G.R. No.

L-44748 August 29, 1986

RADIO COMMUNICATIONS OF THE PHILS., INC. (RCPI). petitioner,

vs.
COURT OF APPEALS and LORETO DIONELA, respondents.

O. Pythogoras Oliver for respondents.

PARAS, J.:

Before Us, is a Petition for Review by certiorari of the decision of the Court of Appeals,
modifying the decision of the trial court in a civil case for recovery of damages against
petitioner corporation by reducing the award to private respondent Loreto Dionela of
moral damages from P40,000 to Pl5,000, and attorney's fees from P3,000 to P2,000.

The basis of the complaint against the defendant corporation is a telegram sent through
its Manila Office to the offended party, Loreto Dionela, reading as follows:

176 AS JR 1215PM 9 PAID MANDALUYONG JUL 22-66 LORETO

DIONELA CABANGAN LEGASPI CITY

WIRE ARRIVAL OF CHECK FER

LORETO DIONELA-CABANGAN-WIRE ARRIVAL OF CHECK-PER

115 PM

SA IYO WALANG PAKINABANG DUMATING KA DIYAN-WALA-KANG

PADALA DITO KAHIT BULBUL MO

(p. 19, Annex "A")

Plaintiff-respondent Loreto Dionela alleges that the defamatory words on the telegram
sent to him not only wounded his feelings but also caused him undue embarrassment
and affected adversely his business as well because other people have come to know
of said defamatory words. Defendant corporation as a defense, alleges that the
additional words in Tagalog was a private joke between the sending and receiving
operators and that they were not addressed to or intended for plaintiff and therefore did
not form part of the telegram and that the Tagalog words are not defamatory. The
telegram sent through its facilities was received in its station at Legaspi City. Nobody
other than the operator manned the teletype machine which automatically receives
telegrams being transmitted. The said telegram was detached from the machine and
placed inside a sealed envelope and delivered to plaintiff, obviously as is. The additional
words in Tagalog were never noticed and were included in the telegram when delivered.
The trial court in finding for the plaintiff ruled as follows:

There is no question that the additional words in Tagalog are libelous.

They clearly impute a vice or defect of the plaintiff. Whether or not they
were intended for the plaintiff, the effect on the plaintiff is the same. Any
person reading the additional words in Tagalog will naturally think that
they refer to the addressee, the plaintiff. There is no indication from the
face of the telegram that the additional words in Tagalog were sent as a
private joke between the operators of the defendant.

The defendant is sued directly not as an employer. The business of the

defendant is to transmit telegrams. It will open the door to frauds and allow
the defendant to act with impunity if it can escape liability by the simple
expedient of showing that its employees acted beyond the scope of their
assigned tasks.

The liability of the defendant is predicated not only on Article 33 of the

Civil Code of the Philippines but on the following articles of said Code:

ART. 19.- Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.

ART. 20.-Every person who, contrary to law, wilfully or negligently causes

damage to another, shall indemnify the latter for the same.

There is sufficient publication of the libelous Tagalog words. The office file
of the defendant containing copies of telegrams received are open and
held together only by a metal fastener. Moreover, they are open to view
and inspection by third parties.

It follows that the plaintiff is entitled to damages and attorney's fees. The
plaintiff is a businessman. The libelous Tagalog words must have affected
his business and social standing in the community. The Court fixes the
amount of P40,000.00 as the reasonable amount of moral damages and
the amount of P3,000.00 as attorney's fee which the defendant should pay
the plaintiff. (pp. 15-16, Record on Appeal)

The respondent appellate court in its assailed decision confirming the aforegoing
findings of the lower court stated:

The proximate cause, therefore, resulting in injury to appellee, was the

failure of the appellant to take the necessary or precautionary steps to
avoid the occurrence of the humiliating incident now complained of. The
company had not imposed any safeguard against such eventualities and
this void in its operating procedure does not speak well of its concern for
 their clientele's interests. Negligence here is very patent. This negligence
is imputable to appellant and not to its employees.

The claim that there was no publication of the libelous words in Tagalog is
also without merit. The fact that a carbon copy of the telegram was filed
among other telegrams and left to hang for the public to see, open for
inspection by a third party is sufficient publication. It would have been
otherwise perhaps had the telegram been placed and kept in a secured
place where no one may have had a chance to read it without appellee's
permission.

The additional Tagalog words at the bottom of the telegram are, as

correctly found by the lower court, libelous per se, and from which malice
may be presumed in the absence of any showing of good intention and
justifiable motive on the part of the appellant. The law implies damages in
this instance (Quemel vs. Court of Appeals, L-22794, January 16, 1968;
22 SCRA 44). The award of P40,000.00 as moral damages is hereby
reduced to P15,000.00 and for attorney's fees the amount of P2,000.00 is
awarded. (pp. 22-23, record)

After a motion for reconsideration was denied by the appellate court, petitioner came to
Us with the following:

ASSIGNMENT OF ERRORS

The Honorable Court of Appeals erred in holding that Petitioner-employer

should answer directly and primarily for the civil liability arising from the
criminal act of its employee.

II

The Honorable Court of Appeals erred in holding that there was sufficient
publication of the alleged libelous telegram in question, as contemplated
by law on libel.

III

The Honorable Court of Appeals erred in holding that the liability of

petitioner-company-employer is predicated on Articles 19 and 20 of the
Civil Code, Articles on Human Relations.

IV
 The Honorable Court of Appeals erred in awarding Atty's. fees. (p. 4,
Record)

Petitioner's contentions do not merit our consideration. The action for damages was
filed in the lower court directly against respondent corporation not as an employer
subsidiarily liable under the provisions of Article 1161 of the New Civil Code in relation
to Art. 103 of the Revised Penal Code. The cause of action of the private respondent is
based on Arts. 19 and 20 of the New Civil Code (supra). As well as on respondent's
breach of contract thru the negligence of its own employees. 1

Petitioner is a domestic corporation engaged in the business of receiving and

transmitting messages. Everytime a person transmits a message through the facilities of
the petitioner, a contract is entered into. Upon receipt of the rate or fee fixed, the
petitioner undertakes to transmit the message accurately. There is no question that in
the case at bar, libelous matters were included in the message transmitted, without the
consent or knowledge of the sender. There is a clear case of breach of contract by the
petitioner in adding extraneous and libelous matters in the message sent to the private
respondent. As a corporation, the petitioner can act only through its employees. Hence
the acts of its employees in receiving and transmitting messages are the acts of the
petitioner. To hold that the petitioner is not liable directly for the acts of its employees in
the pursuit of petitioner's business is to deprive the general public availing of the
services of the petitioner of an effective and adequate remedy. In most cases,
negligence must be proved in order that plaintiff may recover. However, since
negligence may be hard to substantiate in some cases, we may apply the doctrine of
RES IPSA LOQUITUR (the thing speaks for itself), by considering the presence of facts
or circumstances surrounding the injury.

WHEREFORE, premises considered, the judgment of the appellate court is hereby

AFFIRMED.

SO ORDERED.

Feria (Chairman), Fernan, Alampay, and Gutierrez, Jr., JJ., concur.

G.R. No. 122039 May 31, 2000

VICENTE CALALAS, petitioner,

vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO
SALVA, respondents.

MENDOZA, J.:

This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated
March 31, 1991, reversing the contrary decision of the Regional Trial Court, Branch 36,
Dumaguete City, and awarding damages instead to private respondent Eliza Jujeurche
Sunga as plaintiff in an action for breach of contract of carriage.

The facts, as found by the Court of Appeals, are as follows:

At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G.
Sunga, then a college freshman majoring in Physical Education at the Siliman
University, took a passenger jeepney owned and operated by petitioner Vicente
Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was given
by the conductor an "extension seat," a wooden stool at the back of the door at the rear
end of the vehicle.

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a
passenger off. As she was seated at the rear of the vehicle, Sunga gave way to the
outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio
Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As a
result, Sunga was injured. She sustained a fracture of the "distal third of the left tibia-
fibula with severe necrosis of the underlying skin." Closed reduction of the fracture, long
leg circular casting, and case wedging were done under sedation. Her confinement in
the hospital lasted from August 23 to September 7, 1989. Her attending physician, Dr.
Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a cast for a
period of three months and would have to ambulate in crutches during said period.

On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging
violation of the contract of carriage by the former in failing to exercise the diligence
required of him as a common carrier. Calalas, on the other hand, filed a third-party
complaint against Francisco Salva, the owner of the Isuzu truck.

The lower court rendered judgment against Salva as third-party defendant and absolved
Calalas of liability, holding that it was the driver of the Isuzu truck who was responsible
for the accident. It took cognizance of another case (Civil Case No. 3490), filed by
Calalas against Salva and Verena, for quasi-delict, in which Branch 37 of the same
court held Salva and his driver Verena jointly liable to Calalas for the damage to his
jeepney.

On appeal to the Court of Appeals, the ruling of the lower court was reversed on the
ground that Sunga's cause of action was based on a contract of carriage, not quasi-
delict, and that the common carrier failed to exercise the diligence required under the
Civil Code. The appellate court dismissed the third-party complaint against Salva and
adjudged Calalas liable for damages to Sunga. The dispositive portion of its decision
reads:

WHEREFORE, the decision appealed from is hereby REVERSED and

SET ASIDE, and another one is entered ordering defendant-appellee
Vicente Calalas to pay plaintiff-appellant:

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;

(3) P10,000.00 as attorney's fees; and

(4) P1,000.00 as expenses of litigation; and

(5) to pay the costs.

SO ORDERED.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the
negligence of Verena was the proximate cause of the accident negates his liability and
that to rule otherwise would be to make the common carrier an insurer of the safety of
its passengers. He contends that the bumping of the jeepney by the truck owned by
Salva was a caso fortuito. Petitioner further assails the award of moral damages to
Sunga on the ground that it is not supported by evidence.

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver
and the owner of the truck liable for quasi-delict ignores the fact that she was never a
party to that case and, therefore, the principle of res judicata does not apply.

Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue
in Civil Case No. 3490 was whether Salva and his driver Verena were liable for quasi-
delict for the damage caused to petitioner's jeepney. On the other hand, the issue in this
case is whether petitioner is liable on his contract of carriage. The first, quasi-delict, also
known as culpa aquiliana or culpa extra contractual, has as its source the negligence of
the tortfeasor. The second, breach of contract or culpa contractual, is premised upon
the negligence in the performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be clearly established
because it is the basis of the action, whereas in breach of contract, the action can be
prosecuted merely by proving the existence of the contract and the fact that the obligor,
in this case the common carrier, failed to transport his passenger safely to his
destination.2 In case of death or injuries to passengers, Art. 1756 of the Civil Code
provides that common carriers are presumed to have been at fault or to have acted
negligently unless they prove that they observed extraordinary diligence as defined in
Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the common
carrier the burden of proof.

