless there has been a
sudden increase in the intraocular vision.95 Visual acuity remains good
until late in the course of the disease.96 Hence, Dr. Tuaño claims that
Peter’s glaucoma "can only be long standing x x x because of the large
C:D97 ratio," and that "[t]he steroids provoked the latest glaucoma to
be revealed earlier" was a blessing in disguise "as [Peter] remained
asymptomatic prior to steroid application."
Who between petitioners and Dr. Tuaño is in a better position to
determine and evaluate the necessity of using Maxitrol to cure Peter’s
EKC vis-à-vis the attendant risks of using the same?
That Dr. Tuaño has the necessary training and skill to practice his
chosen field is beyond cavil. Petitioners do not dispute Dr. Tuaño’s
qualifications – that he has been a physician for close to a decade and
a half at the time Peter first came to see him; that he has had various
medical training; that he has authored numerous papers in the field of
ophthalmology, here and abroad; that he is a Diplomate of the
Philippine Board of Ophthalmology; that he occupies various teaching
posts (at the time of the filing of the present complaint, he was the
Chair of the Department of Ophthalmology and an Associate Professor
at the University of the Philippines-Philippine General Hospital and St.
Luke’s Medical Center, respectively); and that he held an assortment of
positions in numerous medical organizations like the Philippine
Medical Association, Philippine Academy of Ophthalmology, Philippine
Board of Ophthalmology, Philippine Society of Ophthalmic Plastic and
Reconstructive Surgery, Philippine Journal of Ophthalmology,
Association of Philippine Ophthalmology Professors, et al.
It must be remembered that when the qualifications of a physician are
admitted, as in the instant case, there is an inevitable presumption
that in proper cases, he takes the necessary precaution and employs
the best of his knowledge and skill in attending to his clients, unless
the contrary is sufficiently established.98 In making the judgment call
of treating Peter’s EKC with Maxitrol, Dr. Tuaño took the necessary
precaution by palpating Peter’s eyes to monitor their IOP every time
the latter went for a check-up, and he employed the best of his
knowledge and skill earned from years of training and practice.
In contrast, without supporting expert medical opinions, petitioners’
bare assertions of negligence on Dr. Tuaño’s part, which resulted in
Peter’s glaucoma, deserve scant credit.
Our disposition of the present controversy might have been vastly
different had petitioners presented a medical expert to establish their
theory respecting Dr. Tuaño’s so-called negligence. In fact, the record
of the case reveals that petitioners’ counsel recognized the necessity of
presenting such evidence. Petitioners even gave an undertaking to the
RTC judge that Dr. Agulto or Dr. Aquino would be presented. Alas, no
follow-through on said undertaking was made.1avvphi1
injury. Absent expert medical opinion, the courts would be
dangerously engaging in speculations.
All told, we are hard pressed to find Dr. Tuaño liable for any medical
negligence or malpractice where there is no evidence, in the nature of
expert testimony, to establish that in treating Peter, Dr. Tuaño failed to
exercise reasonable care, diligence and skill generally required in
medical practice. Dr. Tuaño’s testimony, that his treatment of Peter
conformed in all respects to standard medical practice in this locality,
stands unrefuted. Consequently, the RTC and the Court of Appeals
correctly held that they had no basis at all to rule that petitioners were
deserving of the various damages prayed for in their Complaint.
WHEREFORE, premises considered, the instant petition is DENIED for
lack of merit. The assailed Decision dated 27 September 2006 and
Resolution dated 3 July 2007, both of the Court of Appeals in CA-G.R.
CV No. 68666, are hereby AFFIRMED. No cost.
SO ORDERED.

The plaintiff in a civil case has the burden of proof as he alleges the
affirmative of the issue. However, in the course of trial in a civil case,
once plaintiff makes out a prima facie case in his favor, the duty or the
burden of evidence shifts to defendant to controvert plaintiff’s prima
facie case; otherwise, a verdict must be returned in favor of plaintiff.99
The party having the burden of proof must establish his case by a
preponderance of evidence.100 The concept of "preponderance of
evidence" refers to evidence which is of greater weight or more
convincing than that which is offered in opposition to it;101 in the last
analysis, it means probability of truth. It is evidence which is more
convincing to the court as worthy of belief than that which is offered in
opposition thereto.102 Rule 133, Section 1 of the Revised Rules of
Court provides the guidelines for determining preponderance of
evidence, thus:

In civil cases, the party having the burden of proof must establish his
case by a preponderance of evidence. In determining where the
preponderance or superior weight of evidence on the issues involved
lies the court may consider all the facts and circumstances of the case,
the witnesses’ manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the
nature of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of interest, and
also their personal credibility so far as the same legitimately appear
upon the trial. The court may also consider the number of witnesses,
though the preponderance is not necessarily with the greater number.

Herein, the burden of proof was clearly upon petitioners, as plaintiffs

in the lower court, to establish their case by a preponderance of
evidence showing a reasonable connection between Dr. Tuaño’s
alleged breach of duty and the damage sustained by Peter’s right eye.
This, they did not do. In reality, petitioners’ complaint for damages is
merely anchored on a statement in the literature of Maxitrol
identifying the risks of its use, and the purported comment of Dr.
Agulto – another doctor not presented as witness before the RTC –
concerning the prolonged use of Maxitrol for the treatment of EKC.

It seems basic that what constitutes proper medical treatment is a

medical question that should have been presented to experts. If no
standard is established through expert medical witnesses, then courts
have no standard by which to gauge the basic issue of breach thereof
by the physician or surgeon. The RTC and Court of Appeals, and even
this Court, could not be expected to determine on its own what
medical technique should have been utilized for a certain disease or

G.R. No. 73998 November 14, 1988
PEDRO T. LAYUGAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and
TRAVELLERS MULTI-INDEMNITY CORPORATION, respondents.
Edralin S. Mateo for petitioner.
Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.
Roberto T. Vallarta for respondent Godofredo Isidro.
SARMIENTO, J.:
Assailed in this petition for review on certiorari are 1) the decision 1 of
the then Intermediate Appellate Court 2 in AC-G.R. CV No. 01055,
entitled "Pedro T. Layugan, Plaintiff-Appellee, versus Godofredo Isidro,
Defendant-Appellant and Third-Party Plaintiff-Appellee, versus
Travellers Multi-Indemnity Corporation, Third Party Defendant-
Appellant, "which reversed and set aside the decision 3 of the Regional
Trial Court, Third Judicial Region, Branch XXVI, Cabanatuan City, and
also dismissed the complaint, third party complaint, and the counter
claims of the parties and 2) the resolution 4 denying the plaintiff-
appellee's (herein petitioner) motion for reconsideration, for lack of
merit.
The findings of fact by the trial court which were adopted by the
appellate court are as follows: 5
xxx xxx xxx
Pedro T. Layugan filed an action for damages against Godofredo Isidro,
alleging that on May 15, 1979 while at Baretbet, Bagabag, Nueva
Vizcaya, the Plaintiff and a companion were repairing the tire of their
cargo truck with Plate No. SU-730 which was parked along the right
side of the National Highway; that defendant's truck bearing Plate No.
PW-583, driven recklessly by Daniel Serrano bumped the plaintiff, that
as a result, plaintiff was injured and hospitalized at Dr. Paulino J. Garcia
Research and Medical Center and the Our Lady of Lourdes Hospital;
that he spent TEN THOUSAND PESOS (Pl0,000.00) and will incur more
expenses as he recuperates from said injuries; that because of said
injuries he would be deprived of a lifetime income in the sum of
SEVENTY THOUSAND PESOS (P70,000.00); and that he agreed to pay
his lawyer the sum of TEN THOUSAND PESOS (Pl0,000.00).
As prayed for by the plaintiffs counsel, the Court declared the
defendant in default on October 12, 1979, and plaintiff's evidence was
received ex-parte on January 11, 1978 and February 19, 1980. The
decision on behalf of the plaintiff was set aside to give a chance to the
defendant to file his answer and later on, a third-party complaint.
Defendant admitted his ownership of the vehicle involved in the
accident driven by Daniel Serrano. Defendant countered that the
plaintiff was merely a bystander, not a truck helper being a brother-in-
law law of the driver of said truck; that the truck allegedly being
repaired was parked, occupying almost half of the right lane towards
Solano, Nueva Vizcaya, right after the curve; that the proximate cause
of the incident was the failure of the driver of the parked truck in
installing the early warning device, hence the driver of the parked car
should be liable for damages sustained by the truck of the herein
defendant in the amount of more than P20,000.00; that plaintiff being
a mere bystander and hitchhiker must suffer all the damages he
incurred. By way of counterclaim defendant alleged that due to
plaintiffs baseless complaint he was constrained to engage the services
of counsel for P5,000.00 and P200.00 per court appearance; that he
suffered sleepless nights, humiliation, wounded feelings which may be
estimated at P30.000.00.
On May 29, 1981, a third-party complaint was filed by the defendant
against his insurer, the Travellers Multi Indemnity Corporation; that
the third-party plaintiff, without admitting his liability to the plaintiff,
claimed that the third-party defendant is liable to the former for
contribution, indemnity and subrogation by virtue of their contract
under Insurance Policy No. 11723 which covers the insurer's liability
for damages arising from death, bodily injuries and damage to
property.
Third-party defendant answered that, even assuming that the subject
matter of the complaint is covered by a valid and existing insurance
policy, its liability shall in no case exceed the limit defined under the
terms and conditions stated therein; that the complaint is premature
as no claim has been submitted to the third party defendant as
prescribed under the Insurance Code; that the accident in question
was approximately caused by the carelessness and gross negligence of
the plaintiff-, that by reason of the third-party complaint, third-party
defendant was constrained to engage the services of counsel for a fee
of P3,000.00.
Pedro Layugan declared that he is a married man with one (1) child. He
was employed as security guard in Mandaluyong, Metro Manila, with a
salary of SIX HUNDRED PESOS (600.00) a month. When he is off-duty,
he worked as a truck helper and while working as such, he sustained
injuries as a result of the bumping of the cargo truck they were
repairing at Baretbet, Bagabag, Nueva Vizcaya by the driver of the
defendant. He used to earn TWO HUNDRED PESOS (P200.00) to THREE
HUNDRED PESOS (P300.00) monthly, at the rate of ONE HUNDRED
PESOS (Pl00.00) per trip. Due to said injuries, his left leg was
amputated so he had to use crutches to walk. Prior to the incident, he
supported his family sufficiently, but after getting injured, his family is
now being supported by his parents and brother.
GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his
truck involved in this vehicular accident is insured with the Travellers
Multi Indemnity Corporation covering own damage and third-party
liability, under vehicle policy No. 11723 (Exh. "1") dated May 30, 1978;
that after he filed the insurance claim the insurance company paid him
the sum of P18,000.00 for the damages sustained by this truck but not
the third party liability.
DANIEL SERRANO, defendant driver, declared that he gave a statement
before the municipal police of Bagabag, Nueva Vizcaya on May 16,
1979; that he knew the responsibilities of a driver; that before leaving,
he checked the truck. The truck owner used to instruct him to be
careful in driving. He bumped the truck being repaired by Pedro
Layugan, plaintiff, while the same was at a stop position. From the
evidence presented, it has been established clearly that the injuries
sustained by the plaintiff was caused by defendant's driver, Daniel
Serrano. The police report confirmed the allegation of the plaintiff and
admitted by Daniel Serrano on cross-examination. The collision
dislodged the jack from the parked truck and pinned the plaintiff to the
ground. As a result thereof, plaintiff sustained injuries on his left
forearm and left foot. The left leg of the plaintiff from below the knee
was later on amputated (Exh. "C") when gangrene had set in, thereby
rendering him incapacitated for work depriving him of his income. (pp.
118 to 120, Record on Appeal.)
xxx xxx xxx
Upon such findings, amply supported by the evidence on record, the
trial court rendered its decision, the dispositive part of which reads as
follows: 6
WHEREFORE, premises considered, the defendant is hereby ordered:
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS
actual and compensatory damages;
b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;
c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and
d) To pay the costs of this suit. On the third-party complaint,
the third-party defendant is ordered to indemnify the defendant/third
party plaintiff-.
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual
and compensatory damages; and
b) The costs of this suit.
The Intermediate Appellate Court as earlier stated reversed the
decision of the trial court and dismissed the complaint, the third-party
complaint, and the counter- claims of both appellants. 7
Hence, this petition.
The petitioner alleges the following errors. 8
1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE
APPELLATE COURT ACTED CORRECTLY IN REVERSING AND SETTING
ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S COMPLAINT.
2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED
CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA LOQUITUR"
WITH PROPER JURIS- PRUDENTIAL (sic) BASIS.
The crux of the controversy lies in the correctness or error of the
decision of the respondent court finding the petitioner negligent under
the doctrine of Res ipsa loquitur (The thing speaks for
itself).<äre||anº•1àw> Corollary thereto, is the question as to who is
negligent, if the doctrine is inapplicable.
The respondent corporation stresses that the issues raised in the
petition being factual, the same is not reviewable by this Court in a
petition for review by certiorari. 9
Indeed, it is an elementary rule in the review of decisions of the Court
of Appeals that its findings of fact are entitled to great respect and will
not ordinarily be disturbed by this Court. 10 For if we have to review
every question of fact elevated to us, we would hardly have any more
time left for the weightier issues compelling and deserving our
preferential attention.11 Be that as it may, this rule is not inflexible.
Surely there are established exceptions 12 —when the Court should
review and rectify the findings of fact of the lower court, such as:
1) when the conclusion is a finding grounded entirely on
speculation, surmise, or conjecture; 2) the inference made is
manifestly mistaken; 3) there is grave abuse of discretion; 4) the
judgment is based on misapprehension of facts; 5) the Court of
Appeals went beyond the issues of the case if the findings are contrary
to the admission of both the appellant and the appellee; 6) the findings
of the Court of Appeals are contrary to those of the trial court; 7) the
said findings of fact are conclusions without citation of specific
evidence on which they are based; 8) the facts set forth in the petition
as well as in the petitioner's main and reply briefs are not disputed by
the respondents; and 9) when the findings of fact of the Court of
Appeals are premised on the absence of evidence and are contradicted
on record.
Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a
deviation from the general rule.
From its finding that the parked truck was loaded with ten (10) big
round logs 13 the Court of Appeals inferred that because of its weight
the truck could not have been driven to the shoulder of the road and
concluded that the same was parked on a portion of the road 14 at the
time of the accident. Consequently, the respondent court inferred that
the mishap was due to the negligence of the driver of the parked
truck.15 The inference or conclusion is manifestly erroneous. In a large
measure, it is grounded on speculation, surmise, or conjecture. How
the respondent court could have reversed the finding of the trial court
that a warning device was installed 16 escapes us because it is evident
from the record that really such a device, in the form of a lighted
kerosene lamp, was installed by the driver of the parked truck three to
four meters from the rear of his parked truck.17 We see this negative
finding of the respondent appellate court as a misreading of the facts
and the evidence on record and directly contravening the positive
finding of the trial court that an early warning device was in proper
place when the accident happened and that the driver of the private
respondent was the one negligent. On the other hand, the respondent
court, in refusing to give its "imprimatur to the trial court's finding and
conclusion that Daniel Serrano (private respondent Isidro's driver) was
negligent in driving the truck that bumped the parked truck", did not
cite specific evidence to support its conclusion. In cavalier fashion, it
simply and nebulously adverted to unspecified "scanty evidence on
record." 18
On the technical aspect of the case, the respondent corporation would
want us to dismiss this petition on the ground that it was filed out of
time. It must be noted that there was a motion for extension, 19 albeit
filed erroneously with the respondent court, dated March 19, 1986,
requesting for 30 days from March 20, 1986, to file the necessary
petition or pleading before the Supreme Court". Also, on April 1, 1986,
an appearance of a new lawyer for the petitioner before the Supreme
Court" with motion 20 was filed, again erroneously, with the Court of
Appeals, requesting for 20 days extension "to file the Petition for
Review on Certiorari." Likewise a similar motion 21 was filed with this
Court also on April 1, 1986. On the other hand, the instant petition for
review was filed on April 17, 1986 22 but it was only after three
months, on August 1, 1986, in its comment 23 that the respondent
corporation raised the issue of tardiness. The respondent corporation
should not have waited in ambush before the comment was required
and before due course was given. In any event, to exact its "a pound of
flesh", so to speak, at this very late stage, would cause a grave
miscarriage of justice. Parenthetically, it must be noted that private
respondent Isidro did not raise this issue of late filing.
We now come to the merits of this petition.
The question before us is who was negligent? Negligence is the
omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs,
would do, or the doing of something which a prudent and reasonable
man would not do24 or as Judge Cooley defines it, "(T)he failure to
observe for the protection of the interests of another person, that
degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury.25
In Picart vs. Smith, 26 decided more than seventy years ago but still a
sound rule, we held:
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that reasonable care and caution which
an ordinarily prudent person would have used in the same situation? If
not, then he is guilty of negligence. The law here in effect adopts the
standard supposed to be supplied by the imaginary conduct of the
discreet 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.
Respondent Isidro posits that any immobile object along the highway,
like a parked truck, poses serious danger to a moving vehicle which has
the right to be on the highway. He argues that since the parked cargo
truck in this case was a threat to life and limb and property, it was
incumbent upon the driver as well as the petitioner, who claims to be a
helper of the truck driver, to exercise extreme care so that the
motorist negotiating the road would be properly forewarned of the
peril of a parked vehicle. Isidro submits that the burden of proving that
care and diligence were observed is shifted to the petitioner, for, as
previously claimed, his (Isidro's) Isuzu truck had a right to be on the
road, while the immobile cargo truck had no business, so to speak, to
be there. Likewise, Isidro proffers that the petitioner must show to the
satisfaction of a reasonable mind that the driver and he (petitioner)
himself, provided an early warning device, like that required by law, or,
by some other adequate means that would properly forewarn vehicles
of the impending danger that the parked vehicle posed considering the
time, place, and other peculiar circumstances of the occasion. Absent
such proof of care, as in the case at bar, Isidro concludes, would, under
the doctrine of Res ipsa loquitur, evoke the presumption of negligence
on the part of the driver of the parked cargo truck as well as his helper,
the petitioner herein, who was fixing the flat tire of the said truck. 27
Respondent Isidro's contention is untenable.
The evidence on record discloses that three or four meters from the
rear of the parked truck, a lighted kerosene lamp was placed.28
Moreover, there is the admission of respondent Isidro's driver, Daniel
Serrano, to Wit: 29
Question No. 8 (by Patrolman Josefino Velasco)—Will you narrate to
me in brief how the accident happens (sic) if you can still remember?
Answer: (by Daniel Serrano)
That on or about 10:40 p.m., 15 May 1979 while driving Isuzu truck at
Baretbet, Bagabag, Nueva Vizcaya and at KM 285, I met another
vehicle who (sic) did not dim his (sic) lights which cause (sic) me to be
blinded with intense glare of the light that's why I did not notice a
parked truck who (sic) was repairing a front flat tire. When I was a few
meters away, I saw the truck which was loaded with round logs. I step
(sic) on my foot brakes but it did not function with my many attempts.
I have (sic) found out later that the fluid pipe on the rear right was cut
that's why the breaks did not function. (Emphasis supplied).
Whether the cargo truck was parked along the road or on half the
shoulder of the right side of the road would be of no moment taking
into account the warning device consisting of the lighted kerosene
lamp placed three or four meters from the back of the truck. 30 But
despite this warning which we rule as sufficient, the Isuzu truck driven
by Daniel Serrano, an employee of the private respondent, still
bumped the rear of the parked cargo truck. As a direct consequence of
such accident the petitioner sustained injuries on his left forearm and
left foot. His left leg was later amputated from below the knee when
gangrene had set in. 31
It is clear from the foregoing disquisition that the absence or want of
care of Daniel Serrano has been established by clear and convincing
evidence. It follows that in stamping its imprimatur upon the
invocation by respondent Isidro of the doctrine of Res ipsa loquitur to
escape liability for the negligence of his employee, the respondent
court committed reversible error.
The respondent court ruled: 32
xxx xxx xxx
In addition to this, we agree with the following arguments of appellant
Godofredo Isidro which would show that the accident was caused due
to the negligence of the driver of the cargo truck:
xxx xxx xxx
... In the case at bar the burden of proving that care and diligence was
(sic) observed is shifted evidently to the plaintiff, for, as adverted to,
the motorists have the right to be on the road, while the immobile
truck has no business, so to speak, to be there. It is thus for the
plaintiff to show to the satisfaction of a reasonable mind that the
driver and he himself did employ early warning device such as that
required by law or by some other adequate means or device that
would properly forewarn vehicles of the impending danger that the
parked vehicle posed considering the time, place and other peculiar
circumstances of the occasion. Absent such proof of care, as in the
case at bar, will evoke the presumption of negligence under the
doctrine of res ipsa loquitur, on the part of the driver of the parked
cargo truck as well as plaintiff who was fixing the flat tire of said truck.
(pp. 14-17, Appellant's Brief). (Emphasis supplied).
At this juncture, it may be enlightening and helpful in the proper
resolution of the issue of negligence to examine the doctrine of Res
ipsa loquitur.
This doctrine is stated thus: "Where the thing which causes injury is
shown to be under the management of the defendant, and the
accident is such as in the ordinary course of things does not happen if
those who have the management use proper care, it affords
reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care. 33 Or as Black's
Law Dictionary 34 puts it:
Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or
inference that defendant was negligent, which arises upon proof that
instrumentality causing injury was in defendant's exclusive control, and
that the accident was one which ordinarily does not happen in absence
of negligence. Res ipsa loquitur is rule of evidence whereby negligence
of alleged wrongdoer may be inferred from mere fact that accident
happened provided character of accident and circumstances attending
it lead reasonably to belief that in absence of negligence it would not
have occurred and that thing which caused injury is shown to have
been under management and control of alleged wrongdoer. Hillen v.
Hooker Const. Co., Tex. Civ. App., 484 S.W. 2d 133, 155. Under doctrine
of "res ipsa loquitur" the happening of an injury permits an inference
of negligence where plaintiff produces substantial evidence that injury
was caused by an agency or instrumentality under exclusive control
and management of defendant, and that the occurrence was such that
in the ordinary course of things would not happen if reasonable care
had been used.
In this jurisdiction we have applied this doctrine in quite a number of
cases, notably in Africa et al. vs. Caltex, Inc., et al., 35 and the latest is
in the case of F.F. Cruz and Co., Inc. vs. CA.36
The doctrine of Res 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. 37 The doctrine is not a rule of substantive law 38
but merely a mode of proof or a mere procedural convenience. 39 The
rule, when applicable to the facts and circumstances of a particular WHEREFORE, the petition is hereby GRANTED. The Decision of the
case, is not intended to and does not dispense with the requirement of respondent court as well as its Resolution denying the petitioner's
proof of culpable negligence on the part of the party charged. 40 It motion for reconsideration are hereby SET ASIDE and the decision of
merely determines and regulates what shall be prima facie evidence the trial court, dated January 20, 1983, is hereby REINSTATED in toto.
thereof and facilitates the burden of plaintiff of proving a breach of the With costs against the private respondents.
duty of due care.41 The doctrine can be invoked when and only when,
under the circumstances involved, direct evidence is absent and not SO ORDERED.
readily available. 42 Hence, it has generally been held that the
presumption of inference arising from the doctrine cannot be availed
of, or is overcome, where plaintiff has knowledge and testifies or
presents evidence as to the specific act of negligence which is the
cause of the injury complained of or where there is direct evidence as
to the precise cause of the accident and all the facts and circumstances
attendant on the occurrence clearly appear. 43 Finally, once the actual
cause of injury is established beyond controversy, whether by the
plaintiff or by the defendant, no presumptions will be involved and the
doctrine becomes inapplicable when the circumstances have been so
completely eludicated that no inference of defendant's liability can
reasonably be made, whatever the source of the evidence, 44 as in this
case.

The private respondent is sued under Art. 2176 in relation to Art. 2180,
paragraph 5, of the Civil Code. In the latter, 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 selection, or both. Such presumption is
juris tantum and not juris et de jure and consequently, may be
rebutted. If follows necessarily that if the employer shows to the
satisfaction of the court that in the selection and in the 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. 45 In
disclaiming liability for the incident, the private respondent stresses
that the negligence of his employee has already been adequately
overcome by his driver's statement that he knew his responsibilities as
a driver and that the truck owner used to instruct him to be careful in
driving. 46

We do not agree with the private respondent in his submission. In the

first place, it is clear that the driver did not know his responsibilities
because he apparently did not check his vehicle before he took it on
the road. If he did he could have discovered earlier that the brake fluid
pipe on the right was cut, and could have repaired it and thus the
accident could have been avoided. Moveover, to our mind, the fact
that the private respondent used to intruct his driver to be careful in
his driving, that the driver was licensed, and the fact that he had no
record of any accident, as found by the respondent court, are not
sufficient to destroy the finding of negligence of the Regional Trial
Court given the facts established at the trial 47 The private respondent
or his mechanic, who must be competent, should have conducted a
thorough inspection of his vehicle before allowing his driver to drive it.
In the light of the circumstances obtaining in the case, we hold that
Isidro failed to prove that the diligence of a good father of a family in
the supervision of his employees which would exculpate him from
solidary liability with his driver to the petitioner. But even if we
concede that the diligence of a good father of a family was observed
by Isidro in the supervision of his driver, there is not an iota of
evidence on record of the observance by Isidro of the same quantum
of diligence in the supervision of his mechanic, if any, who would be
directly in charge in maintaining the road worthiness of his (Isidro's)
truck. But that is not all. There is paucity of proof that Isidro exercised
the diligence of a good father of a family in the selection of his driver,
Daniel Serrano, as well as in the selection of his mechanic, if any, in
order to insure the safe operation of his truck and thus prevent
damage to others. Accordingly, the responsibility of Isidro as employer
treated in Article 2180, paragraph 5, of the Civil Code has not ceased.
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 petition was filed on 9
May 1996, well within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following
grounds:
I of is shown to be under the management of the defendant or his
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
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 A: As far as I know, when a patient is in that position, there is a
the patient? decrease of blood supply to the brain. 46

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

Q: Do you know what happened to that intubation process The appellate court, however, disbelieved Dean Cruz's testimony in the
administered by Dra. Gutierrez? trial court by declaring that:

ATTY. ALCERA: A perusal of the standard nursing curriculum in our country will show
that intubation is not taught as part of nursing procedures and
She will be incompetent Your Honor. techniques. Indeed, we take judicial notice of the fact that nurses do
not, and cannot, intubate. Even on the assumption that she is fully
COURT: capable of determining whether or not a patient is properly intubated,
witness Herminda Cruz, admittedly, did not peep into the throat of the
Witness may answer if she knows. patient. (TSN, July 25, 1991, p. 13). More importantly, there is no
evidence that she ever auscultated the patient or that she conducted
A: As have said, I was with the patient, I was beside the any type of examination to check if the endotracheal tube was in its
stretcher holding the left hand of the patient and all of a sudden heard proper place, and to determine the condition of the heart, lungs, and
some remarks coming from Dra. Perfecta Gutierrez herself. She was other organs. Thus, witness Cruz's categorical statements that
saying "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos
lumalaki ang tiyan. and that it was Dra. Calderon who succeeded in doing so clearly suffer
from lack of sufficient factual bases. 47
xxx xxx xxx
In other words, what the Court of Appeals is trying to impress is that
ATTY. PAJARES: being a nurse, and considered a layman in the process of intubation,
witness Cruz is not competent to testify on whether or not the
Q: From whom did you hear those words "lumalaki ang tiyan"? intubation was a success.