There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding
Salva and his driver Verena liable for the damage to petitioner's jeepney, should be
binding on Sunga. It is immaterial that the proximate cause of the collision between the
jeepney and the truck was the negligence of the truck driver. The doctrine of proximate
cause is applicable only in actions for quasi-delict, not in actions involving breach of
contract. The doctrine is a device for imputing liability to a person where there is no
relation between him and another party. In such a case, the obligation is created by law
itself. But, where there is a pre-existing contractual relation between the parties, it is the
parties themselves who create the obligation, and the function of the law is merely to
regulate the relation thus created. Insofar as contracts of carriage are concerned, some
aspects regulated by the Civil Code are those respecting the diligence required of
common carriers with regard to the safety of passengers as well as the presumption of
negligence in cases of death or injury to passengers. It provides:

Art. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence in
the vigilance over the goods and for the safety of the passengers
transported by them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further

expressed in articles 1734, 1735, and 1746, Nos. 5, 6, and 7, while the
extraordinary diligence for the safety of the passengers is further set forth
in articles 1755 and 1756.

Art. 1755. A common carrier is bound to carry the passengers safely as far
as human care and foresight can provide, using the utmost diligence of
very cautious persons, with due regard for all the circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers

are presumed to have been at fault or to have acted negligently, unless
they prove that they observed extraordinary diligence as prescribed by
articles 1733 and 1755.

In the case at bar, upon the happening of the accident, the presumption of negligence at
once arose, and it became the duty of petitioner to prove that he had to observe
extraordinary diligence in the care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight
could provide, using the utmost diligence of very cautious persons, with due regard for
all the circumstances" as required by Art. 1755? We do not think so. Several factors
militate against petitioner's contention.

First, as found by the Court of Appeals, the jeepney was not properly parked, its rear
portion being exposed about two meters from the broad shoulders of the highway, and
facing the middle of the highway in a diagonal angle. This is a violation of the R.A. No.
4136, as amended, or the Land Transportation and Traffic Code, which provides:

Sec. 54. Obstruction of Traffic. — No person shall drive his motor vehicle
in such a manner as to obstruct or impede the passage of any vehicle,
nor, while discharging or taking on passengers or loading or unloading
freight, obstruct the free passage of other vehicles on the highway.

Second, it is undisputed that petitioner's driver took in more passengers than the
allowed seating capacity of the jeepney, a violation of §32(a) of the same law. It
provides:

Exceeding registered capacity. — No person operating any motor vehicle

shall allow more passengers or more freight or cargo in his vehicle than its
registered capacity.

The fact that Sunga was seated in an "extension seat" placed her in a peril greater than
that to which the other passengers were exposed. Therefore, not only was petitioner
unable to overcome the presumption of negligence imposed on him for the injury
sustained by Sunga, but also, the evidence shows he was actually negligent in
transporting passengers.

We find it hard to give serious thought to petitioner's contention that Sunga's taking an
"extension seat" amounted to an implied assumption of risk. It is akin to arguing that the
injuries to the many victims of the tragedies in our seas should not be compensated
merely because those passengers assumed a greater risk of drowning by boarding an
overloaded ferry. This is also true of petitioner's contention that the jeepney being
bumped while it was improperly parked constitutes caso fortuito. A caso fortuito is an
event which could not be foreseen, or which, though foreseen, was inevitable. 3 This
requires that the following requirements be present: (a) the cause of the breach is
independent of the debtor's will; (b) the event is unforeseeable or unavoidable; (c) the
event is such as to render it impossible for the debtor to fulfill his obligation in a normal
manner, and (d) the debtor did not take part in causing the injury to the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its
body protruding two meters into the highway.

Finally, petitioner challenges the award of moral damages alleging that it is excessive
and without basis in law. We find this contention well taken.
In awarding moral damages, the Court of Appeals stated:

Plaintiff-appellant at the time of the accident was a first-year college

student in that school year 1989-1990 at the Silliman University, majoring
in Physical Education. Because of the injury, she was not able to enroll in
the second semester of that school year. She testified that she had no
more intention of continuing with her schooling, because she could not
walk and decided not to pursue her degree, major in Physical Education
"because of my leg which has a defect already."

Plaintiff-appellant likewise testified that even while she was under

confinement, she cried in pain because of her injured left foot. As a result
of her injury, the Orthopedic Surgeon also certified that she has "residual
bowing of the fracture side." She likewise decided not to further pursue
Physical Education as her major subject, because "my left leg . . . has a
defect already."

Those are her physical pains and moral sufferings, the inevitable
bedfellows of the injuries that she suffered. Under Article 2219 of the Civil
Code, she is entitled to recover moral damages in the sum of P50,000.00,
which is fair, just and reasonable.

As a general rule, moral damages are not recoverable in actions for damages
predicated on a breach of contract for it is not one of the items enumerated under Art.
2219 of the Civil Code.5 As an exception, such damages are recoverable: (1) in cases in
which the mishap results in the death of a passenger, as provided in Art. 1764, in
relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which the carrier is
guilty of fraud or bad faith, as provided in Art. 2220.6

In this case, there is no legal basis for awarding moral damages since there was no
factual finding by the appellate court that petitioner acted in bad faith in the performance
of the contract of carriage. Sunga's contention that petitioner's admission in open court
that the driver of the jeepney failed to assist her in going to a nearby hospital cannot be
construed as an admission of bad faith. The fact that it was the driver of the Isuzu truck
who took her to the hospital does not imply that petitioner was utterly indifferent to the
plight of his injured passenger. If at all, it is merely implied recognition by Verena that he
was the one at fault for the accident.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its
resolution, dated September 11, 1995, are AFFIRMED, with the MODIFICATION that
the award of moral damages is DELETED.

SO ORDERED.

Bellosillo and Buena, JJ., concur.

Quisumbing and De Leon, Jr., JJ., are on leave.
G.R. No. 180440 December 5, 2012

DR. GENEVIEVE L. HUANG, Petitioner,

vs.
PHILIPPINE HOTELIERS, INC., DUSIT THANI PUBLIC CO., LTD. And FIRST
LEPANTO TAISHO INSURANCE CORPORATION, Respondents.

DECISION

PEREZ, J.:

For this Court’s resolution is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, assailing the Decision1 of the Court of Appeals in CA-G.R. CV No.
87065 dated 9 August 2007, affirming the Decision2 of Branch 56 of the Regional Trial
Court (RTC) of Makati City in Civil Case No. 96-1367 dated 21 February 2006,
dismissing for lack of merit herein petitioner Dr. Genevieve L. Huang’s Complaint for
Damages. Assailed as well is the Court of Appeals’ Resolution3 dated 5 November 2007
denying for lack of merit petitioner’s Motion for Reconsideration.

This case stemmed from a Complaint for Damages filed on 28 August 1996 by
petitioner Dr. Genevieve L. Huang4 against herein respondents Philippine Hoteliers, Inc.
(PHI)5 and Dusit Thani Public Co., Ltd. (DTPCI),6 as owners of Dusit Thani Hotel Manila
(Dusit Hotel);7 and co-respondent First Lepanto Taisho Insurance Corporation (First
Lepanto),8 as insurer of the aforesaid hotel. The said Complaint was premised on the
alleged negligence of respondents PHI and DTPCI’s staff, in the untimely putting off all
the lights within the hotel’s swimming pool area, as well as the locking of the main
entrance door of the area, prompting petitioner to grope for a way out. While doing so, a
folding wooden counter top fell on her head causing her serious brain injury. The
negligence was allegedly compounded by respondents PHI and DTPCI’s failure to
render prompt and adequate medical assistance.

Petitioner’s version of the antecedents of this case is as follows:

On 11 June 1995, Delia Goldberg (Delia), a registered guest of Dusit Hotel, invited her
friend, petitioner Dr. Genevieve L. Huang, for a swim at the hotel’s swimming pool
facility. They started bathing at around 5:00 p.m. At around 7:00 p.m., the hotel’s
swimming pool attendant informed them that the swimming pool area was about to be
closed. The two subsequently proceeded to the shower room adjacent to the swimming
pool to take a shower and dress up. However, when they came out of the bathroom, the
entire swimming pool area was already pitch black and there was no longer any person
around but the two of them. They carefully walked towards the main door leading to the
hotel but, to their surprise, the door was locked.9

Petitioner and Delia waited for 10 more minutes near the door hoping someone would
come to their rescue but they waited in vain. Delia became anxious about their situation
so petitioner began to walk around to look for a house phone. Delia followed petitioner.
After some time, petitioner saw a phone behind the lifeguard’s counter. While slowly
walking towards the phone, a hard and heavy object, which later turned out to be the
folding wooden counter top, fell on petitioner’s head that knocked her down almost
unconscious.10

Delia immediately got hold of the house phone and notified the hotel telephone operator
of the incident. Not long after, the hotel staff arrived at the main entrance door of the
swimming pool area but it took them at least 20 to 30 minutes to get inside. When the
door was finally opened, three hotel chambermaids assisted petitioner by placing an ice
pack and applying some ointment on her head. After petitioner had slightly recovered,
she requested to be assisted to the hotel’s coffee shop to have some rest. Petitioner
demanded the services of the hotel physician.11

Dr. Violeta Dalumpines (Dr. Dalumpines) arrived. She approached petitioner and
introduced herself as the hotel physician. However, instead of immediately providing the
needed medical assistance, Dr. Dalumpines presented a "Waiver" and demanded that it
be signed by petitioner, otherwise, the hotel management will not render her any
assistance. Petitioner refused to do so.12

After eating her dinner and having rested for a while, petitioner left the hotel’s coffee
shop and went home. Thereupon, petitioner started to feel extraordinary dizziness
accompanied by an uncomfortable feeling in her stomach, which lasted until the
following day. Petitioner was constrained to stay at home, thus, missing all her
important appointments with her patients. She also began experiencing "on" and "off"
severe headaches that caused her three (3) sleepless nights.13

Petitioner, thus, decided to consult a certain Dr. Perry Noble (Dr. Noble), a neurologist
from Makati Medical Center, who required her to have an X-ray and a Magnetic
Resonance Imaging (MRI) tests.14 The MRI Report15 dated 23 August 1995 revealed the
following findings:

CONSULTATION REPORT:

MRI examination of the brain shows scattered areas of intraparenchymal contusions

and involving mainly the left middle and posterior temporal and slightly the right anterior
temporal lobe.

Other small areas of contusions with suggestive pertechiae are seen in the left fronto-
parietal, left parieto-occipital and with deep frontal periventricular subcortical and
cortical regions. There is no mass effect nor signs of localized hemorrhagic
extravasation.

The ventricles are not enlarged, quite symmetrical without shifts or deformities; the
peripheral sulci are within normal limits.

The C-P angles, petromastoids, sella, extrasellar and retro orbital areas appear normal.
The brainstem is unremarkable.

IMPRESSION: Scattered small intraparenchymal contusions mainly involving the left

middle-posterior temporal lobe and also right medial anterior temporal, both deep frontal
subcortical, left parieto-occipital subcortical and cortical regions. Ischemic etiology not
ruled out. No localized intra - or extracerebral hemorrhage.16

Petitioner claimed that the aforesaid MRI result clearly showed that her head was
bruised. Based also on the same MRI result, Dr. Noble told her that she has a very
serious brain injury. In view thereof, Dr. Noble prescribed the necessary medicine for
her condition.17

Petitioner likewise consulted a certain Dr. Ofelia Adapon, also a neurologist from Makati
Medical Center, who required her to undergo an Electroencephalogram examination
(EEG) to measure the electrostatic in her brain.18 Based on its result,19 Dr. Ofelia
Adapon informed her that she has a serious condition—a permanent one. Dr. Ofelia
Adapon similarly prescribed medicines for her brain injury.20

Petitioner’s condition did not get better. Hence, sometime in September 1995, she
consulted another neuro-surgeon by the name of Dr. Renato Sibayan (Dr. Sibayan),
who required her to have an X-ray test.21 According to petitioner, Dr. Sibayan’s finding
was the same as those of the previous doctors that she had consulted—she has a
serious brain injury.22

By reason of the unfortunate 11 June 1995 incident inside the hotel’s swimming pool
area, petitioner also started to feel losing her memory, which greatly affected and
disrupted the practice of her chosen profession.23 Thus, on 25 October 1995, petitioner,
through counsel, sent a demand letter24 to respondents PHI and DTPCI seeking
payment of an amount not less than P100,000,000.00 representing loss of earnings on
her remaining life span. But, petitioner’s demand was unheeded.