A: From Dra. Perfecta Gutierrez. We do not agree with the above reasoning of the appellate court.
Although witness Cruz is not an anesthesiologist, she can very well
xxx xxx xxx testify upon matters on which she is capable of observing such as, the
statements and acts of the physician and surgeon, external
Q: After hearing the phrase "lumalaki ang tiyan," what did you appearances, and manifest conditions which are observable by any
notice on the person of the patient? 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
A: I notice (sic) some bluish discoloration on the nailbeds of the accepted rule that expert testimony is not necessary for the proof of
left hand where I was at. negligence in non-technical matters or those of which an ordinary
person may be expected to have knowledge, or where the lack of skill
Q: Where was Dr. Orlino Ho[s]aka then at that particular time? or want of care is so obvious as to render expert testimony
unnecessary. 49 We take judicial notice of the fact that anesthesia
A: I saw him approaching the patient during that time. procedures have become so common, that even an ordinary person
can tell if it was administered properly. As such, it would not be too
Q: When he approached the patient, what did he do, if any? difficult to tell if the tube was properly inserted. This kind of
observation, we believe, does not require a medical degree to be
A: He made an order to call on the anesthesiologist in the acceptable.
person of Dr. Calderon.
At any rate, without doubt, petitioner's witness, an experienced clinical
Q: Did Dr. Calderon, upon being called, arrive inside the nurse whose long experience and scholarship led to her appointment
operating room? as Dean of the Capitol Medical Center School at Nursing, was fully
capable of determining whether or not the intubation was a success.
A: Yes sir. She had extensive clinical experience starting as a staff nurse in
Chicago, Illinois; staff nurse and clinical instructor in a teaching
Q: What did [s]he do, if any? 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
A: [S]he tried to intubate the patient. Nursing. 50 Reviewing witness Cruz' statements, we find that the same
were delivered in a straightforward manner, with the kind of detail,
Q: What happened to the patient? clarity, consistency and spontaneity which would have been difficult to
fabricate. With her clinical background as a nurse, the Court is satisfied
A: When Dr. Calderon try (sic) to intubate the patient, after a that she was able to demonstrate through her testimony what truly
while the patient's nailbed became bluish and I saw the patient was transpired on that fateful day.
placed in trendelenburg position.
Most of all, her testimony was affirmed by no less than respondent
xxx xxx xxx Dra. Gutierrez who admitted that she experienced difficulty in inserting
the tube into Erlinda's trachea, to wit:
Q: Do you know the reason why the patient was placed in that
trendelenburg position? 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. 183198 November 25, 2009
LUZ PALANCA TAN, Petitioner,
vs.
JAM TRANSIT, INC., Respondent.
DECISION
NACHURA, J.:
This is a petition for review on certiorari1 under Rule 45 of the Rules of
Court, seeking the reversal of the Decision2 dated June 2, 2008 of the
Court of Appeals (CA) in CA-G.R. CV No. 89046 and the reinstatement
of the Decision3 dated December 20, 2006 of the Regional Trial Court
(RTC), Branch 27, Santa Cruz, Laguna in Civil Case No. SC-3838.
The antecedents are as follows—
In her Complaint, petitioner Luz Palanca Tan (Tan) alleged that she was
the owner of a passenger-type jitney with plate number DKF-168. On
March 14, 1997, at around 5:00 a.m., the said jitney figured in an
accident at an intersection along Maharlika Highway, Barangay
Bangyas, Calauan, Laguna, as it collided with a JAM Transit passenger
bus bound for Manila, bearing plate number DVG-557 and body
number 8030. The bus was driven by Eddie Dimayuga (Dimayuga).
At the time of the collision, Tan’s jitney was loaded with quail eggs and
duck eggs (balot and salted eggs). It was driven by Alexander M.
Ramirez (Ramirez). Tan alleged that Dimayuga was reckless, negligent,
imprudent, and not observing traffic rules and regulations, causing the
bus to collide with the jitney which was then, with care and proper
light direction signals, about to negotiate a left turn towards the feeder
or barangay road of Barangay Bangyas, Calauan, Laguna going to the
Poblacion. The jitney turned turtle along the shoulder of the road and
the cargo of eggs was destroyed. Ramirez and his helper were injured
and hospitalized, incurring expenses for medical treatment at the
Pagamutang Pangmasa in Bay, Laguna. Tan prayed for damages in the
amount of ₱400,000.00 for the damaged jitney, ₱142,210.00 for the
destroyed shipment, ₱20,000.00 for moral damages, attorney’s fees of
₱20,000.00 plus ₱1,000.00 per court appearance of counsel, and other
reliefs warranted under the premises.
In its Answer with Counterclaim, respondent JAM Transit, Inc. (JAM)
admitted ownership of the subject passenger bus and that Dimayuga
was under its employ. However, it denied the allegations in the
Complaint, and claimed that the accident occurred due to the gross
negligence of
Ramirez. As counterclaim, JAM sought payment of ₱100,000.00 for the
damages sustained by the bus, ₱100,000.00 for loss of income, and
₱50,000.00 as attorney’s fees plus ₱3,000.00 per court appearance of
counsel.
After pretrial, trial on the merits ensued.
Tan proffered testimonial evidence, summarized by the RTC, and
quoted by the CA, as follows:
LUZ PALANCA TAN, 47 years old, married, a resident of Sta. Cruz,
Laguna and a businesswoman, testified to the facts stated in the
complaint that: She is engaged in the business of nets and ropes, and
egg dealership based [in] Santa Cruz, Laguna. She supplies her products
to her customers [in] San Pablo and Lucena. On March 14, 1997, while
at home, she was informed by her husband that one of their jeepneys,
which was loaded with eggs, was bumped by a JAM Transit bus when
the latter overtook the jeepney. The vehicle was driven by one
Alexander Ramirez, who has one "Monching" as a companion. As a
result of the accident, she incurred damages in the amount of
₱650,000.00 based on the following computation: ₱400,000.00 as
actual damage sustained by the jeepney, from an estimate (Exhibit
"D") furnished by Plantilla Motors; ₱142,000.00 for the lost value of
the egg shipment, based on a certification issued by the Calauan Police
Station; and ₱15,000.00, for the hospitalization and treatment of the
driver and his companion. The jeepney is duly registered as evidenced
by its registration receipt (Exhibit "G"). On cross examination, she
testified that Ramirez, the jeepney driver when the accident occurred,
was under her employ since 1993 and is still working for her.
On redirect, the plaintiff testified that prior to March 13, 1997, the day
the accident happened, Ramirez has not met any vehicular accident
and that it was only in the aforestated date when he figured in one. On
re-cross, she testified that she has no knowledge of Ramirez’ prior
experience as a driver. She did not ask Ramirez for his NBI or police
clearance prior to her hiring the said driver. On additional redirect, the
plaintiff testified that she is satisfied with the performance of Ramirez
as a driver as he is kind.
ALEXANDER RAMIREZ, 35 years old, married, resident of Sta. Cruz,
Laguna, and a driver testified that: He knows the plaintiff Luz Palanca
Tan because she is his manager. He worked for her as a driver
sometime in 1993. He sometimes drove a jeepney or a truck.
On March 13, 1997, at around 4:00 o’clock in the morning, he reported
for work at his employer’s warehouse located [in] Pagsawitan, Sta.
Cruz. He got the passenger jeep loaded with salted eggs, "balot" and
quail eggs for delivery to Lucena City upon instruction of Tan. In going
to Lucena City, he chose to drive on the Maharlika Road at San Isidro,
Brgy. Bangyas, Calauan, Laguna because it is better than the road along
Brgy. Dayap of the same municipality. However, while at the Maharlika
Road, he met an accident at around 5:00 a.m. The jitney turned turtle.
PO3 DANIEL C. ESCARES, 37 years old, married, resident of Calauan,
Laguna, and a member of PNP-Calauan, Laguna, testified that: He was
on police duty as of March 14, 1997. On that day, he issued a
certification (Exhibit "B") pertaining to a vehicular accident which
occurred earlier. He came to know of the accident as relayed to their
office by a concerned citizen. He proceeded to the place of the
accident, which was at Maharlika Highway, in an intersection at Brgy.
Bangyas, Calauan, Laguna for an investigation. Upon reaching the
place, as a rule followed by police officers, he inquired from some of
the residents about the incident. As relayed to him, the jeepney with
Plate No. 168 was going towards the direction of San Isidro, followed
by another jeepney, a truck and then by a JAM Transit bus. The bus
overtook the jeepney it was following then side swept the jeepney
(which figured in the accident) dragging it along ("nakaladkad")
towards the sampaguita gardens. [NOTE: The testimony of the witness
regarding the information gathered was ordered by the Court to be
deleted.] Then, he went personally to the place where the incident
happened.
He stated it was cloudy that day. He described the highway where the
incident happened as having a double straight yellow line which
prohibits overtaking on both sides of the road. The said place is near
the intersection of Maharlika Highway and the barangay road leading
to Brgy. San Isidro.
On cross examination, he stated he cannot remember if he was with
other police officers during the investigation of the incident but he can
recall having interviewed a certain Mercy Ponteiros and one Rodel,
who are both residents of the place.
On redirect, he stated that the witness Mercy Ponteiros is still residing
at Brgy. Bangyas[.]
On additional direct examination, he stated that the accident site is still
fresh in his mind and he drew a sketch (Exhibit "F" to "F-7") of the said
place. He identified in the sketch the direction of the highway which
leads to Manila and to Sta. Cruz, Laguna. The road, per his
approximation, was about 10 meters wide, with the shoulder about 5
meters except that it was diminished to about 2 meters on account of
some encroachment. The highway has a painted crosswalk. It also has
a yellow line without any cut which means no vehicle could overtake
from both sides of the road. He showed in the sketch the spot where
the jitney and the bus were at the time of the incident. Shown the
photographs (Exhibits "E" to "E-6"), he stated that they are truly
reflective of the scene of the incident, the damages in both the
jeepney and the bus, as of March 13, 1997.
On cross, he stated that what he saw was the situation after the
incident. He came to learn of the accident at around 5:10 in the
morning from a report received by their office, as relayed by a
concerned citizen. He remembers that SPO4 Rogelio Medina, now
retired, as one of his companions at the accident site. The site is about
a kilometer away from their police station. He can recall the scene of
the incident because of the photographs. The persons he investigated
were the jitney driver, his "pahinante" (helper) and some people in the
vicinity. He could not remember the names of those persons but they
were listed in the police blotter.
RODRIGO CONDINO, 38 years old, married, resident of Victoria, Laguna
and a mechanic, testified that: He is a mechanic of Plantilla Motors at
Bubucal, Sta. Cruz, Laguna. He knows the plaintiff Luz Tan as he and his
chief (mechanic) repaired the jeepney owned by the latter after it
figured in an accident on March 13, 1997. He came to know of the
accident when the said vehicle was brought to their motor shop. They
made an estimate (Exhibit "D") of the damage sustained by the said
vehicle, which amounted to ₱450,000.00.4
Tan also formally offered as exhibits the following documents:
Exhibit "A" - Articles of Incorporation of JAM Transit, Inc.;
Exhibit "B" - Certification issued by the Calauan Municipal Police
Station regarding the vehicular accident;
Exhibit "C" - PNP-Calauan Police Report regarding the jitney shipment;
Exhibit "D" - Estimate of damages sustained by the jitney, from A.
Plantilla Motors Repair Shop;
Exhibit "E" - Six (6) photographs depicting the site of the vehicular
accident;
Exhibit "F" - Four (4) pages of receipts representing hospital and
medical expenses paid by the plaintiff for injuries sustained by her
driver and helper in the accident;
Exhibit "G" - Certificate of Registration of plaintiff’s jitney;
Exhibit "H" - Driver’s license of Eddie Dimayuga, defendant’s bus
driver;
Exhibit "I" - Sketch of the site where the vehicular accident occurred.5
On the other hand, JAM offered the following testimonial evidence –
EDGARDO DIMAYUGA, 49 years old, married, resident of Sta. Cruz,
Laguna and bus driver of JAM Transit Inc., testified that: He has been a
passenger bus driver since 1983. He was previously employed with the
Batangas Laguna Tayabas Bus Company (BLTB). He was employed with
JAM Transit since 1992. He has a professional driver’s license, D-12-78-
008462562.
On March 14, 1997, he reported for work. He met an accident while
driving a bus. The other vehicle involved, a jitney, belongs to Luz
Palanca Tan and driven by Alexander Ramirez. The accident happened
along the intersection of Maharlika Highway, Brgy. Bangyas at around
5:00 o’clock in the morning. He was driving the bus with a speed of 40
km/h when suddenly, a vehicle overtook the bus from the right side
going to Calauan. He was not able to evade the vehicle as there was no
way for him to do so. The front portion of the bus and the mirror were
destroyed.
On cross examination, he stated that his route as of March 14, 1997
was Sta. Cruz-Lawton. He cannot recall the bus conductor who was on
Bangyas, Calauan. He stated he was not able to evade the jitney as
there was no way for him to avoid the situation, causing the jitney to
be dragged to the side. Nothing else happened after the bus hit the
jeepney. He and other persons took the driver from the jeepney and
brought him to a hospital.
On redirect, he stated that bus conductors change duties every two or
three days.6
JAM did not offer any documentary counter-evidence.
Applying the doctrine of res ipsa loquitur, the RTC found the JAM
passenger bus driver at fault as he was then violating a traffic
regulation when the collision took place. Thus, the RTC ruled in favor of
Tan and disposed as follows—
WHEREFORE, judgment is hereby rendered against the defendants
who are hereby adjudged to pay the plaintiff jointly and solidarily, the
following:
1. actual damages of ₱142,210.00 for the lost and damaged cargoes;
₱400,000.00 for the destroyed jitney; ₱1,327.00 medical expenses of
the jitney driver and his companion, for a total amount of
[₱543,537.00];
2. ₱10,000.00 as moral damages;
3. ₱10,000.00 as attorney’s fees[;]
4. Costs of suit[.]
SO ORDERED.7
Aggrieved, JAM appealed to the CA. The CA granted the appeal and
dismissed the complaint on the ground that there was nothing on
record that supported the RTC’s finding that the JAM passenger bus
was overtaking Tan’s jitney. The CA noted that Ramirez only testified
that, on March 14, 1997, he met an accident at around 5:00 a.m., while
transporting eggs along Maharlika Road in San Isidro, Barangay
Bangyas, Calauan, Laguna, causing the jitney he was driving to turn
turtle. The CA also observed that the Certification (Exhibit "B") made
no mention that the JAM passenger bus was overspeeding or that it
was overtaking the jitney; and, thus, there was no evidence as to who
between Ramirez and Dimayuga was negligent in connection with the
vehicular accident. The CA held that the doctrine of res ipsa loquitur
can only be invoked when direct evidence is nonexistent or not
accessible. It further said that Tan had access to direct evidence as to
the precise cause of the mishap, such that the circumstances of the
vehicular accident or the specific act constituting the supposed
negligence of Dimayuga could have been testified to by Ramirez or by
the latter’s companion. The CA concluded that res ipsa loquitur could
not apply in this case because the doctrine does not dispense with the
requirement of establishing proof of negligence.
Hence, this petition, with petitioner positing that the doctrine of res
ipsa loquitur is applicable given the circumstances of the case.
Res ipsa loquitur is a Latin phrase that literally means "the thing or the
transaction speaks for itself." It is a maxim for the rule that the fact of
the occurrence of an injury, taken with the surrounding circumstances,
may permit an inference or raise a presumption of negligence, or make
out a plaintiff’s prima facie case, and present a question of fact for
defendant to meet with an explanation. Where the thing that caused
the injury complained of is shown to be under the management of the
defendant or his servants; and the accident, in the ordinary course of
things, would not happen if those who had management or control
used proper care, it affords reasonable evidence -- in the absence of a
sufficient, reasonable and logical explanation by defendant -- that the
accident arose from or was caused by the defendant’s want of care.
This rule is grounded on the superior logic of ordinary human
experience, and it is on the basis of such experience or common
knowledge that negligence may be deduced from the mere occurrence
of the accident itself. Hence, the rule is applied in conjunction with the
doctrine of common knowledge.8
However, res ipsa loquitur is not a rule of substantive law and does not
constitute an independent or separate ground for liability. Instead, it is
considered as merely evidentiary, a mode of proof, or a mere
procedural convenience, since it furnishes a substitute for, and relieves
a plaintiff of, the burden of producing a specific proof of negligence. In
other words, mere invocation and application of the doctrine do not
dispense with the requirement of proof of negligence. It is simply a
step in the process of such proof, permitting 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 thereby placing on defendant the burden of going
forward with the proof.9 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.10
Was petitioner able to establish the above requisites? We answer in
the affirmative. We do not subscribe to the finding of the CA that
petitioner had direct access to the evidence surrounding the accident,
but since she failed to present it, the doctrine would not operate to
apply. While Ramirez took the witness stand, he was only able to
testify that he drove along Maharlika Highway in San Isidro, Barangay
Bangyas, Calauan, Laguna, Tan’s passenger jitney loaded with salted
eggs, balot and quail eggs for delivery at around 5:00 a.m. when he
met an accident, causing the vehicle to turn turtle. Obviously, Ramirez
had no vivid recollection of how the passenger jitney was actually hit
by the JAM passenger bus. Further, for some unknown reasons, the
other possible eyewitnesses to the mishap were not available to
testify. With the dearth of testimonial or direct evidence, should
petitioner now be left without remedy? The answer is NO.
We cannot agree with the CA when it said that how the incident
happened could not be established, neither from the photographs
offered in evidence in favor of petitioner, nor from the Certification11
that quoted an excerpt from the records on the Police Blotter of the
Calauan Municipal Police Station. The CA, likewise, discounted the
probative value of the Police Blotter because, although prepared in the
regular performance of official duty, it was not conclusive proof of the
truth of its entries, since police blotters are usually incomplete and
inaccurate; and sometimes based on partial suggestion, inaccurate
reporting and hearsay.12
It is worth noting, however, that photographs are in the nature of
physical evidence13 -- a mute but eloquent manifestation of truth
ranking high in the hierarchy of trustworthy evidence.14 When duly
verified and shown by extrinsic evidence to be faithful representations
of the subject as of the time in question, they are, in the discretion of
the trial court, admissible in evidence as aids in arriving at an
understanding of the evidence, the situation or condition of objects or
premises, or the circumstances of an accident.15
The photographs16 proffered by petitioner indeed depicted the
relative positions of her jitney and of the JAM passenger bus
immediately after the accident took place. An examination of the
photographs would readily show that the highway where the accident
occurred was marked by two yellow continuous parallel lines at the
center, separating the right lane from the left. Based on evidence, the
JAM passenger bus was moving along the highway towards Manila,
and the jitney was going along the same route, until it was about to
turn left to the barangay road towards the Poblacion. After the
incident, the photographs would show that both vehicles were found
on the opposite lane of the highway. The front right portion of the bus
was shown to have collided with or hit the left portion of the jitney
with such an impact, causing the latter to turn turtle with extensive
damage, injuring its driver and his companion, and completely
destroying its cargo.17
Although the person who took the pictures was not able to testify
because he predeceased the trial, Senior Police Officer II Daniel Escares
(Escares) was recalled to the witness stand to authenticate the said
pictures. He testified that the pictures were faithful representations of
the circumstances immediately after the accident.18 Escares also
made an appropriately labeled sketch19 of the situation after the
collision, and testified as to the physical circumstances thereof,
including the width of the road and the road shoulder, especially the
double yellow lines at the center of the highway.20
As regards police blotters, it should be remembered that although they
are of little probative value, they are nevertheless admitted and
considered in the absence of competent evidence to refute the facts
stated therein. Entries in police records made by a police officer in the
performance of a duty especially enjoined by law are prima facie
evidence of the facts therein stated, and their probative value may be
either substantiated or nullified by other competent evidence.21 In
this case, the Certification,22 whose entries were adopted from the
police blotter of the Calauan Municipal Police Station, the sketch23
prepared by Escares, and the photographs, taken together would
prove that the jitney and the bus were going along the same way; that
the jitney was about to negotiate the intersection going to the left
towards the feeder road in the direction of the Poblacion; and that the
bus hit the left-turning jitney causing the smaller vehicle to turn turtle.
Indeed, no two motor vehicles traversing the same lane of a highway
with double yellow center lines will collide as a matter of course, both
ending up on the opposite lane, unless someone is negligent.
Dimayuga was driving the JAM passenger bus which, from the
evidence adduced, appears to have precipitated the collision with
petitioner’s jitney. Driving the bus gave Dimayuga exclusive
management and control over it. Despite the claim of JAM to the
contrary, no contributory negligence could be attributed to Ramirez
relative to the incident on the basis of the available evidence.
Inevitably, the requisites being present, the doctrine of res ipsa
loquitur applies.

We, thus, quote with concurrence the findings of the RTC—
As both parties are asserting claim for the damages each has
respectively sustained from the subject collision, the negligence of
either driver of the bus or of the jitney must be shown, and the burden
to prove the negligence, by preponderance of evidence, lies upon both
who are alleging the other’s negligence. Preponderance of evidence is
"evidence as a whole which is superior to that of the defendant {or the
other}" [Pacific Banking Employees Organization vs. CA, 286 SCRA 495].
To prove negligence of the bus driver, plaintiff relies heavily upon the
testimony of PO3 DANIEL C. ESCARES, who identified the police report
of the incident [Exhibit "B"] as well as the sketch of the site [Exhibit "I"]
and the pictures taken as reflective of the scene of the incident
[Exhibits "E" with sub-markings], invoking [in plaintiff’s memorandum]
the application of the doctrine of "res ipsa loquitor."
From the said exhibits, the plaintiff postulates that her jitney then
being driven by Alexander Ramirez, as well as the bus driven by
defendant Dimayuga were heading the same direction towards Manila,
but when the jitney was about to negotiate the left side road
intersection towards the feeder/Barangay road of Brgy. Bangyas,
Calauan, Laguna, it was bumped by the oncoming/overtaking bus
driven by Dimayuga, that caused the jitney to turn turtle at the road
shoulder causing damages on the jitney, the cargoes and injuries to the
jitney driver and his companion. It was allegedly improper for the bus
to overtake as the road bears a double yellow line at the middle which
prohibits overtaking.
On the other hand, the bus driver who is the lone witness/evidence for
the defendant testified he was driving at the Maharlika Highway at 40
km/hr when the jitney "overtook" from the right and that there was no
way for him to evade the latter so it was dragged to the side [TSN, May
18, 2006, p. 13]. In its memorandum, defendants postulate that it was
the jitney driver who was negligent as it overtook the bus from the
right which is not proper. Plaintiff allegedly could not claim damages
for its failure to prove the bus driver’s negligence, and it was the
jitney’s own negligence that is the proximate cause of his injury.
No direct evidence was presented with respect to the exact road
position of the bus and the jitney at the time of the collision such that
the same can only be inferred from the pictures of the colliding
vehicles taken immediately after the incident [Exhibits "E"].
At this juncture, it was established from exhibits "E-5" and "E-6" that
the jitney’s left side portion was directly hit by the front-right portion
of the bus. This is consistent with the plaintiff’s theory that the jitney
was then negotiating the left portion of the road when it was hit by the
oncoming bus causing the jitney to have a 90-degree turn around. The
bus and the jitney were almost perpendicular to each other when the
collision took place, with the bus directly hitting the jitney head on.
The statement of the bus driver that the jitney "overtook" from the
right only presumes that at the point of collision, the bus was at the
left lane of the road overtaking the vehicle/s at the right. This scenario,
in fact, was affirmed by the police report of the incident [Exhibit "B"]. It
is not quite logical that the jitney, in allegedly overtaking the bus from
the right came from the right shoulder of the road, a rough road
merely 5 meters in width [Exhibit "F"] and even diminished by two (2)
meters because of the encroachment at the sides [TSN, 11-6-02]. No
evidence was shown that the jitney came from the right shoulder. The
jitney then loaded with eggs for delivery, was about to negotiate the
left lane towards the feeder/barangay road intersection, and it would
be illogical in such a situation that the jitney driver would take the right
shoulder. The foregoing suggest the fact that the bus overtook the
passing vehicles at the right lane and in the course thereof, the jitney
in front that was about to negotiate the left lane, was hit.24
Verily, although there was no direct evidence that the JAM passenger
bus was overtaking the vehicles running along the right lane of the
highway from the left lane, the available evidence readily points to
such fact. There were two continuous yellow lines at the center of the
highway, which meant that no vehicle in the said area should overtake
another on either side of the road. The "double yellow center lines"
regulation, which this Court takes judicial notice of as an
internationally recognized pavement regulation, was precisely
intended to avoid accidents along highways, such as what happened in
this case. This prohibition finds support in Republic Act (R.A.) No. 4136
(Land Transportation and Traffic Code), Section 41(e).25 Furthermore,
it is observed that the area of collision was an intersection. Section
41(c)26 of R.A. No. 4136, likewise, prohibits overtaking or passing any
other vehicle proceeding in the same direction at any intersection of
highways, among others. Thus, by overtaking on the left lane,
Dimayuga was not only violating the "double yellow center lines"
regulation, but also the prohibition on overtaking at highway
intersections. Consequently, negligence can be attributed only to him,
which negligence was the proximate cause of the injury sustained by
petitioner. This prima facie finding of negligence was not sufficiently
rebutted or contradicted by Dimayuga. Therefore, a finding that he is
liable for damages to petitioner is warranted.1avvphi1
The liability of Dimayuga is solidary with JAM, pursuant to Article 2176,
in relation to Article 2180 of the Civil Code of the Philippines, which
provides—
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence is obliged to pay for the damage done.
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.
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.
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 section
(culpa in eligiendo) or supervision (culpa in vigilando) of its
employees.27 To avoid liability for a quasi-delict committed by its
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
In this case, aside from the testimony of Dimayuga, JAM did not
present any other evidence, whether documentary or testimonial, in
its favor. Inevitably, the presumption of its negligence as Dimayuga’s
employer stands and it is, thus, solidarily liable for the damages
sustained by petitioner.
As regards the award for actual damages, we, however, concur with
respondent that the award of ₱400,000.00 for the damage to the
jitney is not warranted, considering that the evidence submitted to
support this claim was merely an estimate made by A. Plantilla Motors.
The same reason holds true with respect to the amount of damages for
the destroyed cargo of eggs, considering that the document submitted
by petitioner to support the claim of ₱142,210.00 was merely a
Certification,29 as the information found thereon was supplied by
petitioner herself per the number of pieces of the different eggs and
the corresponding price per piece.