In November 1995, petitioner went to the United States of America (USA) for further
medical treatment. She consulted a certain Dr. Gerald Steinberg and a certain Dr. Joel
Dokson25 from Mount Sinai Hospital who both found that she has "post traumatic-post
concussion/contusion cephalgias-vascular and neuralgia."26 She was then prescribed to
take some medications for severe pain and to undergo physical therapy. Her condition
did not improve so she returned to the Philippines.27

Petitioner, once again, consulted Dr. Sibayan, who simply told her to just relax and to
continue taking her medicines. Petitioner also consulted other neurologists, who all
advised her to just continue her medications and to undergo physical therapy for her
neck pain.28

Sometime in 1996, petitioner consulted as well a certain Dr. Victor Lopez (Dr. Lopez),
an ophthalmologist from the Makati Medical Center, because of her poor vision, which
she has experienced for several months.29 Petitioner’s Eye Report dated 5 March
199630 issued by Dr. Lopez stated: "IMPRESSION: Posterior vitreous detachment, right
eye of floaters." Dr. Lopez told petitioner that her detached eye is permanent and very
serious. Dr. Lopez then prescribed an eye drop to petitioner.31

For petitioner’s frustration to dissipate and to regain her former strength and physical
well-being, she consulted another neuro-surgeon from Makati Medical Center by the
name of Dr. Leopoldo P. Pardo, Jr. (Dr. Pardo, Jr.).32 She disclosed to Dr. Pardo, Jr.
that at the age of 18 she suffered a stroke due to mitral valve disease and that she was
given treatments, which also resulted in thrombocytopenia. In Dr. Pardo, Jr.’s medical
evaluation of petitioner dated 15 May 1996,33 he made the following diagnosis and
opinion:

DIAGNOSIS AND OPINION:

This patient sustained a severe head injury in (sic) 11 June 1995 and as a result of
which she developed the following injuries:

1. Cerebral Concussion and Contusion

2. Post-traumatic Epilepsy

3. Post-concussional Syndrome

4. Minimal Brain Dysfunction

5. Cervical Sprain, chronic recurrent

It is my opinion that the symptoms she complained of in the foregoing history are all
related to and a result of the injury sustained on 11 June 1995.

It is further my opinion that the above diagnosis and complaints do materially affect her
duties and functions as a practicing physician and dermatologist, and that she will
require treatment for an undetermined period of time.

The percentage of disability is not calculated at this time and will require further
evaluation and observation.34

Dr. Pardo, Jr. then advised petitioner to continue her medications. 35

Petitioner likewise consulted a certain Dr. Tenchavez36 for her follow-up EEG.37 He
similarly prescribed medicine for petitioner’s deep brain injury. He also gave her pain
killer for her headache and advised her to undergo physical therapy. Her symptoms,
however, persisted all the more.38

In 1999, petitioner consulted another neurologist at the Makati Medical Center by the
name of Dr. Martesio Perez (Dr. Perez) because of severe fleeting pains in her head,
arms and legs; difficulty in concentration; and warm sensation of the legs, which
symptoms also occurred after the 11 June 1995 incident. Upon examination, Dr. Perez
observed that petitioner has been experiencing severe pains and she has a slight
difficulty in concentration. He likewise noted that there was a slight spasm of petitioner’s
neck muscle but, otherwise, there was no objective neurologic finding. The rest of
petitioner’s neurologic examination was essentially normal.39

Dr. Perez’s neurologic evaluation40 of petitioner reflected, among others: (1) petitioner’s
past medical history, which includes, among others, mitral valve stenosis; (2) an
interpretation of petitioner’s EEG results in October 1995 and in January 1999, i.e., the
first EEG showed sharp waves seen bilaterally more on the left while the second one
was normal; and (3) interpretation of petitioner’s second MRI result, i.e., petitioner has a
permanent damage in the brain, which can happen either after a head injury or after a
stroke. Dr. Perez concluded that petitioner has post-traumatic or post concussion
syndrome.41

Respondents, on the other hand, denied all the material allegations of petitioner and, in
turn, countered the latter’s statement of facts, thus:

According to respondents PHI and DTPCI, a sufficient notice had been posted on the
glass door of the hotel leading to the swimming pool area to apprise the people,
especially the hotel guests, that the swimming pool area is open only from 7:00 a.m. to
7:00 p.m.42 Though the hotel’s swimming pool area is open only between the
aforestated time, the lights thereon are kept on until 10:00 p.m. for, (1) security reasons;
(2) housekeeping personnel to do the cleaning of the swimming pool surroundings; and
(3) people doing their exercise routine at the Slimmer’s World Gym adjacent to the
swimming pool area, which was then open until 10:00 p.m., to have a good view of the
hotel’s swimming pool. Even granting that the lights in the hotel’s swimming pool area
were turned off, it would not render the area completely dark as the Slimmer’s World
Gym near it was well-illuminated.43

Further, on 11 June 1995, at round 7:00 p.m., the hotel’s swimming pool attendant
advised petitioner and Delia to take their showers as it was already closing time.
Afterwards, at around 7:40 p.m., Pearlie Benedicto-Lipana (Ms. Pearlie), the hotel staff
nurse, who was at the hotel clinic located at the mezzanine floor, received a call from
the hotel telephone operator informing her that there was a guest requiring medical
assistance at the hotel’s swimming pool area located one floor above the clinic. 44

Immediately, Ms. Pearlie got hold of her medical kit and hurriedly went to the hotel’s
swimming pool area. There she saw Delia and petitioner, who told her that she was hit
on the head by a folding wooden counter top. Although petitioner looked normal as
there was no indication of any blood or bruise on her head, Ms. Pearlie still asked her if
she needed any medical attention to which petitioner replied that she is a doctor, she
was fine and she did not need any medical attention. Petitioner, instead, requested for a
hirudoid cream to which Ms. Pearlie acceded.45
At about 8:00 p.m., after attending to petitioner, Ms. Pearlie went back to the hotel clinic
to inform Dr. Dalumpines of the incident at the hotel’s swimming pool area. But before
she could do that, Dr. Dalumpines had already chanced upon Delia and petitioner at the
hotel’s coffee shop and the latter reported to Dr. Dalumpines that her head was hit by a
folding wooden counter top while she was inside the hotel’s swimming pool area. When
asked by Dr. Dalumpines how she was, petitioner responded she is a doctor, she was
fine and she was already attended to by the hotel nurse, who went at the hotel’s
swimming pool area right after the accident. Dr. Dalumpines then called Ms. Pearlie to
verify the same, which the latter confirmed.46

Afterwards, Dr. Dalumpines went back to petitioner and checked the latter’s condition.
Petitioner insisted that she was fine and that the hirudoid cream was enough. Having
been assured that everything was fine, Dr. Dalumpines requested petitioner to execute
a handwritten certification47 regarding the incident that occurred that night. Dr.
Dalumpines then suggested to petitioner to have an X-ray test. Petitioner replied that it
was not necessary. Petitioner also refused further medical attention. 48

On 13 June 1995, petitioner called up Dr. Dalumpines. The call, however, had nothing
to do with the 11 June 1995 incident. Instead, petitioner merely engaged in small talk
with Dr. Dalumpines while having her daily massage. The two talked about petitioner’s
personal matters, i.e., past medical history, differences with siblings and family over
inheritance and difficulty in practice. Petitioner even disclosed to Dr. Dalumpines that
she once fell from a horse; that she had a stroke; had hysterectomy and is incapable of
having children for her uterus had already been removed; that she had blood disorder,
particularly lack of platelets, that can cause bleeding; and she had an "on" and "off"
headaches. Petitioner oftentimes called Dr. Dalumpines at the hotel clinic to discuss
topics similar to those discussed during their 13 June 1995 conversation. 49

Also, during one of their telephone conversations, petitioner requested for a certification
regarding the 11 June 1995 incident inside the hotel’s swimming pool area. Dr.
Dalumpines accordingly issued Certification dated 7 September 1995, which states
that:50

CERTIFICATION

This is to certify that as per Clinic records, duty nurse Pearlie was called to attend to an
accident at the poolside at 7:45PM on 11 June 1995.

Same records show that there, she saw petitioner who claimed the folding countertop
fell on her head when she lifted it to enter the lifeguard’s counter to use the phone. She
asked for Hirudoid.

The same evening petitioner met Dr. Dalumpines at the Coffee Shop. After narrating the
poolside incident and declining Dr. Dalumpines’ offer of assistance, she reiterated that
the Hirudoid cream was enough and that petitioner being a doctor herself, knew her
condition and she was all right.
This certification is given upon the request of petitioner for whatever purpose it may
serve, 7 September 1995 at Makati City.51 (Emphasis supplied).

Petitioner personally picked up the afore-quoted Certification at the hotel clinic without
any objection as to its contents.52

From 11 June 1995 until 7 September 1995, the hotel clinic never received any
complaint from petitioner regarding the latter’s condition. The hotel itself neither
received any written complaint from petitioner.53

After trial, the court a quo in its Decision dated 21 February 2006 dismissed petitioner’s
Complaint for lack of merit.