To warrant an award of actual or compensatory damages for repair to

damage sustained, the best evidence should be the receipts or other
documentary proofs of the actual amount expended.30 However,
considering that it was duly proven that the jitney was damaged and
had to be repaired, as it was repaired, and that the cargo of eggs was
indeed destroyed, but the actual amounts expended or lost were not
proven, we deem it appropriate to award ₱250,000.00 by way of
temperate damages. Under Article 2224 of the Civil Code, temperate
damages may be recovered when pecuniary loss has been suffered but
its amount cannot be proved with certainty.31 We, however, sustain
the trial court’s award of ₱1,327.00 as regards the medical expenses
incurred by petitioner, the same being duly supported by receipts.32

The award of ₱10,000.00 as moral damages, ₱10,000.00 as attorney’s

fees, and the costs of suit are sustained, the same being in order and
authorized by law. Although the basis for the award of attorney’s fees
was not indicated in the trial court’s Decision, we deem it justified as
petitioner was compelled to litigate before the courts and incur
expenses in order to vindicate her rights under the premises.33

WHEREFORE, the petition is GRANTED. The Decision dated June 2,

2008 of the Court of Appeals in CA-G.R. CV No. 89046 is REVERSED and
SET ASIDE. The Decision dated December 20, 2006 of the Regional Trial
Court, Branch 27, Sta. Cruz, Laguna in Civil Case No. SC-3838 is
REINSTATED with the MODIFICATION that the award of actual
damages is reduced to ₱1,327.00, and, in lieu of actual damages with
respect to the damage or loss sustained with respect to the passenger
jitney and the cargo of eggs, the amount of ₱250,000.00 is awarded by
way of temperate damages.

SO ORDERED.
G.R. No. 160889 April 27, 2007
DR. MILAGROS L. CANTRE, Petitioner,
vs.
SPS. JOHN DAVID Z. GO and NORA S. GO, Respondents.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated October 3, 2002 and
Resolution2 dated November 19, 2003 of the Court of Appeals in CA-
G.R. CV No. 58184, which affirmed with modification the Decision3
dated March 3, 1997 of the Regional Trial Court of Quezon City, Branch
98, in Civil Case No. Q-93-16562.
The facts, culled from the records, are as follows:
Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and
Gynecology at the Dr. Jesus Delgado Memorial Hospital. She was the
attending physician of respondent Nora S. Go, who was admitted at
the said hospital on April 19, 1992.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a
baby boy. However, at around 3:30 a.m., Nora suffered profuse
bleeding inside her womb due to some parts of the placenta which
were not completely expelled from her womb after delivery.
Consequently, Nora suffered hypovolemic shock, resulting in a drop in
her blood pressure to "40" over "0." Petitioner and the assisting
resident physician performed various medical procedures to stop the
bleeding and to restore Nora’s blood pressure. Her blood pressure was
frequently monitored with the use of a sphygmomanometer. While
petitioner was massaging Nora’s uterus for it to contract and stop
bleeding, she ordered a droplight to warm Nora and her baby.4 Nora
remained unconscious until she recovered.
While in the recovery room, her husband, respondent John David Z. Go
noticed a fresh gaping wound two and a half (2 ½) by three and a half
(3 ½) inches in the inner portion of her left arm, close to the armpit.5
He asked the nurses what caused the injury. He was informed it was a
burn. Forthwith, on April 22, 1992, John David filed a request for
investigation.6 In response, Dr. Rainerio S. Abad, the medical director
of the hospital, called petitioner and the assisting resident physician to
explain what happened. Petitioner said the blood pressure cuff caused
the injury.
On May 7, 1992, John David brought Nora to the National Bureau of
Investigation for a physical examination, which was conducted by
medico-legal officer Dr. Floresto Arizala, Jr.7 The medico-legal officer
later testified that Nora’s injury appeared to be a burn and that a
droplight when placed near the skin for about 10 minutes could cause
such burn.8 He dismissed the likelihood that the wound was caused by
a blood pressure cuff as the scar was not around the arm, but just on
one side of the arm.9
On May 22, 1992, Nora’s injury was referred to a plastic surgeon at the
Dr. Jesus Delgado Memorial Hospital for skin grafting.10 Her wound
was covered with skin sourced from her abdomen, which consequently
bore a scar as well. About a year after, on April 30, 1993, scar revision
had to be performed at the same hospital.11 The surgical operation
left a healed linear scar in Nora’s left arm about three inches in length,
the thickest portion rising about one-fourth (1/4) of an inch from the
surface of the skin. The costs of the skin grafting and the scar revision
were shouldered by the hospital.12
Unfortunately, Nora’s arm would never be the same.1a\^/phi1.net
Aside from the unsightly mark, the pain in her left arm remains. When
sleeping, she has to cradle her wounded arm. Her movements now are
also restricted. Her children cannot play with the left side of her body
as they might accidentally bump the injured arm, which aches at the
slightest touch.
Thus, on June 21, 1993, respondent spouses filed a complaint13 for
damages against petitioner, Dr. Abad, and the hospital. Finding in favor
of respondent spouses, the trial court decreed:
In view of the foregoing consideration, judgment is hereby rendered in
favor of the plaintiffs and against the defendants, directing the latters,
(sic) jointly and severally –
(a) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in
moral damages;
(b) to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00)
exemplary damages;
(c) to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal
damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for and as attorney’s fees;
and
(e) to pay Six Thousand Pesos (P6,000.00) litigation expenses.
SO ORDERED.14
Petitioner, Dr. Abad, and the hospital all appealed to the Court of
Appeals, which affirmed with modification the trial court decision,
thus:
WHEREFORE, in view of all the foregoing, and finding no reversible
error in the appealed Decision dated March 3, 1997 of Branch 98 of the
Regional Trial Court of Quezon City in Civil Case No. Q-93-16562, the
same is hereby AFFIRMED, with the following MODIFICATIONS:
1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay
plaintiffs-appellees John David Go and Nora S. Go the sum of
P200,000.00 as moral damages;
2. Deleting the award [of] exemplary damages, attorney’s fees and
expenses of litigation;1awphi1.nét
3. Dismissing the complaint with respect to defendants-appellants Dr.
Rainerio S. Abad and Delgado Clinic, Inc.;
4. Dismissing the counterclaims of defendants-appellants for lack of
merit; and
5. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay
the costs.
SO ORDERED.15
Petitioner’s motion for reconsideration was denied by the Court of
Appeals. Hence, the instant petition assigning the following as errors
and issues:
I.
WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS
COMMITTED GRAVE ABUSE OF THEIR DISCRETION WHEN,
NOTWITHSTANDING THAT BOTH PARTIES HAVE RESTED THEIR
RESPECTIVE CASES, THE LOWER COURT ADMITTED THE ADDITIONAL
EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO BY
ANY WITNESS AND THIS DECISION OF THE LOWER COURT WAS
UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE
ABUSE OF DISCRETION;
II.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF
ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE
PRESENTED BY THE PETITIONER, IT RULED THAT THE PETITIONER HAS
NOT AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH THE
BODY OF MRS. NORA GO, AND THIS DECISION OF THE LOWER COURT
WAS UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING
GRAVE ABUSE OF DISCRETION;
III.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF
ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE
PRESENTED BY THE PETITIONER, IT RULED THAT PETITIONER DRA.
CANTRE WAS NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY
(BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT MRS. GO CAME
ABOUT;
IV.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE
ABUSE OF ITS DISCRETION WHEN IT MADE A RULING ON THE
RESPONDENT’S INJURY QUOTING THE TESTIMONY OF SOMEONE WHO
WAS NOT PRESENT AND HAS NOT SEEN THE ORIGINAL, FRESH INJURY
OF RESPONDENT MRS. NORA GO;
V.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS
DISCRETION RULED THAT PETITIONER DRA. CANTRE SHOULD HAVE
INTENDED TO INFLICT THE INJURY TO SAVE THE LIFE OF RESPONDENT
MRS. GO;
VI.
WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS
COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE
DETAILED PROCEDURES DONE BY PETITIONER, BOTH RULED THAT THE
RESPONDENT WAS LEFT TO THE CARE OF THE NURSING STAFF;
VII.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF
DISCRETION WHEN, CONTRARY TO THE MEDICAL PURPOSES OF
COSMETIC SURGERY, IT RULED THAT THE COSMETIC SURGERY MADE
THE SCARS EVEN MORE UGLY AND DECLARED THE COSMETIC SURGERY
A FAILURE;
VIII.
WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC)
DISCRETION WHEN, CONTRARY TO RESPONDENTS’ CONTRARY
TESTIMONIES AND THE ABSENCE OF ANY TESTIMONY, IT RULED THAT
THEY ARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD,
ALTHOUGH MODIFIED, BY THE COURT OF APPEALS LIKEWISE ABUSING
ITS DISCRETION.16
Petitioner contends that additional documentary exhibits not testified
to by any witness are inadmissible in evidence because they deprived
her of her constitutional right to confront the witnesses against her.
Petitioner insists the droplight could not have touched Nora’s body.
She maintains the injury was due to the constant taking of Nora’s
blood pressure. Petitioner also insinuates the Court of Appeals was
misled by the testimony of the medico-legal officer who never saw the
original injury before plastic surgery was performed. Finally, petitioner
stresses that plastic surgery was not intended to restore respondent’s
injury to its original state but rather to prevent further complication.
Respondents, however, counter that the genuineness and due
execution of the additional documentary exhibits were duly admitted
by petitioner’s counsel. Respondents point out that petitioner’s blood
pressure cuff theory is highly improbable, being unprecedented in
medical history and that the injury was definitely caused by the
droplight. At any rate, they argue, even if the injury was brought about
by the blood pressure cuff, petitioner was still negligent in her duties
as Nora’s attending physician.
Simply put, the threshold issues for resolution are: (1) Are the
questioned additional exhibits admissible in evidence? (2) Is petitioner
liable for the injury suffered by respondent Nora Go? Thereafter, the
inquiry is whether the appellate court committed grave abuse of
discretion in its assailed issuances.
As to the first issue, we agree with the Court of Appeals that said
exhibits are admissible in evidence. We note that the questioned
exhibits consist mostly of Nora’s medical records, which were
produced by the hospital during trial pursuant to a subpoena duces
tecum. Petitioner’s counsel admitted the existence of the same when
they were formally offered for admission by the trial court. In any case,
given the particular circumstances of this case, a ruling on the
negligence of petitioner may be made based on the res ipsa loquitur
doctrine even in the absence of such additional exhibits.
Petitioner’s contention that the medico-legal officer who conducted
Nora’s physical examination never saw her original injury before plastic
surgery was performed is without basis and contradicted by the
records. Records show that the medico-legal officer conducted the
physical examination on May 7, 1992, while the skin grafting and the
scar revision were performed on Nora on May 22, 1992 and April 30,
1993, respectively.
Coming now to the substantive matter, is petitioner liable for the
injury suffered by respondent Nora Go?
The Hippocratic Oath mandates physicians to give primordial
consideration to the well-being of their patients. If a doctor fails to live
up to this precept, he is accountable for his acts. This notwithstanding,
courts face a unique restraint in adjudicating medical negligence cases
because physicians are not guarantors of care and, they never set out
to intentionally cause injury to their patients. However, intent is
immaterial in negligence cases because where negligence exists and is
proven, it automatically gives the injured a right to reparation for the
damage caused.17
In cases involving medical negligence, the doctrine of res ipsa loquitur
allows the mere existence of an injury to justify a presumption of
negligence on the part of the person who controls the instrument
causing the injury, provided that the following requisites concur:
1. The accident is of a kind which ordinarily does not occur in the
absence of someone’s negligence;
2. It is caused by an instrumentality within the exclusive control of the
defendant or defendants; and
3. The possibility of contributing conduct which would make the
plaintiff responsible is eliminated.18
As to the first requirement, the gaping wound on Nora’s arm is
certainly not an ordinary occurrence in the act of delivering a baby, far
removed as the arm is from the organs involved in the process of
giving birth. Such injury could not have happened unless negligence
had set in somewhere.
Second, whether the injury was caused by the droplight or by the
blood pressure cuff is of no moment. Both instruments are deemed
within the exclusive control of the physician in charge under the
"captain of the ship" doctrine. This doctrine holds the surgeon in
charge of an operation liable for the negligence of his assistants during
the time when those assistants are under the surgeon’s control.19 In
this particular case, it can be logically inferred that petitioner, the
senior consultant in charge during the delivery of Nora’s baby,
exercised control over the assistants assigned to both the use of the
droplight and the taking of Nora’s blood pressure. Hence, the use of
the droplight and the blood pressure cuff is also within petitioner’s
exclusive control.
happened, such that saving her life became petitioner’s elemental
concern. Nonetheless, it should be stressed that all these could not
justify negligence on the part of petitioner.
Hence, considering the specific circumstances in the instant case, we
find no grave abuse of discretion in the assailed decision and
resolution of the Court of Appeals. Further, we rule that the Court of
Appeals’ award of Two Hundred Thousand Pesos (₱200,000) as moral
damages in favor of respondents and against petitioner is just and
equitable.21
WHEREFORE, the petition is DENIED. The Decision dated October 3,
2002 and Resolution dated November 19, 2003 of the Court of Appeals
in CA-G.R. CV No. 58184 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.