The trial court found petitioner’s testimony self-serving, thus, devoid of credibility.
Petitioner failed to present any evidence to substantiate her allegation that the lights in
the hotel’s swimming pool area were shut off at the time of the incident. She did not
even present her friend, Delia, to corroborate her testimony. More so, petitioner’s
testimony was contradicted by one of the witnesses presented by the respondents who
positively declared that it has been a normal practice of the hotel management not to
put off the lights until 10:00 p.m. to allow the housekeepers to do the cleaning of the
swimming pool surroundings, including the toilets and counters. Also, the lights were
kept on for security reasons and for the people in the nearby gym to have a good view
of the swimming pool while doing their exercise routine. Besides, there was a remote
possibility that the hotel’s swimming pool area was in complete darkness as the
aforesaid gym was then open until 10:00 p.m., and the lights radiate to the hotel’s
swimming pool area. As such, petitioner would not have met the accident had she only
acted with care and caution.54

The trial court further struck down petitioner’s contention that the hotel management did
not extend medical assistance to her in the aftermath of the accident. Records showed
that the hotel management immediately responded after being notified of the accident.
The hotel nurse and the two chambermaids placed an ice pack on petitioner’s head.
They were willing to extend further emergency assistance but petitioner refused and
merely asked for a hirudoid cream. Petitioner even told them she is a doctor and she
was fine. Even the medical services offered by the hotel physician were turned down by
petitioner. Emphatically, petitioner cannot fault the hotel for the injury she sustained as
she herself did not heed the warning that the swimming pool area is open only from
7:00 a.m. to 7:00 p.m. As such, since petitioner’s own negligence was the immediate
and proximate cause of her injury, she cannot recover damages. 55

The trial court similarly observed that the records revealed no indication that the head
injury complained of by petitioner was the result of the alleged 11 June 1995 accident.
Firstly, petitioner had a past medical history which might have been the cause of her
recurring brain injury. Secondly, the findings of Dr. Perez did not prove a causal relation
between the 11 June 1995 accident and the brain damage suffered by petitioner. Even
Dr. Perez himself testified that the symptoms being experienced by petitioner might
have been due to factors other than the head trauma she allegedly suffered. It bears
stressing that petitioner had been suffering from different kinds of brain problems since
she was 18 years old, which may have been the cause of the recurring symptoms of
head injury she is experiencing at present. Absent, therefore, of any proof establishing
the causal relation between the injury she allegedly suffered on 11 June 1995 and the
head pains she now suffers, her claim must fail. Thirdly, Dr. Teresita Sanchez’s (Dr.
Sanchez) testimony cannot be relied upon since she testified on the findings and
conclusions of persons who were never presented in court. Ergo, her testimony thereon
was hearsay. Fourthly, the medical reports/evaluations/certifications issued by myriads
of doctors whom petitioner sought for examination or treatment were neither identified
nor testified to by those who issued them. Being deemed as hearsay, they cannot be
given probative value. Even assuming that petitioner suffered head injury as a
consequence of the 11 June 1995 accident, she cannot blame anyone but herself for
staying at the hotel’s swimming pool area beyond its closing hours and for lifting the
folding wooden counter top that eventually hit her head.56

For petitioner’s failure to prove that her serious and permanent injury was the result of
the 11 June 1995 accident, thus, her claim for actual or compensatory damages, loss of
income, moral damages, exemplary damages and attorney’s fees, must all fail. 57

With regard to respondent First Lepanto’s liability, the trial court ruled that under the
contract of insurance, suffice it to state that absent any cause for any liability against
respondents PHI and DTPCI, respondent First Lepanto cannot be made liable thereon.

Dissatisfied, petitioner elevated the matter to the Court of Appeals with the following
assignment of errors: (1) the trial court erred in finding that the testimony of petitioner is
self-serving and thus void of credibility; (2) the trial court erred in applying the doctrine
of proximate cause in cases of breach of contract and even assuming arguendo that the
doctrine is applicable, petitioner was able to prove by sufficient evidence the causal
connection between her injuries and respondents PHI and DTPCI’s negligent act; and
(3) the trial court erred in holding that petitioner is not entitled to damages.58

On 9 August 2007, the Court of Appeals rendered a Decision affirming the findings and
conclusions of the trial court.

The Court of Appeals ratiocinated in this wise:

At the outset, it is necessary for our purpose to determine whether to decide this case
on the theory that herein respondents PHI and DTPCI are liable for breach of contract
or on the theory of quasi-delict.

xxxx

It cannot be gainsaid that herein petitioner’s use of the hotel’s pool was only upon the
invitation of Delia, the hotel’s registered guest. As such, she cannot claim contractual
relationship between her and the hotel. Since the circumstances of the present case do
not evince a contractual relation between petitioner and respondents, the rules on
quasi-delict , thus, govern.

The pertinent provision of Art. 2176 of the Civil Code which states: "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."

A perusal of Article 2176 shows that obligations arising from quasi-delict or tort, also
known as extra-contractual obligations, arise only between parties not otherwise bound
by contract, whether express or implied. Thus, to sustain a claim liability under quasi-
delict, the following requisites must concur: (a) damages suffered by the plaintiff; (b)
fault or negligence of the defendant, or some other person for whose acts he must
respond; and (c) the connection of cause and effect between the fault or negligence of
the defendant and the damages incurred by the plaintiff.

Viewed from the foregoing, the question now is whether respondents PHI and DTPCI
and its employees were negligent? We do not think so. Several factors militate against
petitioner’s contention.

One. Petitioner recognized the fact that the pool area’s closing time is 7:00 p.m..
She, herself, admitted during her testimony that she was well aware of the sign
when she and Delia entered the pool area. Hence, upon knowing, at the outset,
of the pool’s closing time, she took the risk of overstaying when she decided to
take shower and leave the area beyond the closing hour. In fact, it was only upon
the advise of the pool attendants that she thereafter took her shower.

Two. She admitted, through her certification that she lifted the wooden bar
countertop, which then fell onto her head. The admission in her certificate proves
the circumstances surrounding the occurrence that transpired on the night of 11
June 1995. This is contrary to her assertion in the complaint and testimony that,
while she was passing through the counter door, she was suddenly knocked out
by a hard and heavy object. In view of the fact that she admitted having lifted the
counter top, it was her own doing, therefore, that made the counter top fell on to
her head.

Three. We cannot likewise subscribe to petitioner’s assertion that the pool area
was totally dark in that she herself admitted that she saw a telephone at the
counter after searching for one. It must be noted that petitioner and Delia had
walked around the pool area with ease since they were able to proceed to the
glass entrance door from shower room, and back to the counter area where the
telephone was located without encountering any untoward incident. Otherwise,
she could have easily stumbled over, or slid, or bumped into something while
searching for the telephone. This negates her assertion that the pool area was
completely dark, thereby, totally impairing her vision.
 xxxx

The aforementioned circumstances lead us to no other conclusion than that the

proximate and immediate cause of the injury of petitioner was due to her own
negligence.

Moreover, petitioner failed to sufficiently substantiate that the medical symptoms she is
currently experiencing are the direct result of the head injury she sustained on 11 June
1995 as was aptly discussed in the lower court’s findings.

xxxx

It bears stressing that in civil cases, the law requires that the party who alleges a fact
and substantially asserts the affirmative of the issue has the burden of proving it.
Hence, for petitioner to be entitled to damages, she must show that she had suffered an
actionable injury. Regrettably, petitioner failed in this regard.59 (Emphasis supplied).

Petitioner’s Motion for Reconsideration was denied for lack of merit in a Resolution
dated 5 November 2007.

Hence, this Petition raising the following issues:

(1) Whether or not the findings of fact of the trial court and of the Court of
Appeals are conclusive in this case.

(2) Whether or not herein respondents PHI and DTPCI are responsible by
implied contract to exercise due care for the safety and welfare of the petitioner.

(3) Whether or not the cause of action of the petitioner can be based on both
breach of contract and tort.

(4) Whether or not it is respondents PHI and DTPCI and its employees who are
liable to the petitioner for negligence, applying the well-established doctrines of
res ipsa loquitur and respondeat superior.

(5) Whether the petitioner’s debilitating and permanent injuries were a result of
the accident she suffered at the hotel on 11 June 1995.

(6) Whether or not the petitioner is entitled to the payment of damages, attorney’s
fees, interest, and the costs of suit.

(7) Whether or not the respondent insurance company is liable, even directly, to
the petitioner.

(8) Whether or not petitioner’s motion for reconsideration of the decision of the
Court of Appeals is pro forma.60
Petitioner argues that the rule that "findings of fact of the lower courts are conclusive
and must be respected on appeal" finds no application herein because this case falls
under the jurisprudentially established exceptions. Moreover, since the rationale behind
the afore-mentioned rule is that "the trial judge is in a vantage point to appreciate the
conduct and behavior of the witnesses and has the unexcelled opportunity to evaluate
their testimony," one logical exception to the rule that can be deduced therefrom is
when the judge who decided the case is not the same judge who heard and tried the
case.

Petitioner further faults the Court of Appeals in ruling that no contractual relationship
existed between her and respondents PHI and DTPCI since her use of the hotel’s
swimming pool facility was only upon the invitation of the hotel’s registered guest. On
the contrary, petitioner maintains that an implied contract existed between them in view
of the fact that the hotel guest status extends to all those who avail of its services—its
patrons and invitees. It follows then that all those who patronize the hotel and its
facilities, including those who are invited to partake of those facilities, like petitioner, are
generally regarded as guests of the hotel. As such, respondents PHI and DTPCI are
responsible by implied contract for the safety and welfare of petitioner while the latter
was inside their premises by exercising due care, which they failed to do.

Petitioner even asserts that the existence of a contract between the parties does not bar
any liability for tort since the act that breaks a contract may also be a tort. Hence, the
concept of change of theory of cause of action pointed to by respondents is irrelevant.

Petitioner similarly avows that the doctrines of res ipsa loquitur and respondeat superior
are applicable in this case. She argues that a person who goes in a hotel without a
"bukol" or hematoma and comes out of it with a "bukol" or hematoma is a clear case of
res ipsa loquitur. It was an accident caused by the fact that the hotel staff was not
present to lift the heavy counter top for petitioner as is normally expected of them
because they negligently locked the main entrance door of the hotel’s swimming pool
area. Following the doctrine of res ipsa loquitur, respondents PHI and DTPCI’s
negligence is presumed and it is incumbent upon them to prove otherwise but they
failed to do so. Further, respondents PHI and DTPCI failed to observe all the diligence
of a good father of a family in the selection and supervision of their employees, hence,
following the doctrine of respondeat superior, they were liable for the negligent acts of
their staff in not verifying if there were still people inside the swimming pool area before
turning off the lights and locking the door. Had respondents PHI and DTPCI’s
employees done so, petitioner would not have been injured. Since respondents PHI and
DTPCI’s negligence need not be proved, the lower courts erred in shifting the burden to
petitioner and, thereafter, holding the hotel and its employees not negligent for
petitioner’s failure to prove their negligence. Moreover, petitioner alleges that there was
no contributory negligence on her part for she did not do anything that could have
contributed to her injury. And, even if there was, the same does not bar recovery.

Petitioner equally declares that the evidence on record, including the objective medical
findings, had firmly established that her permanent debilitating injuries were the direct
result of the 11 June 1995 accident inside the hotel’s swimming pool area. This fact has
not been totally disputed by the respondents. Further, the medical experts who had
been consulted by petitioner were in unison in their diagnoses of her condition.
Petitioner was also able to prove that the falling of the folding wooden counter top on
her head while she was at the hotel’s swimming pool area was the cause of her head,
eye and neck injuries.

Petitioner reiterates her claim for an award of damages, to wit: actual, including loss of
income; moral, exemplary; as well as attorney’s fees, interest and costs of suit. She
states that respondents PHI and DTPCI are liable for quasi-delict under Articles 19,
2176 and 2180 of the New Civil Code. At the same time, they are liable under an
implied contract for they have a public duty to give due courtesy, to exercise reasonable
care and to provide safety to hotel guests, patrons and invitees. Respondent First
Lepanto, on the other hand, is directly liable under the express contract of insurance.

Lastly, petitioner contends that her Motion for Reconsideration before the Court of
Appeals was not pro forma for it specifically pointed out the alleged errors in the Court
of Appeals Decision.

The instant Petition is devoid of merit.