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

Petitioner’s defense that Nora’s wound was caused not by the

droplight but by the constant taking of her blood pressure, even if the
latter was necessary given her condition, does not absolve her from
liability. As testified to by the medico-legal officer, Dr. Arizala, Jr., the
medical practice is to deflate the blood pressure cuff immediately after
each use. Otherwise, the inflated band can cause injury to the patient
similar to what could have happened in this case. Thus, if Nora’s
wound was caused by the blood pressure cuff, then the taking of
Nora’s blood pressure must have been done so negligently as to have
inflicted a gaping wound on her arm,20 for which petitioner cannot
escape liability under the "captain of the ship" doctrine.

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

Based on the foregoing, the presumption that petitioner was negligent

in the exercise of her profession stands unrebutted. In this connection,
the Civil Code provides:

ART. 2176. Whoever by act or omission causes damage to another,

there being fault or negligence, is obliged to pay for the damage
done.…

ART. 2217. Moral damages include physical suffering, mental anguish,

fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be recovered if they are
the proximate result of the defendant’s wrongful act or omission.

Clearly, under the law, petitioner is obliged to pay Nora for moral
damages suffered by the latter as a proximate result of petitioner’s
negligence.

We note, however, that petitioner has served well as Nora’s

obstetrician for her past three successful deliveries. This is the first
time petitioner is being held liable for damages due to negligence in
the practice of her profession. The fact that petitioner promptly took
care of Nora’s wound before infection and other complications set in is
also indicative of petitioner’s good intentions. We also take note of the
fact that Nora was suffering from a critical condition when the injury
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. 137873 April 20, 2001
D. M. CONSUNJI, INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction
worker of D. M. Consunji, Inc., fell 14 floors from the Renaissance
Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the
tragedy and filed a report dated November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig,
Metro Manila where he was pronounced dead on arrival (DOA) by the
attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the same
date.
Investigation disclosed that at the given time, date and place, while
victim Jose A. Juego together with Jessie Jaluag and Delso Destajo
[were] performing their work as carpenter[s] at the elevator core of
the 14th floor of the Tower D, Renaissance Tower Building on board a
[p]latform made of channel beam (steel) measuring 4.8 meters by 2
meters wide with pinulid plywood flooring and cable wires attached to
its four corners and hooked at the 5 ton chain block, when suddenly,
the bolt or pin which was merely inserted to connect the chain block
with the [p]latform, got loose xxx causing the whole [p]latform
assembly and the victim to fall down to the basement of the elevator
core, Tower D of the building under construction thereby crushing the
victim of death, save his two (2) companions who luckily jumped out
for safety.
It is thus manifest that Jose A. Juego was crushed to death when the
[p]latform he was then on board and performing work, fell. And the
falling of the [p]latform was due to the removal or getting loose of the
pin which was merely inserted to the connecting points of the chain
block and [p]latform but without a safety lock.1
On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial
Court (RTC) of Pasig a complaint for damages against the deceased’s
employer, D.M. Consunji, Inc. The employer raised, among other
defenses, the widow’s prior availment of the benefits from the State
Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria
Juego. The dispositive portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay
plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorney’s fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the
decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the
following grounds:
THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT
WAS ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF
PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF
RES IPSA LOQUITOR [sic] IS APPLICABLE TO PROVE NEGLIGENCE ON
THE PART OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS
PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND
THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT
PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE.3
Petitioner maintains that the police report reproduced above is
hearsay and, therefore, inadmissible. The CA ruled otherwise. It held
that said report, being an entry in official records, is an exception to
the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts
which he knows of his personal knowledge, that is, which are derived
from his perception.4 A witness, therefore, may not testify as what he
merely learned from others either because he was told or read or
heard the same. Such testimony is considered hearsay and may not be
received as proof of the truth of what he has learned.5 This is known
as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule
that excludes hearsay as evidence applies to written, as well as oral
statements.6
The theory of the hearsay rule is that the many possible deficiencies,
suppressions, sources of error and untrustworthiness, which lie
underneath the bare untested assertion of a witness, may be best
brought to light and exposed by the test of cross-examiantion.7 The
hearsay rule, therefore, excludes evidence that cannot be tested by
cross-examination.8
The Rules of Court allow several exceptions to the rule,9 among which
are entries in official records. Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty 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.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work
of Chief Justice Moran, enumerated the requisites for admissibility
under the above rule:
(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.
The CA held that the police report meets all these requisites. Petitioner
contends that the last requisite is not present.
The Court notes that PO3 Villanueva, who signed the report in
question, also testified before the trial court. In Rodriguez vs. Court of
Appeals,11 which involved a Fire Investigation Report, the officer who
signed the fire report also testified before the trial court. This Court
held that the report was inadmissible for the purpose of proving the
truth of the statements contained in the report but admissible insofar
as it constitutes part of the testimony of the officer who executed the
report.
x x x. 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 [as part of the
testimony of Major Enriquez], 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."
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.
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 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 to 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 143 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.
Similarly, the police report in this case is inadmissible for the purpose
of proving the truth of the statements contained therein but is
admissible insofar as it constitutes part of the testimony of PO3
Villanueva.
In any case, the Court holds that portions of PO3 Villanueva’s
testimony which were of his personal knowledge suffice to prove that
Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva
had seen Juego’s remains at the morgue,12 making the latter’s death
beyond dispute. PO3 Villanueva also conducted an ocular inspection of
the premises of the building the day after the incident13 and saw the
platform for himself.14 He observed that the platform was crushed15
and that it was totally damaged.16 PO3 Villanueva also required Garcia
and Fabro to bring the chain block to the police headquarters. Upon
inspection, he noticed that the chain was detached from the lifting
machine, without any pin or bolt.17
What petitioner takes particular exception to is PO3 Villanueva’s
testimony that the cause of the fall of the platform was the loosening
of the bolt from the chain block. It is claimed that such portion of the
testimony is mere opinion. Subject to certain exceptions,18 the
opinion of a witness is generally not admissible.19
Petitioner’s contention, however, loses relevance in the face of the
application of res ipsa loquitur by the CA. The effect of the doctrine is
to warrant a presumption or inference that the mere fall of the
elevator was a result of the person having charge of the
instrumentality was negligent. As a rule of evidence, the doctrine of res
ipsa loquitur is peculiar to the law of negligence which recognizes that
prima facie negligence may be established without direct proof and
furnishes a substitute for specific proof of negligence.20
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the
mere happening of an accident or injury will not generally give rise to
an inference or presumption that it was due to negligence on
defendant’s part, under the doctrine of res ipsa loquitur, which means,
literally, the thing or transaction speaks for itself, or in one jurisdiction,
that the thing or instrumentality speaks for itself, the facts or
circumstances accompanying an injury may be such as to raise a
presumption, or at least permit an inference of negligence on the part
of the defendant, or some other person who is charged with
negligence.
x x x where it is shown that the thing or instrumentality which caused
the injury complained of was under the control or management of the
defendant, and that the occurrence resulting in the injury was such as
in the ordinary course of things would not happen if those who had its
control or management used proper care, there is sufficient evidence,
or, as sometimes stated, reasonable evidence, in the absence of
explanation by the defendant, that the injury arose from or was caused
by the defendant’s want of care.21
One of the theoretical based for the doctrine is its necessity, i.e., that
necessary evidence is absent or not available.22
The res ipsa loquitur doctrine is based in part upon the theory that the
defendant in charge of the instrumentality which causes the injury
either knows the cause of the accident or has the best opportunity of
ascertaining it and that the plaintiff has no such knowledge, and
therefore is compelled to allege negligence in general terms and to rely
upon the proof of the happening of the accident in order to establish
negligence. The inference which the doctrine permits is grounded upon
the fact that the chief evidence of the true cause, whether culpable or
innocent, is practically accessible to the defendant but inaccessible to
the injured person.