Primarily, only errors of law and not of facts are reviewable by this Court in a Petition for
Review on Certiorari under Rule 45 of the Rules of Court.61 This Court is not a trier of
facts and it is beyond its function to re-examine and weigh anew the respective
evidence of the parties.62 Besides, this Court adheres to the long standing doctrine that
the factual findings of the trial court, especially when affirmed by the Court of Appeals,
are conclusive on the parties and this Court.63 Nonetheless, this Court has, at times,
allowed exceptions thereto, to wit:

(a) When the findings are grounded entirely on speculation, surmises, or

conjectures;

(b) When the inference made is manifestly mistaken, absurd, or impossible;

(c) When there is grave abuse of discretion;

(d) When the judgment is based on a misapprehension of facts;

(e) When the findings of facts are conflicting;

(f) When in making its findings the Court of Appeals went beyond the issues of
the case, or its findings are contrary to the admissions of both the appellant and
the appellee;

(g) When the Court of Appeals’ findings are contrary to those by the trial court;
 (h) When the findings are conclusions without citation of specific evidence on
which they are based;

(i) When the facts set forth in the petition as well as in the petitioner’s main and
reply briefs are not disputed by the respondent;

(j) When the findings of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record; or

(k) When the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a different
conclusion.64

Upon meticulous perusal of the records, however, this Court finds that none of these
exceptions is obtaining in this case. No such justifiable or compelling reasons exist for
this Court to depart from the general rule. This Court will not disturb the factual findings
of the trial court as affirmed by the Court of Appeals and adequately supported by the
evidence on record.

Also, this Court will not review the factual findings of the trial court simply because the
judge who heard and tried the case was not the same judge who penned the decision.
This fact alone does not diminish the veracity and correctness of the factual findings of
the trial court.65 Indeed, "the efficacy of a decision is not necessarily impaired by the fact
that its writer only took over from a colleague who had earlier presided at the trial,
unless there is showing of grave abuse of discretion in the factual findings reached by
him."66 In this case, there was none.

It bears stressing that in this jurisdiction there is a disputable presumption that the trial
court’s decision is rendered by the judge in the regular performance of his official duties.
While the said presumption is only disputable, it is satisfactory unless contradicted or
overcame by other evidence. Encompassed in this presumption of regularity is the
presumption that the trial court judge, in resolving the case and drafting the decision,
reviewed, evaluated, and weighed all the evidence on record. That the said trial court
judge is not the same judge who heard the case and received the evidence is of little
consequence when the records and transcripts of stenographic notes (TSNs) are
complete and available for consideration by the former,67 just like in the present case.

Irrefragably, the fact that the judge who penned the trial court’s decision was not the
same judge who heard the case and received the evidence therein does not render the
findings in the said decision erroneous and unreliable. While the conduct and demeanor
of witnesses may sway a trial court judge in deciding a case, it is not, and should not be,
his only consideration. Even more vital for the trial court judge’s decision are the
contents and substance of the witnesses’ testimonies, as borne out by the TSNs, as
well as the object and documentary evidence submitted and made part of the records of
the case.68
This Court examined the records, including the TSNs, and found no reason to disturb
the factual findings of both lower courts. This Court, thus, upholds their conclusiveness.

In resolving the second and third issues, a determination of the cause of action on
which petitioner’s Complaint for Damages was anchored upon is called for.

Initially, petitioner was suing respondents PHI and DTPCI mainly on account of their
negligence but not on any breach of contract. Surprisingly, when the case was elevated
on appeal to the Court of Appeals, petitioner had a change of heart and later claimed
that an implied contract existed between her and respondents PHI and DTPCI and that
the latter were liable for breach of their obligation to keep her safe and out of harm. This
allegation was never an issue before the trial court. It was not the cause of action relied
upon by the petitioner not until the case was before the Court of Appeals. Presently,
petitioner claims that her cause of action can be based both on quasi-delict and breach
of contract.

A perusal of petitioner’s Complaint evidently shows that her cause of action was based
solely on quasi-delict. Telling are the following allegations in petitioner’s Complaint:

6. THAT, in the evening of 11 June 1995, between the hours from 7:00 to 8:00
o’clock, after herein petitioner and her friend from New York, Delia, the latter
being then a Hotel guest, were taking their shower after having a dip in the
hotel’s swimming pool, without any notice or warning, the Hotel’s staff put off all
the lights within the pool area including the lights on the hallway and also locked
the main entrance door of the pool area, x x x;

7. THAT, Hotel guest Delia started to panic while petitioner pacified her by telling
her not to worry as they would both find their way out. Petitioner knowing that
within the area there is a house phone, started to look around while Delia was
following her, eventually petitioner saw a phone behind the counter x x x, that
while slowly moving on towards the phone on a stooping manner due to the
darkness CAUSED BY UNTIMELY AND NEGLIGENTLY PUTTING OFF WITH
THE LIGHTS BY THE HEREIN RESPONDENTS PHI AND DTPCI’S
EMPLOYEE while passing through the open counter door with its Folding
Counter Top also opened, x x x, a hard and heavy object fell onto the head of the
petitioner that knocked her down almost unconscious which hard and heavy
object turned out to be the Folding Counter Top;

8. THAT, Delia immediately got hold of the house phone and notified the Hotel
Telephone Operator about the incident, immediately the hotel staffs (sic) arrived
but they were stranded behind the main door of the pool entrance and it too (sic)
them more than twenty (20) minutes to locate the hotel maintenance employee
who holds the key of the said main entrance door;

9. THAT, when the door was opened, two Hotel Chamber Maids assisted the
petitioner to get out of the counter door. Petitioner being a Physician tried to
 control her feelings although groggy and requested for a HURIDOID, a medicine
for HEMATOMA, as a huge lump developed on her head while the two Chamber
Maids assisted petitioner by holding the bag of ice on her head and applying the
medicine on the huge lump;

10. THAT, petitioner after having recovered slightly from her nightmare, though
still feeling weak, asked to be assisted to the Hotel Coffee Shop to take a rest but
requested for the hotel’s Physician. Despite her insistent requests, the Dusit
Hotel refused to lift a finger to assists petitioner who was then in distress until a
lady approached and introduced herself as the Hotel’s house Doctor. Instead
however of assisting petitioner by asking her what kind of assistance the Hotel
could render, in a DISCOURTEOUS MANNER presented instead a paper and
demanding petitioner to affix her signature telling her that the Hotel Management
would only assists and answer for all expenses incurred if petitioner signs the
paper presented, but she refused and petitioner instead wrote a marginal note on
the said paper stating her reason therefore, said paper later on turned out to be a
WAIVER OF RIGHT or QUIT CLAIM;

xxxx

14. THAT, due to the unfortunate incident caused by respondents PHI and
DTPCI’s gross negligence despite medical assistance, petitioner started to feel
losing her memory that greatly affected and disrupted the practice of her chosen
profession x x x.

xxxx

19. THAT, due to respondents PHI and DTPCI’s gross negligence as being
narrated which caused petitioner to suffer sleepless nights, depression, mental
anguish, serious anxiety, wounded feelings, and embarrassment with her
Diplomate friends in the profession and industry, her social standing in the
community was greatly affected and hence, respondents PHI and DTPCI must
be imposed the hereunder damages, prayed for x x x and Artile (sic) 2176 and
2199 of the New Civil Code of the Philippines x x x.

xxxx

22. THAT, as to Moral, Exemplary and Actual Damages, as well as petitioner’s

Loss of Income, the amounts are stated in its prayer hereunder.69

It is clear from petitioner’s allegations that her Complaint for Damages was predicated
on the alleged negligence of respondents PHI and DTPCI’s staff in the untimely putting
off of all the lights within the hotel’s swimming pool area, as well as the locking of its
main door, prompting her to look for a way out leading to the fall of the folding wooden
counter top on her head causing her serious brain injury. The said negligence was
allegedly compounded by respondents PHI and DTPCI’s failure to render prompt and
adequate medical assistance. These allegations in petitioner’s Complaint constitute a
cause of action for quasi-delict, which under the New Civil Code is defined as an act, or
omission which causes damage to another, there being fault or negligence. 70

It is evident from petitioner’s Complaint and from her open court testimony that the
reliance was on the alleged tortious acts committed against her by respondents PHI and
DTPCI, through their management and staff. It is now too late in the day to raise the
said argument for the first time before this Court.71

Petitioner’s belated reliance on breach of contract as her cause of action cannot be

sanctioned by this Court. Well-settled is the rule that a party is not allowed to change
the theory of the case or the cause of action on appeal. Matters, theories or arguments
not submitted before the trial court cannot be considered for the first time on appeal or
certiorari.72 When a party adopts a certain theory in the court below, he will not be
permitted to change his theory on appeal for to permit him to do so would not only be
unfair to the other party but it would also be offensive to the basic rules of fair play,
justice and due process.73 Hence, a party is bound by the theory he adopts and by the
cause of action he stands on and cannot be permitted after having lost thereon to
repudiate his theory and cause of action and adopt another and seek to re-litigate the
matter anew either in the same forum or on appeal.74

In that regard, this Court finds it significant to take note of the following differences
between quasi-delict (culpa aquilina) and breach of contract (culpa contractual). In
quasi-delict, negligence is direct, substantive and independent, while in breach of
contract, negligence is merely incidental to the performance of the contractual
obligation; there is a pre-existing contract or obligation.75 In quasi-delict, the defense of
"good father of a family" is a complete and proper defense insofar as parents, guardians
and employers are concerned, while in breach of contract, such is not a complete and
proper defense in the selection and supervision of employees.76 In quasi- delict , there is
no presumption of negligence and it is incumbent upon the injured party to prove the
negligence of the defendant, otherwise, the former’s complaint will be dismissed, while
in breach of contract, negligence is presumed so long as it can be proved that there was
breach of the contract and the burden is on the defendant to prove that there was no
negligence in the carrying out of the terms of the contract; the rule of respondeat
superior is followed.77

Viewed from the foregoing, petitioner’s change of theory or cause of action from quasi-
delict to breach of contract only on appeal would necessarily cause injustice to
respondents PHI and DTPCI. First, the latter will have no more opportunity to present
evidence to contradict petitioner’s new argument. Second, the burden of proof will be
shifted from petitioner to respondents PHI and DTPCI. Petitioner’s change of theory
from quasi-delict to breach ofcontract must be repudiated.