It has been said that the doctrine of res ipsa loquitur furnishes a bridge
by which a plaintiff, without knowledge of the cause, reaches over to
defendant who knows or should know the cause, for any explanation
of care exercised by the defendant in respect of the matter of which
the plaintiff complains. The res ipsa loquitur doctrine, another court
has said, is a rule of necessity, in that it proceeds on the theory that
under the peculiar circumstances in which the doctrine is applicable, it
is within the power of the defendant to show that there was no
negligence on his part, and direct proof of defendant’s negligence is
beyond plaintiff’s power. Accordingly, some court add to the three
prerequisites for the application of the res ipsa loquitur doctrine the
further requirement that for the res ipsa loquitur doctrine to apply, it
must appear that the injured party had no knowledge or means of
knowledge as to the cause of the accident, or that the party to be
charged with negligence has superior knowledge or opportunity for
explanation of the accident.23
The CA held that all the requisites of res ipsa loquitur are present in
the case at bar:
There is no dispute that appellee’s husband fell down from the 14th
floor of a building to the basement while he was working with
appellant’s construction project, resulting to his death. The
construction site is within the exclusive control and management of
appellant. It has a safety engineer, a project superintendent, a
carpenter leadman and others who are in complete control of the
situation therein. The circumstances of any accident that would occur
therein are peculiarly within the knowledge of the appellant or its
employees. On the other hand, the appellee is not in a position to
know what caused the accident. Res ipsa loquitur is a rule of necessity
and it applies where evidence is absent or not readily available,
provided the following requisites are present: (1) the accident was of a
kind which does not ordinarily occur unless someone is negligent; (2)
the instrumentality or agency which caused the injury was under the
exclusive control of the person charged with negligence; and (3) the
injury suffered must not have been due to any voluntary action or
contribution on the part of the person injured. x x x.
No worker is going to fall from the 14th floor of a building to the
basement while performing work in a construction site unless
someone is negligent[;] thus, the first requisite for the application of
the rule of res ipsa loquitur is present. As explained earlier, the
construction site with all its paraphernalia and human resources that
likely caused the injury is under the exclusive control and management
of appellant[;] thus[,] the second requisite is also present. No
contributory negligence was attributed to the appellee’s deceased
husband[;] thus[,] the last requisite is also present. All the requisites
for the application of the rule of res ipsa loquitur are present, thus a
reasonable presumption or inference of appellant’s negligence arises. x
x x.24
Petitioner does not dispute the existence of the requisites for the
application of res ipsa loquitur, but argues that the presumption or
inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondent’s
husband."
Petitioner apparently misapprehends the procedural effect of the
doctrine. As stated earlier, the defendant’s negligence is presumed or
inferred25 when the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff makes out a prima
facie case of all the elements, the burden then shifts to defendant to
explain.26 The presumption or inference may be rebutted or overcome
by other evidence and, under appropriate circumstances disputable
presumption, such as that of due care or innocence, may outweigh the
inference.27 It is not for the defendant to explain or prove its defense
to prevent the presumption or inference from arising. Evidence by the
defendant of say, due care, comes into play only after the
circumstances for the application of the doctrine has been
established.1âwphi1.nêt
In any case, petitioner cites the sworn statement of its leadman
Ferdinand Fabro executed before the police investigator as evidence of
its due care. According to Fabro’s sworn statement, the company
enacted rules and regulations for the safety and security of its workers.
Moreover, the leadman and the bodegero inspect the chain block
before allowing its use.
It is ironic that petitioner relies on Fabro’s sworn statement as proof of
its due care but, in arguing that private respondent failed to prove
negligence on the part of petitioner’s employees, also assails the same
statement for being hearsay.
Petitioner is correct. Fabro’s sworn statement is hearsay and
inadmissible. Affidavits are inadmissible as evidence under the hearsay
rule, unless the affiant is placed on the witness stand to testify
thereon.28 The inadmissibility of this sort of evidence is based not only
on the lack of opportunity on the part of the adverse party to cross-
examine the affiant, but also on the commonly known fact that,
generally, an affidavit is not prepared by the affiant himself but by
another who uses his own language in writing the affiant’s statements
which may either be omitted or misunderstood by the one writing
them.29 Petitioner, therefore, cannot use said statement as proof of
its due care any more than private respondent can use it to prove the
cause of her husband’s death. Regrettably, petitioner does not cite any
other evidence to rebut the inference or presumption of negligence
arising from the application of res ipsa loquitur, or to establish any
defense relating to the incident.
Next, petitioner argues that private respondent had previously availed
of the death benefits provided under the Labor Code and is, therefore,
precluded from claiming from the deceased’s employer damages
under the Civil Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. – Unless otherwise provided, the liability
of the State Insurance Fund under this Title shall be exclusive and in
place of all other liabilities of the employer to the employee, his
dependents or anyone otherwise entitled to receive damages on
behalf of the employee or his dependents. The payment of
compensation under this Title shall not bar the recovery of benefits as
provided for in Section 699 of the Revised Administrative Code,
Republic Act Numbered Eleven hundred sixty-one, as amended,
Republic Act Numbered Six hundred ten, as amended, Republic Act
Numbered Forty-eight hundred sixty-four as amended, and other laws
whose benefits are administered by the System or by other agencies of
the government.
The precursor of Article 173 of the Labor Code, Section 5 of the
Workmen’s Compensation Act, provided that:
Section 5. Exclusive right to compensation. – The rights and remedies
granted by this Act to an employee by reason of a personal injury
entitling him to compensation shall exclude all other rights and
remedies accruing to the employee, his personal representatives,
dependents or nearest of kin against the employer under the Civil
Code and other laws because of said injury x x x.
Whether Section 5 of the Workmen’s Compensation Act allowed
recovery under said Act as well as under the Civil Code used to be the
subject of conflicting decisions. The Court finally settled the matter in
Floresca vs.Philex Mining Corporation,30 which involved a cave-in
resulting in the death of the employees of the Philex Mining
Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required
precautions for the protection of the employees, the heirs of the
deceased employees filed a complaint against Philex Mining in the
Court of First Instance (CFI). Upon motion of Philex Mining, the CFI
dismissed the complaint for lack of jurisdiction. The heirs sought relief
from this Court.
Addressing the issue of whether the heirs had a choice of remedies,
majority of the Court En Banc,31 following the rule in Pacaña vs. Cebu
Autobus Company, held in the affirmative.
WE now come to the query as to whether or not the injured employee
or his heirs in case of death have a right of selection or choice of action
between availing themselves of the worker’s right under the
Workmen’s Compensation Act and suing in the regular courts under
the Civil Code for higher damages (actual, moral and exemplary) from
the employers by virtue of the negligence or fault of the employers or
whether they may avail themselves cumulatively of both actions, i.e.,
collect the limited compensation under the Workmen’s Compensation
Act and sue in addition for damages in the regular courts.
In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus
Company, 32 SCRA 442, ruled that an injured worker has a choice of
either to recover from the employer the fixed amounts set by the
Workmen’s Compensation Act or to prosecute an ordinary civil action
against the tortfeasor for higher damages but he cannot pursue both
courses of action simultaneously. [Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to
proceed with their suit under the Civil Code despite having availed of
the benefits provided under the Workmen’s Compensation Act. The
Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its
motion to dismiss dated May 14, 1968 before the court a quo, that the
heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr.,
Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and
claims for compensation to the Regional Office No. 1 of the then
Department of Labor and all of them have been paid in full as of
August 25, 1967, except Saturnino Martinez whose heirs decided that
they be paid in installments x x x. Such allegation was admitted by
herein petitioners in their opposition to the motion to dismiss dated
may 27, 1968 x x x in the lower court, but they set up the defense that
the claims were filed under the Workmen’s Compensation Act before
they learned of the official report of the committee created to
investigate the accident which established the criminal negligence and
violation of law by Philex, and which report was forwarded by the
Director of Mines to then Executive Secretary Rafael Salas in a letter
dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits
under the Workmen’s Compensation Act, such my not preclude them
from bringing an action before the regular court because they became
cognizant of the fact that Philex has been remiss in its contractual
obligations with the deceased miners only after receiving
compensation under the Act. Had petitioners been aware of said
violation of government rules and regulations by Philex, and of its
negligence, they would not have sought redress under the Workmen’s
Compensation Commission which awarded a lesser amount for
compensation. The choice of the first remedy was based on ignorance
or a mistake of fact, which nullifies the choice as it was not an
intelligent choice. The case should therefore be remanded to the lower
court for further proceedings. However, should the petitioners be
successful in their bid before the lower court, the payments made
under the Workmen’s Compensation Act should be deducted from the
damages that may be decreed in their favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was
reiterated in Ysmael Maritime Corporation vs. Avelino,32 Vda. De
Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs. Abeleda.34
In the last case, the Court again recognized that a claimant who had
been paid under the Act could still sue under the Civil Code. The Court
said:
In the Robles case, it was held that claims for damages sustained by
workers in the course of their employment could be filed only under
the Workmen’s Compensation Law, to the exclusion of all further
claims under other laws. In Floresca, this doctrine was abrogated in
favor of the new rule that the claimants may invoke either the
Workmen’s Compensation Act or the provisions of the Civil Code,
subject to the consequence that the choice of one remedy will exclude
the other and that the acceptance of compensation under the remedy
chosen will preclude a claim for additional benefits under the other
remedy. The exception is where a claimant who has already been paid
under the Workmen’s Compensation Act may still sue for damages
under the Civil Code on the basis of supervening facts or developments
occurring after he opted for the first remedy. (Underscoring supplied.)
Here, the CA held that private respondent’s case came under the
exception because private respondent was unaware of petitioner’s
negligence when she filed her claim for death benefits from the State
Insurance Fund. Private respondent filed the civil complaint for
damages after she received a copy of the police investigation report
and the Prosecutor’s Memorandum dismissing the criminal complaint
against petitioner’s personnel. While stating that there was no
negligence attributable to the respondents in the complaint, the
prosecutor nevertheless noted in the Memorandum that, "if at all," the
"case is civil in nature." The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged
negligence of appellant as early as November 25, 1990, the date of the
police investigator’s report. The appellee merely executed her sworn
statement before the police investigator concerning her personal
circumstances, her relation to the victim, and her knowledge of the
accident. She did not file the complaint for "Simple Negligence
Resulting to Homicide" against appellant’s employees. It was the
investigator who recommended the filing of said case and his
supervisor referred the same to the prosecutor’s office. This is a
standard operating procedure for police investigators which appellee
may not have even known. This may explain why no complainant is
mentioned in the preliminary statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand
Fabro x x x are being charged by complainant of "Simple Negligence
Resulting to Homicide." It is also possible that the appellee did not
have a chance to appear before the public prosecutor as can be
inferred from the following statement in said memorandum:
"Respondents who were notified pursuant to Law waived their rights
to present controverting evidence," thus there was no reason for the
public prosecutor to summon the appellee. Hence, notice of
appellant’s negligence cannot be imputed on appellee before she
applied for death benefits under ECC or before she received the first
payment therefrom. Her using the police investigation report to
support her complaint filed on May 9, 1991 may just be an
afterthought after receiving a copy of the February 6, 1991
Memorandum of the Prosecutor’s Office dismissing the criminal
complaint for insufficiency of evidence, stating therein that: "The
death of the victim is not attributable to any negligence on the part of
the respondents. If at all and as shown by the records this case is civil
in nature." (Underscoring supplied.) Considering the foregoing, We are
more inclined to believe appellee’s allegation that she learned about
appellant’s negligence only after she applied for and received the
benefits under ECC. This is a mistake of fact that will make this case fall
under the exception held in the Floresca ruling.35
The CA further held that not only was private respondent ignorant of
the facts, but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only
elementary school for her educational attainment; that she did not
know what damages could be recovered from the death of her
husband; and that she did not know that she may also recover more
from the Civil Code than from the ECC. x x x.36
Petitioner impugns the foregoing rulings. It contends that private
respondent "failed to allege in her complaint that her application and
receipt of benefits from the ECC were attended by ignorance or
mistake of fact. Not being an issue submitted during the trial, the trial
court had no authority to hear or adjudicate that issue."
Petitioner also claims that private respondent could not have been
ignorant of the facts because as early as November 28, 1990, private
respondent was the complainant in a criminal complaint for "Simple
Negligence Resulting to Homicide" against petitioner’s employees. On
February 6, 1991, two months before the filing of the action in the
lower court, Prosecutor Lorna Lee issued a resolution finding that,
although there was insufficient evidence against petitioner’s
employees, the case was "civil in nature." These purportedly show that
prior to her receipt of death benefits from the ECC on January 2, 1991
and every month thereafter, private respondent also knew of the two
choices of remedies available to her and yet she chose to claim and
receive the benefits from the ECC.
When a party having knowledge of the facts makes an election
between inconsistent remedies, the election is final and bars any
action, suit, or proceeding inconsistent with the elected remedy, in the
absence of fraud by the other party. The first act of election acts as a
bar.37 Equitable in nature, the doctrine of election of remedies is
designed to mitigate possible unfairness to both parties. It rests on the
moral premise that it is fair to hold people responsible for their
choices. The purpose of the doctrine is not to prevent any recourse to
any remedy, but to prevent a double redress for a single wrong.38
The choice of a party between inconsistent remedies results in a
waiver by election. Hence, the rule in Floresca that a claimant cannot
simultaneously pursue recovery under the Labor Code and prosecute
an ordinary course of action under the Civil Code. The claimant, by his
choice of one remedy, is deemed to have waived the other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a party has
knowledge of its rights, but chooses not to assert them. It must be
generally shown by the party claiming a waiver that the person against
whom the waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the party’s rights or of all material
facts upon which they depended. Where one lacks knowledge of a
right, there is no basis upon which waiver of it can rest. Ignorance of a
material fact negates waiver, and waiver cannot be established by a
consent given under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person
knows that a right exists and has adequate knowledge upon which to
make an intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the
right waived, with an awareness of its consequences. That a waiver is
made knowingly and intelligently must be illustrated on the record or
by the evidence.40
That lack of knowledge of a fact that nullifies the election of a remedy
is the basis for the exception in Floresca.
It is in light of the foregoing principles that we address petitioner’s
contentions.
Waiver is a defense, and it was not incumbent upon private
respondent, as plaintiff, to allege in her complaint that she had availed
of benefits from the ECC. It is, thus, erroneous for petitioner to burden
private respondent with raising waiver as an issue. On the contrary, it
is the defendant who ought to plead waiver, as petitioner did in pages
2-3 of its Answer;41 otherwise, the defense is waived. It is, therefore,
perplexing for petitioner to now contend that the trial court had no
jurisdiction over the issue when petitioner itself pleaded waiver in the
proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that
led to her husband’s death and the rights pertaining to a choice of
remedies?
It bears stressing that what negates waiver is lack of knowledge or a
mistake of fact. In this case, the "fact" that served as a basis for
nullifying the waiver is the negligence of petitioner’s employees, of
which private respondent purportedly learned only after the
prosecutor issued a resolution stating that there may be civil liability.
In Floresca, it was the negligence of the mining corporation and its
violation of government rules and regulations. Negligence, or violation
of government rules and regulations, for that matter, however, is not a
fact, but a conclusion of law, over which only the courts have the final
say. Such a conclusion binds no one until the courts have decreed so. It
appears, therefore, that the principle that ignorance or mistake of fact
nullifies a waiver has been misapplied in Floresca and in the case at
bar.
In any event, there is no proof that private respondent knew that her
husband died in the elevator crash when on November 15, 1990 she
accomplished her application for benefits from the ECC. The police
investigation report is dated November 25, 1990, 10 days after the
accomplishment of the form. Petitioner filed the application in her
behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies
available to her when the claim before the ECC was filed. On the
contrary, private respondent testified that she was not aware of her
rights.
Petitioner, though, argues that under Article 3 of the Civil Code,
ignorance of the law excuses no one from compliance therewith. As
judicial decisions applying or interpreting the laws or the Constitution
form part of the Philippine legal system (Article 8, Civil Code), private
respondent cannot claim ignorance of this Court’s ruling in Floresca
allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to
mandatory and prohibitory laws.42 This may be deduced from the
language of the provision, which, notwithstanding a person’s
ignorance, does not excuse his or her compliance with the laws. The
rule in Floresca allowing private respondent a choice of remedies is
neither mandatory nor prohibitory. Accordingly, her ignorance thereof
cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages.
The records do not indicate the total amount private respondent ought
to receive from the ECC, although it appears from Exhibit "K"43 that
she received P3,581.85 as initial payment representing the accrued
pension from November 1990 to March 1991. Her initial monthly
pension, according to the same Exhibit "K," was P596.97 and present
total monthly pension was P716.40. Whether the total amount she will
eventually receive from the ECC is less than the sum of P644,000.00 in
total damages awarded by the trial court is subject to speculation, and
the case is remanded to the trial court for such determination. Should
the trial court find that its award is greater than that of the ECC,
payments already received by private respondent under the Labor
Code shall be deducted from the trial court'’ award of damages.
Consistent with our ruling in Floresca, this adjudication aims to prevent
double compensation.

WHEREFORE, the case is REMANDED to the Regional Trial Court of

Pasig City to determine whether the award decreed in its decision is
more than that of the ECC. Should the award decreed by the trial court
be greater than that awarded by the ECC, payments already made to
private respondent pursuant to the Labor Code shall be deducted
therefrom. In all other respects, the Decision of the Court of Appeals is
AFFIRMED.

SO ORDERED.
G.R. No. 155604 November 22, 2007
COLLEGE ASSURANCE PLAN and COMPREHENSIVE ANNUITY PLAN and
PENSION CORPORATION, petitioners,
vs.
BELFRANLT DEVELOPMENT INC., respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of
the Rules of Court, assailing the February 28, 2002 Decision1 of the
Court of Appeals (CA) in CA-G.R. CV No. 63283, which modified the
April 14, 1999 Decision2 of the Regional Trial Court (Branch 221),
Quezon City (RTC) in Civil Case No. Q-95-23118.
The antecedent facts are as summarized by the RTC.
Belfranlt Development, Inc. (respondent) is the owner of Belfranlt
Building in Angeles City, Pampanga. It leased to petitioners College
Assurance Plan Phil., Inc. (CAP) and Comprehensive Annuity Plans and
Pension Corporation (CAPP) several units on the second and third
floors of the building.3
On October 8, 1994, fire destroyed portions of the building, including
the third floor units being occupied by petitioners. An October 20,
1994 field investigation report by an unnamed arson investigator
assigned to the case disclosed:
0.5 Origin of Fire: Store room occupied by CAP, located at the 3rd floor
of the bldg.
0.6 Cause of Fire: Accidental (overheated coffee percolator).4
These findings are reiterated in the October 21, 1994 certification
which the BFP City Fire Marshal, Insp. Teodoro D. del Rosario issued to
petitioners as supporting document for the latter's insurance claim.5
Citing the foregoing findings, respondent sent petitioners on
November 3, 1994 a notice to vacate the leased premises to make way
for repairs, and to pay reparation estimated at P1.5 million.
On November 11, 1994, petitioners vacated the leased premises,
including the units on the second floor,6 but they did not act on the
demand for reparation.
Respondent wrote petitioners another letter, reiterating its claim for
reparation, this time estimated by professionals to be no less than P2
million.7 It also clarified that, as the leased units on the second floor
were not affected by the fire, petitioners had no reason to vacate the
same; hence, their lease on said units is deemed still subsisting, along
with their obligation to pay for the rent.8
In reply, petitioners explained that they could no longer re-occupy the
units on the second floor of the building for they had already moved to
a new location and entered into a binding contract with a new lessor.
Petitioners also disclaimed liability for reparation, pointing out that the
fire was a fortuitous event for which they could not be held
responsible.9
After its third demand10 went unheeded, respondent filed with the
RTC a complaint against petitioners for damages. The RTC rendered a
Decision dated April 14, 1999, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of the plaintiff [respondent] and against the herein defendants
[petitioners]. Defendants are ordered to pay the plaintiff joint[sic] and
severally the following amounts:
1) P2.2 Million Pesos cost of rehabilitation (repairs, replacements and
renovations) of the Belfranlt building by way of Actual and
Compensatory damages;
2) P14,000.00 per month of unpaid rentals on the third floor of the
Belfranlt building for the period from October 1994 until the end of the
two year lease contract on May 10, 1996 by way of Actual and
Compensatory damages;
3) P18,000.00 per month of unpaid rentals on the second floor of the
Belfanlt building for the period from October 1994 until the end of the
two year lease contract on May 10, 1996 by way of Actual or
Compensatory damages;
4) P8,400.00 per month as reimbursement of unpaid rentals on the
other leased areas occupied by other tenants for the period from
October 1994 until the time the vacated leased areas were occupied by
new tenants;
5) P200,000.00 as moral damages;
6) P200,000.00 as exemplary damages;
7) P50,000.00 plus 20% of Actual damages awarded as reasonable
Attorney's fees; and
8) Costs of suit.
SO ORDERED.11
Petitioners appealed to the CA which, in its February 28, 2002
Decision, modified the RTC Decision, thus:
WHEREFORE, the appealed decision is MODIFIED in that the award of
(i) actual and compensatory damages in the amounts of P2.2 Million as
cost of rehabilitation of Belfranlt Building and P8,400.00 per month as
reimbursement of unpaid rentals on the areas leased by other tenants,
(ii) moral damages, (iii) exemplary damages and (iv) attorney's fees is
DELETED, while defendants-appellants are ordered to pay to plaintiff-
appellee, jointly and severally, the amount of P500,000.00 as
temperate damages. The appealed judgment is AFFIRMED in all other
respects.
SO ORDERED.12
Respondent did not appeal from the CA decision.13
Petitioners filed the present petition, questioning the CA decision on
the following grounds:
I
The honorable Court of Appeals erred in not holding that the fire that
partially burned respondent's building was a fortuitous event.
II
The honorable Court of Appeals erred in holding that petitioner failed
to observe the due diligence of a good father of a family.
III
The honorable Court of Appeals erred in holding petitioners liable for
certain actual damages despite plaintiffs' failure to prove the damage
as alleged.
IV
The honorable Court of Appeals erred in holding petitioners liable for
temperate damages.14
The petition lacks merit.
Article 1667 of the Civil Code, which provides:
The lessee is responsible for the deterioration or loss of the thing
leased, unless he proves that it took place without his fault. This
burden of proof on the lessee does not apply when the destruction is
due to earthquake, flood, storm or other natural calamity.
creates the presumption that the lessee is liable for the deterioration
or loss of a thing leased. To overcome such legal presumption, the
lessee must prove that the deterioration or loss was due to a fortuitous
event which took place without his fault or negligence.15
Article 1174 of the Civil Code defines a fortuitous event as that which
could not be foreseen, or which, though foreseen, was inevitable.
Whether an act of god16 or an act of man,17 to constitute a fortuitous
event, it must be shown that: a) the cause of the unforeseen and
unexpected occurrence or of the failure of the obligor to comply with
its obligations was independent of human will; b) it was impossible to
foresee the event or, if it could have been foreseen, to avoid it; c) the
occurrence rendered it impossible for the obligor to fulfill its
obligations in a normal manner; and d) said obligor was free from any
participation in the aggravation of the injury or loss.18 If the
negligence or fault of the obligor coincided with the occurrence of the
fortuitous event, and caused the loss or damage or the aggravation
thereof, the fortuitous event cannot shield the obligor from liability for
his negligence.19
In the present case, it was fire that caused the damage to the units
being occupied by petitioners. The legal presumption therefore is that
petitioners were responsible for the damage. Petitioners insist,
however, that they are exempt from liability for the fire was a
fortuitous event that took place without their fault or negligence.20
The RTC saw differently, holding that the proximate cause of the fire
was the fault and negligence of petitioners in using a coffee percolator
in the office stockroom on the third floor of the building and in
allowing the electrical device to overheat:
Plaintiff has presented credible and preponderant evidence that the
fire was not due to a fortuitous event but rather was due to an
overheated coffee percolator found in the leased premises occupied by
the defendants. The certification issued by the Bureau of Fire
Protection Region 3 dated October 21, 1994 clearly indicated that the
cause of the fire was an overheated coffee percolator. This
documentary evidence is credible because it was issued by a
government office which conducted an investigation of the cause and
circumstances surrounding the fire of October 8, 1994. Under Section
4, Rule 131 of the Revised Rules of Court, there is a legal presumption
that official duty has been regularly performed. The defendants have
failed to present countervailing evidence to rebut or dispute this
presumption. The defendants did not present any credible evidence to
impute any wrongdoing or false motives on the part of Fire
Department Officials and Arson investigators in the preparation and
finalization of this certification. This Court is convinced that the
Certification is genuine, authentic, valid and issued in the proper
exercise and regular performance of the issuing authority's official
duties. The written certification cannot be considered self-serving to
the plaintiff because as clearly indicated on its face the same was
issued not to the plaintiff but to the defendant's representative Mr.
Jesus V. Roig for purposes of filing their insurance claim. This
certification was issued by a government office upon the request of
the defendant's authorized representative. The plaintiff also presented
preponderant evidence that the fire was caused by an overheated
coffee percolator when plaintiff submitted in evidence not only
photographs of the remnants of a coffee percolator found in the
burned premises but the object evidence itself. Defendants did not
dispute the authenticity or veracity of these evidence. Defendants
merely presented negative evidence in the form of denials that
defendants maintained a coffee percolator in the premises testified to
by employees of defendants who cannot be considered totally
disinterested.21(Citations omitted)
The CA concurred with the RTC and noted additional evidence of the
negligence of petitioners:
The records disclose that the metal base of a heating device which the
lower court found to be the base of a coffee percolator, was retrieved
from the stockroom where the fire originated. The metal base contains
the inscription "CAUTION DO NOT OPERATE WHEN EMPTY", which is a
warning against the use of such electrical device when empty and an
indication that it is a water-heating appliance. Its being an instrument
for preparing coffee is demonstrated by its retrieval from the
stockroom, particularly beside broken drinking glasses, Nescafe bottle,
metal dish rack and utensils.
Appellants assert that it had an airpot – not a coffee percolator - near
the Administration Office on the third floor. For unexplained reasons,
however, they did not present the airpot to disprove the existence of
the coffee percolator. The fire did not raze the entire third floor and
the objects therein. Even the stack of highly combustible paper on the
third floor was not totally gutted by the fire. Consequently, it is not
farfetched that the burnt airpot, if any, could have been recovered by
appellants from the area where it was supposedly being kept.
xxxx
The defense that the fire was a fortuitous event is untenable. It is
undisputed that the fire originated from appellants' stockroom located
on the third floor leased premises. Said stockroom was under the
control of appellants which, on that fateful day (a Saturday),
conducted a seminar in the training room which was adjoining the
stockroom. Absent an explanation from appellants on the cause of the
fire, the doctrine of res ipsa loquitur applies.22
Petitioners impugn both findings. They claim that the BFP field
investigation report (Exh. "P-2") and the BFP certification (Exh. "P-3")
are hearsay evidence because these were presented during the
testimony of Fireman Gerardo Sitchon (Fireman Sitchon) of the Bureau
of Fire Protection (BFP), Angeles City, who admitted to having no
participation in the investigation of the fire incident or personal
knowledge about said incident,23 making him incompetent to testify
thereon. Petitioners argue that, with Exh. "P-2" and Exh. "P-3" and the
testimony of Fireman Sitchon that are flawed, there is virtually no
evidence left that the cause of the fire was an overheated coffee
percolator. Petitioners insist that they own no such percolator.24
We find no cogent reason to disturb the finding of the RTC and CA.
The finding that the negligence of petitioners was the proximate cause
of the fire that destroyed portions of the leased units is a purely factual
matter which we cannot pass upon,25 lest we overstep the restriction
that review by certiorari under Rule 45 be limited to errors of law
only.26
 The CA therefore correctly affirmed the RTC in holding petitioners
Moreover, the established rule is that the factual findings of the CA liable to respondent for actual damages consisting of unpaid rentals for
affirming those of the RTC are conclusive and binding on us.27 We are the units they leased.
not wont to review them, save under exceptional circumstances as: (1)
when the inference made is manifestly mistaken, absurd or impossible; The CA deleted the award of actual damages of P2.2 million which the
(2) when there is grave abuse of discretion; (3) when the findings are RTC had granted respondent to cover costs of building repairs. In lieu
grounded entirely on speculations, surmises or conjectures; (4) when of actual damages, temperate damages in the amount of P500,000.00
the judgment of the CA is based on misapprehension of facts; (5) when were awarded by the CA. We find this in order.38
the CA, in making its findings, went beyond the issues of the case and
the same is contrary to the admissions of both appellant and appellee; Temperate or moderate damages may be availed when some
(6) when the findings of fact are conclusions without citation of specific pecuniary loss has been suffered but its amount cannot, from the
evidence on which they are based; (7) when the CA manifestly nature of the case, be proved with certainty.39 The amount thereof is
overlooked certain relevant facts not disputed by the parties and usually left to the discretion of the courts but the same should be
which, if properly considered, would justify a different conclusion; and reasonable, bearing in mind that temperate damages should be more
(8) when the findings of fact of the CA are premised on the absence of than nominal but less than compensatory.40 Without a doubt,
evidence and are contradicted by the evidence on record.28 respondent suffered some form of pecuniary loss for the impairment
of the structural integrity of its building as a result of the fire. However,
The exceptions do not obtain in the present case. In fact, the findings as correctly pointed out by the CA, because of respondent's inability to
of the RTC and CA are fully supported by the evidence. present proof of the exact amount of such pecuniary loss, it may only
be entitled to temperate damages in the amount of P500,000.00,41
Contrary to petitioners' claim, Fireman Sitchon is competent to identify which we find reasonable and just.
and testify on Exh. "P-2" and Exh. "P-3" because, although he did not
sign said documents, he personally prepared the same.29 What WHEREFORE, the petition is DENIED for lack of merit.
Fireman Sitchon did not prepare were the documents which his
investigation witnesses presented.30 However, Fireman Sitchon SO ORDERED.
emphasized that he interviewed said investigation witnesses namely,
Ronald Estanislao, the security guard on duty at the time of fire; and
Dr. Zenaida Arcilla, manager of CAPP, before he prepared Exh. "P-2"
and Exh. "P-3."31 Hence, while Fireman Sitchon may have had no
personal knowledge of the fire incident, Exh. "P-2" and Exh. "P-3,"
which he prepared based on the statements of his investigation
witnesses, especially that of Ronald Estanislao whose official duty it
was to report on the incident, are exceptions to the hearsay rule
because these are entries in official records.32 Consequently, his
testimony on said documents are competent evidence of the contents
thereof. 33

Furthermore, the petitioners are estopped from contesting the

veracity of Exh. "P-3" because, as the CA correctly pointed out, "the
aforesaid certification was used by appellants [petitioners] in claiming
insurance for their office equipment which were destroyed by the
fire."34

Even without the testimony of Fireman Sitchon and the documents he

prepared, the finding of the RTC and CA on the negligence of
petitioners cannot be overturned by petitioners' bare denial. The CA
correctly applied the doctrine of res ipsa loquitur under which expert
testimony may be dispensed with35 to sustain an allegation of
negligence if the following requisites obtain: a) the accident is of a kind
which does not ordinarily occur unless someone is negligent; b) the
cause of the injury was under the exclusive control of the person in
charge and c) the injury suffered must not have been due to any
voluntary action or contribution on the part of the person injured.36
The fire that damaged Belfranlt Building was not a spontaneous natural
occurrence but the outcome of a human act or omission. It originated
in the store room which petitioners had possession and control of.
Respondent had no hand in the incident. Hence, the convergence of
these facts and circumstances speaks for itself: petitioners alone
having knowledge of the cause of the fire or the best opportunity to
ascertain it, and respondent having no means to find out for itself, it is
sufficient for the latter to merely allege that the cause of the fire was
the negligence of the former and to rely on the occurrence of the fire
as proof of such negligence.37 It was all up to petitioners to dispel such
inference of negligence, but their bare denial only left the matter
unanswered.