As petitioner’s cause of action is based on quasi-delict, it is incumbent upon her to

prove the presence of the following requisites before respondents PHI and DTPCI can
be held liable, to wit: (a) damages suffered by the plaintiff; (b) fault or negligence of the
defendant, or some other person for whose acts he must respond; and (c) the
connection of cause and effect between the fault or negligence of the defendant and the
damages incurred by the plaintiff.78 Further, since petitioner’s case is for quasi-delict ,
the negligence or fault should be clearly established as it is the basis of her
action.79 The burden of proof is upon petitioner. Section 1, Rule 131 of the Rules of
Court provides that "burden of proof is the duty of a party to present evidence on the
facts in issue necessary to establish his claim or defense by the amount of evidence
required by law." It is then up for the plaintiff to establish his cause of action or the
defendant to establish his defense. Therefore, if the plaintiff alleged in his complaint that
he was damaged because of the negligent acts of the defendant, he has the burden of
proving such negligence. It is even presumed that a person takes ordinary care of his
concerns. The quantum of proof required is preponderance of evidence. 80

In this case, as found by the trial court and affirmed by the Court of Appeals, petitioner
utterly failed to prove the alleged negligence of respondents PHI and DTPCI. Other than
petitioner’s self-serving testimony that all the lights in the hotel’s swimming pool area
were shut off and the door was locked, which allegedly prompted her to find a way out
and in doing so a folding wooden counter top fell on her head causing her injury, no
other evidence was presented to substantiate the same. Even her own companion
during the night of the accident inside the hotel’s swimming pool area was never
presented to corroborate her allegations. Moreover, petitioner’s aforesaid allegations
were successfully rebutted by respondents PHI and DTPCI. Here, we quote with
conformity the observation of the trial court, thus:

x x x Besides not being backed up by other supporting evidence, said statement is

being contradicted by the testimony of Engineer Dante L. Costas,81 who positively
declared that it has been a normal practice of the Hotel management not to put off the
lights until 10:00P.M. in order to allow the housekeepers to do the cleaning of the pool’s
surrounding, the toilets and the counters. It was also confirmed that the lights were kept
on for security reasons and so that the people exercising in the nearby gym may be
able to have a good view of the swimming pool. This Court also takes note that the
nearby gymnasium was normally open until 10:00 P.M. so that there was a remote
possibility the pool area was in complete darkness as was alleged by herein petitioner,
considering that the illumination which reflected from the gym. Ergo, considering that
the area were sufficient (sic) illuminated when the alleged incident occurred, there could
have been no reason for the petitioner to have met said accident, much less to have
been injured as a consequence thereof, if she only acted with care and caution, which
every ordinary person is expected to do.82

More telling is the ratiocination of the Court of Appeals, to wit:

Viewed from the foregoing, the question now is whether respondents PHI and DTPCI
and its employees were negligent? We do not think so. Several factors militate against
petitioner’s contention.
One. Petitioner recognized the fact that the pool area’s closing time is 7:00 p.m.. She,
herself, admitted during her testimony that she was well aware of the sign when she
and Delia entered the pool area. Hence, upon knowing, at the outset, of the pool’s
closing time, she took the risk of overstaying when she decided to take shower and
leave the area beyond the closing hour. In fact, it was only upon the advise of the pool
attendants that she thereafter took her shower.

Two. She admitted, through her certification, that she lifted the wooden bar countertop,
which then fell on to her head. The admission in her certificate proves the
circumstances surrounding the occurrence that transpired on the night of 11 June 1995.
This is contrary to her assertion in the complaint and testimony that, while she was
passing through the counter door, she was suddenly knocked out by a hard and heavy
object. In view of the fact that she admitted having lifted the countertop, it was her own
doing, therefore, that made the counter top fell on to her head.

Three. We cannot likewise subscribe to petitioner’s assertion that the pool area was
totally dark in that she herself admitted that she saw a telephone at the counter after
searching for one. It must be noted that petitioner and Delia had walked around the pool
area with ease since they were able to proceed to the glass entrance door from the
shower room, and back to the counter area where the telephone was located without
encountering any untoward incident. Otherwise, she could have easily stumbled over, or
slid, or bumped into something while searching for the telephone. This negates her
assertion that the pool area was completely dark, thereby, totally impairing her vision.

xxxx

The aforementioned circumstances lead us to no other conclusion than that the

proximate and immediate cause of the injury of petitioner was due to her own
negligence.83 (Emphasis supplied).

Even petitioner’s assertion of negligence on the part of respondents PHI and DTPCI in
not rendering medical assistance to her is preposterous. Her own Complaint affirmed
that respondents PHI and DTPCI afforded medical assistance to her after she met the
unfortunate accident inside the hotel’s swimming pool facility. Below is the portion of
petitioner’s Complaint that would contradict her very own statement, thus:

14. THAT, due to the unfortunate incident caused by respondents PHI and DTPCI’s
gross negligence despite medical assistance, petitioner started to feel losing her
memory that greatly affected and disrupted the practice of her chosen profession. x x
x.84 (Emphasis supplied).

Also, as observed by the trial court, respondents PHI and DTPCI, indeed, extended
medical assistance to petitioner but it was petitioner who refused the same. The trial
court stated, thus:
Further, herein petitioner’s asseverations that the Hotel Management did not extend
medical assistance to her in the aftermath of the alleged accident is not true. Again, this
statement was not supported by any evidence other that the sole and self-serving
testimony of petitioner. Thus, this Court cannot take petitioner’s statement as a gospel
truth. It bears stressing that the Hotel Management immediately responded after it
received notice of the incident. As a matter of fact, Ms. Pearlie, the Hotel nurse, with two
chambermaids holding an ice bag placed on petitioner’s head came to the petitioner to
extend emergency assistance when she was notified of the incident, but petitioner
merely asked for Hirudoid, saying she was fine, and that she was a doctor and know
how to take care of herself. Also, the Hotel, through its in-house physician, Dr.
Dalumpines offered its medical services to petitioner when they met at the Hotel’s
coffee shop, but again petitioner declined the offer. Moreover, the Hotel as a show of
concern for the petitioner’s welfare, shouldered the expenses for the MRI services
performed on petitioner at the Makati Medical Center. Emphatically, petitioner herself
cannot fault the Hotel for the injury she allegedly suffered because she herself did not
heed the warning at the pool to the effect that it was only open from 7:00 to 7:00 P.M.
Thus, when the petitioner’s own negligence was the immediate and proximate cause of
his injury, shecannot recover damages x x x. 85

With the foregoing, the following were clearly established, to wit: (1) petitioner stayed in
the hotel’s swimming pool facility beyond its closing hours; (2) she lifted the folding
wooden counter top that eventually hit her head; and (3) respondents PHI and DTPCI
extended medical assistance to her. As such, no negligence can be attributed either to
respondents PHI and DTPCI or to their staff and/or management. Since the question of
negligence is one of fact, this Court is bound by the said factual findings made by the
lower courts. It has been repeatedly held that the trial court's factual findings, when
affirmed by the Court of Appeals, are conclusive and binding upon this Court, if they are
not tainted with arbitrariness or oversight of some fact or circumstance of significance
and influence. Petitioner has not presented sufficient ground to warrant a deviation from
this rule.86

With regard to petitioner’s contention that the principles of res ipsa loquitur and
respondeat superior are applicable in this case, this Court holds otherwise.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction
speaks for itself." It relates to the fact of an injury that sets out an inference to the cause
thereof or establishes the plaintiff’s prima facie case. The doctrine rests on inference
and not on presumption. The facts of the occurrence warrant the supposition of
negligence and they furnish circumstantial evidence of negligence when direct evidence
is lacking.87 Simply stated, this doctrine finds no application if there is direct proof of
absence or presence of negligence. If there is sufficient proof showing the conditions
and circumstances under which the injury occurred, then the creative reason for the
said doctrine disappears.88

Further, the doctrine of res ipsa loquitur applies where, (1) the accident was of such
character as to warrant an inference that it would not have happened except for the
defendant’s negligence; (2) the accident must have been caused by an agency or
instrumentality within the exclusive management or control of the person charged with
the negligence complained of; and (3) the accident must not have been due to any
voluntary action or contribution on the part of the person injured.89

In the case at bench, even granting that respondents PHI and DTPCI’s staff negligently
turned off the lights and locked the door, the folding wooden counter top would still not
fall on petitioner’s head had she not lifted the same. Although the folding wooden
counter top is within the exclusive management or control of respondents PHI and
DTPCI, the falling of the same and hitting the head of petitioner was not due to the
negligence of the former. As found by both lower courts, the folding wooden counter top
did not fall on petitioner’s head without any human intervention. Records showed that
petitioner lifted the said folding wooden counter top that eventually fell and hit her head.
The same was evidenced by the, (1) 11 June 1995 handwritten certification of petitioner
herself; (2) her Letter dated 30 August 1995 addressed to Mr. Yoshikazu Masuda (Mr.
Masuda), General Manager of Dusit Hotel; and, (3) Certification dated 7 September
1995 issued to her by Dr. Dalumpines upon her request, which contents she never
questioned.

Here, we, respectively, quote the 11 June 1995 handwritten certification of petitioner;
her letter to Mr. Masuda dated 30 August 1995; and Dr. Dalumpines’ Certification dated
7 September 1995, to wit:

Petitioner’s 11 June 1995 Handwritten Certification:

I was requested by Dr. Dalumpines to write that I was assured of assistance should it be
necessary with regard an accident at the pool. x x x The phone was in an enclosed area
on a chair – I lifted the wooden bar counter top which then fell on my head producing a
large hematoma x x x.90

Petitioner’s Letter addressed to Mr. Masuda dated 30 August 1995:

Dear Mr. Masuda,

xxxx

x x x We searched and saw a phone on a chair behind a towel counter. However, in

order to get behind the counter I had to lift a hinged massive wooden section of the
counter which subsequently fell and knocked me on my head x x x. 91

Dr. Dalumpines’ Certification dated 7 September 1995:

CERTIFICATION

This is to certify that as per Clinic records, duty nurse Pearlie was called to attend to an
accident at the poolside at 7:45PM on 11 June 1995.
Same records show that there, she saw petitioner who claimed the folding countertop
fell on her head when she lifted it to enter the lifeguard’s counter to use the phone. She
asked for Hirudoid.

The same evening petitioner met Dr. Dalumpnes at the Coffee Shop. After narrating the
poolside incident and declining Dr. Dalumpines’ offer of assistance, she reiterated that
the Hirudoid cream was enough and that petitioner]being a doctor herself, knew her
condition and she was all right.

This certification is given upon the request of petitioner for whatever purpose it may
serve, 7 September 1995 at Makati City.92 (Emphasis supplied).

This Court is not unaware that in petitioner’s Complaint and in her open court testimony,
her assertion was, "while she was passing through the counter door, she was suddenly
knocked out by a hard and heavy object, which turned out to be the folding wooden
counter top." However, in her open court testimony, particularly during cross-
examination, petitioner confirmed that she made such statement that "she lifted the
hinge massive wooden section of the counter near the swimming pool." 93 In view
thereof, this Court cannot acquiesce petitioner’s theory that her case is one of res ipsa
loquitur as it was sufficiently established how petitioner obtained that "bukol" or
"hematoma."

The doctrine of respondeat superior finds no application in the absence of any showing
that the employees of respondents PHI and DTPCI were negligent. Since in this case,
the trial court and the appellate court found no negligence on the part of the employees
of respondents PHI and DTPCI, thus, the latter cannot also be held liable for negligence
and be made to pay the millions of pesos damages prayed for by petitioner.

The issue on whether petitioner’s debilitating and permanent injuries were the result of
the accident she suffered at the hotel’s swimming pool area on 11 June 1995 is another
question of fact, which is beyond the function of this Court to resolve. More so, this
issue has already been properly passed upon by the trial court and the Court of
Appeals. To repeat, this Court is bound by the factual findings of the lower courts and
there is no cogent reason to depart from the said rule.

The following observations of the trial court are controlling on this matter:

Firstly, petitioner had a past medical history which might have been the cause of her
recurring brain injury.

Secondly, the findings of Dr. Perez did not prove a causal relation between the 11 June
1995 accident and the brain damage suffered by petitioner. Dr. Perez himself testified
that the symptoms being experienced by petitioner might have been due to factors other
than the head trauma she allegedly suffered. Emphasis must be given to the fact that
petitioner had been suffering from different kinds of brain problems since she was 18
years old, which may have been the cause of the recurring symptoms of head injury she
is experiencing at present.

Thirdly, Dr. Sanchez’s testimony cannot be relied upon since she testified on the
findings and conclusions of persons who were never presented in court. Ergo, her
testimony thereon was hearsay. A witness can testify only with regard to facts of which
they have personal knowledge. Testimonial or documentary evidence is hearsay if it is
based, not on the personal knowledge of the witness, but on the knowledge of some
other person not on the witness stand. Consequently, hearsay evidence -- whether
objected to or not -- has no probative value.94

Fourthly, the medical reports/evaluations/certifications issued by myriads of doctors

whom petitioner sought for examination or treatment were neither identified nor testified
to by those who issued them. Being deemed as hearsay, they cannot be given
probative value.1âwphi1

The aforesaid medical reports/evaluations/certifications of different doctors in favor of

petitioner cannot be given probative value and their contents cannot be deemed to
constitute proof of the facts stated therein. It must be stressed that a document or
writing which is admitted not as independent evidence but merely as part of the
testimony of a witness does not constitute proof of the facts related therein. 95 In the
same vein, the medical certificate which was identified and interpreted in court by
another doctor was not accorded probative value because the doctor who prepared it
was not presented for its identification. Similarly, in this case, since the doctors who
examined petitioner were not presented to testify on their findings, the medical
certificates issued on their behalf and identified by another doctor cannot be admitted as
evidence. Since a medical certificate involves an opinion of one who must first be
established as an expert witness, it cannot be given weight or credit unless the doctor
who issued it is presented in court to show his qualifications.96 Thus, an unverified and
unidentified private document cannot be accorded probative value. It is precluded
because the party against whom it is presented is deprived of the right and opportunity
to cross-examine the person to whom the statements or writings are attributed. Its
executor or author should be presented as a witness to provide the other party to the
litigation the opportunity to question its contents. Being mere hearsay evidence, failure
to present the author of the letter renders its contents suspect and of no probative
value.97

All told, in the absence of negligence on the part of respondents PHI and DTPCI, as
well as their management and staff, they cannot be made Iiable to pay for the millions of
damages prayed for by the petitioner. Since respondents PHI and DTPCI arc not liable,
it necessarily follows that respondent First Lepanto cannot also be made liable under
the contract or Insurance.

WHEREFORE, premises considered, the Decision and Resolution or the Court of

Appeals in CA-G.R. CV No. 87065 dated 9 August 2007 and 5 November 2007,
respectively, are hereby AFFIRMED. Costs against petitioner.
SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

ARTURO D. BRION
Associate Justice
Acting Chairperson

PRESBITERO J. VELASCO, JR.* MARTIN S. VILLARAMA, JR.**

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court's Division.

ARTURO D. BRION
Associate Justice
Acting Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's
Attestation, f certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court's
Division.

ANTONIO T. CARPIO
Acting Chief Justice

Article 1314. Any third person who induces another to violate his contract shall be liable
for damages to the other contracting party. (n)
G.R. No. L-9356 February 18, 1915

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

C. Lozano for appellants.

Bruce, Lawrence, Ross and Block for appellee.

TRENT, J.:

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

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

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

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

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

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

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

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

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

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

In Read vs. Friendly Society of Operative Stonemasons ([1902] 2 K. B., 88), Darling, J.,
said: "I think the plaintiff has a cause of action against the defendants, unless the court
is satisfied that, when they interfered with the contractual rights of plaintiff, the
defendants had a sufficient justification for their interference; . . . for it is not a
justification that `they acted bona fide in the best interests of the society of masons,' i.
e., in their own interests. Nor is it enough that `they were not actuated by improper
motives.' I think their sufficient justification for interference with plaintiff's right must be
an equal or superior right in themselves, and that no one can legally excuse himself to a
man, of whose contract he has procured the breach, on the ground that he acted on a
wrong understanding of his own rights, or without malice, or bona fide, or in the best
interests of himself, or even that he acted as an altruist, seeking only good of another
and careless of his own advantage." (Quoted with approval in Beekman vs. Marsters,
195 Mass., 205.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In 3 Elliot on Contracts, section 2511, it is said: "Injunction is the proper remedy to

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

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

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

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

Separate Opinions

MORELAND, J., concurring:

The court seems to be of the opinion that the action is one for a permanent injunction;
whereas, under my view of the case, it is one for specific performance. The facts are
simple. C. S. Gilchrist, the plaintiff, proprietor of the Eagle Theater of Iloilo, contracted
with E. A. Cuddy, one of the defendants, of Manila, for a film entitled "Zigomar or
Eelskin, 3d series," to be exhibited in his theater in Iloilo during the week beginning May
26, 1913. Later, the defendants Espejo and Zaldarriaga, who were also operating a
theater in Iloilo, representing Pathe Freres, also obtained from Cuddy a contract for the
exhibition of the film aforesaid in their theater in Iloilo during the same week.

The plaintiff commenced this action against Cuddy and the defendants Espejo and
Zaldarriaga for the specific performance of the contract with Cuddy. The complaint
prays "that the court, by a mandatory injunction, order Cuddy to deliver, on the 24th of
May, 1913, in accordance with the aforesaid contract, the said film 'Zigomar, 3d series,
or Eelskin,' to the plaintiff Gilchrist, in accordance with the terms of the agreement, so
that plaintiff can exhibit the same during the last week beginning May 26, 1913, in the
Eagle Theater, in Iloilo; that the court issue a preliminary injunction against the
defendants Espejo and Zaldarriaga prohibiting them from receiving, exhibiting, or using
said film in Iloilo during the last week of May, 1913, or at any other time prior to the
delivery to the plaintiff ; that, on the trial, said injunction be made perpetual and that
Cuddy be ordered and commanded to specifically perform his contract with the
plaintiff ."

On the filing of the complaint the plaintiff made an application for a mandatory injunction
compelling the defendant Cuddy to deliver to plaintiff the film in question by mailing it to
him from Manila on the 24th of May so that it would reach Iloilo for exhibition on the
26th; and for a preliminary restraining order against the order two defendants prohibiting
them from receiving or exhibiting the said film prior to its exhibition by plaintiff.

The court, on this application, entered an order which provided that Cuddy should "not
send said film 'Zigomar, 3d series, or Eelskin,' to the defendants Espejo and Zaldarriaga
and that he should send it to the plaintiff, Gilchrist, on the 24th day of May, 1913, in the
mail for Iloilo," This order was duly served on the defendants, including Cuddy, in whose
possession the film still was, and, in compliance therewith Cuddy mailed the film to the
plaintiff at Iloilo on the 24th of May. The latter duly received it and exhibited it without
molestation during the week beginning the 26th of May in accordance with the contract
which he claimed to have made with Cuddy.

The defendants Espejo and Zaldarriaga having received due notice of the issuance of
the mandatory injunction and restraining order of the 22d of May, appeared before the
court on the 26th of May and moved that the court vacate so much of the order as
prohibited them from receiving and exhibiting the film. In other words, while the order of
the 22d of May was composed of two parts, one a mandatory order for immediate
specific performance of the plaintiff's contract with the defendant Cuddy, and the other a
preliminary restraining order directed to Espejo and Zaldarriaga prohibiting them from
receiving and exhibiting the film during the week beginning the 26th of May, their motion
of the 26th of May referred exclusively to the injunction against them and touched in no
way that portion of the order which required the immediate performance by Cuddy of his
contract with Gilchrist. Indeed, the defendants Espejo and Zaldarriaga did not even
except to the order requiring Cuddy to specifically perform his agreement with the
plaintiff nor did they in any way make an objection to or show their disapproval of it. It
was not excepted to or appealed from and is not before this court for review.

The motion of Espejo and Zaldarriaga to vacate the injunction restraining them from
receiving the film was denied on the 26th of May. After the termination of the week
beginning May 26th, and after the exhibition of the film by the plaintiff in accordance
with the alleged contract with Cuddy, the plaintiff came into court and moved that, in
view of the fact that he had already obtained all that he desired to obtain or could obtain
by his action, namely, the exhibition of the film in question during the week beginning
May 26th, there was no reason for continuing it and moved for its dismissal. To this
motion Cuddy consented and the action was dismissed as to him. But the other
defendants objected to the dismissal of the action on the ground that they desired to
present to the court evidence showing the damages which they had suffered by reason
of the issuance of the preliminary injunction prohibiting them from receiving and
exhibiting the film in question during the week beginning May 26. The court sustained
their objection and declined to dismiss the action as to them, and, on the 8th of August,
heard the evidence as to damages. He denied defendants the relief asked for and
dismissed their claim for damages. They thereupon took an appeal from that order, and
that is the appeal which we have now before us and which is the subject of the opinion
of the court with which I am concurring.

We thus have this strange condition:

An action for specific performance of a contract to deliver a film for exhibition during a
given time. A preliminary mandatory injunction ordering the delivery of the film in
accordance with the contract. The delivery of the film in accordance with the preliminary
mandatory injunction. The actual exhibition of the film during the time specified in the
contract. No objection to the issuance of the mandatory injunction, to the delivery of the
film, or to the ground that the plaintiff had obtained full relief by means of the so-called
preliminary remedy by virtue of which the contract was actually specifically performed
before the action was tried. No objection or exception to the order requiring the specific
performance of the contract.

Under such conditions it is possible for the defendant Espejo and Zaldarriaga to secure
damages for the wrongful issuance of the preliminary injunction directed against them
even though it be admitted that it was erroneously issued and that there was no ground
therefor whatever? It seems to me that it is not. At the time this action was begun the
film, as we have seen, was in the possession of Cuddy and, while in his possession, he
complied with a command of the court to deliver it to plaintiff. In pursuance of that
command he delivered it to plaintiff, who used it during the time specified in his contract
with Cuddy; or, in other words, he made such use of it as he desired and then returned
it to Cuddy. This order and the delivery of the film under it were made in an action in
which the defendants Espejo and Zaldarriaga were parties, without objection on their
part and without objection or exception to the order. The film having been delivered to
defendants' competitor, the plaintiff, under a decree of the court to which they made no
objection and took no exception and from which they have not appealed, what injury
can they show by reason of the injunction restraining them from making use of the film?
If they themselves, by their conduct, permitted the plaintiff to make it impossible for
them to gain possession of the film and to use it, then the preliminary injunction
produced no injury for the reason that no harm can result from restraining a party from
doing a thing which, without such restraint, it would be impossible for him to do.
Moreover, the order for the delivery of the film to plaintiff was a complete determination
of the rights of the parties to the film which, while the court had no right to make,
nevertheless, was valid and binding on all the parties, none of them objecting or taking
exception thereto. Being a complete determination of the rights of the parties to the
action, it should have been the first point attacked by the defendants, as it foreclosed
them completely and, if left in force, eliminating every defense. This order was made on
May 22d and was not excepted to or appealed from. On the 8th of August following the
defendants appealed from the order dismissing their claim to damages but the order for
the delivery of the film to plaintiff was final at that time and is now conclusive on this
court.

Section 143 of the Code of Civil Procedure, providing for appeals by bill of exceptions,
provides that "upon the rendition of final judgment disposing of the action, either party
shall have the right to perfect a bill of exceptions for a review by the Supreme Court of
all rulings, orders, and judgment made in the action, to which the party has duly
excepted at the time of making such ruling, order, or judgment." While the order for the
delivery of the film to plaintiff was in one sense a preliminary order, it was in reality a
final determination of the rights of the parties to the film, as it ordered the delivery
thereof to plaintiff for his use. If it had been duly excepted to, its validity could have been
attacked in an appeal from the final judgment thereafter entered in the action. Not
having been excepted to as required by the section just referred to, it became final and
conclusive on all the parties to the action, and when, on the 8th day of August following,
the defendants presented their claim for damages based on the alleged wrongful
issuance of a temporary restraining order, the whole foundation of their claim had
disappeared by virtue of the fact that the execution of the order of the 22d of May had
left nothing for them to litigate. The trial court, on the 8th of August, would have been
fully justified in refusing to hear the defendants on their claim for damages. Their right
thereto had been adjudicated on the 22d of May and that adjudication had been duly put
into execution without protest, objection or exception, and was, therefore, final and
conclusive on them on the 8th of August.
I have presented this concurring opinion in an attempt to prevent confusion, if any,
which might arise from the theory on which the court decides this case. It seems to me
impossible that the action can be one for a permanent injunction. The very nature of the
case demonstrates that a permanent injunction is out of the question. The only thing
that plaintiff desired was to be permitted to use the film for the week beginning the 26th
of May. With the termination of that week his rights expired. After that time Cuddy was
perfectly free to turn the film over to the defendants Espejo and Zaldarriaga for
exhibition at any time. An injunction permanently prohibiting the defendants from
exhibiting the film in Iloilo would have been unjustifiable, as it was something that
plaintiff did not ask and did not want; and would have been an invasion of the rights of
Cuddy as, after the termination of the week beginning May 26, he was at liberty, under
his contract with plaintiff, to rent the film to the defendants Espejo and Zaldarriaga and
permit its exhibition in Iloilo at any time. The plaintiff never asked to have
defendants permanently enjoined from exhibiting the film in Iloilo and no party to the
action has suggested such thing.

The action is one for specific performance purely; and while the court granted plaintiff
rights which should have been granted only after a trial of the action, nevertheless, such
right having been granted before trial and none of the defendants having made
objection or taken exception thereto, and the order granting them having become final,
such order became a final determination of the action, by reason of the nature of the
action itself, the rights of the parties became thereby finally determined and the
defendants Espejo and Zaldarriaga, being parties to the action, were precluded from
further litigation relative to the subject matter of the controversy.

No damages are claimed by reason of the issuance of the mandatory injunction under
which the film was delivered to plaintiff and used by him during the week beginning the
26th of May. While the opinion says in the first paragraph that the action is "for damages
against the plaintiff for the alleged wrongful issuance of a mandatory and preliminary
injunction," the opinion also says in a latter portion that "It will be unnecessary for us to
inquire whether the mandatory injunction against Cuddy was properly issued or not. No
question is raised with reference to the issuance of that injunction;" and still later it is
also stated that "as to whether or not the mandatory injunction should have been
issued, we are not, as we have said, called upon to determine." I repeat that no
objection was made by the defendants to the issuance of the mandatory injunction, no
exception was taken to the order on which it was issued and no appeal has been taken
therefrom. That order is now final and conclusive and was at the time this appeal was
taken. That being so, the rights of the defendants were foreclosed thereby. The
defendants Espejo and Zaldarriaga cannot now be heard to say that they were
damaged by the issuance of the preliminary restraining injunction issued on the same
day as the mandatory injunction.

From what has been said it is clear, it seems to me, that the question of a breach of
contract by inducement, which is substantially the only question discussed and decided,
is not in the case in reality and, in my judgment, should not be touched upon. Courts will
not proceed with a litigation and discuss and decided question which might possibly be
involved in the case when it clearly appears that there remains nothing about which to
litigate, the whole subject matter of the original action having been settled and the
parties having no real controversy to present. At the time the defendants Espejo and
Zaldarriaga offered their claim for damages arising out of the wrongful issuance of the
restraining order, there was nothing between them and the plaintiff to litigate, the
rightfulness of plaintiff's demand having already been finally adjudicated and determined
in the same action.
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 cause 12 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.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

RENATO C. CORONA ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

(No Part)
CANCIO C. GARCIA
Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice
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.

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 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.

LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s
Attestation, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court’s
Division.

REYNATO S. PUNO
Chief Justice
G.R. No. 156037 May 28, 2007

MERCURY DRUG CORPORATION, Petitioner,

vs.
SEBASTIAN M. BAKING, Respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Review on Certiorari1 assailing the
Decision2 dated May 30, 2002 and Resolution dated November 5, 2002 of the Court of
Appeals in CA-G.R. CV No. 57435, entitled "Sebastian M. Baking, plaintiff-appellee,
versus Mercury Drug Co. Inc., defendant-appellant."

The facts are:

On November 25, 1993, Sebastian M. Baking, respondent, went to the clinic of Dr.
Cesar Sy for a medical check-up. On the following day, after undergoing an ECG,
blood, and hematology examinations and urinalysis, Dr. Sy found that respondent’s
blood sugar and triglyceride were above normal levels. Dr. Sy then gave respondent
two medical prescriptions – Diamicron for his blood sugar and Benalize tablets for his
triglyceride.

Respondent then proceeded to petitioner Mercury Drug Corporation (Alabang Branch)

to buy the prescribed medicines. However, the saleslady misread the prescription for
Diamicron as a prescription for Dormicum. Thus, what was sold to respondent was
Dormicum, a potent sleeping tablet.

Unaware that what was given to him was the wrong medicine, respondent took one pill
of Dormicum on three consecutive days –November 6, 1993 at 9:00 p.m., November 7
at 6:00 a.m., and November 8 at 7:30 a.m.

On November 8 or on the third day he took the medicine, respondent figured in a

vehicular accident. The car he was driving collided with the car of one Josie Peralta.
Respondent fell asleep while driving. He could not remember anything about the
collision nor felt its impact.

Suspecting that the tablet he took may have a bearing on his physical and mental state
at the time of the collision, respondent returned to Dr. Sy’s clinic. Upon being shown the
medicine, Dr. Sy was shocked to find that what was sold to respondent was Dormicum,
instead of the prescribed Diamicron.

Thus, on April 14, 1994, respondent filed with the Regional Trial Court (RTC), Branch
80 of Quezon City a complaint for damages against petitioner, docketed as Civil Case
No. Q-94-20193.
After hearing, the trial court rendered its Decision dated March 18, 1997 in favor of
respondent, thus:

WHEREFORE, premises considered, by preponderance of evidence, the Court hereby

renders judgment in favor of the plaintiff and against the defendant ordering the latter to
pay mitigated damages as follows:

1. ₱250,000.00 as moral damages;

2. ₱20,000.00 as attorney’s fees and litigation expenses;

3. plus ½% of the cost of the suit.

SO ORDERED.

On appeal, the Court of Appeals, in its Decision, affirmed in toto the RTC judgment.
Petitioner filed a motion for reconsideration but it was denied in a Resolution dated
November 5, 2002.

Hence, this petition.

Petitioner contends that the Decision of the Court of Appeals is not in accord with law or
prevailing jurisprudence.

Respondent, on the other hand, maintains that the petition lacks merit and, therefore,
should be denied.

The issues for our resolution are:

1. Whether petitioner was negligent, and if so, whether such negligence was the
proximate cause of respondent’s accident; and

2. Whether the award of moral damages, attorney’s fees, litigation expenses, and
cost of the suit is justified.

Article 2176 of the New 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.

To sustain a claim based on the above provision, the following requisites must concur:
(a) damage suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c)
connection of cause and effect between the fault or negligence of the defendant and the
damage incurred by the plaintiff.3
There is no dispute that respondent suffered damages.

It is generally recognized that the drugstore business is imbued with public interest. The
health and safety of the people will be put into jeopardy if drugstore employees will not
exercise the highest degree of care and diligence in selling medicines. Inasmuch as the
matter of negligence is a question of fact, we defer to the findings of the trial court
affirmed by the Court of Appeals.

Obviously, petitioner’s employee was grossly negligent in selling to respondent

Dormicum, instead of the prescribed Diamicron. 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.41awphi1.nét

Petitioner contends that the proximate cause of the accident was respondent’s
negligence in driving his car.

We disagree.

Proximate cause is defined as any cause that produces injury in a natural and
continuous sequence, unbroken by any efficient intervening cause, such that the result
would not have occurred otherwise. Proximate cause is determined from the facts of
each case, upon a combined consideration of logic, common sense, policy, and
precedent.5

Here, the vehicular accident could not have occurred had petitioner’s employee been
careful in reading Dr. Sy’s prescription. Without the potent effects of Dormicum, a
sleeping tablet, it was unlikely that respondent would fall asleep while driving his car,
resulting in a collision.

Complementing Article 2176 is Article 2180 of the same Code which states:

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.

xxx

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.

xxx

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

It is thus clear that the employer of a negligent employee is liable for the damages
caused by the latter. When an injury is caused by the negligence of an employee, there
instantly arises a presumption of the law that there has been negligence on the part of
the employer, either in the selection of his employee or in the supervision over him, after
such selection. The presumption, however, may be rebutted by a clear showing on the
part of the employer that he has exercised the care and diligence of a good father of a
family in the selection and supervision of his employee. 6 Here, petitioner's failure to
prove that it exercised the due diligence of a good father of a family in the selection and
supervision of its employee will make it solidarily liable for damages caused by the
latter.

As regards the award of moral damages, we hold the same to be in order. Moral
damages may be awarded whenever the defendant’s wrongful act or omission is the
proximate cause of the plaintiff’s physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and
similar injury in the cases specified or analogous to those provided in Article 2219 of the
Civil Code.7

Respondent has adequately established the factual basis for the award of moral
damages when he testified that he suffered mental anguish and anxiety as a result of
the accident caused by the negligence of petitioner’s employee.

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 own peculiar facts.
However, it must be commensurate to the loss or injury suffered.8 Taking into
consideration the attending circumstances here, we are convinced that the amount
awarded by the trial court is exorbitant. Thus, we reduce the amount of moral damages
from ₱250,000.00 to ₱50,000.00 only.

In addition, we also deem it necessary to award exemplary damages. 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 with 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.1awphi1.nét

On the matter of attorney’s fees and expenses of litigation, it is settled that the reasons
or grounds for the award thereof must be set forth in the decision of the court. 9 Since
the trial court’s decision did not give the basis of the award, the same must be deleted.
In Vibram Manufacturing Corporation v. Manila Electric Company,10 we held:

Likewise, the award for attorney’s fees and litigation expenses should be deleted. Well-
enshrined is that "an award for attorney’s fees must be stated in the text of the court’s
decision and not in the dispositive portion only" (Consolidated Bank and Trust
Corporation (Solidbank) v. Court of Appeals, 246 SCRA 193 [1995] and Keng Hua
Paper Products, Inc. v. Court of Appeals, 286 SCRA 257 [1998]). This is also true with
the litigation expenses where the body of the decision discussed nothing for its basis.

WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the
Court of Appeals in CA-G.R. CV No. 57435 are AFFIRMED with modification in the
sense that (a) the award of moral damages to respondent is reduced from ₱250,000.00
to ₱50,000.00; (b) petitioner is likewise ordered to pay said respondent exemplary
damages in the amount of ₱25,000.00; and (c) the award of attorney’s fees and
litigation expenses is deleted.

Costs against petitioner.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

(on leave)
RENATO C. CORONA ADOLFO S. AZCUNA
Associate Justice Asscociate Justice

CANCIO C. GARCIA
Associate Justice

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice