Torts and Damages Part 3

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 159617
August 8, 2007
ROBERTO C. SICAM and AGENCIA de R.C. SICAM, INC., petitioners,

vs.
LULU V. JORGE and CESAR JORGE, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Review on Certiorari filed by Roberto C. Sicam, Jr. (petitioner Sicam)
and Agencia deR.C. Sicam, Inc. (petitioner corporation) seeking to annul the Decision1 of the
Court of Appeals dated March 31, 2003, and its Resolution2 dated August 8, 2003, in CA G.R.
CV No. 56633.
It appears that on different dates from September to October 1987, Lulu V. Jorge (respondent
Lulu) pawned several pieces of jewelry with Agencia de R. C. Sicam located at No. 17 Aguirre
Ave., BF Homes Paraaque, Metro Manila, to secure a loan in the total amount of P59,500.00.
On October 19, 1987, two armed men entered the pawnshop and took away whatever cash and
jewelry were found inside the pawnshop vault. The incident was entered in the police blotter of
the Southern Police District, Paraaque Police Station as follows:
Investigation shows that at above TDPO, while victims were inside the office, two (2)
male unidentified persons entered into the said office with guns drawn. Suspects(sic) (1)
went straight inside and poked his gun toward Romeo Sicam and thereby tied him with
an electric wire while suspects (sic) (2) poked his gun toward Divina Mata and Isabelita
Rodriguez and ordered them to lay (sic) face flat on the floor. Suspects asked forcibly the
case and assorted pawned jewelries items mentioned above.
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Suspects after taking the money and jewelries fled on board a Marson Toyota unidentified
plate number.3
Petitioner Sicam sent respondent Lulu a letter dated October 19, 1987 informing her of the loss
of her jewelry due to the robbery incident in the pawnshop. On November 2, 1987, respondent
Lulu then wrote a letter4 to petitioner Sicam expressing disbelief stating that when the robbery
happened, all jewelry pawned were deposited with Far East Bank near the pawnshop since it had
been the practice that before they could withdraw, advance notice must be given to the pawnshop
so it could withdraw the jewelry from the bank. Respondent Lulu then requested petitioner
Sicam to prepare the pawned jewelry for withdrawal on November 6, 1987 but petitioner Sicam
failed to return the jewelry.
On September 28, 1988, respondent Lulu joined by her husband, Cesar Jorge, filed a complaint
against petitioner Sicam with the Regional Trial Court of Makati seeking indemnification for the
loss of pawned jewelry and payment of actual, moral and exemplary damages as well as
attorney's fees. The case was docketed as Civil Case No. 88-2035.
Petitioner Sicam filed his Answer contending that he is not the real party-in-interest as the
pawnshop was incorporated on April 20, 1987 and known as Agencia de R.C. Sicam, Inc; that
petitioner corporation had exercised due care and diligence in the safekeeping of the articles
pledged with it and could not be made liable for an event that is fortuitous.
Respondents subsequently filed an Amended Complaint to include petitioner corporation.
Thereafter, petitioner Sicam filed a Motion to Dismiss as far as he is concerned considering that
he is not the real party-in-interest. Respondents opposed the same. The RTC denied the motion in
an Order dated November 8, 1989.5
After trial on the merits, the RTC rendered its Decision6 dated January 12, 1993, dismissing
respondents complaint as well as petitioners counterclaim. The RTC held that petitioner Sicam
could not be made personally liable for a claim arising out of a corporate transaction; that in the
Amended Complaint of respondents, they asserted that "plaintiff pawned assorted jewelries in
defendants' pawnshop"; and that as a consequence of the separate juridical personality of a
corporation, the corporate debt or credit is not the debt or credit of a stockholder.
The RTC further ruled that petitioner corporation could not be held liable for the loss of the
pawned jewelry since it had not been rebutted by respondents that the loss of the pledged pieces
of jewelry in the possession of the corporation was occasioned by armed robbery; that robbery is
a fortuitous event which exempts the victim from liability for the loss, citing the case of Austria
v. Court of Appeals;7 and that the parties transaction was that of a pledgor and pledgee and under
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Art. 1174 of the Civil Code, the pawnshop as a pledgee is not responsible for those events which
could not be foreseen.
Respondents appealed the RTC Decision to the CA. In a Decision dated March 31, 2003, the CA
reversed the RTC, the dispositive portion of which reads as follows:
WHEREFORE, premises considered, the instant Appeal is GRANTED, and the Decision
dated January 12, 1993,of the Regional Trial Court of Makati, Branch 62, is hereby
REVERSED and SET ASIDE, ordering the appellees to pay appellants the actual value of
the lost jewelry amounting to P272,000.00, and attorney' fees of P27,200.00.8
In finding petitioner Sicam liable together with petitioner corporation, the CA applied the
doctrine of piercing the veil of corporate entity reasoning that respondents were misled into
thinking that they were dealing with the pawnshop owned by petitioner Sicam as all the
pawnshop tickets issued to them bear the words "Agencia de R.C. Sicam"; and that there was no
indication on the pawnshop tickets that it was the petitioner corporation that owned the
pawnshop which explained why respondents had to amend their complaint impleading petitioner
corporation.
The CA further held that the corresponding diligence required of a pawnshop is that it should
take steps to secure and protect the pledged items and should take steps to insure itself against
the loss of articles which are entrusted to its custody as it derives earnings from the pawnshop
trade which petitioners failed to do; that Austriais not applicable to this case since the robbery
incident happened in 1961 when the criminality had not as yet reached the levels attained in the
present day; that they are at least guilty of contributory negligence and should be held liable for
the loss of jewelries; and that robberies and hold-ups are foreseeable risks in that those engaged
in the pawnshop business are expected to foresee.
The CA concluded that both petitioners should be jointly and severally held liable to respondents
for the loss of the pawned jewelry.
Petitioners motion for reconsideration was denied in a Resolution dated August 8, 2003.
Hence, the instant petition for review with the following assignment of errors:
THE COURT OF APPEALS ERRED AND WHEN IT DID, IT OPENED ITSELF TO
REVERSAL, WHEN IT ADOPTED UNCRITICALLY (IN FACT IT REPRODUCED
AS ITS OWN WITHOUT IN THE MEANTIME ACKNOWLEDGING IT) WHAT THE
RESPONDENTS ARGUED IN THEIR BRIEF, WHICH ARGUMENT WAS
PALPABLY UNSUSTAINABLE.
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THE COURT OF APPEALS ERRED, AND WHEN IT DID, IT OPENED ITSELF TO

REVERSAL BY THIS HONORABLE COURT, WHEN IT AGAIN ADOPTED
UNCRITICALLY (BUT WITHOUT ACKNOWLEDGING IT) THE SUBMISSIONS OF
THE RESPONDENTS IN THEIR BRIEF WITHOUT ADDING ANYTHING MORE
THERETO DESPITE THE FACT THAT THE SAID ARGUMENT OF THE
RESPONDENTS COULD NOT HAVE BEEN SUSTAINED IN VIEW OF
UNREBUTTED EVIDENCE ON RECORD.9
Anent the first assigned error, petitioners point out that the CAs finding that petitioner Sicam is
personally liable for the loss of the pawned jewelries is "a virtual and uncritical reproduction of
the arguments set out on pp. 5-6 of the Appellants brief."10
Petitioners argue that the reproduced arguments of respondents in their Appellants Brief suffer
from infirmities, as follows:
(1) Respondents conclusively asserted in paragraph 2 of their Amended Complaint that
Agencia de R.C. Sicam, Inc. is the present owner of Agencia de R.C. Sicam Pawnshop,
and therefore, the CA cannot rule against said conclusive assertion of respondents;
(2) The issue resolved against petitioner Sicam was not among those raised and litigated
in the trial court; and
(3) By reason of the above infirmities, it was error for the CA to have pierced the
corporate veil since a corporation has a personality distinct and separate from its
individual stockholders or members.
Anent the second error, petitioners point out that the CA finding on their negligence is likewise
an unedited reproduction of respondents brief which had the following defects:
(1) There were unrebutted evidence on record that petitioners had observed the diligence
required of them, i.e, they wanted to open a vault with a nearby bank for purposes of
safekeeping the pawned articles but was discouraged by the Central Bank (CB) since CB
rules provide that they can only store the pawned articles in a vault inside the pawnshop
premises and no other place;
(2) Petitioners were adjudged negligent as they did not take insurance against the loss of
the pledged jelweries, but it is judicial notice that due to high incidence of crimes,
insurance companies refused to cover pawnshops and banks because of high probability
of losses due to robberies;
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(3) In Hernandez v. Chairman, Commission on Audit (179 SCRA 39, 45-46), the victim
of robbery was exonerated from liability for the sum of money belonging to others and
lost by him to robbers.
Respondents filed their Comment and petitioners filed their Reply thereto. The parties
subsequently submitted their respective Memoranda.
We find no merit in the petition.
To begin with, although it is true that indeed the CA findings were exact reproductions of the
arguments raised in respondents (appellants) brief filed with the CA, we find the same to be not
fatally infirmed. Upon examination of the Decision, we find that it expressed clearly and
distinctly the facts and the law on which it is based as required by Section 8, Article VIII of the
Constitution. The discretion to decide a case one way or another is broad enough to justify the
adoption of the arguments put forth by one of the parties, as long as these are legally tenable and
supported by law and the facts on records.11
Our jurisdiction under Rule 45 of the Rules of Court is limited to the review of errors of law
committed by the appellate court. Generally, the findings of fact of the appellate court are
deemed conclusive and we are not duty-bound to analyze and calibrate all over again the
evidence adduced by the parties in the court a quo.12 This rule, however, is not without
exceptions, such as where the factual findings of the Court of Appeals and the trial court are
conflicting or contradictory13 as is obtaining in the instant case.
However, after a careful examination of the records, we find no justification to absolve petitioner
Sicam from liability.
The CA correctly pierced the veil of the corporate fiction and adjudged petitioner Sicam liable
together with petitioner corporation. The rule is that the veil of corporate fiction may be pierced
when made as a shield to perpetrate fraud and/or confuse legitimate issues. 14 The theory of
corporate entity was not meant to promote unfair objectives or otherwise to shield them.15
Notably, the evidence on record shows that at the time respondent Lulu pawned her jewelry, the
pawnshop was owned by petitioner Sicam himself. As correctly observed by the CA, in all the
pawnshop receipts issued to respondent Lulu in September 1987, all bear the words
"Agencia de R. C. Sicam," notwithstanding that the pawnshop was allegedly incorporated in
April 1987. The receipts issued after such alleged incorporation were still in the name of
"Agencia de R. C. Sicam," thus inevitably misleading, or at the very least, creating the wrong
impression to respondents and the public as well, that the pawnshop was owned solely by
petitioner Sicam and not by a corporation.
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Even petitioners counsel, Atty. Marcial T. Balgos, in his letter16 dated October 15, 1987
addressed to the Central Bank, expressly referred to petitioner Sicam as the proprietor of the
pawnshop notwithstanding the alleged incorporation in April 1987.
We also find no merit in petitioners' argument that since respondents had alleged in their
Amended Complaint that petitioner corporation is the present owner of the pawnshop, the CA is
bound to decide the case on that basis.
Section 4 Rule 129 of the Rules of Court provides that an admission, verbal or written, made by
a party in the course of the proceedings in the same case, does not require proof. The admission
may be contradicted only by showing that it was made through palpable mistake or that no such
admission was made.
Thus, the general rule that a judicial admission is conclusive upon the party making it and does
not require proof, admits of two exceptions, to wit: (1) when it is shown that such admission was
made through palpable mistake, and (2) when it is shown that no such admission was in fact
made. The latter exception allows one to contradict an admission by denying that he made
such an admission.17
The Committee on the Revision of the Rules of Court explained the second exception in this
wise:
x x x if a party invokes an "admission" by an adverse party, but cites the admission "out
of context," then the one making the "admission" may show that he made no "such"
admission, or that his admission was taken out of context.
x x x that the party can also show that he made no "such admission", i.e., not in the
sense in which the admission is made to appear.
That is the reason for the modifier "such" because if the rule simply states that the
admission may be contradicted by showing that "no admission was made," the rule would
not really be providing for a contradiction of the admission but just a denial.18 (Emphasis
supplied).
While it is true that respondents alleged in their Amended Complaint that petitioner corporation
is the present owner of the pawnshop, they did so only because petitioner Sicam alleged in his
Answer to the original complaint filed against him that he was not the real party-in-interest as the
pawnshop was incorporated in April 1987. Moreover, a reading of the Amended Complaint in its
entirety shows that respondents referred to both petitioner Sicam and petitioner corporation
where they (respondents) pawned their assorted pieces of jewelry and ascribed to both the failure
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to observe due diligence commensurate with the business which resulted in the loss of their
pawned jewelry.
Markedly, respondents, in their Opposition to petitioners Motion to Dismiss Amended
Complaint, insofar as petitioner Sicam is concerned, averred as follows:
Roberto C. Sicam was named the defendant in the original complaint because the
pawnshop tickets involved in this case did not show that the R.C. Sicam Pawnshop was a
corporation. In paragraph 1 of his Answer, he admitted the allegations in paragraph 1 and
2 of the Complaint. He merely added "that defendant is not now the real party in interest
in this case."
It was defendant Sicam's omission to correct the pawnshop tickets used in the subject
transactions in this case which was the cause of the instant action. He cannot now ask for
the dismissal of the complaint against him simply on the mere allegation that his
pawnshop business is now incorporated. It is a matter of defense, the merit of which can
only be reached after consideration of the evidence to be presented in due course.19
Unmistakably, the alleged admission made in respondents' Amended Complaint was taken "out
of context" by petitioner Sicam to suit his own purpose. Ineluctably, the fact that petitioner
Sicam continued to issue pawnshop receipts under his name and not under the corporation's
name militates for the piercing of the corporate veil.
We likewise find no merit in petitioners' contention that the CA erred in piercing the veil of
corporate fiction of petitioner corporation, as it was not an issue raised and litigated before the
RTC.
Petitioner Sicam had alleged in his Answer filed with the trial court that he was not the real
party-in-interest because since April 20, 1987, the pawnshop business initiated by him was
incorporated and known as Agencia deR.C. Sicam. In the pre-trial brief filed by petitioner Sicam,
he submitted that as far as he was concerned, the basic issue was whether he is the real party in
interest against whom the complaint should be directed.20 In fact, he subsequently moved for the
dismissal of the complaint as to him but was not favorably acted upon by the trial court.
Moreover, the issue was squarely passed upon, although erroneously, by the trial court in its
Decision in this manner:
x x x The defendant Roberto Sicam, Jr likewise denies liability as far as he is concerned
for the reason that he cannot be made personally liable for a claim arising from a
corporate transaction.
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This Court sustains the contention of the defendant Roberto C. Sicam, Jr. The amended
complaint itself asserts that "plaintiff pawned assorted jewelries in defendant's
pawnshop." It has been held that " as a consequence of the separate juridical personality
of a corporation, the corporate debt or credit is not the debt or credit of the stockholder,
nor is the stockholder's debt or credit that of a corporation.21
Clearly, in view of the alleged incorporation of the pawnshop, the issue of whether petitioner
Sicam is personally liable is inextricably connected with the determination of the question
whether the doctrine of piercing the corporate veil should or should not apply to the case.
The next question is whether petitioners are liable for the loss of the pawned articles in their
possession.
Petitioners insist that they are not liable since robbery is a fortuitous event and they are not
negligent at all.
We are not persuaded.
Article 1174 of the Civil Code provides:
Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared
by stipulation, or when the nature of the obligation requires the assumption of risk, no
person shall be responsible for those events which could not be foreseen or which, though
foreseen, were inevitable.
Fortuitous events by definition are extraordinary events not foreseeable or avoidable. It is
therefore, not enough that the event should not have been foreseen or anticipated, as is
commonly believed but it must be one impossible to foresee or to avoid. The mere difficulty to
foresee the happening is not impossibility to foresee the same. 22
To constitute a fortuitous event, the following elements must concur: (a) the cause of the
unforeseen and unexpected occurrence or of the failure of the debtor to comply with obligations
must be independent of human will; (b) it must be impossible to foresee the event that constitutes
the caso fortuito or, if it can be foreseen, it must be impossible to avoid; (c) the occurrence must
be such as to render it impossible for the debtor to fulfill obligations in a normal manner; and, (d)
the obligor must be free from any participation in the aggravation of the injury or loss. 23
The burden of proving that the loss was due to a fortuitous event rests on him who invokes
it.24 And, in order for a fortuitous event to exempt one from liability, it is necessary that one has
committed no negligence or misconduct that may have occasioned the loss. 25
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It has been held that an act of God cannot be invoked to protect a person who has failed to take
steps to forestall the possible adverse consequences of such a loss. One's negligence may have
concurred with an act of God in producing damage and injury to another; nonetheless, showing
that the immediate or proximate cause of the damage or injury was a fortuitous event would not
exempt one from liability. When the effect is found to be partly the result of a person's
participation -- whether by active intervention, neglect or failure to act -- the whole occurrence is
humanized and removed from the rules applicable to acts of God. 26
Petitioner Sicam had testified that there was a security guard in their pawnshop at the time of the
robbery. He likewise testified that when he started the pawnshop business in 1983, he thought of
opening a vault with the nearby bank for the purpose of safekeeping the valuables but was
discouraged by the Central Bank since pawned articles should only be stored in a vault inside the
pawnshop. The very measures which petitioners had allegedly adopted show that to them the
possibility of robbery was not only foreseeable, but actually foreseen and anticipated. Petitioner
Sicams testimony, in effect, contradicts petitioners defense of fortuitous event.
Moreover, petitioners failed to show that they were free from any negligence by which the loss
of the pawned jewelry may have been occasioned.
Robbery per se, just like carnapping, is not a fortuitous event. It does not foreclose the possibility
of negligence on the part of herein petitioners. In Co v. Court of Appeals,27 the Court held:
It is not a defense for a repair shop of motor vehicles to escape liability simply because
the damage or loss of a thing lawfully placed in its possession was due to carnapping.
Carnapping per se cannot be considered as a fortuitous event. The fact that a thing was
unlawfully and forcefully taken from another's rightful possession, as in cases of
carnapping, does not automatically give rise to a fortuitous event. To be considered
as such, carnapping entails more than the mere forceful taking of another's
property. It must be proved and established that the event was an act of God or was
done solely by third parties and that neither the claimant nor the person alleged to
be negligent has any participation. In accordance with the Rules of Evidence, the
burden of proving that the loss was due to a fortuitous event rests on him who
invokes it which in this case is the private respondent. However, other than the
police report of the alleged carnapping incident, no other evidence was presented by
private respondent to the effect that the incident was not due to its fault. A police report of
an alleged crime, to which only private respondent is privy, does not suffice to establish
the carnapping. Neither does it prove that there was no fault on the part of private
respondent notwithstanding the parties' agreement at the pre-trial that the car was
carnapped. Carnapping does not foreclose the possibility of fault or negligence on the
part of private respondent.28
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Just like in Co, petitioners merely presented the police report of the Paraaque Police Station on
the robbery committed based on the report of petitioners' employees which is not sufficient to
establish robbery. Such report also does not prove that petitioners were not at fault.
On the contrary, by the very evidence of petitioners, the CA did not err in finding that petitioners
are guilty of concurrent or contributory negligence as provided in Article 1170 of the Civil Code,
to wit:
Art. 1170. Those who in the performance of their obligations are guilty of fraud,
negligence, or delay, and those who in any manner contravene the tenor thereof, are liable
for damages.29
Article 2123 of the Civil Code provides that with regard to pawnshops and other establishments
which are engaged in making loans secured by pledges, the special laws and regulations
concerning them shall be observed, and subsidiarily, the provisions on pledge, mortgage and
antichresis.
The provision on pledge, particularly Article 2099 of the Civil Code, provides that the creditor
shall take care of the thing pledged with the diligence of a good father of a family. This means
that petitioners must take care of the pawns the way a prudent person would as to his own
property.
In this connection, Article 1173 of the Civil Code further provides:
Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence
which is required by the nature of the obligation and corresponds with the circumstances
of the persons, of time and of the place. When negligence shows bad faith, the provisions
of Articles 1171 and 2201, paragraph 2 shall apply.
If the law or contract does not state the diligence which is to be observed in the
performance, that which is expected of a good father of a family shall be required.
We expounded in Cruz v. Gangan30 that negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of human
affairs, would do; or the doing of something which a prudent and reasonable man would not
do.31 It is want of care required by the circumstances.
A review of the records clearly shows that petitioners failed to exercise reasonable care and
caution that an ordinarily prudent person would have used in the same situation. Petitioners were
guilty of negligence in the operation of their pawnshop business. Petitioner Sicam testified, thus:
Court:
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Q. Do you have security guards in your pawnshop?

A. Yes, your honor.
Q. Then how come that the robbers were able to enter the premises when according to
you there was a security guard?
A. Sir, if these robbers can rob a bank, how much more a pawnshop.
Q. I am asking you how were the robbers able to enter despite the fact that there was a
security guard?
A. At the time of the incident which happened about 1:00 and 2:00 o'clock in the
afternoon and it happened on a Saturday and everything was quiet in the area BF Homes
Paraaque they pretended to pawn an article in the pawnshop, so one of my employees
allowed him to come in and it was only when it was announced that it was a hold up.
Q. Did you come to know how the vault was opened?
A. When the pawnshop is official (sic) open your honor the pawnshop is partly open. The
combination is off.
Q. No one open (sic) the vault for the robbers?
A. No one your honor it was open at the time of the robbery.
Q. It is clear now that at the time of the robbery the vault was open the reason why the
robbers were able to get all the items pawned to you inside the vault.
A. Yes sir.32
revealing that there were no security measures adopted by petitioners in the operation of the
pawnshop. Evidently, no sufficient precaution and vigilance were adopted by petitioners to
protect the pawnshop from unlawful intrusion. There was no clear showing that there was any
security guard at all. Or if there was one, that he had sufficient training in securing a pawnshop.
Further, there is no showing that the alleged security guard exercised all that was necessary to
prevent any untoward incident or to ensure that no suspicious individuals were allowed to enter
the premises. In fact, it is even doubtful that there was a security guard, since it is quite
impossible that he would not have noticed that the robbers were armed with caliber .45 pistols
each, which were allegedly poked at the employees.33 Significantly, the alleged security guard
was not presented at all to corroborate petitioner Sicam's claim; not one of petitioners' employees
who were present during the robbery incident testified in court.
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Furthermore, petitioner Sicam's admission that the vault was open at the time of robbery is
clearly a proof of petitioners' failure to observe the care, precaution and vigilance that the
circumstances justly demanded. Petitioner Sicam testified that once the pawnshop was open, the
combination was already off. Considering petitioner Sicam's testimony that the robbery took
place on a Saturday afternoon and the area in BF Homes Paraaque at that time was quiet, there
was more reason for petitioners to have exercised reasonable foresight and diligence in
protecting the pawned jewelries. Instead of taking the precaution to protect them, they let open
the vault, providing no difficulty for the robbers to cart away the pawned articles.
We, however, do not agree with the CA when it found petitioners negligent for not taking steps to
insure themselves against loss of the pawned jewelries.
Under Section 17 of Central Bank Circular No. 374, Rules and Regulations for Pawnshops,
which took effect on July 13, 1973, and which was issued pursuant to Presidential Decree No.
114, Pawnshop Regulation Act, it is provided that pawns pledged must be insured, to wit:
Sec. 17. Insurance of Office Building and Pawns- The place of business of a pawnshop
and the pawns pledged to it must be insured against fire and against burglary as well as
for the latter(sic), by an insurance company accredited by the Insurance Commissioner.
However, this Section was subsequently amended by CB Circular No. 764 which took effect on
October 1, 1980, to wit:
Sec. 17 Insurance of Office Building and Pawns The office building/premises and
pawns of a pawnshop must be insured against fire. (emphasis supplied).
where the requirement that insurance against burglary was deleted. Obviously, the Central Bank
considered it not feasible to require insurance of pawned articles against burglary.
The robbery in the pawnshop happened in 1987, and considering the above-quoted amendment,
there is no statutory duty imposed on petitioners to insure the pawned jewelry in which case it
was error for the CA to consider it as a factor in concluding that petitioners were negligent.
Nevertheless, the preponderance of evidence shows that petitioners failed to exercise the
diligence required of them under the Civil Code.
The diligence with which the law requires the individual at all times to govern his conduct varies
with the nature of the situation in which he is placed and the importance of the act which he is to
perform.34 Thus, the cases ofAustria v. Court of Appeals,35 Hernandez v. Chairman, Commission
on Audit36 and Cruz v. Gangan37 cited by petitioners in their pleadings, where the victims of
robbery were exonerated from liability, find no application to the present case.
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In Austria, Maria Abad received from Guillermo Austria a pendant with diamonds to be sold on
commission basis, but which Abad failed to subsequently return because of a robbery committed
upon her in 1961. The incident became the subject of a criminal case filed against several
persons. Austria filed an action against Abad and her husband (Abads) for recovery of the
pendant or its value, but the Abads set up the defense that the robbery extinguished their
obligation. The RTC ruled in favor of Austria, as the Abads failed to prove robbery; or, if
committed, that Maria Abad was guilty of negligence. The CA, however, reversed the RTC
decision holding that the fact of robbery was duly established and declared the Abads not
responsible for the loss of the jewelry on account of a fortuitous event. We held that for the
Abads to be relieved from the civil liability of returning the pendant under Art. 1174 of the Civil
Code, it would only be sufficient that the unforeseen event, the robbery, took place without any
concurrent fault on the debtors part, and this can be done by preponderance of evidence; that to
be free from liability for reason of fortuitous event, the debtor must, in addition to the casus
itself, be free of any concurrent or contributory fault or negligence.38
We found in Austria that under the circumstances prevailing at the time the Decision was
promulgated in 1971, the City of Manila and its suburbs had a high incidence of crimes against
persons and property that rendered travel after nightfall a matter to be sedulously avoided
without suitable precaution and protection; that the conduct of Maria Abad in returning alone to
her house in the evening carrying jewelry of considerable value would have been negligence per
se and would not exempt her from responsibility in the case of robbery. However we did not hold
Abad liable for negligence since, the robbery happened ten years previously; i.e., 1961, when
criminality had not reached the level of incidence obtaining in 1971.
In contrast, the robbery in this case took place in 1987 when robbery was already prevalent and
petitioners in fact had already foreseen it as they wanted to deposit the pawn with a nearby bank
for safekeeping. Moreover, unlike in Austria, where no negligence was committed, we found
petitioners negligent in securing their pawnshop as earlier discussed.
In Hernandez, Teodoro Hernandez was the OIC and special disbursing officer of the Ternate
Beach Project of the Philippine Tourism in Cavite. In the morning of July 1, 1983, a Friday, he
went to Manila to encash two checks covering the wages of the employees and the operating
expenses of the project. However for some reason, the processing of the check was delayed and
was completed at about 3 p.m. Nevertheless, he decided to encash the check because the project
employees would be waiting for their pay the following day; otherwise, the workers would have
to wait until July 5, the earliest time, when the main office would open. At that time, he had two
choices: (1) return to Ternate, Cavite that same afternoon and arrive early evening; or (2) take the
money with him to his house in Marilao, Bulacan, spend the night there, and leave for Ternate
the following day. He chose the second option, thinking it was the safer one. Thus, a little past 3
p.m., he took a passenger jeep bound for Bulacan. While the jeep was on Epifanio de los Santos
Avenue, the jeep was held up and the money kept by Hernandez was taken, and the robbers
13 | P a g e
jumped out of the jeep and ran. Hernandez chased the robbers and caught up with one robber
who was subsequently charged with robbery and pleaded guilty. The other robber who held the
stolen money escaped. The Commission on Audit found Hernandez negligent because he had not
brought the cash proceeds of the checks to his office in Ternate, Cavite for safekeeping, which is
the normal procedure in the handling of funds. We held that Hernandez was not negligent in
deciding to encash the check and bringing it home to Marilao, Bulacan instead of Ternate, Cavite
due to the lateness of the hour for the following reasons: (1) he was moved by unselfish motive
for his co-employees to collect their wages and salaries the following day, a Saturday, a nonworking, because to encash the check on July 5, the next working day after July 1, would have
caused discomfort to laborers who were dependent on their wages for sustenance; and (2) that
choosing Marilao as a safer destination, being nearer, and in view of the comparative hazards in
the trips to the two places, said decision seemed logical at that time. We further held that the fact
that two robbers attacked him in broad daylight in the jeep while it was on a busy highway and in
the presence of other passengers could not be said to be a result of his imprudence and
negligence.
Unlike in Hernandez where the robbery happened in a public utility, the robbery in this case took
place in the pawnshop which is under the control of petitioners. Petitioners had the means to
screen the persons who were allowed entrance to the premises and to protect itself from unlawful
intrusion. Petitioners had failed to exercise precautionary measures in ensuring that the robbers
were prevented from entering the pawnshop and for keeping the vault open for the day, which
paved the way for the robbers to easily cart away the pawned articles.
In Cruz, Dr. Filonila O. Cruz, Camanava District Director of Technological Education and Skills
Development Authority (TESDA), boarded the Light Rail Transit (LRT) from Sen. Puyat Avenue
to Monumento when her handbag was slashed and the contents were stolen by an unidentified
person. Among those stolen were her wallet and the government-issued cellular phone. She then
reported the incident to the police authorities; however, the thief was not located, and the
cellphone was not recovered. She also reported the loss to the Regional Director of TESDA, and
she requested that she be freed from accountability for the cellphone. The Resident Auditor
denied her request on the ground that she lacked the diligence required in the custody of
government property and was ordered to pay the purchase value in the total amount
of P4,238.00. The COA found no sufficient justification to grant the request for relief from
accountability. We reversed the ruling and found that riding the LRT cannot per se be denounced
as a negligent act more so because Cruzs mode of transit was influenced by time and money
considerations; that she boarded the LRT to be able to arrive in Caloocan in time for her 3 pm
meeting; that any prudent and rational person under similar circumstance can reasonably be
expected to do the same; that possession of a cellphone should not hinder one from boarding the
LRT coach as Cruz did considering that whether she rode a jeep or bus, the risk of theft would
have also been present; that because of her relatively low position and pay, she was not expected
to have her own vehicle or to ride a taxicab; she did not have a government assigned vehicle; that
14 | P a g e
placing the cellphone in a bag away from covetous eyes and holding on to that bag as she did is
ordinarily sufficient care of a cellphone while traveling on board the LRT; that the records did
not show any specific act of negligence on her part and negligence can never be presumed.
Unlike in the Cruz case, the robbery in this case happened in petitioners' pawnshop and they
were negligent in not exercising the precautions justly demanded of a pawnshop.
WHEREFORE, except for the insurance aspect, the Decision of the Court of Appeals dated
March 31, 2003 and its Resolution dated August 8, 2003, are AFFIRMED.
Costs against petitioners.
SO ORDERED.
Ynares-Santiago, Chairperson, Chico-Nazario, Nachura, JJ., concur.
DIGEST
FACTS:
On different dates, Lulu Jorge pawned several pieces of jewelry with Agencia de R. C. Sicam
located in Paraaque to secure a loan.
jewelry were found inside the pawnshop vault.
On the same date, Sicam sent Lulu a letter informing her of the loss of her jewelry due to the
robbery incident in the pawnshop. Respondent Lulu then wroteback expressing disbelief, then
requested Sicam to prepare the pawned jewelry for withdrawal on November 6, but Sicam failed
to return the jewelry.
Lulu, joined by her husband Cesar, filed a complaint against Sicam with the RTC of Makati
seeking indemnification for the loss of pawned jewelry and payment of AD, MD and ED as well
as AF.
15 | P a g e
The RTC rendered its Decision dismissing respondents complaint as well as petitioners
counterclaim. Respondents appealed the RTC Decision to the CA which reversed the RTC,
ordering the appellees to pay appellants the actual value of the lost jewelry and AF. Petitioners
MR denied, hence the instant petition for review on Certiorari.
ISSUE:
are the petitioners liable for the loss of the pawned articles in their possession? (Petitioners insist
that they are not liable since robbery is a fortuitous event and they are not negligent at all.)
HELD:
The Decision of the CA is AFFIRMED.

YES

Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by
stipulation, or when the nature of the obligation requires the assumption of risk, no person shall
be responsible for those events which could not be foreseen or which, though foreseen, were
inevitable.
foresee the happening is not impossibility to foresee the same.
To constitute a fortuitous event, the following elements must concur:
(a) the cause of the unforeseen and unexpected occurrence or of the failure of the debtor to
comply with obligations must be independent of human will;
(b) it must be impossible to foresee the event that constitutes the caso fortuito or, if it can be
foreseen, it must be impossible to avoid;
(c) the occurrence must be such as to render it impossible for the debtor to fulfill obligations in a
normal manner; and,
(d) the obligor must be free from any participation in the aggravation of the injury or loss.
16 | P a g e
The burden of proving that the loss was due to a fortuitous event rests on him who invokes it.
And, in order for a fortuitous event to exempt one from liability, it is necessary that one has
committed no negligence or misconduct that may have occasioned the loss.
Sicam had testified that there was a security guard in their pawnshop at the time of the robbery.
He likewise testified that when he started the pawnshop business in 1983, he thought of opening
a vault with the nearby bank for the purpose of safekeeping the valuables but was discouraged by
the Central Bank since pawned articles should only be stored in a vault inside the pawnshop. The
very measures which petitioners had allegedly adopted show that to them the possibility of
robbery was not only foreseeable, but actually foreseen and anticipated. Sicams testimony, in
effect, contradicts petitioners defense of fortuitous event.
of negligence on the part of herein petitioners.
Petitioners merely presented the police report of the Paraaque Police Station on the robbery
committed based on the report of petitioners employees which is not sufficient to establish
robbery. Such report also does not prove that petitioners were not at fault. On the contrary, by the
very evidence of petitioners, the CA did not err in finding that petitioners are guilty of concurrent
or contributory negligence as provided in Article 1170 of the Civil Code, to wit:
Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or
delay, and those who in any manner contravene the tenor thereof, are liable for damages.
**
antichresis.
property.
Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which
is required by the nature of the obligation and corresponds with the circumstances of the persons,
17 | P a g e
of time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and
2201, paragraph 2 shall apply.
If the law or contract does not state the diligence which is to be observed in the performance, that
which is expected of a good father of a family shall be required.
We expounded in Cruz v. Gangan that negligence is the omission to do something which a
affairs, would do; or the doing of something which a prudent and reasonable man would not do.
It is want of care required by the circumstances.
guilty of negligence in the operation of their pawnshop business. Sicams testimony revealed that
there were no security measures adopted by petitioners in the operation of the pawnshop.
Evidently, no sufficient precaution and vigilance were adopted by petitioners to protect the
pawnshop from unlawful intrusion. There was no clear showing that there was any security guard
at all. Or if there was one, that he had sufficient training in securing a pawnshop. Further, there is
no showing that the alleged security guard exercised all that was necessary to prevent any
untoward incident or to ensure that no suspicious individuals were allowed to enter the premises.
In fact, it is even doubtful that there was a security guard, since it is quite impossible that he
would not have noticed that the robbers were armed with caliber .45 pistols each, which were
allegedly poked at the employees. Significantly, the alleged security guard was not presented at
all to corroborate petitioner Sicams claim; not one of petitioners employees who were present
during the robbery incident testified in court.
Furthermore, petitioner Sicams admission that the vault was open at the time of robbery is
clearly a proof of petitioners failure to observe the care, precaution and vigilance that the
circumstances justly demanded.
The robbery in this case happened in petitioners pawnshop and they were negligent in not
exercising the precautions justly demanded of a pawnshop.
NOTES:
18 | P a g e
Sec. 17. Insurance of Office Building and Pawns- The place of business of a pawnshop and the
pawns pledged to it must be insured against fire and against burglary as well as for the latter(sic),
by an insurance company accredited by the Insurance Commissioner.
Sec. 17 Insurance of Office Building and Pawns The office building/premises and pawns of a
pawnshop must be insured against fire. (emphasis supplied).
19 | P a g e

SUPREME COURT
Manila
EN BANC
G.R. No. 130068 October 1, 1998

FAR EASTERN SHIPPING COMPANY, petitioner,
vs.
COURT OF APPEALS and PHILIPPINE PORTS AUTHORITY, respondents.
G.R. No. 130150 October, 1998
MANILA PILOTS ASSOCIATION, petitioner,
vs.
PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING
COMPANY, respondents.
REGALADO, J.:
These consolidated petitions for review on certiorari seek in unison to annul and set aside the
decision 1 of respondent Court of Appeals of November 15, 1996 and its resolution 2 dated July
31, 1997 in CA-G.R. CV No. 24072, entitled "Philippine Ports Authority, Plaintiff-Appellee vs.
Far Eastern Shipping Company, Senen C. Gavino and Manila Pilots' Association, DefendantsAppellants," which affirmed with modification the judgment of the trial court holding the
defendants-appellants therein solidarily liable for damages in favor of herein private respondent.
There is no dispute about the facts as found by the appellate court,
thus
. . . On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the
USSR, owned and operated by the Far Eastern Shipping Company (FESC for
brevity's sake), arrived at the Port of Manila from Vancouver, British Columbia at
about 7:00 o'clock in the morning. The vessel was assigned Berth 4 of the Manila
International Port, as its berthing space. Captain Roberto Abellana was tasked by
the Philippine Port Authority to supervise the berthing of the vessel. Appellant
Senen Gavino was assigned by the Appellant Manila Pilots' Association (MPA for
brevity's sake) to conduct docking maneuvers for the safe berthing of the vessel to
Berth No. 4.
20 | P a g e
Gavino boarded the vessel at the quarantine anchorage and stationed himself in
the bridge, with the master of the vessel, Victor Kavankov, beside him. After a
briefing of Gavino by Kavankov of the particulars of the vessel and its cargo, the
vessel lifted anchor from the quarantine anchorage and proceeded to the Manila
International Port. The sea was calm and the wind was ideal for docking
maneuvers.
When the vessel reached the landmark (the big church by the Tondo North
Harbor) one-half mile from the pier, Gavino ordered the engine stopped. When
the vessel was already about 2,000 feet from the pier, Gavino ordered the anchor
dropped. Kavankov relayed the orders to the crew of the vessel on the bow. The
left anchor, with two (2) shackles, were dropped. However, the anchor did not
take hold as expected. The speed of the vessel did not slacken. A commotion
ensued between the crew members. A brief conference ensued between Kavankov
and the crew members. When Gavino inquired what was all the commotion about,
Kavankov assured Gavino that there was nothing to it.
After Gavino noticed that the anchor did not take hold, he ordered the engines
half-astern. Abellana, who was then on the pier apron, noticed that the vessel was
approaching the pier fast. Kavankov likewise noticed that the anchor did not take
hold. Gavino thereafter gave the "full-astern" code. Before the right anchor and
additional shackles could be dropped, the bow of the vessel rammed into the
apron of the pier causing considerable damage to the pier. The vessel sustained
damage too, (Exhibit "7-Far Eastern Shipping). Kavankov filed his sea protest
(Exhibit "1-Vessel"). Gavino submitted his report to the Chief Pilot (Exhibit "1Pilot") who referred the report to the Philippine Ports Authority (Exhibit 2-Pilot").
Abellana likewise submitted his report of the incident (Exhibit "B").
Per contract and supplemental contract of the Philippine Ports Authority and the
contractor for the rehabilitation of the damaged pier, the same cost the Philippine
Ports Authority the amount of P1,126,132.25 (Exhibits "D" and "E"). 3
On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor
General, filed before the Regional Trial Court of Manila, Branch 39, a complaint for a sum of
money against Far Eastern Shipping Co., Capt. Senen C. Gavino and the Manila Pilots'
Association, docketed as Civil Case No. 83-14958, 4 praying that the defendants therein be held
jointly and severally liable to pay the plaintiff actual and exemplary damages plus costs of suit.
In a decision dated August 1, 1985, the trial court ordered the defendants therein jointly and
severally to pay the PPA the amount of P1,053,300.00 representing actual damages and the costs
of suit. 5
The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot
of a commercial vessel, under compulsory pilotage, solely liable for the damage caused by the
vessel to the pier, at the port of destination, for his negligence? and (2) Would the owner of the
vessel be liable likewise if the damage is caused by the concurrent negligence of the master of
the vessel and the pilot under a compulsory pilotage?
21 | P a g e
As stated at the outset, respondent appellate court affirmed the findings of the court a quo except
that if found no employer-employee relationship existing between herein private respondents
Manila Pilots' Association (MPA, for short) and Capt. Gavino. 6 This being so, it ruled instead
that the liability of MPA is anchored, not on Article 2180 of the Civil Code, but on the provisions
of Customs Administrative Order No. 15-65, 7 and accordingly modified said decision of the trial
court by holding MPA, along with its co-defendants therein, still solidarily liable to PPA but
entitled MPA to reimbursement from Capt. Gavino for such amount of the adjudged pecuniary
liability in excess of the amount equivalent to seventy-five percent (75%) of its prescribed
reserve
fund. 8
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the
Court of Appeals and both of them elevated their respective plaints to us via separate petitions
for review on certiorari.
In G. R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed
that the Court of Appeals seriously erred:
1. in not holding Senen C. Gavino and the Manila Pilots' Association as the
parties solely responsible for the resulting damages sustained by the pier
deliberately ignoring the established jurisprudence on the matter;
2. in holding that the master had not exercised the required diligence demanded
from him by the circumstances at the time the incident happened;
3. in affirming the amount of damages sustained by the respondent Philippine
Ports Authority despite a strong and convincing evidence that the amount is
clearly exorbitant and unreasonable;
4. in not awarding any amount of counterclaim prayed for by the petitioner in its
answer; and
5. in not granting herein petitioner's claim against pilot Senen C. Gavino and
Manila Pilots' Association in the event that it be held
liable. 9
Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of
the incident, it was the compulsory pilot, Capt. Gavino, who was in command and had complete
control in the navigation and docking of the vessel. It is the pilot who supersedes the master for
the time being in the command and navigation of a ship and his orders must be obeyed in all
respects connected with her navigation. Consequently, he was solely responsible for the damage
caused upon the pier apron, and not the owners of the vessel. It claims that the master of the boat
did not commit any act of negligence when he failed to countermand or overrule the orders of the
pilot because he did not see any justifiable reason to do so. In other words, the master cannot be
faulted for relying absolutely on the competence of the compulsory pilot. If the master does not
22 | P a g e
observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified
in relying on the pilot. 10
Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent
court on the solidary liability of FESC, MPA and Capt. Gavino, stresses the concurrent
negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor Kabankov, * shipmaster of MV
Pavlodar, as the basis of their solidary liability for damages sustained by PPA. It posits that the
vessel was being piloted by Capt. Gavino with Capt. Kabankov beside him all the while on the
bridge of the vessel, as the former took over the helm of MV Pavlodar when it rammed and
damaged the apron of the pier of Berth No. 4 of the Manila International Port. Their concurrent
negligence was the immediate and proximate cause of the collision between the vessel and the
pier Capt. Gavino, for his negligence in the conduct of docking maneuvers for the safe
berthing of the vessel; and Capt. Kabankov, for failing to countermand the orders of the harbor
pilot and to take over and steer the vessel himself in the face of imminent danger, as well as for
merely relying on Capt. Gavino during the berthing procedure. 11
On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and later
transferred to the Third Division. MPA, now as petitioner in this case, avers that respondent
court's errors consisted in disregarding and misinterpreting Customs Administrative Order No.
15-65 which limits the liability of MPA. Said pilots' association asseverates that it should not be
held solidarily liable with Capt. Gavino who, as held by respondent court is only a member, not
an employee, thereof. There being no employer-employee relationship, neither can MPA be held
liable for any vicarious liability for the respective exercise of profession by its members nor be
considered a joint tortfeasor as to be held jointly and severally liable. 12 It further argues that
there was erroneous reliance on Customs Administrative Order No. 15-65 and the constitution
and by-laws of MPA, instead of the provisions of the Civil Code on damages which, being a
substantive law, is higher in category than the aforesaid constitution and by-laws of a
professional organization or an administrative order which bears no provision classifying the
nature of the liability of MPA for the negligence its member pilots. 13
As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage
services since July 28, 1994 and has ceased to be a member of petitioner pilots' association. He is
not joined as a petitioner in this case since his whereabouts are unknown. 14
FESC's comment thereto relied on the competence of the Court of Appeals in construing
provisions of law or administrative orders as bases for ascertaining the liability of MPA, and
expressed full accord with the appellate court's holding of solidary liability among itself, MPA
and Capt. Gavino. It further avers that the disputed provisions of Customs Administrative Order
No. 15-65 clearly established MPA's solidary liability. 15
On the other hand, public respondent PPA, likewise through representations by the Solicitor
General, assumes the same supportive stance it took in G.R. No. 130068 in declaring its total
accord with the ruling of the Court of Appeals that MPA is solidarily liable with Capt. Gavino
and FESC for damages, and in its application to the fullest extent of the provisions of Customs
Administrative Order No. 15-65 in relation to MPA's constitution and by-laws which spell out
the conditions of and govern their respective liabilities. These provisions are clear and
23 | P a g e
unambiguous as regards MPA's liability without need for interpretation or construction. Although
Customs Administrative Order No. 15-65 is a mere regulation issued by an administrative agency
pursuant to delegated legislative authority to fix details to implement the law, it is legally binding
and has the same statutory force as any valid statute. 16
Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated
with G.R. No. 130068. 18
Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that
the conduct of the respective counsel for FESC and PPA leaves much to be desired, to the
displeasure and disappointment of this Court.
Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates the former Circular No. 2891 which provided for what has come to be known as the certification against forum shopping as
an additional requisite for petitions filed with the Supreme Court and the Court of Appeals, aside
from the other requirements contained in pertinent provisions of the Rules of Court therefor, with
the end in view of preventing the filing of multiple complaints involving the same issues in the
Supreme Court, Court of Appeals or different divisions thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule 42 provides:
xxx xxx xxx
The petitioner shall also submit together with the petition a certification under
oath that he has not theretofore commenced any other action involving the same
issues in the Supreme Court, the Court of Appeals or different divisions thereof,
or any other tribunal or agency; if there is such other action or proceeding, he
must state the status of the same; and if he should thereafter learn that a similar
action or proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals or different divisions thereof, or any other tribunal or agency,
he undertakes to promptly inform the aforesaid courts and other tribunal or
agency thereof within five (5) days therefrom. (Emphasis ours.)
For petitions for review filed before the Supreme Court, Section 4(e), Rule 45
specifically requires that such petition shall contain a sworn certification against forum
shopping as provided in the last paragraph of Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty.
Herbert A. Tria, is the counsel of record for FESC in both G.R. No. 130068 and G.R. No.
130150.
G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing
by FESC through counsel on August 22, 1997 of a verified motion for extension of time to file
its petition for thirty (30) days from August 28, 1997 or until September 27, 1997. 20 Said motion
contained the following certification against forum shopping 21 signed by Atty. Herbert A. Tria as
affiant:
24 | P a g e
CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any other action or proceeding
involving the same issues in the Supreme Court, the Court of Appeals, or any
other tribunal or agency; that to the best of my own knowledge, no such action or
proceeding is pending in the Supreme Court, the Court of Appeals, or any other
tribunal or agency; that if I/we should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the Court of
Appeals, or any other tribunal or agency, I/we undertake to report that fact within
five (5) days therefrom to this Honorable Court.
This motion having been granted, FESC subsequently filed its petition on September 26,
1997, this time bearing a "verification and certification against forum-shopping" executed
by one Teodoro P. Lopez on September 24, 1997, 22 to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in relation
to Section 2, Rule 42 of the Revised Rules of Civil Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state:
1. That I am the Manager, Claims Department of Filsov Shipping Company, the
local agent of petitioner in this case.
2. That I have caused the preparation of this Petition for Review on Certiorari.
3. That I have read the same and the allegations therein contained are true and
correct based on the records of this case.
4. That I certify that petitioner has not commenced any other action or proceeding
involving the same issues in the Supreme Court or Court of Appeals, or any other
tribunal or agency, that to the best of my own knowledge, no such action or
proceeding is pending in the Supreme Court, the Court of Appeals or any other
tribunal or agency, that if I should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the Court of
Appeals, or any other tribunal or agency, I undertake to report the fact within five
(5) days therefrom to this Honorable Court. (Italics supplied for emphasis.)
Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending
with the Third Division was duly filed on August 29, 1997 with a copy thereof furnished on the
25 | P a g e
same date by registered mail to counsel for FESC. 23 Counsel of record for MPA. Atty. Jesus P.
Amparo, in his verification accompanying said petition dutifully revealed to the Court that
xxx xxx xxx
3. Petitioner has not commenced any other action or proceeding involving the
same issues in this Honorable Court, the Court of Appeals or different Divisions
thereof, or any other tribunal or agency,but to the best of his knowledge, there is
an action or proceeding pending in this Honorable Court, entitled Far Eastern
Shipping Co., Petitioner, vs. Philippine Ports Authority and Court of Appeals with
a Motion for Extension of time to file Petition For Review by Certiorari filed
sometime on August 18, 1987. If undersigned counsel will come to know of any
other pending action or claim filed or pending he undertakes to report such fact
within five (5) days to this Honorable Court. 24 (Emphasis supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29,
1997 and taking judicial notice of the average period of time it takes local mail to reach its
destination, by reasonable estimation it would be fair to conclude that when FESC filed its
petition in G.R. No. 130068 on September 26, 1997, it would already have received a copy of the
former and would then have knowledge of the pendency of the other petition initially filed with
the First Division. It was therefore incumbent upon FESC to inform the Court of that fact
through its certification against forum shopping. For failure to make such disclosure, it would
appear that the aforequoted certification accompanying the petition in G.R. No. 130068 is
defective and could have been a ground for dismissal thereof.
Even assuming that FESC had not yet received its copy of MPA's petition at the time it filed its
own petition and executed said certification, its signatory did state "that if I should thereafter
learn that a similar action or proceeding has been filed or is pending before the Supreme Court,
the Court of Appeals or any other tribunal or agency, I undertake to report the fact within five (5)
days therefrom to this Honorable Court." 25 Scouring the records page by page in this case, we
find that no manifestation concordant with such undertaking was then or at any other time
thereafter ever filed by FESC nor was there any attempt to bring such matter to the attention of
the Court. Moreover, it cannot feign non-knowledge of the existence of such other petition
because FESC itself filed the motion for consolidation in G.R. No. 130150 of these two cases on
April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario,
displays an unprofessional tendency of taking the Rules for granted, in this instance exemplified
by its pro forma compliance therewith but apparently without full comprehension of and with
less than faithful commitment to its undertakings to this Court in the interest of just, speedy and
orderly administration of court proceedings.
As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the
court. 26 He is an officer of the court exercising a privilege which is indispensable in the
administration of justice. 27 Candidness, especially towards the courts, is essential for the
expeditious administration of justice. Courts are entitled to expect only complete honesty from
26 | P a g e
lawyers appearing and pleading before them. 28 Candor in all dealings is the very essence of
honorable membership in the legal profession. 29 More specifically, a lawyer is obliged to
observe the rules of procedure and not to misuse them to defeat the ends of justice. 30 It behooves
a lawyer, therefore, to exert every effort and consider it his duty to assist in the speedy and
efficient administration of justice. 31 Being an officer of the court, a lawyer has a responsibility in
the proper administration of justice. Like the court itself, he is an instrument to advance its ends
the speedy, efficient, impartial, correct and inexpensive adjudication of cases and the prompt
satisfaction of final judgments. A lawyer should not only help attain these objectives but should
likewise avoid any unethical or improper practices that impede, obstruct or prevent their
realization, charged as he is with the primary task of assisting in the speedy and efficient
administration of justice. 32
Sad to say, the members of said law firm sorely failed to observe their duties as responsible
members of the Bar. Their actuations are indicative of their predisposition to take lightly the
avowed duties of officers of the Court to promote respect for law and for legal processes. 33 We
cannot allow this state of things to pass judicial muster.
In view of the fact that at around the time these petitions were commenced, the 1997 Rules of
Civil Procedure had just taken effect, the Court treated infractions of the new Rules then with
relative liberality in evaluating full compliance therewith. Nevertheless, it would do well to
remind all concerned that the penal provisions of Circular No. 28-91 which remain operative
provides, inter alia:
3. Penalties.
xxx xxx xxx
(c) The submission of a false certification under Par. 2 of the Circular shall
likewise constitute contempt of court, without prejudice to the filing of criminal
action against the guilty party. The lawyer may also be subjected to disciplinary
proceedings.
It must be stressed that the certification against forum shopping ordained under the Rules is to be
executed by the petitioner, and not by counsel. Obviously it is the petitioner, and not always the
counsel whose professional services have been retained for a particular case, who is in the best
position to know whether he or it actually filed or caused the filing of a petition in that case.
Hence, a certification against forum shopping by counsel is a defective certification. It is clearly
equivalent to non-compliance with the requirement under Section 2, Rule 42 in relation to
Section 4, Rule 45, and constitutes a valid cause for dismissal of the petition.
Hence, the initial certification appended to the motion for extension of time to file petition in
G.R. No. 130068 executed in behalf of FESC by Atty. Tria is procedurally deficient. But
considering that it was a superfluity at that stage of the proceeding, it being unnecessary to file
such a certification with a mere motion for extension, we shall disregard such error. Besides, the
certification subsequently executed by Teodoro P. Lopez in behalf of FESC cures that defect to a
certain extent, despite the inaccuracies earlier pointed out. In the same vein, we shall consider the
27 | P a g e
verification signed in behalf of MPA by its counsel, Atty. Amparo, in G.R. No. 130150 as
substantial compliance inasmuch as it served the purpose of the Rules of informing the Court of
the pendency of another action or proceeding involving the same issues.
It bears stressing that procedural rules are instruments in the speedy and efficient administration
of justice. They should be used to achieve such end and not to derail it. 34
Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor
General at the time, the same legal team of the Office of the Solicitor General (OSG, for short)
composed of Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon,
with the addition of Assistant Solicitor General Pio C. Guerrero very much later in the
proceedings, represented PPA throughout the appellate proceedings in both G.R. No. 130068 and
G.R. No. 130150 and was presumably fully acquainted with the facts and issues of the case, it
took the OSG an inordinately and almost unreasonably long period of time to file its comment,
thus unduly delaying the resolution of these cases. It took several changes of leadership in the
OSG from Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P. Galvez
before the comment in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning
that no further extensions shall be granted, and personal service on the Solicitor General himself
of the resolution requiring the filing of such comment before the OSG indulged the Court with
the long required comment on July 10, 1998. 35This, despite the fact that said office was required
to file its comment way back on November 12, 1997. 36 A closer scrutiny of the records likewise
indicates that petitoner FESC was not even furnished a copy of said comment as required by
Section 5, Rule 42. Instead, a copy thereof was inadvertently furnished to MPA which, from the
point of view of G.R. No. 130068, was a non-party. 37 The OSG fared slightly better in G.R. No.
130150 in that it took only six (6) extensions, or a total of 180 days, before the comment was
finally filed. 38 And while it properly furnished petitioner MPA with a copy of its comment, it
would have been more desirable and expedient in this case to have furnished its therein corespondent FESC with a copy thereof, if only as a matter of professional courtesy. 39
This undeniably dilatory disinclination of the OSG to seasonably file required pleadings
constitutes deplorable disservice to the tax-paying public and can only be categorized as
censurable inefficiency on the part of the government law office. This is most certainly
professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take the inititive of filing a motion
for consolidation in either G.R. No. 130068 or G.R. No. 130150, considering its familiarity with
the background of the case and if only to make its job easier by having to prepare and file only
one comment. It could not have been unaware of the pendency of one or the other petition
because, being counsel for respondent in both cases, petitioner is required to furnish it with a
copy of the petition under pain of dismissal of the petition for failure otherwise. 40
Besides, in G.R. 130068, it prefaces its discussions thus
28 | P a g e
Incidentally, the Manila Pilots' Association (MPA), one of the defendantsappellants in the case before the respondent Court of Appeals, has taken a separate
appeal from the said decision to this Honorable Court, which was docketed as
G.R. No. 130150 and entitled "Manila Pilots' Association, Petitioner, versus
Philippine Ports Authority and Far Eastern Shipping Co., Respondents." 41
Similarly, in G.R. No. 130150, it states
Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an
appeal from the said decision to this Honorable Court, docketed as G.R. No.
130068, entitled "Far Eastern Shipping Co. vs. Court of Appeals and Philippine
Ports Authority." 42
We find here a lackadaisical attitude and complacency on the part of the OSG in the handling of
its cases and an almost reflexive propensity to move for countless extensions, as if to test the
patience of the Court, before favoring it with the timely submission of required pleadings.
It must be emphasized that the Court can resolve cases only as fast as the respective parties in a
case file the necessary pleadings. The OSG, by needlessly extending the pendency of these cases
through its numerous motions for extension, came very close to exhausting this Court's
forbearance and has regrettably fallen short of its duties as the People's Tribune.
The OSG is reminded that just like other members of the Bar, the canons under the Code of
Professional Responsibility apply with equal force on lawyers in government service in the
discharge of their official tasks. 43These ethical duties are rendered even more exacting as to
them because, as government counsel, they have the added duty to abide by the policy of the
State to promote a high standard of ethics in public service. 44 Furthermore, it is incumbent upon
the OSG, as part of the government bureaucracy, to perform and discharge its duties with the
highest degree of professionalism, intelligence and skill 45 and to extend prompt, courteous and
adequate service to the public. 46
Now, on the merits of the case. After a judicious examination of the records of this case, the
pleadings filed, and the evidence presented by the parties in the two petitions, we find no cogent
reason to reverse and set aside the questioned decision. While not entirely a case of first
impression, we shall discuss the issues seriatim and, correlatively by way of a judicial once-over,
inasmuch as the matters raised in both petitions beg for validation and updating of well-worn
maritime jurisprudence. Thereby, we shall write finis to the endless finger-pointing in this
shipping mishap which has been stretched beyond the limits of judicial tolerance.
The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage
pursuant to Section 8, Article III of Philippine Ports Authority Administrative Order No. 0385, 47 which provides that:
Sec. 8. Compulsor Pilotage Service. For entering a harbor and anchoring
thereat, or passing through rivers or straits within a pilotage district, as well as
docking and undocking at any pier/wharf, or shifting from one berth or another,
29 | P a g e
every vessel engaged in coastwise and foreign trade shall be under compulsory
pilotage. . . .
In case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot
and the master have been specified by the same regulation in this wise:
Sec. 11. Control of vessels and liability for damage. On compulsory pilotage
grounds, the Harbor Pilot providing the service to a vessel shall be responsible for
the damage caused to a vessel or to life and property at ports due to his negligence
or fault. He can only be absolved from liability if the accident is caused by
force majeure or natural calamities provided he has exercised prudence and extra
diligence to prevent or minimize damage.
The Master shall retain overall command of the vessel even on pilotage grounds
whereby he can countermand or overrule the order or command of the Harbor
Pilot on beard. In such event, any damage caused to a vessel or to life and
property at ports by reason of the fault or negligence of the Master shall be the
responsibility and liability of the registered owner of the vessel concerned without
prejudice to recourse against said Master.
Such liability of the owner or Master of the vessel or its pilots shall be determined
by competent authority in appropriate proceedings in the light of the facts and
circumstances of each particular case.
Sec. 32. Duties and responsibilities of the Pilot or Pilots' Association. The
duties and responsibilities of the Harbor Pilot shall be as follows:
xxx xxx xxx
f) a pilot shall be held responsible for the direction of a vessel from the time he
assumes his work as a pilot thereof until he leaves it anchored or berthed
safely; Provided, however, that his responsibility shall cease at the moment the
Master neglects or refuses to carry out hisorder.
Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in
Chapter I thereof for the responsibilities of pilots:
Par. XXXIX. A Pilot shall be held responsible for the direction of a vessel from
the time he assumes control thereof until he leaves it anchored free from
shoal: Provided, That his responsibility shall cease at the moment the master
neglects or refuses to carry out his instructions.
xxx xxx xxx
Par. XLIV. Pilots shall properly and safely secure or anchor vessels under their
control when requested to do so by the master of such vessels.
30 | P a g e
I. G.R. No. 130068

Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt.
Gavino solely responsible for the damages cause to the pier. It avers that since the vessel was
under compulsory pilotage at the time with Capt. Gavino in command and having exclusive
control of the vessel during the docking maneuvers, then the latter should be responsible for
damages caused to the pier. 48 It likewise holds the appellate court in error for holding that the
master of the ship, Capt. Kabankov, did not exercise the required diligence demanded by the
circumstances. 49
We start our discussion of the successive issues bearing in mind the evidentiary rule in American
jurisprudence that there is a presumption of fault against a moving vessel that strikes a stationary
object such as a dock or navigational aid. In admiralty, this presumption does more than merely
require the ship to go forward and produce some evidence on the presumptive matter. The
moving vessel must show that it was without fault or that the collision was occasioned by the
fault of the stationary object or was the result of inevitable accident. It has been held that such
vessel must exhaust every reasonable possibility which the circumstances admit and show that in
each, they did all that reasonable care required. 50 In the absence of sufficient proof in rebuttal,
the presumption of fault attaches to a moving vessel which collides with a fixed object and
makes a prima facie case of fault against the vessel. 51 Logic and experience support this
presumption:
The common sense behind the rule makes the burden a heavy one. Such accidents
simply do not occur in the ordinary course of things unless the vessel has been
mismanaged in some way. It is nor sufficient for the respondent to produce
witnesses who testify that as soon as the danger became apparent everything
possible was done to avoid an accident. The question remains, How then did the
collision occur? The answer must be either that, in spite of the testimony of the
witnesses, what was done was too little or too late or, if not, then the vessel was at
fault for being in a position in which an unavoidable collision would occur. 52
The task, therefore, in these cases is to pinpoint who was negligent the master of the
ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out
of ports, or in certain waters. In a broad sense, the term "pilot" includes both (1) those whose
duty it is to guide vessels into or out of ports, or in particular waters and (2) those entrusted with
the navigation of vessels on the high seas. 53However, the term "pilot" is more generally
understood as a person taken on board at a particular place for the purpose of conducting a ship
through a river, road or channel, or from a port. 54
Under English and American authorities, generally speaking, the pilot supersedes the master for
the time being in the command and navigation of the ship, and his orders must be obeyed in all
matters connected with her navigation. He becomes the master pro hac vice and should give all
directions as to speed, course, stopping and reversing anchoring, towing and the like. And when
a licensed pilot is employed in a place where pilotage is compulsory, it is his duty to insist on
31 | P a g e
having effective control of the vessel, or to decline to act as pilot. Under certain systems of
foreign law, the pilot does not take entire charge of the vessel, but is deemed merely the adviser
of the master, who retains command and control of the navigation even in localities where
pilotage is compulsory. 55
It is quite common for states and localities to provide for compulsory pilotage, and safety laws
have been enacted requiring vessels approaching their ports, with certain exceptions, to take on
board pilots duly licensed under local law. The purpose of these laws is to create a body of
seamen thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart, and
thus protect life and property from the dangers of navigation. 56
In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65
prescribes the rules for compulsory pilotage in the covered pilotage districts, among which is the
Manila Pilotage District,
viz.
PARAGRAPH I. Pilotage for entering a harbor and anchoring thereat, as well
as docking and undocking in any pier or shifting from one berth to another shall
be compulsory, except Government vessels and vessels of foreign governments
entitled to courtesy, and other vessels engaged solely in river or harbor work, or in
a daily ferry service between ports which shall be exempt from compulsory
pilotage provisions of these regulations: provided, however, that compulsory
pilotage shall not apply in pilotage districts whose optional pilotage is allowed
under these regulations.
Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila
International Port. Upon assuming such office as compulsory pilot, Capt. Gavino is held to the
universally accepted high standards of care and diligence required of a pilot, whereby he
assumes to have skill and knowledge in respect to navigation in the particular waters over which
his license extends superior to and more to be trusted than that of the master. 57A pilot 57 should
have a thorough knowledge of general and local regulations and physical conditions affecting the
vessel in his charge and the waters for which he is licensed, such as a particular harbor or river.
He is not held to the highest possible degree of skill and care, but must have and exercise the
ordinary skill and care demanded by the circumstances, and usually shown by an expert in his
profession. Under extraordinary circumstancesm, a pilot must exercise extraordinary care. 58
In Atlee vs. The Northwesrern Union Packet Company. 59 Mr. Justice Miller spelled out in great
detail the duties of a pilot:
. . . (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal
knowledge of the topography through which he steers his vessel. In the long
course of a thousand miles in one of these rivers, he must be familiar with the
appearance of the shore on each side of the river as he goes along. Its banks,
towns, its landings, its houses and trees, are all landmarks by which he steers his
vessel. The compass is of little use to him. He must know where the navigable
32 | P a g e
channel is, in its relation to all these external objects, especially in the night. He
must also be familiar with all dangers that are permanently located in the course
of the river, as sand-bars, snags, sunken rocks or trees or abandoned vessels
orbarges. All this he must know and remember and avoid. To do this, he must be
constantly informed of the changes in the current of the river, of the sand-bars
newly made,of logs or snags, or other objects newly presented, against which his
vessel might be injured.
xxx xxx xxx
It may be said that this is exacting a very high order of ability in a pilot. But when
we consider the value of the lives and property committed to their control, for in
this they are absolute masters, the high compensation they receive, the care which
Congress has taken to secure by rigid and frequent examinations and renewal of
licenses, this very class of skill, we do not think we fix the standard too high.
Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to
such strict standard of care and diligence required of pilots in the performance of their duties.
Witness this testimony of Capt. Gavino:
Court: You have testified before that the reason why the vessel
bumped the pier was because the anchor was not released
immediately or as soon as you have given the order. Do you
remember having srated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to understand that if
that anchor was released immediately at the time you gave the
order, the incident would not have happened. Is that correct?
A Yes, sir, but actually it was only a presumption on my part
because there was a commotion between the officers who are in
charge of the dropping of the anchor and the captain. I could not
understand their language, it was in Russian, so I presumed the
anchor was not dropped on time.
Q So, you are not sure whether it was really dropped on time or
not?
A I am not sure, your Honor.
33 | P a g e
xxx xxx xxx

Q You are not even sure what could have caused the incident. What
factor could have caused the incident?
A Well, in this case now, because either the anchor was not
dropped on time or the anchor did not hold, that was the cause of
the incident, your Honor. 60
It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for
the possibly injurious consequences his commands as pilot may have. Prudence required that he,
as pilot, should have made sure that his directions were promptly and strictly followed. As
correctly noted by the trial court
Moreover, assuming that he did indeed give the command to drop the anchor on
time, as pilot he should have seen to it that the order was carried out, and he could
have done this in a number of ways, one of which was to inspect the bow of the
vessel where the anchor mechanism was installed. Of course, Captain Gavino
makes reference to a commotion among the crew members which supposedly
caused the delay in the execution of the command. This account was reflected in
the pilot's report prepared four hours later, but Capt. Kavankov, while not
admitting whether or not such a commotion occurred, maintained that the
command to drop anchor was followed "immediately and precisely." Hence, the
Court cannot give much weight or consideration to this portion of Gavino's
testimony." 61
An act may be negligent if it is done without the competence that a reasonable person in the
position of the actor would recognize as necessary to prevent it from creating an unreasonable
risk of harm to another. 62 Those who undertake any work calling for special skills are required
not only to exercise reasonable care in what they do but also possess a standard minimum of
special knowledge and ability. 63
Every man who offers his services to another, and is employed, assumes to exercise in the
employment such skills he possesses, with a reasonable degree of diligence. In all these
employments where peculiar skill is requisite, if one offers his services he is understood as
holding himself out to the public as possessing the degree of skill commonly possessed by others
in the same employment, and if his pretensions are unfounded he commits a species of fraud on
every man who employs him in reliance on his public profession. 64
Furthermore, there is an obligation on all persons to take the care which, under ordinary
circumstances of the case, a reasonable and prudent man would take, and the omission of that
care constitutes negligence. 65Generally, the degree of care required is graduated according to the
danger a person or property attendant upon the activity which the actor pursues or the
instrumentality which he uses. The greater the danger the greater the degree of care required.
What is ordinary under extraordinary of conditions is dictated by those conditions; extraordinary
34 | P a g e
risk demands extraordinary care. Similarly, the more imminent the danger, the higher the degree
of care. 66
We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt. Gavino
was indeed negligent in the performance of his duties:
xxx xxx xxx
. . . As can be gleaned from the logbook, Gavino ordered the left anchor and two
(2) shackles dropped at 8:30 o'clock in the morning. He ordered the engines of the
vessel stopped at 8:31 o'clock. By then,Gavino must have realized that the anchor
did not hit a hard object and was not clawed so as to reduce the momentum of the
vessel. In point of fact, the vessel continued travelling towards the pier at the
same speed. Gavino failed to react, At 8:32 o'clock, the two (2) tugboats began to
push the stern part of the vessel from the port side bur the momentum of the
vessel was not contained. Still, Gavino did not react. He did not even order the
other anchor and two (2) more shackles dropped to arrest the momentum of the
vessel. Neither did he order full-astern. It was only at 8:34 o'clock, or four (4)
minutes, after the anchor was dropped that Gavino reacted. But his reaction was
even (haphazard) because instead of arresting fully the momentum of the vessel
with the help of the tugboats, Gavino ordered merely "half-astern". It took Gavino
another minute to order a "full-astern". By then, it was too late. The vessel's
momentum could no longer be arrested and, barely a minute thereafter, the bow of
the vessel hit the apron of the pier. Patently, Gavino miscalculated. He failed to
react and undertake adequate measures to arrest fully the momentum of the vessel
after the anchor failed to claw to the seabed. When he reacted, the same was even
(haphazard). Gavino failed to reckon the bulk of the vessel, its size and its cargo.
He erroneously believed that only one (1) anchor would suffice and even when
the anchor failed to claw into the seabed or against a hard object in the seabed,
Gavino failed to order the other anchor dropped immediately. His claim that the
anchor was dropped when the vessel was only 1,000 feet from the pier is but a
belated attempt to extricate himself from the quagmire of his own insouciance and
negligence. In sum, then, Appellants' claim that the incident was caused by "force
majeure" is barren of factual basis.
xxx xxx xxx
The harbor pilots are especially trained for this job. In the Philippines, one may
not be a harbor pilot unless he passed the required examination and training
conducted then by the Bureau of Custom, under Customs Administrative Order
No. 15-65, now under the Philippine Ports Authority under PPA Administrative
Order 63-85, Paragraph XXXIX of the Customs Administrative Order No. 15-65
provides that "the pilot shall be held responsible for the direction of the vessel
from the time he assumes control thereof, until he leaves it anchored free from
shoal: Provided, that his responsibility shall cease at the.moment the master
neglects or refuse(s) to carry out his instructions." The overall direction regarding
35 | P a g e
the procedure for docking and undocking the vessel emanates from the harbor
pilot. In the present recourse, Gavino failed to live up to his responsibilities and
exercise reasonable care or that degree of care required by the exigencies of the
occasion. Failure on his part to exercise the degree of care demanded by the
circumstances is negligence (Reese versus Philadelphia & RR Co. 239 US 363, 60
L ed. 384, 57 Am Jur, 2d page 418). 67
This affirms the findings of the trial court regarding Capt. Gavino's negligence:
This discussion should not however, divert the court from the fact that negligence
in manuevering the vessel must be attributed to Capt. Senen Gavino. He was an
experienced pilot and by this time should have long familiarized himself with the
depth of the port and the distance he could keep between the vessel and port in
order to berth safely. 68
The negligence on the part of Capt. Gavino is evident; but Capt. Kabancov is no less responsible
for the allision. His unconcerned lethargy as master of the ship in the face of troublous exigence
constitutes negligence.
While it is indubitable that in exercising his functions a pilot is in sole command of the
ship 69 and supersedes the master for the time being in the command and navigation of a ship and
that he becomes master pro hac vice of a vessel piloted by him, 70 there is overwhelming
authority to the effect that the master does not surrender his vessel to the pilot and the pilot is not
the master. The master is still in command of the vessel notwithstanding the presence of a pilot.
There are occasions when the master may and should interfere and even displace the pilot, as
when the pilot is obviously incompetent or intoxicated and the circumstances may require the
master to displace a compulsory pilot because of incompetency or physical incapacity. If,
however, the master does nor observe that a compulsory pilot is incompetent or physically
incapacitated, the master is justified in relying on the pilot, but not blindly. 71
The master is not wholly absolved from his duties while a pilot is on board his vessel, and may
advise with or offer suggestions to him. He is still in command of the vessel, except so far as her
navigation is concerned, and must cause the ordinary work of the vessel to be properly carried on
and the usual precaution taken. Thus, in particular, he is bound to see that there is sufficient
watch on deck, and that the men are attentive to their duties, also that engines are stopped,
towlines cast off, and the anchors clear and ready to go at the pilot's order. 72
A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the discharge of
his duties as master of the ship, leaving the entire docking procedure up to the pilot, instead of
maintaining watchful vigilance over this risky maneuver:
Q Will you please tell us whether you have the right to intervene in
docking of your ship in the harbor?
A No sir, I have no right to intervene in time of docking, only in
case there is imminent danger to the vessel and to the pier.
36 | P a g e
Q Did you ever intervene during the time that your ship was being
docked by Capt. Gavino?
A No sir, I did not intervene at the time when the pilot was docking
my ship.
Q Up to the time it was actually docked at the pier, is that correct?
A No sir, I did not intervene up to the very moment when the
vessel was docked.
xxx xxx xxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there anything
unusual that happened during the docking?
A Yes sir, our ship touched ihe pier and the pier was damaged.
Court (to the witness)
Q When you said touched the pier, are you leading the court to
understand that your ship bumped the pier?
A I believe that my vessel only touched the pier but the impact was
very weak.
Q Do you know whether the pier was damaged as a result of that
slight or weak impact?
A Yes sir, after the pier was damaged.
xxx xxx xxx
Q Being most concerned with the safety of your vessel, in the
maneuvering of your vessel to the port, did you observe anything
irregular in the maneuvering by Capt. Gavino at the time he was
trying to cause the vessel to be docked at the pier?
A You mean the action of Capt. Gavino or his condition?
Court:
Q Not the actuation that conform to the safety maneuver of the
ship to the harbor?
37 | P a g e
A No sir, it was a usual docking.

Q By that statement of yours, you are leading the court to
understand that there was nothing irregular in the docking of the
ship?
A Yes sir, during the initial period of the docking, there was
nothing unusual that happened.
Q What about in the last portion of the docking of the ship, was
there anything unusual or abnormal that happened?
A None Your Honor, I believe that Capt. Gavino thought that the
anchor could keep or hold the vessel.
Q You want us to understand, Mr. Witness, that the dropping of the
anchor of the vessel was nor timely?
A I don't know the depth of this port but I think, if the anchor was
dropped earlier and with more shackles, there could not have been
an incident.
Q So you could not precisely tell the court that the dropping of the
anchor was timery because you are not well aware of the seabed, is
that correct?
A Yes sir, that is right.
xxx xxx xxx
Q Alright, Capt. Kavankov, did you come to know later whether
the anchor held its ground so much so that the vessel could not
travel?
A It is difficult for me to say definitely. I believe that the anchor
did not hold the ship.
Q You mean you don't know whether the anchor blades stuck to the
ground to stop the ship from further moving?
A Yes sir, it is possible.
Q What is possible?
A I think, the 2 shackles were not enough to hold the vessel.
38 | P a g e
Q Did you know that the 2 shackles were dropped?

A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold the ship,
did you not make any protest to the pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is
correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent whether the 2
shackles were also dropped to hold the ship?
A No sir, at the beginning, I did not doubt it because I believe
Capt. Gavino to be an experienced pilot and he should be more
aware as to the depths of the harbor and the ground and I was
confident in his actions.
xxx xxx xxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the bridge of the
vessel before the inicident happened, were you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from that
point of view?
A That is right.
Q Whatever the piler can read from the panel of the bridge, you
also could read, is that correct?
A What is the meaning of panel?
Q All indications necessary for men on the bridge to be informed
of the movements of the ship?
A That is right.
39 | P a g e
Q And whatever sound the captain . . . Capt. Gavino would hear

from the bridge, you could also hear?
A That is right.
Q Now, you said that when the command to lower the anchor was
given, it was obeyed, is that right?
A This command was executed by the third mate and boatswain.
Q Mr. Witness, earlier in today's hearing, you said that you did not
intervene with the duties of the pilot and that, in your opinion, you
can only intervene if the ship is placed in imminent danger, is that
correct?
A That is right, I did say that.
Q In your observation before the incident actually happened, did
you observe whether or not the ship, before the actual incident, the
ship was placed in imminent danger?
A No sir, I did not observe.
Q By that answer, are you leading the court to understand that
because you did not intervene and because you believed that it was
your duty to intervene when the vessel is placed in imminent
danger to which you did not observe any imminent danger thereof,
you have not intervened in any manner to the command of the
pilot?
A That is right, sir.
xxx xxx xxx
Q Assuminp that you disagreed with the pilot regarding the step
being taken by the pilot in maneuvering the vessel, whose
command will prevail, in case of imminent danger to the vessel?
A I did nor consider the situation as having an imminent danger. I
believed that the vessel will dock alongside the pier.
Q You want us to understand that you did not see an imminent
danger to your ship, is that what you mean?
40 | P a g e
A Yes sir, up to the very last moment, I believed that there was no
imminent danger.
Q Because of that, did you ever intervene in the command of the
pilot?
A Yes sir, I did not intervene because I believed that the command
of the pilot to be correct.
Q As a captain of M/V Pavlodar, you consider docking maneuvers
a serious matter, is it not?
Q Since it affects not only the safety of the port or pier, but also the
safety of the vessel and the cargo, is it not?
A That is right.
Q So that, I assume that you were watching Capt. Gavino very
closely at the time he was making his commands?
A I was close to him, I was hearing his command and being
executed.
Q And that you were also alert for any possible mistakes he might
commit in the maneuvering of the vessel?
Q But at no time during the maneuver did you issue order contrary
to the orders Capt. Gavino made?
A No sir.
Q So that you were in full accord with all of Capt. Gavino's
orders?
A Yes sir.
Q Because, otherwise, you would have issued order that would
supersede his own order?
41 | P a g e
A In that case, I should t,ke him away from his command or

remove the command from him.
Q You were in full accord with the steps being taken by Capt.
Gavino because you relied on his knowledge, on his familiarity of
the seabed and shoals and other surroundings or conditions under
the sea, is that correct?
xxx xxx xxx
Q And so after the anchors were ordered dropped and they did not
take hold of the seabed, you were alerted that there was danger
already on hand?
A No sir, there was no imminent danger to the vessel.
Q Do you mean to tell us that even if the anchor was supposed to
take hold of the bottom and it did not, there was no danger to the
ship?
A Yes sir, because the anchor dragged on the ground later.
Q And after a few moments when the anchor should have taken
hold the seabed bur not done (sic), as you expected, you already
were alerted that there was danger to the ship, is that correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A Yes sir, I was alerted.
Q And this alert vou assumed was the ordinary alertness that you
have for normal docking?
A Yes sir, I mean that it was usual condition of any man in time of
docking to be alert.
Q And that is the same alertness when the anchor did not hold onto
the ground, is that correct?
42 | P a g e
A Yes sir, me and Capt. Gavino (thought) that the anchor will hold
the ground.
Q Since, as you said that you agreed all the while with the orders
of Capt. Gavino, you also therefore agreed with him in his failure
to take necessary precaution against the eventuality that the anchor
will not hold as expected?
Atty. Del Rosario:
May I ask that the question . . .
Solicitor Abad:
Never mind, I will reform the question.
xxx xxx xxx
Q Is it not a fact that the vessel bumped the pier?
A That is right, it bumped the pier.
Q For the main reason that the anchor of the vessel did not hold the
ground as expected?
A Yes sir, that is my opinion. 73
Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the
situation:
Q Now, after the anchor was dropped, was there any point in time
that you felt that the vessel was in imminent danger.
A No, at that time, the vessel was not in imminent, danger, sir. 74
This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to Capt.
Gavino's anxious assessment of the situation:
Q When a pilot is on board a vessel, it is the piler's command
which should be followed at that moment until the vessel is, or
goes to port or reaches port?
A Yes, your Honor, but it does not take away from the Captain his
prerogative to countermand the pilot.
43 | P a g e
Q In what way?
A In any case, which he thinks the pilot is not maneuvering
correctly, the Captain always has the prerogative to countermand
the pilot's order.
Q But insofar as competence, efficiency and functional knowledee
of the seabed which are vital or decisive in the safety (sic) bringing
of a vessel to the port, he is not competent?
A Yes, your Honor. That is why they hire a pilot in an advisory
capacity, but still, the safety of the vessel rest(s) upon the Captain,
the Master of the vessel.
Q In this case, there was not a disagreement between you and the
Captain of the vessel in the bringing of the vessel to port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:
In fact, the Master of the vessel testified here that he was all along
in conformity with the orders you, gave to him, and, as matter of
fact, as he said, he obeyed all your orders. Can you tell, if in the
course of giving such normal orders for the saf(e) docking of the
MV Pavlodar, do you remember of any instance that the Master of
the vessel did not obey your command for the safety docking of the
MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court that there was no
disagreement insofar as the bringing of the vessel safely to the
port.
Atty. Catris:
44 | P a g e
But in this instance of docking of the MV Pavlodar, do you

remember of a time during the course of the docking that the MV
Pavlodar was in imminent danger of bumping the pier?
A When we were about more than one thousand meters from the
pier, I think, the anchor was not holding, so I immediately ordered
to push the bow at a fourth quarter, at the back of the vessel in
order to swing the bow away from the pier and at the same time, I
ordered for a full astern of the engine. 75
These conflicting reactions can only imply, at the very least, unmindful disregard or,
worse, neglectful relinquishment of duty by the shipmaster, tantamount to negligence.
The findings of the trial court on this aspect is noteworthy:
For, while the pilot Gavino may indeed have been charged with the task of
docking the vessel in the berthing space, it is undisputed that the master of the
vessel had the corresponding duty to countermand any of the orders made by the
pilot, and even maneuver the vessel himself, in case of imminent danger to the
vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all throughour the
man(eu)vering procedures he did not notice anything was going wrong, and even
observed that the order given to drop the anchor was done at the proper time. He
even ventured the opinion that the accident occurred because the anchor failed to
take hold but that this did not alarm him because.there was still time to drop a
second anchor.
Under normal circumstances, the abovementioned facts would have caused the
master of a vessel to take charge of the situation and see to the man(eu)vering of
the vessel himself. Instead, Capt. Kavankov chose to rely blindly upon his pilot,
who by this time was proven ill-equipped to cope with the situation.
xxx xxx xxx
It is apparent that Gavino was negligent but Far Eastern's employee Capt.
Kavankov was no lesss responsible for as master of the vessel he stood by the
pilot during the man(eu)vering procedures and was privy to every move the latter
made, as well as the vessel's response to each of the commands. His choice to rely
blindly upon the pilot's skills, to the point that despite being appraised of a notice
of alert he continued to relinquish control of the vessel to Gavino, shows
indubitably that he was not performing his duties with the diligence required of
him and therefore may be charged with negligence along with defend;int
Gavino. 76
As correctly affirmed by the Court of Appeals
45 | P a g e
We are in full accord with the findings and disquisitions of the Court a quo.
In the present recourse, Captain Viktor Kavankov had been a mariner for thirtytwo years before the incident. When Gavino was (in) the command of the vessel,
Kavankov was beside Gavino, relaying the commands or orders of Gavino to the
crewmembers-officers of the vessel concerned. He was thus fully aware of the
docking maneuvers and procedure Gavino undertook to dock the vessel.
Irrefragably, Kavankov was fully aware of the bulk and size of the vessel and its
cargo as well as the weight of the vessel. Kavankov categorically admitted that,
when the anchor and two (2) shackles were dropped to the sea floor, the claws of
the anchor did not hitch on to any hard object in the seabed. The momentum of
the vessel was not arrested. The use of the two (2) tugboats was insufficient. The
momentum of the vessel, although a little bit arrested, continued (sic) the vessel
going straightforward with its bow towards the port (Exhibit "A-1 ). There was
thus a need for the vessel to move "full-astern" and to drop the other anchor with
another shackle or two (2), for the vessel to avoid hitting the pier. Kavankov
refused to act even as Gavino failed to act. Even as Gavino gave mere "halfastern" order, Kavankov supinely stood by. The vessel was already about twenty
(20) meters away from the pier when Gavino gave the "full-astern" order. Even
then, Kavankov did nothing to prevent the vessel from hitting the pier simply
because he relied on the competence and plan of Gavino. While the "full-astern''
maneuver momentarily arrested the momentum of the vessel, it was, by then, too
late. All along, Kavankov stood supinely beside Gavino, doing nothing but relay
the commands of Gavino. Inscrutably, then, Kavankov was negligent.
xxx xxx xxx
The stark incompetence of Kavankov is competent evidence to prove the
unseaworthiness of the vessel. It has been held that the incompetence of the
navigator, the master of the vessel or its crew makes the vessel unseaworthy (Tug
Ocean Prince versus United States of America, 584 F. 2nd, page 1151). Hence, the
Appellant FESC is likewise liable for the damage sustained by the Appellee.77
We find strong and well-reasoned support in time-tested American maritime jurisprudence, on
which much of our laws and jurisprudence on the matter are based, for the conclusions of the
Court of Appeals adjudging both Capt. Gavino and Capt. Kabankov negligent.
As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in
The Steamship China vs. Walsh, 78 that it is the duty of the master to interfere in cases of the
pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in
all cases of great necessity. The master has the same power to displace the pilot that he has to
remove any subordinate officer of the vessel, at his discretion.
In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that:
46 | P a g e
Nor are rye satisfied with the conduct of the master in leaving the pilot in sole
charge of the vessel. While the pilot doubtless supersedes the master for the time
being in the command and navigation of the ship, and his orders must be obeyed
in all matters connected with her navigation, the master is not wholly absolved
from his duties while the pilot is on board, and may advise with him, and even
displace him in case he is intoxicated or manifestly incompetent. He is still in
command of the vessel, except so far as her navigation is concerned, and bound to
see that there is a sufficient watch on deck, and that the men are attentive to their
duties.
. . . (N)orwithstanding the pilot has charge, it is the duty of the master to prevent
accident, and not to abandon the vessel entirely to the pilot; but that there are
certain duties he has to discharge (notwithstanding there is a pilot on board) for
the benefit of the owners. . . . that in well conducted ships the master does not
regard the presence of a duly licensed pilot in compulsory pilot waters as freeing
him from every, obligation to attend to the safety of the vessel; but that, while the
master sees that his officers and crew duly attend to the pilot's orders, he himself
is bound to keep a vigilant eye on the navigation of the vessel, and, when
exceptional circumstances exist, not only to urge upon the pilot to use every
precaution, but to insist upon such being taken. 79 (Italics for emphasis.)
In Jure vs. United Fruit Co., 80 which, like the present petitions, involved compulsory pilotage,
with a similar scenario where at and prior to the time of injury, the vessel was in the charge of a
pilot with the master on the bridge of the vessel beside said pilot, the court therein ruled:
The authority of the master of a vessel is not in complete abeyance while a pilot,
who is required by law to be accepted, is in discharge of his functions. . . . It is the
duty of the master to interfere in cases of the pilot's intoxication or manifest
incapacity, in cases of danger which he does not foresee, and in all cases of great
necessity. The master has the same power to displace the pilot that he has to
remove any subordinate officer of the vessel. He may exercise it, or not,
according to his discretion. There was evidence to support findings that piaintiff's
injury was due to the negligent operation of the Atenas, and that the master of that
vessel was negligent in failing to take action to avoid endangering a vessel
situated as the City of Canton was and persons or property thereon.
A phase of the evidence furnished support for the inferences . . . that he
negligently failed to suggest to the pilot the danger which was disclosed, and
means of avoiding such danger; and that the master's negligence in failing to give
timelt admonition to the pilot proximately contributed to the injury complained of.
We are of opinion that the evidence mentioned tended to prove conduct of the
pilot, known to the master, giving rise to a case of danger or great necessity,
calling for the intervention of the master. A master of a vessel is not without fault
in acquiescing in canduct of a pilot which involves apparent and avoidable
danger, whether such danger is to the vessel upon which the pilot is, or to another
vessel, or persons or property thereon or on shore. (Emphasis ours.)
47 | P a g e
Still in another case involving a nearly identical setting, the captain of a vessel alongside the
compulsory pilot was deemed to be negligent, since, in the words of the court, "he was in a
position to exercise his superior authority if he had deemed the speed excessive on the occasion
in question. I think it was clearly negligent of him not to have recognized the danger to any craft
moored at Gravell Dock and that he should have directed the pilot to reduce his speed as required
by the local governmental regulations. His failure amounted to negligence and renders the
respondent liable." 81 (Emphasis supplied.) Though a compulsory pilot might be regarded as an
independent contractor, he is at all times subject to the ultimate control of the ship's master. 82
In sum, where a compulsory pilot is in charge of a ship, the master being required to permit him
to navigate it, if the master observes that the pilot is incompetent or physically incapable, then it
is the dury of the master to refuse to permit the pilot to act. But if no such reasons are present,
then the master is justified in relying upon the pilot, but not blindly. Under the circumstances of
this case, if a situation arose where the master, exercising that reasonable vigilance which the
master of a ship should exercise, observed, or should have observed, that the pilot was so
navigating the vessel that she was going, or was likely to go, into danger, and there was in the
exercise of reasonable care and vigilance an opportunity for the master to intervene so as to save
the ship from danger, the master should have acted accordingly. 83 The master of a vessel must
exercise a degree of vigilance commensurate with the circumstances. 84
Inasmuch as the matter of negligence is a question of fact, 85 we defer to the findings of the trial
court, especially as this is affirmed by the Court of Appeals. 86 But even beyond that, our own
evaluation is that Capt. Kabankov's shared liability is due mainly to the fact that he failed to act
when the perilous situation should have spurred him into quick and decisive action as master of
the ship. In the face of imminent or actual danger, he did not have to wait for the happenstance to
occur before countermanding or overruling the pilot. By his own admission, Capt. Kabankov
concurred with Capt. Gavino's decisions, and this is precisely the reason why he decided not to
countermand any of the latter's orders. Inasmuch as both lower courts found Capt. Gavino
negligent, by expressing full agreement therewith Capt. Kabankov was just as negligent as Capt.
Gavino.
In general, a pilot is personally liable for damages caused by his own negligence or default to the
owners of the vessel, and to third parties for damages sustained in a collision. Such negligence of
the pilot in the performance of duty constitutes a maritime tort. 87 At common law, a shipowner is
not liable for injuries inflicted exclusively by the negligence of a pilot accepted by a vessel
compulsorily. 88 The exemption from liability for such negligence shall apply if the pilot is
actually in charge and solely in fault. Since, a pilot is responsible only for his own personal
negligence, he cannot be held accountable for damages proximately caused by the default of
others, 89 or, if there be anything which concurred with the fault of the pilot in producing the
accident, the vessel master and owners are liable.
Since the colliding vessel is prima facie responsible, the burden of proof is upon the party
claiming benefit of the exemption from liability. It must be shown affirmatively that the pilot was
at fault, and that there was no fault on the part of the officers or crew, which might have been
conducive to the damage. The fact that the law compelled the master to take the pilot does not
exonerate the vessel from liability. The parties who suffer are entitled to have their remedy
48 | P a g e
against the vessel that occasioned the damage, and are not under necessity to look to the pilot
from whom redress is not always had for compensation. The owners of the vessel are responsible
to the injured party for the acts of the pilot, and they must be left to recover the amount as well as
they can against him. It cannot be maintained that the circumstance of having a pilot on board,
and acting in conformity to his directions operate as a discharge of responsibility of the
owners. 90 Except insofar as their liability is limited or exempted by statute, the vessel or her
owner are liable for all damages caused by the negligence or other wrongs of the owners or those
in charge of the vessel. Where the pilot of a vessel is not a compulsory one in the sense that the
owner or master of the vessel are bound to accept him, but is employed voluntarily, the owners
of the vessel are, all the more, liable for his negligent act. 91
In the United States, the owners of a vessel are not personally liable for the negligent acts of a
compulsory pilot, but by admiralty law, the fault or negligence of a compulsory pilot is
imputable to the vessel and it may be held liable therefor in rem. Where, however, by the
provisions of the statute the pilot is compulsory only in the sense that his fee must be paid, and is
not in compulsory charge of the vessel, there is no exemption from liability. Even though the
pilot is compulsory, if his negligence was not the sole cause of the injury, but the negligence of
the master or crew contributed thereto, the owners are liable. 92 But the liability of the ship in
rem does not release the pilot from the consequences of his own negligence. 93 The rationale for
this rule is that the master is not entirely absolved of responsibility with respect to navigation
when a compulsory pilot is in charge. 94
By way of validation and in light of the aforecited guidepost rulings in American maritime cases,
we declare that our rulings during the early years of this century in City of Manila vs.
Gambe, 95 China Navigation Co., Ltd. vs. Vidal,96 and Yap Tica & Co. vs. Anderson, et al. 97 have
withstood the proverbial test of time and remain good and relevant case law to this day.
City of Manila stands for the doctrine that the pilot who was in command and complete control
of a vessel, and not the owners, must be held responsible for an accident which was solely the
result of the mistake of the pilot in not giving proper orders, and which did not result from the
failure of the owners to equip the vessel with the most modern and improved machinery.
In China Navigation Co., the pilot deviated from the ordinary and safe course, without heeding
the warnings of the ship captain. It was this careless deviation that caused the vessel to collide
with a pinnacle rock which, though uncharted, was known to pilots and local navigators.
Obviously, the captain was blameless. It was the negligence of the pilot alone which was the
proximate cause of the collision. The Court could not but then rule that
The pilot in the case at bar having deviated from the usual and ordinary course
followed by navigators in passing through the strait in question, without a
substantial reason, was guilty of negligence, and that negligence having been the
proximate cause of the damages, he is liable for such damages as usually and
naturally flow therefrom. . . .
. . . (T)he defendant should have known of the existence and location of the rock
upon which the vessel struck while under his control and management. . . . .
49 | P a g e
Consistent with the pronouncements in these two earlier cases, but on a slightly different tack,
the Court in Yap Tico & Co. exonerated the pilot from liability for the accident where the orders
of the pilot in the handling of the ship were disregarded by the officers and crew of the ship.
According to the Court, a pilot is ". . . responsible for a full knowledge of the channel and the
navigation only so far as he can accomplish it through the officers and crew of the ship, and I
don't see chat he can be held responsible for damage when the evidence shows, as it does in this
case, that the officers and crew of the ship failed to obey his orders." Nonetheless, it is possible
for a compulsory pilot and the master of the vessel to be concurrently negligent and thus share
the blame for the resulting damage as joint tortfeasors, 98 but only under the circumstances
obtaining in and demonstrated by the instant petitions.
It may be said, as a general rule, that negligence in order to render a person liable need not be the
sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient
causes other than piaintiff's, is the proximate cause of the injury. Accordingly, where several
causes combine to produce injuries, a person is not relieved from liability because he is
responsible for only one of them, it being sufficient that the negligence of the person charged
with injury is an efficient cause without which the injury would not have resulted to as great an
extent, and that such cause is not attributable to the person injured. It is no defense to one of the
concurrent tortfeasors that the injury would not have resulted from his negligence alone, without
the negligence or wrongful acts of the other concurrent rortfeasor. 99 Where several causes
producing an injury are concurrent and each is an efficient cause without which the injury would
not have happened, the injury may be attributed to all or any of the causes and recovery may be
had against any or all of the responsible persons although under the circumstances of the case, it
may appear that one of them was more culpable, and that the duty owed by them to the injured
person was not the same. No actor's negligence ceases to be a proximate cause merely because it
does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire
result and is liable as though his acts were the sole cause of the injury. 100
There is no contribution between joint tortfeasors whose liability is solidary since both of them
are liable for the total damage. Where the concurrent or successive negligent acts or omissions of
two or more persons, although acting independently, are in combination the direct and proximate
cause of a single injury to a third person, it is impossible to determine in what proportion each
contributed to the injury and either of them is responsible for the whole injury. Where their
concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors
and are solidarily liable for the resulting damage under Article 2194 101 of the Civil Code. 102
As for the amount of damages awarded by the trial court, we find the same to be reasonable. The
testimony of Mr. Pascual Barral, witness for PPA, on cross and redirect examination, appears to
be grounded on practical considerations:
Q So that the cost of the two additional piles as well as the (two)
square meters is already included in this P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
50 | P a g e
A Including the reduced areas and other reductions.

Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent only for
the six piles that was damaged as well as the corresponding two
piles.
A The area was corresponding, was increased by almost two in the
actual payment. That was why the contract was decreased, the real
amount was P1,124,627.40 and the final one is P1,300,999.77.
Q Yes, but that P1,300,999.77 included the additional two new
posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place in 1980
and you started the repair and reconstruction in 1982, that took
almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing damage in
1980 was aggravated for the 2 year period that the damage portion
was not repaired?
A I don't think so because that area was at once marked and no
vehicles can park, it was closed.
Q Even if or even natural elements cannot affect the damage?
A Cannot, sir.
xxx xxx xxx
Q You said in the cross-examination that there were six piles
damaged by the accident, but that in the reconstruction of the pier,
PPA drove and constructed 8 piles. Will you explain to us why
there was change in the number of piles from the original number?
51 | P a g e
A In piers where the piles are withdrawn or pulled out, you cannot
re-drive or drive piles at the same point. You have to redesign the
driving of the piles. We cannot drive the piles at the same point
where the piles are broken or damaged or pulled out. We have to
redesign, and you will note that in the reconstruction, we
redesigned such that it necessitated 8 plies.
Q Why not, why could you not drive the same number of piles and
on the same spot?
A The original location was already disturbed. We cannot get
required bearing capacity. The area is already disturbed.
Q Nonetheless, if you drove the original number of piles, six, on
different places, would not that have sustained the same load?
A It will not suffice, sir. 103
We quote the findings of the lower court with approval.
With regards to the amount of damages that is to be awarded to plaintiff, the Court
finds that the amount of P1,053,300.00 is justified. Firstly, the doctrine of res ipsa
loquitur best expounded upon in the landmark case of Republic vs. Luzon
Stevedoring Corp. (21 SCRA 279) establishes the presumption that in the ordinary
course of events the ramming of the dock would not have occurred if proper care
was used.
Secondly, the various estimates and plans justify the cost of the port construction
price. The new structure constructed not only replaced the damaged one but was
built of stronger materials to forestall the possibility of any similar accidents in
the future.
The Court inevitably finds that the plaintiff is entitled to an award of
P1,053,300.00 which represents actual damages caused by the damage to Berth 4
of the Manila International Port. Co-defendants Far Eastern Shipping, Capt.
Senen Gavino and Manila Pilots Association are solidariiy liable to pay this
amount to plaintiff. 104
The Solicitor General rightly commented that the adjudicated amount of damages
represents the proportional cost of repair and rehabilitation of the damaged section of the
pier. 105
Except insofar as their liability is limited or exempted by statute, the vessel or her owners are
liable for all damages caused by the negligence or other wrongs of the owners or those in charge
of the vessel. As a general rule, the owners or those in possession and control of a vessel and the
52 | P a g e
vessel are liable for all natural and proximate damages caused to persons or property by reason
of her negligent management or navigation. 106
FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse, not
only because it appears to be a mere afterthought, being tardily raised only in this petition, but
also because there is no allegation or evidence on record about Berth No. 4 being unsafe and
unreliable, although perhaps it is a modest pier by international standards. There was, therefore,
no error on the part of the Court of Appeals in dismissing FESC's counterclaim.
II. G.R. No. 130150
This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly and
solidarily liable with its member pilot. Capt. Gavino, in the absence of employer-employee
relationship and in applying Customs Administrative Order No. 15-65, as basis for the adjudged
solidary liability of MPA and Capt. Gavino.
The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are:
PAR. XXVII. In all pilotage districts where pilotage is compulsory, there shall
be created and maintained by the pilots or pilots' association, in the manner
hereinafter prescribed, a reserve fund equal to P1,000.00 for each pilot thereof for
the purpose of paying claims for damages to vessels or property caused through
acts or omissions of its members while rendered in compulsory pilotage service.
In Manila, the reserve fund shall be P2,000.00 for each pilot.
PAR. XXVIII. A pilots' association shall not be liable under these regulations
for damage to any vessel, or other property, resulting from acts of a member of an
association in the actual performance of his duty for a greater amount than
seventy-five per centum (75%) of its prescribed reserve fund; it being understood
that if the association is held liable for an amount greater than the amount abovestated, the excess shall be paid by the personal funds of the member concerned.
PAR. XXXI. If a payment is made from the reserve fund of an association on
account of damages caused by a member thereof, and he shall have been found at
fault, such member shall reimburse the association in the amount so paid as soon
as practicable; and for this purpose, not less than twenty-five per centum of his
dividends shall be retained each month until the full amount has been returned to
the reserve fund.
PAR. XXXIV. Nothing in these regulations shall relieve any pilots' association
or members thereof, individually or collectively, from civil responsibility for
damages to life or property resulting from the acts of members in the performance
of their duties.
Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timery
amended this applicable maritime regulation, state:
53 | P a g e
Art. IV
Sec. 17. Pilots' Association The Pilots in a Pilotage District shall organize
themselves into a Pilots' Association or firm, the members of which shall
promulgate their own By-Laws not in conflict with the rules and regulations
promulgated by the Authority. These By-Laws shall be submitted not later than
one (1) month after the organization of the Pilots' Association for approval by the
General Manager of the Authority. Subsequent amendments thereto shall likewise
be submitted for approval.
Sec. 25. Indemnity Insurance and Reserve Fund
a) Each Pilots' Association shall collectively insure
its membership at the rate of P50,000.00 each
member to cover in whole or in part any liability
arising from any accident resulting in damage to
vessel(s), port facilities and other properties and/or
injury to persons or death which any member may
have caused in the course of his performance of
pilotage duties. . . . .
b) The Pilotage Association shall likewise set up
and maintain a reserve fund which shall answer for
any part of the liability referred to in the
immediately preceding paragraph which is left
unsatisfied by the insurance proceeds, in the
following manner:
1) Each pilot in the Association shall
contribute from his own account an
amount of P4,000.00 (P6,000.00 in
the Manila Pilotage District) to the
reserve fund. This fund shall not be
considered part of the capital of the
Association nor charged as an
expense thereof.
2) Seventy-five percent (75 %) of the
reserve fund shall be set aside for use
in the payment of damages referred
to above incurred in the actual
performance of pilots' duties and the
excess shall be paid from the
personal funds of the member
concerned.
54 | P a g e
xxx xxx xxx

5) If payment is made from the
reserve fund of an Association on
account of damage caused by a
member thereof who is found at
fault, he shall reimburse the
Association in the amount so paid as
soon as practicable; and for this
purpose, not less than twenty-five
percentum (25 %) of his dividend
shall be retained each month until the
full amount has been returned to the
reserve fund. Thereafter, the pilot
involved shall be entitled to his full
dividend.
6) When the reimbursement has been
completed as prescribed in the
preceding paragraph, the ten
percentum (10%) and the interest
withheld from the shares of the other
pilots in accordance with paragraph
(4) hereof shall be returned to them.
c) Liability of Pilots' Association Nothing in
these regulations shall relieve any Pilots'
Association or members thereof, individually or
collectively, from any civil, administrative and/or
criminal responsibility for damages to life or
property resulting from the individual acts of its
members as well as those of the Association's
employees and crew in the performance of their
duties.
The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of
FESC, MPA and Capt. Gavino, correctly based MPA' s liability not on the concept of employeremployee relationship between Capt. Gavino and itself, but on the provisions of Customs
Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings and disquisitions of the
Court a quo, the Appellant Gavino was not and has never been an employee of the
MPA but was only a member thereof. The Court a quo, it is noteworthy, did not
state the factual basis on which it anchored its finding that Gavino was the
employee of MPA. We are in accord with MPA's pose. Case law teaches Us that,
for an employer-employee relationship to exist, the confluence of the following
55 | P a g e
elements must be established: (1) selection and engagement of employees; (2) the
payment of wages; (3) the power of dismissal; (4) the employer's power to control
the employees with respect to the means and method by which the work is to be
performed (Ruga versus NLRC, 181 SCRA 266).
xxx xxx xxx
The liability of MPA for damages is not anchored on Article 2180 of the New
Civil Code as erroneously found and declared by the Court a quo but under the
provisions of Customs Administrative Order No. 15-65, supra, in tandem with the
by-laws of the MPA. 107
There being no employer-employee relationship, clearly Article 2180 108 of the Civil Code is
inapplicable since there is no vicarious liability of an employer to speak of. It is so stated in
American law, as follows:
The well established rule is that pilot associations are immune to vicarious
liability for the tort of their members. They are not the employer of their members
and exercise no control over them once they take the helm of the vessel. They are
also not partnerships because the members do not function as agents for the
association or for each other. Pilots' associations are also not liable for negligently
assuring the competence of their members because as professional associations
they made no guarantee of the professional conduct of their members to the
general public. 109
Where under local statutes and regulations, pilot associations lack the necessary legal incidents
of responsibility, they have been held not liable for damages caused by the default of a member
pilot. 110 Whether or not the members of a pilots' association are in legal effect a copartnership
depends wholly on the powers and duties of the members in relation to one another under the
provisions of the governing statutes and regulations. The relation of a pilot to his association is
not that of a servant to the master, but of an associate assisting and participating in a common
purpose. Ultimately, the rights and liabilities between a pilots' association and an individual
member depend largely upon the constitution, articles or by-laws of the association, subject to
appropriate government regulations. 111
No reliance can be placed by MPA on the cited American rulings as to immunity from liability of
a pilots' association in ljght of existing positive regulation under Philippine law. The Court of
Appeals properly applied the clear and unequivocal provisions of Customs Administrative Order
No. 15-65. In doing so, it was just being consistent with its finding of the non-existence of
employer-employee relationship between MPA and Capt. Gavino which precludes the
application of Article 2180 of the Civil Code.
True. Customs Administrative Order No. 15-65 does not categorically characterize or label
MPA's liability as solidary in nature. Nevertheless, a careful reading and proper analysis of the
correlated provisions lead to the conclusion that MPA is solidarily liable for the negligence of its
member pilots, without prejudice to subsequent reimbursement from the pilot at fault.
56 | P a g e
Art. 1207 of the Civil Code provides that there is solidary liability only when the obligation
expressly so states, or when the law or the nature of the obligation requires solidarity. Plainly,
Customs Administrative Order No. 15-65, which as an implementing rule has the force and effect
of law, can validly provide for solidary liability.We note the Solicitor General's comment hereon,
to wit:
. . . Customs Administrative Order No. 15-65 may be a mere rule and regulation
issued by an administrative agency pursuant to a delegated authority to fix "the
details" in the execution or enforcement of a policy set out in the law itself.
Nonetheless, said administrative order, which adds to the procedural or enforcing
provisions of substantive law, is legally binding and receives the same statutory
force upon going into effect. In that sense, it has equal, not lower, statutory force
and effect as a regular statute passed by the legislature. 112
MPA's prayer for modification of the appellate court's decision under review by exculpating
petitioner MPA "from liability beyond seventy-five percent (75 %) of Reserve Fund" is
unnecessary because the liability of MPA under Par. XXVIII of Customs Administrative Order
No. 15-65 is in fact limited to seventy-five percent (75 %) of its prescribed reserve fund, any
amount of liability beyond that being for the personal account of the erring pilot and subject to
reimbursement in case of a finding of fault by the member concerned. This is clarified by the
Solicitor General:
Moreover, contrary to petitioner's pretensions, the provisions of Customs
Administrative Order No. 15-65 do not limit the liability of petitioner as a pilots'
association to an absurdly small amount of seventy-five per centum (75 %) of the
member pilots' contribution of P2,000.00 to the reserve fund. The law speaks of
the entire reserve fund required to be maintained by the pilots' association to
answer (for) whatever liability arising from the tortious act of its members. And
even if the association is held liable for an amount greater than the reserve fund,
the association may not resist the liability by claiming to be liable only up to
seventy-five per centum (75 %) of the reserve fund because in such instance it has
the right to be reimbursed by the offending member pilot for the excess. 113
WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are
DENIED and the assailed decision of the Court of Appeals is AFFIRMED in toto.
Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate, Atty.
Herbert A. Tria, is REPRIMANDED and WARNED that a repetition of the same or similar acts
of heedless disregard of its undertakings under the Rules shall be dealt with more severely.
The original members of the legal team of the Office of the Solicitor General assigned to this
case, namely, Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, are
ADMONISHED and WARNED that a repetition of the same or similar acts of unduly delaying
proceedings due to delayed filing of required pleadings shall also be dealt with more stringently.
57 | P a g e
The Solicitor Genral is DIRECTED to look into the circumstances of this case and to adopt
provident measures to avoid a repetition of this incident and which would ensure prompt
compliance with orders of this Court regarding the timely filing of requisite pleadings, in the
interest of just, speedy and orderly administration of justice.
Let copies of this decision be spread upon the personal records of the lawyers named herein in
the Office of the Bar Confidant.
SO ORDERED.
Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Martinez,
Quisumbing and Purisima, JJ., concur.
Narvasa, C.J. and Mendoza, J., are on official leave.
NO CASE DIGEST
58 | P a g e

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 169891
November 2, 2006
PHILIPPINE NATIONAL RAILWAYS, Petitioner,

vs.
ETHEL BRUNTY and JUAN MANUEL M. GARCIA, Respondents.
DECISION
CALLEJO, SR., J.:
This is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CAG.R. CV No. 47567 and its Resolution2 denying the motion for reconsideration thereof. The
assailed decision affirmed with partial modification the ruling3 of the Regional Trial Court (RTC)
of Manila, Branch 20, directing petitioner Philippine National Railways (PNR) to indemnify
respondents Ethel Brunty and Juan Manuel M. Garcia for the death of Rhonda Brunty, and to pay
actual and moral damages, attorneys fees and cost of suit.
Rhonda Brunty, daughter of respondent Ethel Brunty and an American citizen, came to the
Philippines for a visit sometime in January 1980. Prior to her departure, she, together with her
Filipino host Juan Manuel M. Garcia, traveled to Baguio City on board a Mercedes Benz sedan
with plate number FU 799, driven by Rodolfo L. Mercelita. It was about 12:00 midnight, January
25, 1980. By then, PNR Train No. T-71, driven by Alfonso Reyes, was on its way to Tutuban,
Metro Manila4 as it had left the La Union station at 11:00 p.m., January 24, 1980.
By 2:00 a.m., Rhonda Brunty, Garcia and Mercelita were already approaching the railroad
crossing at Barangay Rizal, Moncada, Tarlac. Mercelita, driving at approximately 70 km/hr,
drove past a vehicle, unaware of the railroad track up ahead and that they were about to collide
with PNR Train No. T-71. Mercelita was instantly killed when the Mercedes Benz smashed into
the train; the two other passengers suffered serious physical injuries.5 A certain James
Harrow6 brought Rhonda Brunty to the Central Luzon Doctors Hospital in Tarlac, where she
was pronounced dead after ten minutes from arrival. Garcia, who had suffered severe head
injuries, was brought via ambulance to the same hospital. He was transferred to the Manila
Doctors Hospital, and later to the Makati Medical Center for further treatment.7
On July 28, 1981, Ethel Brunty sent a demand letter8 to the PNR demanding payment of actual,
compensatory, and moral damages, as a result of her daughters death. When PNR did not
59 | P a g e
respond, Ethel Brunty and Garcia, filed a complaint9 for damages against the PNR before the
RTC of Manila. The case was raffled to Branch 20 and was docketed as Civil Case No. 8318645. They alleged that the death of Mercelita and Rhonda Brunty, as well as the physical
injuries suffered by Garcia, were the direct and proximate result of the gross and reckless
negligence of PNR in not providing the necessary equipment at the railroad crossing in Barangay
Rizal, Municipality of Moncada, Tarlac. They pointed out that there was no flagbar or red light
signal to warn motorists who were about to cross the railroad track, and that the flagman or
switchman was only equipped with a hand flashlight.10Plaintiffs likewise averred that PNR failed
to supervise its employees in the performance of their respective tasks and duties, more
particularly the pilot and operator of the train.11 They prayed for the payment of the following
damages:
1.) P200,000.00 as actual and compensatory damages to plaintiff Ethel Brunty;
2.) P2,800,000.00 for compensatory damages to plaintiff Ethel Brunty representing lost
or unearned income of Rhonda Brunty;
3.) Such amounts of moral and exemplary damages as may be warranted by the evidence
adduced, to plaintiff Ethel Brunty;
4.) At least P64,057.61 as actual damages representing medical expenses to plaintiff Juan
Manuel M. Garcia and at least P1,000,000.00 as unearned or lost income of said plaintiff;
5.) At least P72,760.00 as actual damages representing cost of the Mercedes Benz car to
plaintiff Juan Manuel M. Garcia;
6.) Such amounts of moral and exemplary damages as may be warranted by the evidence
adduced, to plaintiff Juan Manuel M. Garcia; and
7.) Attorneys fees equivalent to at least 15% of the total award to plaintiffs herein.12
In its Answer,13 PNR claimed that it exercised the diligence of a good father of a family not only
in the selection but also in the supervision of its employees.14 By way of special and affirmative
defense, it stressed that it had the right of way on the railroad crossing in question, and that it has
no legal duty to put up a bar or red light signal in any such crossing. It insisted that there were
adequate, visible, and clear warning signs strategically posted on the sides of the road before the
railroad crossing. It countered that the immediate and proximate cause of the accident was
Mercelitas negligence, and that he had the last clear chance to avoid the accident. The driver
disregarded the warning signs, the whistle blasts of the oncoming train and the flashlight signals
to stop given by the guard.15 As counterclaim, it prayed that it be awarded actual and
compensatory damages, and litigation expenses.16
60 | P a g e
Plaintiffs filed an Amended Complaint17 dated July 28, 1986 to include, as party plaintiff,
Chemical Industries of the Philippines, Inc. (Chemphil), Garcias employer, who claimed to have
paid for the latters medical and hospitalization expenses, the services rendered by the funeral
parlor of the deceased, and the expenses in transferring the remains of Rhonda Brunty to the
United States.18
After trial on the merits, the RTC rendered its Decision19 on May 21, 1990 in favor of plaintiffs.
The fallo reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs Ethel Brunty and Juan
Manuel M. Garcia and against the defendant Philippine National Railways directing the latter to
pay the former the sum of:
1. Thirty Thousand Pesos (P30,000.00) Philippine Currency, for the death of Rhonda
Brunty formerly a resident of 1595 Ashland Avenue, Des Plaines, Illinois, U.S.A.;
2. One Million Pesos (P1,000,000.00) Philippine Currency for moral and actual damages
due the heirs of Rhonda Brunty;
3. Seventy-Two Thousand Seven Hundred Sixty Pesos (P72,760.00) Philippine Currency
for damages sustained by the Mercedes Benz;
4. Fifty Thousand Pesos (P50,000.00) Philippine Currency as and for attorney's fees, and;
5. Costs of suit.
SO ORDERED.20
Aggrieved, the PNR appealed the case to the CA, raising the following errors:
I.
THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT PNR
LIABLE FOR THE DEATH OF RHONDA BRUNTY AND THE CONSEQUENT
AWARD OF DAMAGES DUE THE HEIRS OF RHONDA BRUNTY.
II.
THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT PNR
LIABLE FOR THE DAMAGES SUFFERED BY PLAINTIFF-APPELLEES
MERCEDES BENZ IN THE AMOUNT OF SEVENTY-TWO THOUSAND SEVEN
HUNDRED AND SIXTY PESOS (P72,760.00).
61 | P a g e
III.
THE LOWER COURT ERRED IN AWARDING ATTORNEYS FEES TO THE
PLAINTIFFS-APPELLEES.21
In its Brief, PNR insisted that the sole and proximate cause of the accident was the negligence
and recklessness of Garcia and Mercelita.22 It insisted that it had provided adequate warning
signals at the railroad crossing23 and had exercised due care in the selection and supervision of its
employees.24 The RTC erred in awarding damages to Rhonda Brunty as she cannot be allowed to
receive what she is not in a position to give, having been a non-resident alien who did not own a
property in the Philippines.25 It likewise questioned the award of damages on the Mercedes Benz
as well as the grant of attorneys fees.26 At the very least, Mercelita was guilty of contributory
negligence.27
For their part, appellees countered that appellant was grossly and recklessly negligent in not
properly providing the necessary equipment at the railroad crossing in Rizal, Moncada,
Tarlac;28 appellant was negligent in not exercising due diligence of a good father of a family in
the supervision of its employees, particularly the train operator Alfonso Reyes;29 the car was
driven in a careful and diligent manner, and at a moderate speed, with due regard to all traffic
rules and regulations at that particular time;30 the doctrine of "last clear chance" is not
applicable;31 Ethel Brunty is a non-resident alien who can rightfully file the instant case;32 and
they are entitled to recover damages from appellant.33
The CA rendered the assailed Decision34 on August 15, 2005. The dispositive portion reads:
WHEREFORE, premises considered, the assailed decision is hereby AFFIRMED with PARTIAL
MODIFICATIONS, increasing the death indemnity award from P30,000.00 to P50,000.00, and
deleting the award for damages sustained by the Mercedes Benz.
SO ORDERED.35
The appellate court affirmed the findings of the RTC as to the negligence of the PNR.
Considering the circumstances prevailing at the time of the fatal accident, it ruled that the alleged
safety measures installed by the PNR at the railroad crossing were not merely inadequate they
did not satisfy the well-settled safety standards in transportation.36 However, the CA did not
agree with the RTCs findings on the contributory negligence of Mercelita, the driver of the
Mercedes Benz. It held that Mercelita could not have foreseen the harm that would befall him
and the two other passengers under the prevailing circumstances, thus, could not be considered
guilty of contributory negligence.37
62 | P a g e
The PNR, now petitioner, comes before this Court in this Petition for Review on Certiorari on
the following grounds:
I.
THE COURT OF APPEALS ERRED IN MANIFESTLY OVERLOOKING CERTAIN
RELEVANT FACTS NOT DISPUTED BY THE PARTIES AND WHICH, IF PROPERLY
CONSIDERED, WOULD JUSTIFY A DIFFERENT CONCLUSION SUCH AS:
THE RESPONDENTS DRIVER OVERTOOK ANOTHER VEHICLE BY ACCELERATING
AT 70 KILOMETERS PER HOUR WITHIN JUST 50 YARDS AWAY FROM THE
RAILROAD TRACKS.
II.
THE FINDINGS OF FACT OF THE COURT OF APPEALS ARE CONTRARY TO THOSE OF
THE TRIAL COURT REGARDING CONTRIBUTORY NEGLIGENCE OF THE
RESPONDENTS DRIVER.
III.
THE COURT OF APPEALS ERRED IN NOT APPLYING THE DOCTRINE OF LAST CLEAR
CHANCE IN THE INSTANT CASE.38
Petitioner insists that the proximate cause of the mishap was Mercelitas disregard of traffic rules
and regulations. Had the court considered the fact that Mercelita had overtaken another vehicle a
few yards before the railroad track, it would have reached a different conclusion.39 Moreover,
petitioner asserts, considering that the decisions of the RTC and the CA vary as to whether or not
Mercelita was guilty of contributory negligence, the findings of the RTC should prevail. Thus,
Mercelitas contributory negligence should not have been ignored.40 Lastly, petitioner avers that
since there is freedom of control and greater maneuverability on the part of motor vehicles, it is
obvious that in railroad crossings, they have the last clear chance to prevent or avoid an
unwanted accident from taking place.41
In their Comment42 on the petition, respondents reiterate the findings of the RTC and the CA that
the breach by petitioner of its legal duty to provide adequate and necessary public safety device
and equipment within the area or scene of the accident was the proximate cause of the
mishap.43 While it is true that as a general rule, the trial court is in the best position to evaluate
and observe the conduct and demeanor of the witnesses presented during the trial, the CA, in the
exercise of its appellate jurisdiction, has the vested right to modify, reject, or set aside the trial
courts evaluation and findings.44 As to the application of the doctrine of last clear chance,
respondents claim that said issue is being raised for the first time in this petition.45 Lastly,
63 | P a g e
respondents cite foreign jurisprudence stating that if the violation is one which gives rise to
liability per se for any resulting injury, the defenses ordinarily available in actions for diligence
are barred and the contributory negligence of the person injured is no defense.46
The Court is thus tasked to answer the following factual questions: (1) As between petitioner and
Mercelita, whose negligence resulted in the unfortunate collision? (2) Is Mercelita (the driver of
the Mercedes Benz) guilty of contributory negligence? Finally, the application in this case of the
doctrine of last clear chance is likewise in question.
Negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do.47 In Corliss v. Manila Railroad
Company,48 this Court held that negligence is want of the care required by the circumstances. It
is a relative or comparative, not an absolute, term and its application depends upon the situation
of the parties and the degree of care and vigilance which the circumstances reasonably
require.49 In determining whether or not there is negligence on the part of the parties in a given
situation, jurisprudence50 has laid down the following test: Did defendant, in doing the alleged
negligent act, use that reasonable care and caution which an ordinarily prudent person would
have used in the same situation? If not, the person is guilty of negligence. The law, in effect,
adopts the standard supposed to be supplied by the imaginary conduct of the discreet pater
familias of the Roman law.
The issue of who, between the parties, was negligent was thoroughly discussed by both the RTC
and the CA. In petitions for review under Rule 45 of the Revised Rules of Court, only questions
of law may be put into issue, and questions of fact as a general rule, cannot be entertained. The
finding of negligence by the RTC, as affirmed by the CA, is a question of fact which this Court
cannot pass upon as it would entail going into factual matters on which the finding of negligence
was based.51 The established rule is that factual findings of the CA affirming those of the trial
court are conclusive and binding on this Court.52
The records of the instant case show that both the RTC and the CA carefully examined the
factual circumstances surrounding the case, and we find no cogent reason to disturb the same. It
is, however, worthy to emphasize that petitioner was found negligent because of its failure to
provide the necessary safety device to ensure the safety of motorists in crossing the railroad
track. As such, it is liable for damages for violating the provisions of Article 2176 of the New
Civil Code, viz:
Article 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 preexisting contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
64 | P a g e
In a long line of cases, the Court held that in order to sustain a claim based on quasi-delict, the
following requisites must concur: (1) damage to plaintiff; (2) negligence, by act or omission, of
which defendant, or some person for whose acts he must respond was guilty; and (3) connection
of cause and effect between such negligence and damage.53 Applying the foregoing requisites,
the CA correctly made the following conclusions:
It was clearly established that plaintiffs-appellees (respondents herein) sustained damage or
injury as a result of the collision. That there was negligence on the part of PNR is, likewise,
beyond cavil. Considering the circumstances prevailing at the time of the fatal accident, the
alleged safety measures installed by the PNR at the railroad crossing is not only inadequate but
does not satisfy well-settled safety standards in transportation. x x x
xxxx
x x x An examination of the photographs of the railroad crossing at Moncada, Tarlac presented as
evidence by PNR itself would yield the following: (1.) absence of flagbars or safety railroad
bars; (2.) inadequacy of the installed warning signals; and (3.) lack of proper lighting within the
area. Thus, even if there was a flagman stationed at the site as claimed by PNR (petitioner), it
would still be impossible to know or see that there is a railroad crossing/tracks ahead, or that
there is an approaching train from the Moncada side of the road since ones view would be
blocked by a cockpit arena. x x x54
Moreover, the CA held that a vehicle coming from the Moncada side would have difficulty in
knowing that there is an approaching train because of the slight curve, more so, at an unholy
hour as 2:00 a.m. Thus, it is imperative on the part of the PNR to provide adequate safety
equipment in the area.55
It may broadly be stated that railroad companies owe to the public a duty of exercising a
reasonable degree of care to avoid injury to persons and property at railroad crossings, which
duties pertain both in the operation of trains and in the maintenance of the crossings.56 Moreover,
every corporation constructing or operating a railway shall make and construct at all points
where such railway crosses any public road, good, sufficient, and safe crossings and erect at such
points, at a sufficient elevation from such road as to admit a free passage of vehicles of every
kind, a sign with large and distinct letters placed thereon, to give notice of the proximity of the
railway, and warn persons of the necessity of looking out for trains.57
This Court has previously determined the liability of the PNR for damages for its failure to put a
cross bar, or signal light, flagman or switchman, or semaphores. Such failure is evidence of
negligence and disregard of the safety of the public, even if there is no law or ordinance
requiring it because public safety demands that said device or equipment be installed.58
65 | P a g e
In view of the foregoing, we affirm the factual findings of the CA as well as its conclusion on
petitioners negligence.
As to whether or not Mercelita was guilty of contributory negligence, we agree with petitioner.
Contributory negligence is conduct on the part of the injured party, contributing as a legal cause
to the harm he has suffered, which falls below the standard to which he is required to conform
for his own protection.59 To hold a person as having contributed to his injuries, it must be shown
that he performed an act that brought about his injuries in disregard of warning or signs of an
impending danger to health and body.60 To prove contributory negligence, it is still necessary to
establish a causal link, although not proximate, between the negligence of the party and the
succeeding injury. In a legal sense, negligence is contributory only when it contributes
proximately to the injury, and not simply a condition for its occurrence.61
The court below found that there was a slight curve before approaching the tracks; the place was
not properly illuminated; ones view was blocked by a cockpit arena; and Mercelita was not
familiar with the road. Yet, it was also established that Mercelita was then driving the Mercedes
Benz at a speed of 70 km/hr and, in fact, had overtaken a vehicle a few yards before reaching the
railroad track. Mercelita should not have driven the car the way he did. However, while his acts
contributed to the collision, they nevertheless do not negate petitioners liability. Pursuant to
Article 217962 of the New Civil Code, the only effect such contributory negligence could have is
to mitigate liability, which, however, is not applicable in this case, as will be discussed
later.1wphi1
As to whether or not the doctrine of last clear chance is applicable, we rule in the negative. The
doctrine of last clear chance states that where both parties are negligent but the negligent act of
one is appreciably later than that of the other, or where it is impossible to determine whose fault
or negligence caused the loss, the one who had the last clear opportunity to avoid the loss but
failed to do so, is chargeable with the loss. Stated differently, the antecedent negligence of
plaintiff does not preclude him from recovering damages caused by the supervening negligence
of defendant, who had the last fair chance to prevent the impending harm by the exercise of due
diligence.63 The proximate cause of the injury having been established to be the negligence of
petitioner, we hold that the above doctrine finds no application in the instant case.
We note that the damages awarded by the appellate court consist of (1) P50,000.00 as indemnity
for the death of Rhonda Brunty; (2) P1,000,000.00 as actual and moral damages due the heirs of
Rhonda Brunty; and (3)P50,000.00 as and by way of attorneys fees. No damages, however, were
awarded for the injuries suffered by Garcia, yet, the latter never interposed an appeal before the
CA nor even before this Court. The record is, likewise, bereft of any allegation and proof as to
the relationship between Mercelita (the driver) and Rhonda Brunty. Hence, the earlier finding of
contributory negligence on the part of Mercelita, which generally has the effect of mitigation of
liability, does not apply.
66 | P a g e
As to the amount of damages awarded, a modification of the same is in order, specifically on the
award of actual and moral damages in the aggregate amount of P1,000,000.00.
Actual or compensatory damages are those awarded in order to compensate a party for an injury
or loss he suffered. They arise out of a sense of natural justice, aimed at repairing the wrong
done. To be recoverable, they must be duly proved with a reasonable degree of certainty. A court
cannot rely on speculation, conjecture, or guesswork as to the fact and amount of damages, but
must depend upon competent proof that they have suffered, and on evidence of the actual amount
thereof.64 Respondents, however, failed to present evidence for such damages; hence, the award
of actual damages cannot be sustained. However, as the heirs of Rhonda Brunty undeniably
incurred expenses for the wake and burial of the latter, we deem it proper to award temperate
damages in the amount of P25,000.00 pursuant to prevailing jurisprudence.65 This is in lieu of
actual damages as it would be unfair for the victims heirs to get nothing, despite the death of
their kin, for the reason alone that they cannot produce receipts.66
The relatives of the victim who incurred physical injuries in a quasi-delict are not proscribed
from recovering moral damages in meritorious cases.67 We, therefore, sustain the award of moral
damages in favor of the heirs of Rhonda Brunty.
Moral damages are not punitive in nature, but are designed to compensate and alleviate in some
way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury unjustly caused a person.
Although incapable of pecuniary computation, moral damages must nevertheless be somehow
proportional to and in approximation of the suffering inflicted.68 In the instant case, the moral
suffering of the heirs of Rhonda Brunty was sufficiently established by Ethel Brunty in her
deposition,69 viz:
Q: What have you felt as a result of the death of Rhonda?
A: I felt earnest anguish and mixed feelings of anger and extreme sorrow because she died so far
away and alone, and because her death could so easily be prevented if there had been adequate
and appropriate warning signals at the railroad crossing and it is just an unbearable and
irreparable loss. In so many ways, she was my life. It seemed to me that losing her was just like
losing my own life, or worst, and even now, there is no end to our bereavement. I am still on
constant medication to be able to sleep and to be able to perform my duties effectively in my job
but it does not take away the pain of loss.70
In People v. Teehankee, Jr.,71 and in Metro Manila Transit Corporation v. Court of Appeals,72 we
awarded moral damages in the amount of P1,000,000.00 to the heirs of the deceased. In Victory
Liner, Inc. v. Heirs of Malecdan,73 the award of P100,000.00 as moral damages was held in
67 | P a g e
keeping with the purpose of the law, while in Macalinao v. Ong,74 the amount of P50,000.00 was
held sufficient.1wphi1
Considering the circumstances attendant in this case, we find that an award of P500,000.00 as
moral damages to the heirs of Rhonda Brunty is proper. In view of recent jurisprudence,
indemnity of P50,000.00 for the death of Rhonda Brunty and attorneys fees amounting
to P50,000.00 is likewise proper.
WHEREFORE, premises considered, the Decision of the Court of Appeals dated August 15,
2005 is AFFIRMED WITH MODIFICATIONS. The award of actual damages is deleted, and in
lieu thereof, temperate damages ofP25,000.00 is awarded to the heirs of Rhonda Brunty. The
award of moral damages is reduced to P500,000.00.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII 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 Courts Division.
68 | P a g e
ARTEMIO V. PANGANIBAN
Chief Justice
DIGEST
Rhonda Brunty, who came to the Philippines for a visit is the daughter of complainant Ethel
Brunty and an American citizen, died due to an accident when the car she was in collided with a
Philippine National Railways (PNR) train. Previously, Rhonda, along with her Filipino host Juan
Manuel M. Garcia and their driver, was on their way to Baguio on a Mercedes Benz sedan.
Around 2:00 am, approaching a railroad crossing, the driver speeding at 70km/hr overtook a
vehicle. Unaware, they collided with the train. Rhonda and the driver died, with Juan suffering
severe injuries.
Bruntys heirs filed a Complaint for damages claiming that PNR was negligent for not having
placed no flag bar, red light signal, and other mechanisms in the railroad classing where the
accident happen. PNR claimed that the law did not require it to put such alarms.
HELD: PNR was liable. PNRs business is impressed with public interest; hence, it is expected
from them to exercise utmost diligence in the performance of their work. Thus, even if the law
did not require it to put such alarms, it was still required to do so as a matter of public duty or
public safety.
It may broadly be stated that railroad companies owe to the public a duty of exercising a
reasonable degree of care to avoid injury to persons and property at railroad crossings, which
duties pertain both in the operation of trains and in the maintenance of the crossings. Moreover,
every corporation constructing or operating a railway shall make and construct at all points
where such railway crosses any public road, good, sufficient, and safe crossings and erect at such
points, at a sufficient elevation from such road as to admit a free passage of vehicles of every
kind, a sign with large and distinct letters placed thereon, to give notice of the proximity of the
railway, and warn persons of the necessity of looking out for trains.
This Court has previously determined the liability of the PNR for damages for its failure to put
a cross bar, or signal light, flagman or switchman, or semaphores. Such failure is evidence of
negligence and disregard of the safety of the public, even if there is no law or ordinance
requiring it because public safety demands that said device or equipment be installed.
SUPREME COURT
Manila
THIRD DIVISION
69 | P a g e
G.R. No. 157658
October 15, 2007
PHILIPPINE NATIONAL RAILWAYS and VIRGILIO J. BORJA, Petitioners,

vs.
COURT OF APPEALS (Second Division), CORAZON C. AMORES, MA. EMILIE A.
MOJICA, CECILE C. SISON, DINO C. AMORES, LARISA C. AMORES, ARMAND
JINO C. AMORES and JOHN C. AMORES,Respondents.
DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, seeking to annul and set aside the Decision1 of the Court of Appeals
(CA) in CA-G.R. CV No. 54906 which reversed the Decision2 of the Regional Trial Court (RTC)
of Manila, Branch 28, in Civil Case No. 92-61987.
The factual antecedents are as follows:
In the early afternoon of April 27, 1992, Jose Amores (Amores) was traversing the railroad tracks
in Kahilum II Street, Pandacan, Manila. Before crossing the railroad track, he stopped for a while
then proceeded accordingly.3Unfortunately, just as Amores was at the intersection, a Philippine
National Railways (PNR) train with locomotive number T-517 turned up and collided with the
car.4
At the time of the mishap, there was neither a signal nor a crossing bar at the intersection to warn
motorists of an approaching train. Aside from the railroad track, the only visible warning sign at
that time was the defective standard signboard "STOP, LOOK and LISTEN" wherein the sign
"Listen" was lacking while that of "Look" was bent.5 No whistle blow from the train was
likewise heard before it finally bumped the car of Amores.6 After impact, the car was dragged
about ten (10) meters beyond the center of the crossing.7 Amores died as a consequence thereof.
On July 22, 1992, the heirs of Amores, consisting of his surviving wife and six children, herein
respondents, filed a Complaint for Damages8 against petitioners PNR and Virgilio J. Borja
(Borja), PNRs locomotive driver at the time of the incident, before the RTC of Manila. The case
was raffled to Branch 28 and was docketed as Civil Case No. 92-61987. In their complaint,
respondents averred that the trains speedometer was defective, and that the petitioners
negligence was the proximate cause of the mishap for their failure to take precautions to prevent
injury to persons and property despite the dense population in the vicinity. They then prayed for
actual and moral damages, as well as attorneys fees.9
70 | P a g e
In their Answer,10 the petitioners denied the allegations, stating that the train was railroad-worthy
and without any defect. According to them, the proximate cause of the death of Amores was his
own carelessness and negligence, and Amores wantonly disregarded traffic rules and regulations
in crossing the railroad tracks and trying to beat the approaching train. They admitted that there
was no crossing bar at the site of the accident because it was merely a barangay road.11 PNR
stressed that it exercised the diligence of a good father of a family in the selection and
supervision of the locomotive driver and train engineer, Borja, and that the latter likewise used
extraordinary diligence and caution to avoid the accident. Petitioners further asserted that
respondents had the last clear chance to avoid the accident but recklessly failed to do so.
After trial on the merits, on August 22, 1996, the RTC rendered judgment in favor of the
petitioners, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered dismissing the complaint of the plaintiffs and the
defendants counterclaim.
The costs shall be halved and paid equally by the parties.
The counsel for the defendants is hereby ordered to inform this court who is the legal
representative of the deceased defendant, Virgilio Borja, within ten (10) days from receipt of a
copy of this decision.
SO ORDERED.12
The RTC rationalized that the proximate cause of the collision was Amores fatal misjudgment
and the reckless course of action he took in crossing the railroad track even after seeing or
hearing the oncoming train.
On appeal, the CA reversed the RTC decision, as follows:
WHEREFORE, the assailed Decision of the Regional Trial Court of Manila, Branch 28 is hereby
REVERSED. The defendants PNR and the estate of Virgilio J. Borja are jointly and severally
liable to pay plaintiffs the following:
1) The amount of P122,300.00 for the cost of damage to the car; and,
2) The amount of P50,000 as moral damages.
For lack of official receipts for funeral expenses and specimen of the last pay slip of the
deceased, the claim for reimbursement of funeral expenses and claim for payment of support is
hereby DENIED for lack of basis. Costs against Defendants.
71 | P a g e
SO ORDERED.13
In reversing the trial courts decision, the appellate court found the petitioners negligent. The
court based the petitioners negligence on the failure of PNR to install a semaphore or at the very
least, to post a flagman, considering that the crossing is located in a thickly populated area.
Moreover, the signboard "Stop, Look and Listen" was found insufficient because of its defective
condition as described above. Lastly, no negligence could be attributed to Amores as he
exercised reasonable diligence in crossing the railroad track.
Aggrieved by this reversal, the petitioners filed the present petition for review on certiorari,
raising the following grounds:
I
THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN
RENDERING ITS DECISION REVERSING THE DECISION OF THE REGIONAL
TRIAL COURT OF MANILA BRANCH 28, IN NOT TAKING INTO
CONSIDERATION THE PROVISION OF SECTION 42, R.A. 4136 OF THE LAND
TRANSPORTATION AND TRAFFIC CODE.
II
THE DECISION OF THE COURT OF APPEALS IS CONTRARY TO THE EVIDENCE
ON RECORD ADDUCED IN THE TRIAL ON THE MERIT IN CIVIL CASE NO. 9261987.14
The petitioners insist that Amores must have heard the trains whistle and heeded the warning
but, noting that the train was still a distance away and moving slowly, he must have calculated
that he could beat it to the other side of the track before the train would arrive at the intersection.
The petitioners likewise add that the train was railroad-worthy and that its defective speedometer
did not affect the trains operation. Lastly, they insist that evidence showed sufficient warning
signs strategically installed at the crossing to alert both motorists and pedestrians.
Respondents, on the other hand, argue that the cause of the accident was petitioners
carelessness, imprudence and laxity in failing to provide a crossing bar and keeper at the
Kahilum II railway intersection. Considering that Kahilum II Street is in the middle of a thickly
populated squatters area, and many pedestrians cross the railroad track, notwithstanding the fact
that it is a public street and a main thoroughfare utilized in going to Herran Street, the presence
of adequate warning signals would have prevented the untimely death of Amores. Another
crucial point raised by the respondents is the manner in which Borja applied the brakes of the
train only when the locomotive was already very near Amores car, as admitted by witness
72 | P a g e
Querimit. Finally, respondents claim that Borjas failure to blow the locomotives horn, pursuant
to the usual practice of doing the same 100 meters before reaching the Kahilum II crossing point
is an earmark of recklessness on the part of the petitioners.
The petition must fail.
The only issue to be resolved in the present case is whether the appellate court was correct in
ascribing negligence on the part of the petitioners. It was ascertained beyond quandary that the
proximate cause of the collision is the negligence and imprudence of the petitioner PNR and its
locomotive driver, Borja, in operating the passenger train.
As the action is predicated on negligence, the relevant provision is Article 2176 of the New Civil
Code, which states that:
Whoever by act or omission causes damage to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or negligence, if there was no pre-existing contractual
relation between the parties, is called quasi-delict and is governed by the provisions of this
chapter.
We have thoroughly reviewed the records of the case and we find no cogent reason to reverse the
appellate courts decision. Negligence has been defined as "the failure to observe for the
protection of the interests of another person that degree of care, precaution, and vigilance which
the circumstances justly demand, whereby such other person suffers injury."15 Using the
aforementioned philosophy, it may be reliably concluded that there is no hard and fast rule
whereby such degree of care and vigilance is calibrated; it is dependent upon the circumstances
in which a person finds himself. All that the law requires is that it is perpetually compelling upon
a person to use that care and diligence expected of sensible men under comparable
circumstances.16
We hold that the petitioners were negligent when the collision took place. The transcript of
stenographic notes reveals that the train was running at a fast speed because notwithstanding the
application of the ordinary and emergency brakes, the train still dragged the car some distance
away from the point of impact. Evidence likewise unveils the inadequate precautions taken by
petitioner PNR to forewarn the public of the impending danger. Aside from not having any
crossing bar, no flagman or guard to man the intersection at all times was posted on the day of
the incident. A reliable signaling device in good condition, not just a dilapidated "Stop, Look and
Listen" signage because of many years of neglect, is needed to give notice to the public. It is the
responsibility of the railroad company to use reasonable care to keep the signal devices in
working order. Failure to do so would be an indication of negligence.
73 | P a g e
As held in the case of Philippine National Railway v. Brunty,17 it may broadly be stated that
railroad companies owe to the public a duty of exercising a reasonable degree of care to avoid
injury to persons and property at railroad crossings, which duties pertain both to the operation of
trains and to the maintenance of the crossings. Moreover, every corporation constructing or
operating a railway shall make and construct at all points where such railway crosses any public
road, good, sufficient, and safe crossings, and erect at such points, at sufficient elevation from
such road as to admit a free passage of vehicles of every kind, a sign with large and distinct
letters placed thereon, to give notice of the proximity of the railway, and warn persons of the
necessity of looking out for trains.18 The failure of the PNR to put a cross bar, or signal light,
flagman or switchman, or semaphore is evidence of negligence and disregard of the safety of the
public, even if there is no law or ordinance requiring it, because public safety demands that said
device or equipment be installed.
The petitioners insist that a train has a right-of-way in a railroad crossing under the existing laws.
They derive their theory from Section 42 (d), Article III of R.A. 4136, otherwise known as the
Land Transportation and Traffic Code, which states that:
The driver of a vehicle upon a highway shall bring to a full stop such vehicle before traversing
any "through highway" or railroad crossing: Provided, That when it is apparent that no hazard
exists, the vehicle may be slowed down to five miles per hour instead of bringing it to a full stop.
They claim that motorists are enjoined by law to stop, look and listen before crossing railroad
tracks and that a heavier responsibility rests upon the motorists in avoiding accidents at level
crossings.
It is true that one driving an automobile must use his faculties of seeing and hearing when
nearing a railroad crossing.1wphi1 However, the obligation to bring to a full stop vehicles
moving in public highways before traversing any "through street" only accrues from the time the
said "through street" or crossing is so designated and sign-posted. From the records of the case, it
can be inferred that Amores exercised all the necessary precautions required of him as to avoid
injury to himself and to others.1wphi1 The witnesses testimonies showed that Amores
slackened his speed, made a full stop, and then proceeded to cross the tracks when he saw that
there was no impending danger to his life. Under these circumstances, we are convinced that
Amores did everything, with absolute care and caution, to avoid the collision.
It is settled that every person or motorist crossing a railroad track should use ordinary prudence
and alertness to determine the proximity of a train before attempting to cross. We are persuaded
that the circumstances were beyond the control of Amores for no person would sacrifice his
precious life if he had the slightest opportunity to evade the catastrophe. Besides, the authority in
this jurisdiction is that the failure of a railroad company to install a semaphore or at the very
74 | P a g e
least, to post a flagman or watchman to warn the public of the passing train amounts to
negligence.191wphi1
In view of the foregoing, We will now discuss the liability of petitioner PNR. Article 218020 of
the New Civil Code discusses the liability of the employer once negligence or fault on the part of
the employee has been established. The employer is actually liable on the assumption of juris
tantum that the employer failed to exercise diligentissimi patris families in
the selection and supervision of its employees. The liability is primary and can only be negated
by showing due diligence in the selection and supervision of the employee, a factual matter that
has not been demonstrated.21Even the existence of hiring procedures and supervisory employees
cannot be incidentally invoked to overturn the presumption of negligence on the part of the
employer.22
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated March 31,
2003 in CA-G.R. CV No. 54906 is hereby AFFIRMED.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
Associate Justice
Chairperson
Associate Justice
Associate Justice
RUBEN T. REYES
Associate Justice
AT T E S T AT I O N
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 Courts Division.
Associate Justice
Chairperson, Third Division
75 | P a g e
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 Courts Division.
REYNATO S. PUNO
Chief Justice
NO CASE DIGEST

SUPREME COURT
Manila
EN BANC
G.R. No. L-6870
May 24, 1954
ELENA AMEDO, plaintiff-appellant,

vs.
RIO Y OLABARRIETA, INC., defendant-appellee.
Cesareo Perez and Meliton C. Parducho for appellant.
M. Almario and Jose T. Lajom for appellee.
CONCEPCION, J.:
This case was instituted on October 18, 1950. In her original complaint, plaintiff Elena Amedo
sought to collect from defendant Rio y Olabarrieta, Inc., the sum of P2,038.40 as compensation
for the death of her son, Filomeno Managuit, who worked for the defendant as a seaman of
the M/S Pilar II. The main allegation of said original complaint was:
76 | P a g e
That on May 27, 1949 at about 11:30 o'clock in the morning, while the deceased
Filomeno Managuit was on board M/S "Pilar II" as such seaman, he jumped into the
water to retrieve a 2-peso bill belonging to him, and as a consequence of which, he was
drowned.
On November 1, 1950, defendant filed a motion to dismiss upon the ground that said allegation
does not show that the death of plaintiff's son was due to an "accident arising out of and in the
course of employment," and that, accordingly, the complaint does not state a cause of action.
This motion was granted and the complaint dismissed, accordingly, by an order dated December
11, 1950. A motion for the reconsideration of this order having been denied, plaintiff appealed to
this Court, which, on October 30, 1952, rendered a decision affirming the order appealed from,
but "without prejudice to the right of the plaintiff, the mother of the deceased seaman, to file an
amended complaint within fifteen (15) days from notice by the clerk of the trial court that the
record of this case had been remanded to and received by the trial court, without costs." Hence,
on December 22, 1952, plaintiff filed an amended complaint, paragraph 4 of which alleges:
That on May 27, 1949, at or about 11:30 o'clock in the morning while the said Filomeno
Managuit was in the course of his employment, performing his duties as such ordinary
seaman on defendant's M/S "Pilar II",which was anchored then about 1 1/2 miles from
the seashore of Arceli Dumarang, Palawan, his two-peso bill was blown by the breeze
into the sea and in his effort to retrieve the same from the waters he was drowned.
A motion to dismiss this amended complaint upon the ground of failure to state a cause of action
was granted and the case, consequently, dismissed without costs. Are consideration of this action
having been denied, the case is once again before us on appeal.
Plaintiff's claim is admittedly predicated upon Act No. 3428, otherwise known as the Workmen's
Compensation Act. The same was amended, first, by Act No. 3812, then, by Commonwealth Act
No. 210 and, lastly, by Republic Act 772. The latter, however, took effect on June 20,1952 or
after the accident upon which plaintiff bases her cause of action. Hence, in the consideration of
this case, we shall disregard the provisions of said Republic Act No. 772. Sections 2 and 4 of Act
No. 2428, prior to its latest amendment, read:
Sec. 2. Grounds for compensation. When any employee receives a personal injury
from any accident arising out of and in the course of the employment, or contracts any
illness directly caused by such employment, or the result of the nature of such
employment, his employer shall pay compensation in the sums and to the persons
hereinafter specified.
Sec. 4. Injuries not covered. Compensation shall not be allowed for injuries caused (1)
by the voluntary intent of the employee to inflict such injury upon himself or another
person; (2) by drunkenness on the part of the laborer who had the accident; (3) by
notorious negligence of the same.
Pursuant to these provisions in so far as pertinent to the case at bar three conditions are
essential to hold an employer liable to compensate his employee for a personal injury sustained
77 | P a g e
by him from an accident, namely: (1) the accident must arise out of the employment; (2) it must
happen in the course of the employment; and (3) it must not be caused by the "notorious
negligence" of the employee.
Admittedly, the death of Filomeno Managuit was due to an accident. The point in issue is
whether such accident occurred under the three (3) conditions aforementioned. Referring to the
first two requirements, we said, in Afable et al. vs. Singer Sewing Machine Co. (58 Phil., 39, 42):
The phrase "due to and in the pursuance of" used in section 2 of Act No. 3428 was
changed in Act No. 3812 to "arising out of and in the course of". Discussing this phrase,
the Supreme Court of Illinois in the case of Muller Construction Co. vs. Industrial Board
(283 Ill., 148; 118 N. E., 1028; 1 W. C. L., 943), said:
"The words "arising out of" refer to the origin or cause of the accident and are descriptive
of its character, while the words `in the course of' refer to the time, place, and
circumstances under which the accident takes place. (Fitzgerald vs. Clarke & Sons, 1
B.W.C.C., 197 Dietzen Co. vs. Industrial Board, 279 Ill. 11; 116 N.E. 684.) By the use of
these words it was not the intention of the legislature to make the employer an insurer
against all accidental injuries which might happen to an employee while in the course of
the employment, but only for such injuries arising from or growing out of the risks
peculiar to the nature of work in the scope of the workmen's employment or incidental to
such employment, and accidents in which it is possible to trace the injury to some risk or
hazard to which the employee is exposed ina special degree by reason of such
employment. Risks to which all persons similarly situated are equally exposed and not
traceable in some special degree to the particular employment are excluded."
Adopting a liberal view, it may be conceded that the death of Filomeno took place "in the course
of" his employment, in that it happened at the "time" when, and at the "place" where-according
to the amended complaint-he was working. However, the accident which produced this tragic
result did not "arise out of" his employment. Indeed, the latter was not "the origin or cause of
said accident. The blowing of his 2-peso bill may have grown out of, or arisen from, his
employment. It was the result of a risk peculiar to his work as a seaman or incidental to such
work. But, his death was the consequence of his decision to jump into the water to retrieve said
bill. The hazardous nature of this act was not due specially to the nature of his employment. It
was a risk to which any person on board the M/S Pilar II, such as a passenger thereof or an
ordinary visitor, would have been exposed had he, likewise, jumped into the sea, as Filomeno
had.
Irrespective of whether or not the accident in question arose out of, or took place in the course of
the employment, was it caused by his "notorious negligence"? The phrase "notorious negligence"
has been held to be tantamount to "gross negligence", which, in turn, has been defined as
follows:
Gross negligence is define to be the want of even slight care and diligence. (Mobile and
M. R. Co. vs. Aschcraft [1872] 48 Ala., 15.)
78 | P a g e
By gross negligence is meant "such entire want of care as to raise a presumption that the
person in fault is conscious of the probable consequences of carelessness, and is
indifferent, or worse, to the danger of injury to person or property of others." ... The
negligence must amount to a reckless disregard of the safety of person or property."
(Wall vs. Cameron [1882] 6 Colo., 275; see, also, The Law Governing Labor Disputes in
the Philippines by Francisco, 2nd ed., p. 877.)
It cannot be denied that in jumping into the sea, one mile and a half from the seashore of Arceli,
Dumarang, Palawan, Filomeno failed to exercise "even slight care and diligence," that he
displayed a "reckless disregard of the safety" of his person, that he could not have been but
conscious of the probable consequences" of his carelessness and that he was "indifferent, or
worse, to the danger of injury.
Thus, in the case of Government of the Philippines vs. The Manila Electric Co. (40 Off. Gaz.,
9th Suppl., 232),an employee of the Bureau of Posts who died by electrocution, as the lines
which he was repairing came into contact with those of the Manila Electric, was held to be guilty
of gross negligence, he having been previously warned that the service of electric light had been
reestablished and that he should, therefore be careful in handling the wires. The same conclusion
was reached in De la Cruz vs. Hijos de I. de la Rama and Co. (62 Phil., 653), involving a truck
driver who died, because his truck fell into a ditch in consequence of a false manuever he made
to avoid collision with another car which unexpectedly appeared on the road, while he was
driving on the wrong side of the highway, at a speed of 40 to 50 km. an hour.
To the same effect was the decision in Jahara vs. Mindanao Lumber Co. (57 Phil., 853),
referring to a laborer who was run over by a car, as he fell therefrom, when he tried to board it
while moving backward. Similarly, the death of a carpenter as he slipped from the roof of a
building he was repairing was blamed on his gross negligence in Caunan vs. Compania General
de Tabacos (56 Phil., 542,545), he having worn rubber shoes despite the fact that the roof was
wet.
The case of Reyes vs. The City of Manila (G. R. No. 29112, July 18, 1933) referred to a
watchman assigned to a road-roller, who sat on a piece of board one end of which was over a box
placed on the hind wheels of the road-roller and the other end over a box of tools on the same
rollert two meters above the ground. As he tried to drive away the mosquitoes and flying ants
which bothered him, the board slipped off the wheel of the roller. So, he fell to the ground and
his knee and left pelvis bumped against the cement sidewalk, sustaining physical injuries as a
consequence thereof. It was held that he had been grossly negligent in seating on the piece of
board which was precariously placed and in making motions for the purpose of driving away the
mosquitoes and flying ants. Again in Guilas vs. The Province of Pampanga (G. R. No. 37744,
July 21, 1933), a laborer on board a truck who stood up as it was approaching a curve and fell
over when the vehicle turned the curved, was held guilty of gross negligence.
In none of these cases was the danger as apparent or imminent as when Filomeno Managuit
jumped into the sea to recover his 2-peso bill. Hence, there is more reason to hold that his death
was caused by his notorious negligence.
79 | P a g e
His case is easily distinguishable from that of Cuevo vs. Barredo (G.R. No. 45669, decided
February 24, 1938, the employee involved therein, who appeared to be a good swimmer, having
acted in obedience to an order of his foreman, to save or protect a property of the employer. It is,
also, distinguishable from accidents occurring while the laborer or employee is answering a call
of nature, or throwing away his cigarette (Columbia Casualty Co. vs. Parham, 69 Ga. App. 258),
or picking up his pipe, which had fallen, or retrieving his shoes from a car into which a fellow
worker had thrown it (Donovan vs. Bush Terminal Co., 6 N. Y. S. 2nd 860, 255 App. Div. 737),
these acts not being dangerous per se and the employee being legally justified or supposed to
perform either of them in the course of his employment. So, also, if, while Filomeno Managuit
was working, his 2-peso bill merely fell from his pocket, and as he picked up the bill from the
floor something accidentally fell upon him and injured him, he would surely be entitled to
compensation, his act being obviously innocent. In such case, it could be said, in the words of the
Lord President in Lauchlan vs. Anderson (S. C. 529), that "He had the right to be at the place ...;
he was within the time during which he was employed ...;and he was doing a thing which a man
while working may reasonably do-a workman of his sort may reasonably smoke, he may
reasonably drop his pipe, and he may reasonably pick it up again." (See Ramos vs. Poblete et al.,
40 Off. Gaz., 3474). Jumping into the sea, however, is entirely different, the danger which it
entails being clear, potent and obvious.
In view of the foregoing the decision appealed from is hereby affirmed, without special
pronouncement as to costs.
It is so ordered.
Paras, C.J., Bengzon, Montemayor, Reyes, A., Jugo, Bautista Angelo, and Labrador, JJ., concur.
DIGEST
FACTS:
27 May 1949 11:30am During the course of Managuit's employment and

performing his duties as a seafarer on Rio's M/S Pilar II, his 2-peso bill was blown
by the breeze into the sea. By trying to retrieve the same, Managuit drowned.
M/S Pilar II was then anchored 1 miles from the shore of Arceli Dumarang,
Palawan
Case was dismissed by the CFI for want of cause of action and was thus raised to the
Court on appeal.
ISSUE/S & RATIO:

WON the accident occurred under the conditions required by law (Act 3428 as amended by
CA No. 210) to make an employer liable? NO.
80 | P a g e
a) The circumstances of the case failed to established the 1st and 3rd requisite.
Accident must arise out of employment
Accident must happen in the course of employment
Accident must not be caused by the notorious negligence of the employee
b) Employers are only responsible for accidents growing out of the risks peculiar to the
nature of the employment or incidental to it. Risks to which all persons similarly situated
are equally exposed and not traceable in some special degree to the particular
employment are excluded.
c) Managuit's decision to jump after his 2-peso bill was hazardous for any person on board a
ship regardless of their employment. The nature of the danger was not due to his
occupation as a seafarer and could not have been said to have arisen out of employment.
d) Notorious negligence (as used in Act 3428) is tantamount to gross negligence, which
is the want of even slight care and diligence. The lack of diligence is such that it
raises the presumption that the person in fault is conscious of the probable
consequences of carelessness and is indifferent to the danger of injury to person or
property. Thus, Managuit failed to exercise even slight care and displayed reckless
disregard of his own safety considering the apparent, potent and imminent danger
of jumping in the water.
e) Neither could the act of jumping in the waters be considered a reasonable thing to
do while one was engaged in his employment.
RULING: Judgment affirmed. Case is dismissed. No special pronouncement as to the costs.
NOTE:
Related provisions
Act 3428 Workmen's Compensation Act as amended by Commonwealth Act No. 210
SEC. 2. Grounds for compensation. When any employee receives a personal injury from any
accident arising out of and in the course of the employment, or contracts any illness directly
caused by such employment, or the result of the nature of such employment, his employer shall
pay compensation in the sums and to the persons hereinafter specified."
SEC. 4. Injuries not covered. Compensation shall not be allowed for injuries caused (1) by the
voluntary intent of the employee to inflict such injury upon himself or another person; (2) by
drunkenness on the part of the laborer who had the accident; (3) by notorious negligence of the
same.
Other things the Court may have said:
81 | P a g e
The Court ruled that the act of Managuit was dangerous regardless of the nature of his
employment and that the accident occurred during the course of the same. In ruling as such, the
Court compared this case to other cases of claim against employers involving workman's
injuries/accidents where the acts of employees could not be said to be dangerous and are in
fact legally justified:
Cuevo v Barredo Employee was a good swimmer and was instructed by his employer to
retrieve property that fell in the water.
Columbia Casualty Co v Pahram Employee was merely throwing away his cigarette
Donovan v Bush Terminal Employee retrieved a pair of shoes which was thrown by a
colleague in the car
As justification in ruling as such, the Court quoted Lauchlan v Anderson:
He had the right to be at the place xxx he was within the time during which he was
employed xxx and he was doing a thing which a man while working may reasonably
do.
SECOND DIVISION
[G.R. No. L-8110. June 30, 1956.]
MARINDUQUE IRON MINES AGENTS, INC., Petitioner, vs. THE WORKMENS
COMPENSATION COMMISSION, THE HEIRS OF PEDRO MAMADOR and
GERONIMO MA. COLL, Respondents.
DECISION
BENGZON, J.:
The Marinduque Iron Mines Agents Inc. questions by certiorari the order of the Workmens
Compensation Commissioner confirming the referees award of compensation to the heirs of
Pedro Mamador for his accidental death.
Only the right to compensation is disputed; chan roblesvirtualawlibrarynot the amount.
It appears, says the award, that on August 23, 1951, at 6:chanroblesvirtuallawlibrary00 a.m.
in Bo. Sumangga, Mogpog, Marinduque, the deceased Mamador together with other laborers of
the Respondent-corporation, (Marinduque Iron Mines Agents Inc.) boarded a truck belonging to
the latter, which was then driven by one Procopio Macunat, also employed by the corporation,
and on its way to their place of work at the mine camp at Talantunan, while trying to overtake
82 | P a g e
another truck on the company road, it turned over and hit a coconut tree, resulting in the death of
said Mamador and injury to the others.
Procopio Macunat was prosecuted, convicted and sentenced to indemnify the heirs of the
deceased. (Criminal Case No. 1491). He has paid nothing however, to the latter.
In his first proposition Petitioner challenges the validity of the proceedings before the
Commission, asserting it had not been given the opportunity to cross-examine the opposing
witnesses. According to Respondents.
The records show that pursuant to a request made by this Commission on March 28, 1953 to
investigate the above-entitled case, the Public Defender of Boac, Marinduque,
notifiedRespondent Geronimo Ma. Coll and the general manager of the Respondent company,
Mr. Eric Lenze, to appear before him in an investigation, first on May 12, 1953, when neither of
them appeared, and the second on May 29, 1953, when only Mr. Geronimo Ma. Coll. appeared.
The sworn testimony of Mr. Ma. Coll was then taken down in a question and answer method. On
August 18, 1953, thru Referee Ramon Villaflor, this Commission wrote the Respondent company
to comment on the enclosed copy of the sworn declaration of Ma. Coll.
The Respondent company, thru its Vice President, denied its liability under the Workmens
Compensation Act, as amended. In an investigation conducted on February 8, 1954 by the
undersigned referee, the Respondentcompany thru Mr. Lenze who was assisted by counsel, was
allowed to examine the records of the case including the sworn declaration of Ma. Coll and was
given all the opportunity to rebut the same by additional evidence.
In our opinion, Petitioners grievance does not rest on any sound basis, because it was given
notice, and therefore had the chance, to examine (and cross-examine) the witnesses against it.
The statute even permits the Commissioner (or his referee) to take testimony without notice
(section 48 Act 3428 as amended) provided of course such ex parte evidence is reduced to
writing, and the adverse party is afforded opportunity to examine and rebut the same which was
done in this instance.
Anyway we are not shown how its failure to cross-examine the witnesses prejudiced
thePetitioners position.
In its second proposition, Petitioner maintains that this claim is barred by section 6 of the
Workmens Compensation Law, because (a) Macunat was prosecuted and required to indemnify
the heirs of the deceased and (b) an amicable settlement was concluded between said heirs and
Macunat.
Section 6 provides as follows:chanroblesvirtuallawlibrary
Sec. 6. Liability of third parties. In case an employee suffers an injury for which
compensation is due under this Act by any other person besides his employer, it shall be optional
with such injured employee either to claim compensation from his employer, under this Act, or
sue such other person for damages, in accordance with law; chan roblesvirtualawlibraryand in
case compensation is claimed and allowed in accordance with this Act, the employer who paid
such compensation or was found liable to pay the same, shall succeed the injured employee to
the right of recovering from such person what he paid:chanroblesvirtuallawlibrary Provided,
That in case the employer recovers from such third person damages in excess of those paid or
allowed under this Act, such excess shall be delivered to the injured employee or any other
person entitled thereto, after deduction of the expenses of the employer and the costs of the
83 | P a g e
proceedings. The sum paid by the employer for compensation or the amount of compensation to
which the employee or his dependents are entitled, shall not be admissible as evidence in any
damage suit or action.
It is the Petitioners contention that Criminal Case No. 1491 and its outcome constituted an
election by the employee (or his heirs) to sue the third person, such election having the effect of
releasing the employer. However, Criminal Case No. 1491 was not a suit for damages against the
third person, it being alleged, without contradiction that the heirs did not intervene therein and
have not so far received the indemnity ordered by the court. At any rate, we have already decided
in Nava vs. Inchausti Co. 1 that the indemnity granted the heirs in a criminal prosecution of the
other person does not affect the liability of the employer to pay compensation. 2
As to the alleged amicable settlement, it consists of an affidavit wherein, for the sum of 150
pesos, Mamadors widow promised to forgive Macunat for the wrong committed and not to
bring him before the authorities for prosecution. Upon making such promise
Petitioner argues she elected one of the remedies, (against the third person) and is barred
from the other remedy (against the employer). The contention may not be sustained, inasmuch as
all the widow promised was to forego the offenders criminal prosecution. Note further that a
question may be raised whether she could bind the other heirs of the deceased.
The most important aspect of this appeal, is the effect of the deceaseds having violated the
employers prohibition against laborers riding the haulage trucks. Petitioner claims such
violation was the laborers notorious negligence which, under the law, precludes recovery. The
Commission has not declared that the prohibition was known to Mamador. Yet the employer does
not point out in the record evidence to that effect. Supposing Mamador knew the prohibition,
said the referee, can we truthfully say that he boarded the fatal truck with full apprehension of
the existence of the danger, if any at all, that an ordinary prudent man would try to avoid? I do
not believe so, and even in the presence of doubt, the same must be resolved in his favor. Unless
of course, we can attribute to him a desire to end his life. Nowhere in the records of this case can
we find the slightest insinuation of that desire.
There is no doubt that mere riding on haulage truck or stealing a ride thereon is not negligence,
ordinarily. It couldnt be, because transportation by truck is not dangerous per se. It is argued that
there was notorious negligence in this particular instance because there was the employers
prohibition. Does violation of this order constitute negligence? Many courts hold that violation
of a statute or ordinance constitutes negligence per se. Others consider the circumstances.
However there is practical unanimity in the proposition that violation of a rule promulgated by a
Commission or board is not negligence per se; chan roblesvirtualawlibrarybut it may be evidence
of negligence. (C.J.S., Vol. 65, p. 427.)
This order of the employer (prohibition rather) couldnt be of a greater obligation than the rule of
a Commission or board. And the referee correctly considered this violation as possible evidence
of negligence; chan roblesvirtualawlibrarybut it declared that under the circumstance, the laborer
could not be declared to have acted with negligence. Correctly, it is believed, since the
prohibition had nothing to do with personal safety of the riders.
Such finding is virtually a finding of fact which we may not overrule in this certiorari
proceeding.
84 | P a g e
Nevertheless, even granting there was negligence, it surely was not notorious negligence,
which we have interpreted to mean the same thing as gross negligence 3 implying
conscious indifference to consequences pursuing a course of conduct which would naturally
and probably result in injury utter disregard of consequences. (38 Am. Jur., 691) Getting or
accepting a free ride on the companys haulage truck couldnt be gross negligence, because as
the referee found, no danger or risk was apparent.
There being no other material point raised in the petition for review, the award of compensation
is hereby affirmed, with costs against Petitioner.
Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.
Reyes, A., J., concurs in the result.
Separate Opinions
MONTEMAYOR, J.:
I concur in the result. I believe that the injury suffered herein was not in the course of the
employments, neither did it arise out of it, but this question does not seem to have been raised
below or in the appeal.
DIGEST
FACTS:
August 23, 1951 6:00 am: In Marinduque, the deceased Mamador together with other
laborers of the Marinduque Iron Mines Agents Inc. rode a truck driven by its employee
Procopio Macunat and on its way to the mine camp at Talantunan, while trying to overtake
another truck on the company road, it turned over and hit a coconut tree, resulting in the
death of Mamador and injury to the others
In a criminal case, Procopio Macunat was prosecuted, convicted and sentenced to
indemnify the heirs of the deceased but has paid nothing
Marinduque Iron Mines Agents Inc. questions by certiorari the order of the Workmens
Compensation Commissioner confirming the referees award of compensation to the heirs of
Pedro Mamador for his accidental death
Marinduque Iron Mines Agents Inc. maintains that this claim is barred by section
6 of the Workmens Compensation Law because
(a) Macunat was prosecuted and required to indemnify the heirs of the
deceased
for the sum of 150 pesos, Mamadors widow promised to forgive
Macunat for the wrong committed and not to bring him before the authorities for prosecution
(b) an amicable settlement was concluded between said heirs and Macunat
85 | P a g e
Nava vs. Inchausti Co.: indemnity granted the heirs in a criminal

prosecution of the other person does not affect the liability of the employer to pay
compensation
ISSUE: W/N Mamador having violated the employers prohibition against laborers riding the
haulage trucks was notorious negligence thereby precluding recovery
HELD: NO. award of compensation is hereby affirmed
under the circumstance, the laborer could not be declared to have acted with
negligence since the prohibition had nothing to do with personal safety of the riders
Getting or accepting a free ride on the companys haulage truck couldnt be gross
negligence - no danger or risk was apparent
notorious negligence = gross negligence
conscious indifference to consequences
pursuing a course of conduct which would naturally and probably result in injury
utter disregard of consequences

Seperate Opinion by Montemayor:
Injury was not in the course of the employment but was not raised on the lower courts or
in the appeal
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 172406
October 11, 2007
CONCEPCION ILAO-ORETA, Petitioner,

vs.
SPOUSES EVA MARIE and BENEDICTO NOEL RONQUILLO, Respondents.
DECISION
CARPIO MORALES, J.:
Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel Benedicto (Noel) Ronquillo
(the Ronquillo spouses or the spouses), had not been blessed with a child despite several years of
marriage. They thus consulted petitioner, Dr. Concepcion Ilao-Oreta (Dr. Ilao-Oreta), an
obstetrician-gynecologist-consultant at the St. Lukes Medical Center where she was, at the time
material to the case, the chief of the Reproductive Endocrinology and Infertility Section.
86 | P a g e
Upon Dr. Ilao-Oretas advice, Eva Marie agreed to undergo a laparoscopic procedure whereby a
laparascope would be inserted through the patients abdominal wall to get a direct view of her
internal reproductive organ in order to determine the real cause of her infertility.
The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be performed by Dr. Ilao-Oreta.
At around 7:00 a.m. of said date, Eva Marie, accompanied by her husband Noel, checked in at
the St. Lukes Medical Center and underwent pre-operative procedures including the
administration of intravenous fluid and enema.
Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure, however, and no prior
notice of its cancellation was received. It turned out that the doctor was on a return flight from
Hawaii to, and arrived at 10:00 p.m. of April 5, 1999 in, Manila.
On May 18, 1999, the Ronquillo spouses filed a complaint1 against Dr. Ilao-Oreta and the St.
Lukes Medical Center for breach of professional and service contract and for damages before
the Regional Trial Court (RTC) of Batangas City. They prayed for the award of actual damages
including alleged loss of income of Noel while accompanying his wife to the hospital, moral
damages, exemplary damages, the costs of litigation, attorneys fees, and other available reliefs
and remedies.2
In her Answer,3 Dr. Ilao-Oreta gave her side of the case as follows: She went on a honeymoon to
Hawaii and was scheduled to leave Hawaii at 3:00 p.m. of April 4, 1999 for Manila. Aware that
her trip from Hawaii to Manila would take about 12 hours, inclusive of a stop-over at the Narita
Airport in Japan, she estimated that she would arrive in Manila in the early morning of April 5,
1999. She thus believed in utmost good faith that she would be back in Manila in time for the
scheduled conduct of the laparoscopic procedure. She failed to consider the time difference
between Hawaii and the Philippines, however.
In its Answer,4 the St. Lukes Medical Center contended that the spouses have no cause of action
against it since it performed the pre-operative procedures without delay, and any cause of action
they have would be against Dr. Ilao-Oreta.
By Decision5 of March 9, 2001, Branch 84 of the Batangas RTC, finding that the failure of the
doctor to arrive on time was not intentional, awarded Eva Marie only actual damages in the total
amount of P9,939 and costs of suit. It found no adequate proof that Noel had been deprived of
any job contract while attending to his wife in the hospital.
On appeal by the spouses, the Court of Appeals, by Decision6 of April 21, 2006, finding Dr. IlaoOreta grossly negligent,7 modified the trial courts decision as follows:
87 | P a g e
WHEREFORE, the trial Courts decision dated March 9, 2001 is affirmed, subject to the
modification that the amount of actual damages, for which both defendants-appellees are jointly
and severally liable to plaintiffs-appellants, is increased to P16,069.40. Furthermore, defendantappellee Dr. Ilao-Oreta is also held liable to pay plaintiff-appellants the following:
(a) P50,000.00 as moral damages;
(b) P25,000.00 as exemplary damages; and
(c) P20,000.00 as attorneys fees.
SO ORDERED.8 (Underscoring supplied)
Hence, the present Petition for Review9 of Dr. Ilao-Oreta raising the following arguments:
The court a quo erred in finding petitioner to have acted with gross negligence and awarding
moral damages to respondents.10
The court a quo erred in awarding Exemplary Damages to respondents.11
The court a quo [erred] in awarding Attorneys Fees to respondents.12
The court a quo erred in increasing the award of actual damages in favor of respondents.13
"Gross negligence" implies a want or absence of or failure to exercise slight care or diligence, or
the entire absence of care. It evinces a thoughtless disregard of consequences without exerting
any effort to avoid them.14It is characterized by want of even slight care, acting or omitting to act
in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a
conscious indifference to consequences in so far as other persons may be affected.15
The records show that before leaving for Hawaii, Dr. Ilao-Oreta left an admitting order with her
secretary for one of the spouses to pick up, apprised Eva Marie of the necessary preparations for
the procedure, and instructed the hospital staff to perform pre-operative treatments.16 These acts
of the doctor reflect an earnest intention to perform the procedure on the day and time scheduled.
The records also show that on realizing that she missed the scheduled procedure, Dr. Ilao-Oreta,
upon arrival in Manila, immediately sought to rectify the same, thus:
[ATTY SINJAN] Q: So, can you tell us the reason why you missed that operation?
[DR. ILAO-ORETA] A: When I scheduled her for the surgery, I looked at my ticket and so I was
to leave Hawaii on April 4 at around 4:00 oclock in the afternoon, so I was computing 12 hours
88 | P a g e
of travel including stop-over, then probably I would be in Manila early morning of April 5, then I
have so much time and I can easily do the case at 2:00 oclock, you know it skipped my mind the
change in time.
Q: So when you arrived at 10:00 [PM] in Manila, what did you do?
A: I called immediately the hospital and I talked with the nurses, I asked about the patient, Mrs.
Ronquillo, andthey told me that she has already left at around 7:00.
Q: And after calling the hospital, what happened?
A: I wanted to call the plaintiffs, but I didnt have their number at that time, so in the morning I
went to my office early at 8:00 and looked for her chart, because her telephone number was
written in the chart. So, I called them right away.
Q: Were you able to contact them?
A: I was able to reach Mr. Ronquillo.
Q: In the course of your conversation, what did you tell Mr. Ronquillo?
A: I apologized to him, I said I was sorry about the time that I missed the surgery, and I told him
that I can do the case right that same day without Mrs. Ronquillo having to undergo another
[b]arium enema.
Q: What else did you tell him, if any?
A: I asked him whether I can talk with Mrs. Ronquillo because I wanted to apologize to her
personally.
Q: And what did he say?
A: I could hear on the background that Mrs. Ronquillo was shouting angrily that she didnt want
to talk to me, and that she didnt want re-scheduling of the surgery . . .
ATTY LONTOK: May we move, your Honor, for the striking out of the answer, this is purely
hearsay.
COURT: Remain on the record.
WITNESS [DR. ILAO-ORETA]: . . . and then Mr. Ronquillo told me "Im sorry, Dra., we cannot
re-schedule the surgery."17 (Underscoring supplied)
89 | P a g e
Noel admitted that indeed Dr. Ilao-Oreta called him up after she arrived in Manila as related by
her.18
The evidence then shows that Dr. Ilao-Oreta, who had traveled more than twice to the United
States where she obtained a fellowship in Reproductive Endocrinology and Infertility was indeed
negligent when she scheduled to perform professional service at 2:00 p.m. on April 5, 1999
without considering the time difference between the Philippines and Hawaii.
The doctors act did not, however, reflect gross negligence as defined above. Her argument that
Although petitioner failed to take into consideration the time difference between the Philippines
and Hawaii, the situation then did not present any clear and apparent harm or injury that even a
careless person may perceive. Unlike in situations where the Supreme Court had found gross
negligence to exist, petitioner could not have been conscious of any foreseeable danger that may
occur since she actually believed that she would make it to theoperation that was elective in
nature, the only purpose of which was to determine the real cause of infertility and not to treat
and cure a life threatening disease. Thus, in merely fixing the date of her appointment with
respondent Eva Marie Ronquillo, petitioner was not in the pursuit or performance of conduct
which any ordinary person may deem to probably and naturally result in injury,19 (Underscoring
in original)
thus persuades.
It bears noting that when she was scheduling the date of her performance of the procedure, Dr.
Ilao-Oreta had just gotten married and was preparing for her honeymoon,20 and it is of common
human knowledge that excitement attends its preparations. Her negligence could then be partly
attributed to human frailty which rules out its characterization as gross.
The doctors negligence not being gross, the spouses are not entitled to recover moral damages.
Neither are the spouses entitled to recover exemplary damages in the absence of a showing that
Dr. Ilao-Oreta acted in a wanton, fraudulent, reckless, oppressive or malevolent manner,21 nor to
award of attorneys fees as, contrary to the finding of the Court of Appeals that the spouses "were
compelled to litigate and incur expenses to protect their interest,"22 the records show that they did
not exert enough efforts to settle the matter before going to court. Eva Marie herself testified:
ATTY. SINJIAN:
Q: Isnt it true that before instituting this present case, you did not make any demand on
Dr. Ilao-Oreta regarding the claims which you have allegedly incurred, because of the
failed laparoscopic surgery operation?
90 | P a g e
A [EVA MARIE]: I will tell the truth. Dr. Augusto Reyes of St. Lukes . . .
Q: But did you demand?
A: No, I did not demand because
ATTY. SINJIAN: That will be all, your Honor.
ATTY. LONTOK: The witness is still explaining.
WITNESS: Im explaining first. Dr. Augusto Reyes told me that he will hold the meeting
for me and Dr. Oreta to settle things and reimburse all the money that I spent from the
hospital, and he even suggested Dr. Oreta to personally talk to me.
ATTY. SINJIAN:
Q: So it was to Dr. Augusto Reyes that you talked?
A: Yes.
Q: But you did not demand anything or write to Dr. Oreta?
A: No.
Q: Before instituting this case?
A: No.23 (Underscoring supplied)
Finally, Dr. Ilao-Oretas prayer for the reduction of actual damages is well-taken. Article 2201 of
the Civil Code provides:
In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is
liable shall be those which are the natural and probable consequences of the breach of the
obligation, and which the parties have foreseen or could have reasonably foreseen at the time the
obligation was constituted.
In fixing the amount of actual damages, the Court of Appeals and the trial court included
expenses which the spouses incurred prior to April 5, 1999 when the breach of contract
complained of occurred.24 The Court of Appeals also included the alleged P300 spent on fuel
consumption from the spouses residence at San Pascual, Batangas to the St. Lukes Medical
Center in Quezon City and the alleged P500 spent on food in the hospital canteen, both of which
are unsubstantiated by independent or competent proof.25 The only piece of documentary
91 | P a g e
evidence supporting the food and fuel expenses is an unsigned listing.26 As the fuel and food
expenses are not adequately substantiated, they cannot be included in the computation of the
amount of actual damages. SoPremiere Development Bank v. Court of Appeals27 instructs:
In the instant case, the actual damages were proven through the sole testimony of Themistocles
Ruguero, the vice president for administration of Panacor. In his testimony, the witness affirmed
that Panacor incurred losses, specifically, in terms of training and seminars, leasehold
acquisition, procurement of vehicles and office equipment without, however, adducing receipts
to substantiate the same. The documentary evidence marked as Exhibit "W," which was an
ordinary private writing allegedly itemizing the capital expenditures and losses from the failed
operation of Panacor, was not testified to by any witness to ascertain the veracity of its content.
Although the lower court fixed the sum of P4,520,000.00 as the total expenditures incurred by
Panacor, it failed to show how and in what manner the same were substantiated by the claimant
with reasonable certainty. Hence, the claim for actual damages should be received with extreme
caution since it is only based on bare assertion without support from independent evidence.
Premieres failure to prove actual expenditure consequently conduces to a failure of its claim. In
determining actual damages, the court cannot rely on mere assertions, speculations, conjectures
or guesswork but must depend on competent proof and on the best evidence obtainable regarding
the actual amount of loss.28 (Underscoring supplied)
The list of expenses cannot replace receipts when they should have been issued as a matter of
course in business transactions29 as in the case of purchase of gasoline and of food.1wphi1
The documented claim for hospital and medical expenses of the spouses is detailed in the
Statement of Account issued by the hospital, the pertinent entries of which read:
xxxx
GROSS HOSPITAL CHARGES
4/5/1999
2,416.50
1699460 DEPOSITOFFICIAL
RECEIPT
(5,000.00)
(5,000.00)
4/5/1999
SECOND
FLOOR
0284893
UNUSED MED
HINOX 500 MG CAP
0439534
(65.55)
92 | P a g e
SECOND
FLOOR
0284894
UNUSED MED
PHENERGAN 2 ML
0439893
(62.25)
50MG
________
(127.80)
BALANCE DUE
(2,711.30)30
==========
As extrapolated from the above-quoted entries in the Statement of Account, P2,288.70 (the gross
hospital charges of P2,416.50 less the unused medicine in the amount of P127.80) was debited
from the P5,000 deposit31to thus leave a balance of the deposit in the amount of P2,711.30, which
the trial court erroneously denominated as "confinement fee." The remaining balance
of P2,711.30 was the amount refundable to the spouses.
Following Eastern Shipping Lines, Inc. v. Court of Appeals,32 this Court awards interest on the
actual damages to be paid by Dr. Ilao-Oreta at the rate of 6% per annum from the time of the
filing of the complaint on May 18, 1999, and at 12% per annum from the finality of this
judgment until its satisfaction.
WHEREFORE, the petition is GRANTED. The decision appealed from is MODIFIED in that
1) the award to respondents-spouses Noel and Eva Marie Ronquillo of actual damages is
REDUCED toP2,288.70, to bear interest at a rate of 6% per annum from the time of the
filing of the complaint on May 18, 1999 and, upon finality of this judgment, at the rate of
12% per annum until satisfaction; and
2) The award of moral and exemplary damages and attorneys fees is DELETED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO
DANTE O. TINGA
93 | P a g e
Associate Justice
Associate Justice
PRESBITERO J. VELASCO, JR.

Associate Justice
AT T E S T AT I O N
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, 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 Courts Division.
REYNATO S. PUNO
Chief Justice
DIGEST
Respondent spouses Eva Marie Ronquillo and Noel Benedicto Ronquillo had not been blessed
with a child despite several years of marriage. They thus consulted petitioner Dr. Concepcion
Ilao-Oreta, an obstetrician-gynecologist-consultant and chief of the Reproductive Endocrinology
and Infertility Section at the St. Lukes Medical Center. Dr. Ilao-Oreta advised Eva Marie to
undergo a laparoscopic procedure whereby a laparascope would be inserted through the
patients abdominal wall to get a direct view of her internal reproductive organ in order to
determine the real cause of her infertility.
The procedure was scheduled on April 5, 1999 at 2:00 p.m. to be performed by Dr.
Ilao-Oreta. Eva Marie, accompanied by Noel, checked in at the St. Lukes Medical Center and
underwent pre-operative procedures including the administration of intravenous fluid and enema.
However, Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure and no prior
notice of its cancellation was received. It turned out that the doctor was on a return flight from
Hawaii to, and arrived at 10:00 p.m. of April 5, 1999 in, Manila.
94 | P a g e
The Ronquillo spouses filed a complaint against Dr. Ilao-Oreta and the St. Lukes
Medical Center for breach of professional and service contract and for damages before the
Regional Trial Court of Batangas City. They prayed for the award of actual damages including
alleged loss of income of Noel while accompanying his wife to the hospital, moral
damages, exemplary damages, costs of litigation, attorneys fees, and other available reliefs and
remedies. The RTC decided in favor of Ronquillo spouses and awarded Eva Marie actual
damages but ruled that the failure of the doctor to arrive on time was not intentional. It found no
adequate proof that Noel had been deprived of any job contract while attending to his wife in the
hospital. The spouses appealed to the Court of Appeals and found that Dr. Ilao-Oreta
grossly negligent.
ISSUE:
Whether or not Dr. Ilao-Oreta is guilty of gross negligence for her failure to arrive at the
scheduled time for the procedure
HELD:
It bears noting that when she was scheduling the date of her performance of the procedure, Dr.
Ilao-Oreta had just gotten married and was preparing for her honeymoon, and it is of common
human knowledge that excitement attends its preparations. Her negligence could then be partly
attributed to human frailty which rules out its characterization as gross.
Dr. Ilao-Oretas negligence not being gross, Ronquillo spouses are not entitled to recover moral
damages. Neither are the spouses entitled to recover exemplary damages in the absence of a
showing that Dr. Ilao-Oreta acted in a wanton, fraudulent, reckless, oppressive or malevolent
manner, nor to award of attorneys fees as, contrary to the finding of the CA that the spouses
were compelled to litigate and incur expenses to protect their interest, the records show that
they did not exert enough efforts to settle the matter before going to court.
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SUPREME COURT
Manila
EN BANC
G.R. No. L-12219
March 15, 1918
AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the
sum of P31,000, as damages alleged to have been caused by an automobile driven by the
defendant. From a judgment of the Court of First Instance of the Province of La Union absolving
the defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912,
on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question
the plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the
defendant approached from the opposite direction in an automobile, going at the rate of about ten
or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and blew
his horn to give warning of his approach. He continued his course and after he had taken the
bridge he gave two more successive blasts, as it appeared to him that the man on horseback
before him was not observing the rule of the road.
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The plaintiff, it appears, saw the automobile coming and heard the warning signals. However,
being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the
pony closely up against the railing on the right side of the bridge instead of going to the left. He
says that the reason he did this was that he thought he did not have sufficient time to get over to
the other side. The bridge is shown to have a length of about 75 meters and a width of 4.80
meters. As the automobile approached, the defendant guided it toward his left, that being the
proper side of the road for the machine. In so doing the defendant assumed that the horseman
would move to the other side. The pony had not as yet exhibited fright, and the rider had made
no sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant,
instead of veering to the right while yet some distance away or slowing down, continued to
approach directly toward the horse without diminution of speed. When he had gotten quite near,
there being then no possibility of the horse getting across to the other side, the defendant quickly
turned his car sufficiently to the right to escape hitting the horse alongside of the railing where it
as then standing; but in so doing the automobile passed in such close proximity to the animal that
it became frightened and turned its body across the bridge with its head toward the railing. In so
doing, it as struck on the hock of the left hind leg by the flange of the car and the limb was
broken. The horse fell and its rider was thrown off with some violence. From the evidence
adduced in the case we believe that when the accident occurred the free space where the pony
stood between the automobile and the railing of the bridge was probably less than one and one
half meters. As a result of its injuries the horse died. The plaintiff received contusions which
caused temporary unconsciousness and required medical attention for several days.
The question presented for decision is whether or not the defendant in maneuvering his car in the
manner above described was guilty of negligence such as gives rise to a civil obligation to repair
the damage done; and we are of the opinion that he is so liable. As the defendant started across
the bridge, he had the right to assume that the horse and the rider would pass over to the proper
side; but as he moved toward the center of the bridge it was demonstrated to his eyes that this
would not be done; and he must in a moment have perceived that it was too late for the horse to
cross with safety in front of the moving vehicle. In the nature of things this change of situation
occurred while the automobile was yet some distance away; and from this moment it was not
longer within the power of the plaintiff to escape being run down by going to a place of greater
safety. The control of the situation had then passed entirely to the defendant; and it was his duty
either to bring his car to an immediate stop or, seeing that there were no other persons on the
bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of
collision. Instead of doing this, the defendant ran straight on until he was almost upon the horse.
He was, we think, deceived into doing this by the fact that the horse had not yet exhibited fright.
But in view of the known nature of horses, there was an appreciable risk that, if the animal in
question was unacquainted with automobiles, he might get exited and jump under the conditions
which here confronted him. When the defendant exposed the horse and rider to this danger he
was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that person would have used in
the same situation? If not, then he is guilty of negligence. The law here in effect adopts the
standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is not determined by reference to the
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personal judgment of the actor in the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and
determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must
of course be always determined in the light of human experience and in view of the facts
involved in the particular case. Abstract speculations cannot here be of much value but this much
can be profitably said: Reasonable men govern their conduct by the circumstances which are
before them or known to them. They are not, and are not supposed to be, omniscient of the
future. Hence they can be expected to take care only when there is something before them to
suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as
a result of the course actually pursued? If so, it was the duty of the actor to take precautions to
guard against that harm. Reasonable foresight of harm, followed by ignoring of the suggestion
born of this prevision, is always necessary before negligence can be held to exist. Stated in these
terms, the proper criterion for determining the existence of negligence in a given case is this:
Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have
foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing
conduct or guarding against its consequences.
Applying this test to the conduct of the defendant in the present case we think that negligence is
clearly established. A prudent man, placed in the position of the defendant, would in our opinion,
have recognized that the course which he was pursuing was fraught with risk, and would
therefore have foreseen harm to the horse and the rider as reasonable consequence of that course.
Under these circumstances the law imposed on the defendant the duty to guard against the
threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself on the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the problem always is to discover
which agent is immediately and directly responsible. It will be noted that the negligent acts of the
two parties were not contemporaneous, since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that
the person who has the last fair chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should
perhaps be mentioned in this connection. This Court there held that while contributory
negligence on the part of the person injured did not constitute a bar to recovery, it could be
received in evidence to reduce the damages which would otherwise have been assessed wholly
against the other party. The defendant company had there employed the plaintiff, as a laborer, to
assist in transporting iron rails from a barge in Manila harbor to the company's yards located not
far away. The rails were conveyed upon cars which were hauled along a narrow track. At certain
spot near the water's edge the track gave way by reason of the combined effect of the weight of
the car and the insecurity of the road bed. The car was in consequence upset; the rails slid off;
and the plaintiff's leg was caught and broken. It appeared in evidence that the accident was due to
the effects of the typhoon which had dislodged one of the supports of the track. The court found
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that the defendant company was negligent in having failed to repair the bed of the track and also
that the plaintiff was, at the moment of the accident, guilty of contributory negligence in walking
at the side of the car instead of being in front or behind. It was held that while the defendant was
liable to the plaintiff by reason of its negligence in having failed to keep the track in proper
repair nevertheless the amount of the damages should be reduced on account of the contributory
negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted in an
omission only. The liability of the company arose from its responsibility for the dangerous
condition of its track. In a case like the one now before us, where the defendant was actually
present and operating the automobile which caused the damage, we do not feel constrained to
attempt to weigh the negligence of the respective parties in order to apportion the damage
according to the degree of their relative fault. It is enough to say that the negligence of the
defendant was in this case the immediate and determining cause of the accident and that the
antecedent negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense pleaded in the
defendant's answer, to the effect that the subject matter of the action had been previously
adjudicated in the court of a justice of the peace. In this connection it appears that soon after the
accident in question occurred, the plaintiff caused criminal proceedings to be instituted before a
justice of the peace charging the defendant with the infliction of serious injuries (lesiones
graves). At the preliminary investigation the defendant was discharged by the magistrate and the
proceedings were dismissed. Conceding that the acquittal of the defendant at the trial upon the
merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the
question of his civil liability arising from negligence -- a point upon which it is unnecessary to
express an opinion -- the action of the justice of the peace in dismissing the criminal proceeding
upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil.
Rep., 564.)
From what has been said it results that the judgment of the lower court must be reversed, and
judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is estimated to include the value of
the horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his
apparel, and lawful interest on the whole to the date of this recovery. The other damages claimed
by the plaintiff are remote or otherwise of such character as not to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avancea, and Fisher, JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
MALCOLM, J., concurring:
After mature deliberation, I have finally decided to concur with the judgment in this case. I do so
because of my understanding of the "last clear chance" rule of the law of negligence as
particularly applied to automobile accidents. This rule cannot be invoked where the negligence
of the plaintiff is concurrent with that of the defendant. Again, if a traveler when he reaches the
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point of collision is in a situation to extricate himself and avoid injury, his negligence at that
point will prevent a recovery. But Justice Street finds as a fact that the negligent act of the
interval of time, and that at the moment the plaintiff had no opportunity to avoid the accident.
Consequently, the "last clear chance" rule is applicable. In other words, when a traveler has
reached a point where he cannot extricate himself and vigilance on his part will not avert the
injury, his negligence in reaching that position becomes the condition and not the proximate
cause of the injury and will not preclude a recovery. (Note especially Aiken vs. Metcalf [1917],
102 Atl., 330.)

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 159617
August 8, 2007
ROBERTO C. SICAM and AGENCIA de R.C. SICAM, INC., petitioners,

vs.
LULU V. JORGE and CESAR JORGE, respondents.
DECISION
Before us is a Petition for Review on Certiorari filed by Roberto C. Sicam, Jr. (petitioner Sicam)
and Agencia deR.C. Sicam, Inc. (petitioner corporation) seeking to annul the Decision1 of the
Court of Appeals dated March 31, 2003, and its Resolution2 dated August 8, 2003, in CA G.R.
CV No. 56633.
It appears that on different dates from September to October 1987, Lulu V. Jorge (respondent
Lulu) pawned several pieces of jewelry with Agencia de R. C. Sicam located at No. 17 Aguirre
Ave., BF Homes Paraaque, Metro Manila, to secure a loan in the total amount of P59,500.00.
jewelry were found inside the pawnshop vault. The incident was entered in the police blotter of
the Southern Police District, Paraaque Police Station as follows:
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Investigation shows that at above TDPO, while victims were inside the office, two (2)
male unidentified persons entered into the said office with guns drawn. Suspects(sic) (1)
went straight inside and poked his gun toward Romeo Sicam and thereby tied him with
an electric wire while suspects (sic) (2) poked his gun toward Divina Mata and Isabelita
Rodriguez and ordered them to lay (sic) face flat on the floor. Suspects asked forcibly the
case and assorted pawned jewelries items mentioned above.
Suspects after taking the money and jewelries fled on board a Marson Toyota unidentified
plate number.3
Petitioner Sicam sent respondent Lulu a letter dated October 19, 1987 informing her of the loss
of her jewelry due to the robbery incident in the pawnshop. On November 2, 1987, respondent
Lulu then wrote a letter4 to petitioner Sicam expressing disbelief stating that when the robbery
happened, all jewelry pawned were deposited with Far East Bank near the pawnshop since it had
been the practice that before they could withdraw, advance notice must be given to the pawnshop
so it could withdraw the jewelry from the bank. Respondent Lulu then requested petitioner
Sicam to prepare the pawned jewelry for withdrawal on November 6, 1987 but petitioner Sicam
failed to return the jewelry.
On September 28, 1988, respondent Lulu joined by her husband, Cesar Jorge, filed a complaint
against petitioner Sicam with the Regional Trial Court of Makati seeking indemnification for the
loss of pawned jewelry and payment of actual, moral and exemplary damages as well as
attorney's fees. The case was docketed as Civil Case No. 88-2035.
Petitioner Sicam filed his Answer contending that he is not the real party-in-interest as the
pawnshop was incorporated on April 20, 1987 and known as Agencia de R.C. Sicam, Inc; that
petitioner corporation had exercised due care and diligence in the safekeeping of the articles
pledged with it and could not be made liable for an event that is fortuitous.
Respondents subsequently filed an Amended Complaint to include petitioner corporation.
Thereafter, petitioner Sicam filed a Motion to Dismiss as far as he is concerned considering that
he is not the real party-in-interest. Respondents opposed the same. The RTC denied the motion in
an Order dated November 8, 1989.5
After trial on the merits, the RTC rendered its Decision6 dated January 12, 1993, dismissing
respondents complaint as well as petitioners counterclaim. The RTC held that petitioner Sicam
could not be made personally liable for a claim arising out of a corporate transaction; that in the
Amended Complaint of respondents, they asserted that "plaintiff pawned assorted jewelries in
defendants' pawnshop"; and that as a consequence of the separate juridical personality of a
corporation, the corporate debt or credit is not the debt or credit of a stockholder.
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The RTC further ruled that petitioner corporation could not be held liable for the loss of the
pawned jewelry since it had not been rebutted by respondents that the loss of the pledged pieces
of jewelry in the possession of the corporation was occasioned by armed robbery; that robbery is
a fortuitous event which exempts the victim from liability for the loss, citing the case of Austria
v. Court of Appeals;7 and that the parties transaction was that of a pledgor and pledgee and under
Art. 1174 of the Civil Code, the pawnshop as a pledgee is not responsible for those events which
could not be foreseen.
Respondents appealed the RTC Decision to the CA. In a Decision dated March 31, 2003, the CA
reversed the RTC, the dispositive portion of which reads as follows:
WHEREFORE, premises considered, the instant Appeal is GRANTED, and the Decision
dated January 12, 1993,of the Regional Trial Court of Makati, Branch 62, is hereby
REVERSED and SET ASIDE, ordering the appellees to pay appellants the actual value of
the lost jewelry amounting to P272,000.00, and attorney' fees of P27,200.00.8
In finding petitioner Sicam liable together with petitioner corporation, the CA applied the
doctrine of piercing the veil of corporate entity reasoning that respondents were misled into
thinking that they were dealing with the pawnshop owned by petitioner Sicam as all the
pawnshop tickets issued to them bear the words "Agencia de R.C. Sicam"; and that there was no
indication on the pawnshop tickets that it was the petitioner corporation that owned the
pawnshop which explained why respondents had to amend their complaint impleading petitioner
corporation.
The CA further held that the corresponding diligence required of a pawnshop is that it should
take steps to secure and protect the pledged items and should take steps to insure itself against
the loss of articles which are entrusted to its custody as it derives earnings from the pawnshop
trade which petitioners failed to do; that Austriais not applicable to this case since the robbery
incident happened in 1961 when the criminality had not as yet reached the levels attained in the
present day; that they are at least guilty of contributory negligence and should be held liable for
the loss of jewelries; and that robberies and hold-ups are foreseeable risks in that those engaged
in the pawnshop business are expected to foresee.
The CA concluded that both petitioners should be jointly and severally held liable to respondents
for the loss of the pawned jewelry.
Petitioners motion for reconsideration was denied in a Resolution dated August 8, 2003.
Hence, the instant petition for review with the following assignment of errors:
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THE COURT OF APPEALS ERRED AND WHEN IT DID, IT OPENED ITSELF TO

REVERSAL, WHEN IT ADOPTED UNCRITICALLY (IN FACT IT REPRODUCED
AS ITS OWN WITHOUT IN THE MEANTIME ACKNOWLEDGING IT) WHAT THE
RESPONDENTS ARGUED IN THEIR BRIEF, WHICH ARGUMENT WAS
PALPABLY UNSUSTAINABLE.
THE COURT OF APPEALS ERRED, AND WHEN IT DID, IT OPENED ITSELF TO
REVERSAL BY THIS HONORABLE COURT, WHEN IT AGAIN ADOPTED
UNCRITICALLY (BUT WITHOUT ACKNOWLEDGING IT) THE SUBMISSIONS OF
THE RESPONDENTS IN THEIR BRIEF WITHOUT ADDING ANYTHING MORE
THERETO DESPITE THE FACT THAT THE SAID ARGUMENT OF THE
RESPONDENTS COULD NOT HAVE BEEN SUSTAINED IN VIEW OF
UNREBUTTED EVIDENCE ON RECORD.9
Anent the first assigned error, petitioners point out that the CAs finding that petitioner Sicam is
personally liable for the loss of the pawned jewelries is "a virtual and uncritical reproduction of
the arguments set out on pp. 5-6 of the Appellants brief."10
Petitioners argue that the reproduced arguments of respondents in their Appellants Brief suffer
from infirmities, as follows:
(1) Respondents conclusively asserted in paragraph 2 of their Amended Complaint that
Agencia de R.C. Sicam, Inc. is the present owner of Agencia de R.C. Sicam Pawnshop,
and therefore, the CA cannot rule against said conclusive assertion of respondents;
(2) The issue resolved against petitioner Sicam was not among those raised and litigated
in the trial court; and
(3) By reason of the above infirmities, it was error for the CA to have pierced the
corporate veil since a corporation has a personality distinct and separate from its
individual stockholders or members.
Anent the second error, petitioners point out that the CA finding on their negligence is likewise
an unedited reproduction of respondents brief which had the following defects:
(1) There were unrebutted evidence on record that petitioners had observed the diligence
required of them, i.e, they wanted to open a vault with a nearby bank for purposes of
safekeeping the pawned articles but was discouraged by the Central Bank (CB) since CB
rules provide that they can only store the pawned articles in a vault inside the pawnshop
premises and no other place;
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(2) Petitioners were adjudged negligent as they did not take insurance against the loss of
the pledged jelweries, but it is judicial notice that due to high incidence of crimes,
insurance companies refused to cover pawnshops and banks because of high probability
of losses due to robberies;
(3) In Hernandez v. Chairman, Commission on Audit (179 SCRA 39, 45-46), the victim
of robbery was exonerated from liability for the sum of money belonging to others and
lost by him to robbers.
Respondents filed their Comment and petitioners filed their Reply thereto. The parties
subsequently submitted their respective Memoranda.
We find no merit in the petition.
To begin with, although it is true that indeed the CA findings were exact reproductions of the
arguments raised in respondents (appellants) brief filed with the CA, we find the same to be not
fatally infirmed. Upon examination of the Decision, we find that it expressed clearly and
distinctly the facts and the law on which it is based as required by Section 8, Article VIII of the
Constitution. The discretion to decide a case one way or another is broad enough to justify the
adoption of the arguments put forth by one of the parties, as long as these are legally tenable and
supported by law and the facts on records.11
Our jurisdiction under Rule 45 of the Rules of Court is limited to the review of errors of law
committed by the appellate court. Generally, the findings of fact of the appellate court are
deemed conclusive and we are not duty-bound to analyze and calibrate all over again the
evidence adduced by the parties in the court a quo.12 This rule, however, is not without
exceptions, such as where the factual findings of the Court of Appeals and the trial court are
conflicting or contradictory13 as is obtaining in the instant case.
However, after a careful examination of the records, we find no justification to absolve petitioner
Sicam from liability.
The CA correctly pierced the veil of the corporate fiction and adjudged petitioner Sicam liable
together with petitioner corporation. The rule is that the veil of corporate fiction may be pierced
when made as a shield to perpetrate fraud and/or confuse legitimate issues. 14 The theory of
corporate entity was not meant to promote unfair objectives or otherwise to shield them.15
Notably, the evidence on record shows that at the time respondent Lulu pawned her jewelry, the
pawnshop was owned by petitioner Sicam himself. As correctly observed by the CA, in all the
pawnshop receipts issued to respondent Lulu in September 1987, all bear the words
"Agencia de R. C. Sicam," notwithstanding that the pawnshop was allegedly incorporated in
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April 1987. The receipts issued after such alleged incorporation were still in the name of
"Agencia de R. C. Sicam," thus inevitably misleading, or at the very least, creating the wrong
impression to respondents and the public as well, that the pawnshop was owned solely by
petitioner Sicam and not by a corporation.
Even petitioners counsel, Atty. Marcial T. Balgos, in his letter16 dated October 15, 1987
addressed to the Central Bank, expressly referred to petitioner Sicam as the proprietor of the
pawnshop notwithstanding the alleged incorporation in April 1987.
We also find no merit in petitioners' argument that since respondents had alleged in their
Amended Complaint that petitioner corporation is the present owner of the pawnshop, the CA is
bound to decide the case on that basis.
Section 4 Rule 129 of the Rules of Court provides that an admission, verbal or written, made by
a party in the course of the proceedings in the same case, does not require proof. The admission
may be contradicted only by showing that it was made through palpable mistake or that no such
admission was made.
Thus, the general rule that a judicial admission is conclusive upon the party making it and does
not require proof, admits of two exceptions, to wit: (1) when it is shown that such admission was
made through palpable mistake, and (2) when it is shown that no such admission was in fact
made. The latter exception allows one to contradict an admission by denying that he made
such an admission.17
The Committee on the Revision of the Rules of Court explained the second exception in this
wise:
x x x if a party invokes an "admission" by an adverse party, but cites the admission "out
of context," then the one making the "admission" may show that he made no "such"
admission, or that his admission was taken out of context.
x x x that the party can also show that he made no "such admission", i.e., not in the
sense in which the admission is made to appear.
That is the reason for the modifier "such" because if the rule simply states that the
admission may be contradicted by showing that "no admission was made," the rule would
not really be providing for a contradiction of the admission but just a denial.18 (Emphasis
supplied).
While it is true that respondents alleged in their Amended Complaint that petitioner corporation
is the present owner of the pawnshop, they did so only because petitioner Sicam alleged in his
Answer to the original complaint filed against him that he was not the real party-in-interest as the
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pawnshop was incorporated in April 1987. Moreover, a reading of the Amended Complaint in its
entirety shows that respondents referred to both petitioner Sicam and petitioner corporation
where they (respondents) pawned their assorted pieces of jewelry and ascribed to both the failure
to observe due diligence commensurate with the business which resulted in the loss of their
pawned jewelry.
Markedly, respondents, in their Opposition to petitioners Motion to Dismiss Amended
Complaint, insofar as petitioner Sicam is concerned, averred as follows:
Roberto C. Sicam was named the defendant in the original complaint because the
pawnshop tickets involved in this case did not show that the R.C. Sicam Pawnshop was a
corporation. In paragraph 1 of his Answer, he admitted the allegations in paragraph 1 and
2 of the Complaint. He merely added "that defendant is not now the real party in interest
in this case."
It was defendant Sicam's omission to correct the pawnshop tickets used in the subject
transactions in this case which was the cause of the instant action. He cannot now ask for
the dismissal of the complaint against him simply on the mere allegation that his
pawnshop business is now incorporated. It is a matter of defense, the merit of which can
only be reached after consideration of the evidence to be presented in due course.19
Unmistakably, the alleged admission made in respondents' Amended Complaint was taken "out
of context" by petitioner Sicam to suit his own purpose. Ineluctably, the fact that petitioner
Sicam continued to issue pawnshop receipts under his name and not under the corporation's
name militates for the piercing of the corporate veil.
We likewise find no merit in petitioners' contention that the CA erred in piercing the veil of
corporate fiction of petitioner corporation, as it was not an issue raised and litigated before the
RTC.
Petitioner Sicam had alleged in his Answer filed with the trial court that he was not the real
party-in-interest because since April 20, 1987, the pawnshop business initiated by him was
incorporated and known as Agencia deR.C. Sicam. In the pre-trial brief filed by petitioner Sicam,
he submitted that as far as he was concerned, the basic issue was whether he is the real party in
interest against whom the complaint should be directed.20 In fact, he subsequently moved for the
dismissal of the complaint as to him but was not favorably acted upon by the trial court.
Moreover, the issue was squarely passed upon, although erroneously, by the trial court in its
Decision in this manner:
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x x x The defendant Roberto Sicam, Jr likewise denies liability as far as he is concerned

for the reason that he cannot be made personally liable for a claim arising from a
corporate transaction.
This Court sustains the contention of the defendant Roberto C. Sicam, Jr. The amended
complaint itself asserts that "plaintiff pawned assorted jewelries in defendant's
pawnshop." It has been held that " as a consequence of the separate juridical personality
of a corporation, the corporate debt or credit is not the debt or credit of the stockholder,
nor is the stockholder's debt or credit that of a corporation.21
Clearly, in view of the alleged incorporation of the pawnshop, the issue of whether petitioner
Sicam is personally liable is inextricably connected with the determination of the question
whether the doctrine of piercing the corporate veil should or should not apply to the case.
The next question is whether petitioners are liable for the loss of the pawned articles in their
possession.
Petitioners insist that they are not liable since robbery is a fortuitous event and they are not
negligent at all.
We are not persuaded.
Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared
by stipulation, or when the nature of the obligation requires the assumption of risk, no
person shall be responsible for those events which could not be foreseen or which, though
foreseen, were inevitable.
foresee the happening is not impossibility to foresee the same. 22
To constitute a fortuitous event, the following elements must concur: (a) the cause of the
unforeseen and unexpected occurrence or of the failure of the debtor to comply with obligations
must be independent of human will; (b) it must be impossible to foresee the event that constitutes
the caso fortuito or, if it can be foreseen, it must be impossible to avoid; (c) the occurrence must
be such as to render it impossible for the debtor to fulfill obligations in a normal manner; and, (d)
the obligor must be free from any participation in the aggravation of the injury or loss. 23
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The burden of proving that the loss was due to a fortuitous event rests on him who invokes
it.24 And, in order for a fortuitous event to exempt one from liability, it is necessary that one has
committed no negligence or misconduct that may have occasioned the loss. 25
It has been held that an act of God cannot be invoked to protect a person who has failed to take
steps to forestall the possible adverse consequences of such a loss. One's negligence may have
concurred with an act of God in producing damage and injury to another; nonetheless, showing
that the immediate or proximate cause of the damage or injury was a fortuitous event would not
exempt one from liability. When the effect is found to be partly the result of a person's
participation -- whether by active intervention, neglect or failure to act -- the whole occurrence is
humanized and removed from the rules applicable to acts of God. 26
Petitioner Sicam had testified that there was a security guard in their pawnshop at the time of the
robbery. He likewise testified that when he started the pawnshop business in 1983, he thought of
opening a vault with the nearby bank for the purpose of safekeeping the valuables but was
discouraged by the Central Bank since pawned articles should only be stored in a vault inside the
pawnshop. The very measures which petitioners had allegedly adopted show that to them the
possibility of robbery was not only foreseeable, but actually foreseen and anticipated. Petitioner
Sicams testimony, in effect, contradicts petitioners defense of fortuitous event.
of negligence on the part of herein petitioners. In Co v. Court of Appeals,27 the Court held:
It is not a defense for a repair shop of motor vehicles to escape liability simply because
the damage or loss of a thing lawfully placed in its possession was due to carnapping.
Carnapping per se cannot be considered as a fortuitous event. The fact that a thing was
unlawfully and forcefully taken from another's rightful possession, as in cases of
carnapping, does not automatically give rise to a fortuitous event. To be considered
as such, carnapping entails more than the mere forceful taking of another's
property. It must be proved and established that the event was an act of God or was
done solely by third parties and that neither the claimant nor the person alleged to
be negligent has any participation. In accordance with the Rules of Evidence, the
burden of proving that the loss was due to a fortuitous event rests on him who
invokes it which in this case is the private respondent. However, other than the
police report of the alleged carnapping incident, no other evidence was presented by
private respondent to the effect that the incident was not due to its fault. A police report of
an alleged crime, to which only private respondent is privy, does not suffice to establish
the carnapping. Neither does it prove that there was no fault on the part of private
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respondent notwithstanding the parties' agreement at the pre-trial that the car was
carnapped. Carnapping does not foreclose the possibility of fault or negligence on the
part of private respondent.28
Just like in Co, petitioners merely presented the police report of the Paraaque Police Station on
the robbery committed based on the report of petitioners' employees which is not sufficient to
establish robbery. Such report also does not prove that petitioners were not at fault.
On the contrary, by the very evidence of petitioners, the CA did not err in finding that petitioners
are guilty of concurrent or contributory negligence as provided in Article 1170 of the Civil Code,
to wit:
Art. 1170. Those who in the performance of their obligations are guilty of fraud,
negligence, or delay, and those who in any manner contravene the tenor thereof, are liable
for damages.29
antichresis.
property.
Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence
which is required by the nature of the obligation and corresponds with the circumstances
of the persons, of time and of the place. When negligence shows bad faith, the provisions
of Articles 1171 and 2201, paragraph 2 shall apply.
If the law or contract does not state the diligence which is to be observed in the
performance, that which is expected of a good father of a family shall be required.
We expounded in Cruz v. Gangan30 that negligence is the omission to do something which a
affairs, would do; or the doing of something which a prudent and reasonable man would not
do.31 It is want of care required by the circumstances.
109 | P a g e
guilty of negligence in the operation of their pawnshop business. Petitioner Sicam testified, thus:
Court:
Q. Do you have security guards in your pawnshop?
A. Yes, your honor.
Q. Then how come that the robbers were able to enter the premises when according to
you there was a security guard?
A. Sir, if these robbers can rob a bank, how much more a pawnshop.
Q. I am asking you how were the robbers able to enter despite the fact that there was a
security guard?
A. At the time of the incident which happened about 1:00 and 2:00 o'clock in the
afternoon and it happened on a Saturday and everything was quiet in the area BF Homes
Paraaque they pretended to pawn an article in the pawnshop, so one of my employees
allowed him to come in and it was only when it was announced that it was a hold up.
Q. Did you come to know how the vault was opened?
A. When the pawnshop is official (sic) open your honor the pawnshop is partly open. The
combination is off.
Q. No one open (sic) the vault for the robbers?
A. No one your honor it was open at the time of the robbery.
Q. It is clear now that at the time of the robbery the vault was open the reason why the
robbers were able to get all the items pawned to you inside the vault.
A. Yes sir.32
revealing that there were no security measures adopted by petitioners in the operation of the
pawnshop. Evidently, no sufficient precaution and vigilance were adopted by petitioners to
protect the pawnshop from unlawful intrusion. There was no clear showing that there was any
security guard at all. Or if there was one, that he had sufficient training in securing a pawnshop.
Further, there is no showing that the alleged security guard exercised all that was necessary to
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prevent any untoward incident or to ensure that no suspicious individuals were allowed to enter
the premises. In fact, it is even doubtful that there was a security guard, since it is quite
impossible that he would not have noticed that the robbers were armed with caliber .45 pistols
each, which were allegedly poked at the employees.33 Significantly, the alleged security guard
was not presented at all to corroborate petitioner Sicam's claim; not one of petitioners' employees
who were present during the robbery incident testified in court.
Furthermore, petitioner Sicam's admission that the vault was open at the time of robbery is
clearly a proof of petitioners' failure to observe the care, precaution and vigilance that the
circumstances justly demanded. Petitioner Sicam testified that once the pawnshop was open, the
combination was already off. Considering petitioner Sicam's testimony that the robbery took
place on a Saturday afternoon and the area in BF Homes Paraaque at that time was quiet, there
was more reason for petitioners to have exercised reasonable foresight and diligence in
protecting the pawned jewelries. Instead of taking the precaution to protect them, they let open
the vault, providing no difficulty for the robbers to cart away the pawned articles.
Sec. 17. Insurance of Office Building and Pawns- The place of business of a pawnshop
and the pawns pledged to it must be insured against fire and against burglary as well as
for the latter(sic), by an insurance company accredited by the Insurance Commissioner.
Sec. 17 Insurance of Office Building and Pawns The office building/premises and
pawns of a pawnshop must be insured against fire. (emphasis supplied).
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The diligence with which the law requires the individual at all times to govern his conduct varies
with the nature of the situation in which he is placed and the importance of the act which he is to
perform.34 Thus, the cases ofAustria v. Court of Appeals,35 Hernandez v. Chairman, Commission
on Audit36 and Cruz v. Gangan37 cited by petitioners in their pleadings, where the victims of
robbery were exonerated from liability, find no application to the present case.
In Austria, Maria Abad received from Guillermo Austria a pendant with diamonds to be sold on
commission basis, but which Abad failed to subsequently return because of a robbery committed
upon her in 1961. The incident became the subject of a criminal case filed against several
persons. Austria filed an action against Abad and her husband (Abads) for recovery of the
pendant or its value, but the Abads set up the defense that the robbery extinguished their
obligation. The RTC ruled in favor of Austria, as the Abads failed to prove robbery; or, if
committed, that Maria Abad was guilty of negligence. The CA, however, reversed the RTC
decision holding that the fact of robbery was duly established and declared the Abads not
responsible for the loss of the jewelry on account of a fortuitous event. We held that for the
Abads to be relieved from the civil liability of returning the pendant under Art. 1174 of the Civil
Code, it would only be sufficient that the unforeseen event, the robbery, took place without any
concurrent fault on the debtors part, and this can be done by preponderance of evidence; that to
be free from liability for reason of fortuitous event, the debtor must, in addition to the casus
itself, be free of any concurrent or contributory fault or negligence.38
We found in Austria that under the circumstances prevailing at the time the Decision was
promulgated in 1971, the City of Manila and its suburbs had a high incidence of crimes against
persons and property that rendered travel after nightfall a matter to be sedulously avoided
without suitable precaution and protection; that the conduct of Maria Abad in returning alone to
her house in the evening carrying jewelry of considerable value would have been negligence per
se and would not exempt her from responsibility in the case of robbery. However we did not hold
Abad liable for negligence since, the robbery happened ten years previously; i.e., 1961, when
criminality had not reached the level of incidence obtaining in 1971.
In contrast, the robbery in this case took place in 1987 when robbery was already prevalent and
petitioners in fact had already foreseen it as they wanted to deposit the pawn with a nearby bank
for safekeeping. Moreover, unlike in Austria, where no negligence was committed, we found
petitioners negligent in securing their pawnshop as earlier discussed.
In Hernandez, Teodoro Hernandez was the OIC and special disbursing officer of the Ternate
Beach Project of the Philippine Tourism in Cavite. In the morning of July 1, 1983, a Friday, he
went to Manila to encash two checks covering the wages of the employees and the operating
expenses of the project. However for some reason, the processing of the check was delayed and
was completed at about 3 p.m. Nevertheless, he decided to encash the check because the project
employees would be waiting for their pay the following day; otherwise, the workers would have
112 | P a g e
to wait until July 5, the earliest time, when the main office would open. At that time, he had two
choices: (1) return to Ternate, Cavite that same afternoon and arrive early evening; or (2) take the
money with him to his house in Marilao, Bulacan, spend the night there, and leave for Ternate
the following day. He chose the second option, thinking it was the safer one. Thus, a little past 3
p.m., he took a passenger jeep bound for Bulacan. While the jeep was on Epifanio de los Santos
Avenue, the jeep was held up and the money kept by Hernandez was taken, and the robbers
jumped out of the jeep and ran. Hernandez chased the robbers and caught up with one robber
who was subsequently charged with robbery and pleaded guilty. The other robber who held the
stolen money escaped. The Commission on Audit found Hernandez negligent because he had not
brought the cash proceeds of the checks to his office in Ternate, Cavite for safekeeping, which is
the normal procedure in the handling of funds. We held that Hernandez was not negligent in
deciding to encash the check and bringing it home to Marilao, Bulacan instead of Ternate, Cavite
due to the lateness of the hour for the following reasons: (1) he was moved by unselfish motive
for his co-employees to collect their wages and salaries the following day, a Saturday, a nonworking, because to encash the check on July 5, the next working day after July 1, would have
caused discomfort to laborers who were dependent on their wages for sustenance; and (2) that
choosing Marilao as a safer destination, being nearer, and in view of the comparative hazards in
the trips to the two places, said decision seemed logical at that time. We further held that the fact
that two robbers attacked him in broad daylight in the jeep while it was on a busy highway and in
the presence of other passengers could not be said to be a result of his imprudence and
negligence.
Unlike in Hernandez where the robbery happened in a public utility, the robbery in this case took
place in the pawnshop which is under the control of petitioners. Petitioners had the means to
screen the persons who were allowed entrance to the premises and to protect itself from unlawful
intrusion. Petitioners had failed to exercise precautionary measures in ensuring that the robbers
were prevented from entering the pawnshop and for keeping the vault open for the day, which
paved the way for the robbers to easily cart away the pawned articles.
In Cruz, Dr. Filonila O. Cruz, Camanava District Director of Technological Education and Skills
Development Authority (TESDA), boarded the Light Rail Transit (LRT) from Sen. Puyat Avenue
to Monumento when her handbag was slashed and the contents were stolen by an unidentified
person. Among those stolen were her wallet and the government-issued cellular phone. She then
reported the incident to the police authorities; however, the thief was not located, and the
cellphone was not recovered. She also reported the loss to the Regional Director of TESDA, and
she requested that she be freed from accountability for the cellphone. The Resident Auditor
denied her request on the ground that she lacked the diligence required in the custody of
government property and was ordered to pay the purchase value in the total amount
of P4,238.00. The COA found no sufficient justification to grant the request for relief from
accountability. We reversed the ruling and found that riding the LRT cannot per se be denounced
as a negligent act more so because Cruzs mode of transit was influenced by time and money
113 | P a g e
considerations; that she boarded the LRT to be able to arrive in Caloocan in time for her 3 pm
meeting; that any prudent and rational person under similar circumstance can reasonably be
expected to do the same; that possession of a cellphone should not hinder one from boarding the
LRT coach as Cruz did considering that whether she rode a jeep or bus, the risk of theft would
have also been present; that because of her relatively low position and pay, she was not expected
to have her own vehicle or to ride a taxicab; she did not have a government assigned vehicle; that
placing the cellphone in a bag away from covetous eyes and holding on to that bag as she did is
ordinarily sufficient care of a cellphone while traveling on board the LRT; that the records did
not show any specific act of negligence on her part and negligence can never be presumed.
Unlike in the Cruz case, the robbery in this case happened in petitioners' pawnshop and they
were negligent in not exercising the precautions justly demanded of a pawnshop.
WHEREFORE, except for the insurance aspect, the Decision of the Court of Appeals dated
March 31, 2003 and its Resolution dated August 8, 2003, are AFFIRMED.
SO ORDERED.
Ynares-Santiago, Chairperson, Chico-Nazario, Nachura, JJ., concur.
DIGEST
FACTS:
On different dates, Lulu Jorge pawned several pieces of jewelry with Agencia de R. C. Sicam
located in Paraaque to secure a loan.
jewelry were found inside the pawnshop vault.
On the same date, Sicam sent Lulu a letter informing her of the loss of her jewelry due to the
robbery incident in the pawnshop. Respondent Lulu then wroteback expressing disbelief, then
requested Sicam to prepare the pawned jewelry for withdrawal on November 6, but Sicam failed
to return the jewelry.
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Lulu, joined by her husband Cesar, filed a complaint against Sicam with the RTC of Makati
seeking indemnification for the loss of pawned jewelry and payment of AD, MD and ED as well
as AF.
The RTC rendered its Decision dismissing respondents complaint as well as petitioners
counterclaim. Respondents appealed the RTC Decision to the CA which reversed the RTC,
ordering the appellees to pay appellants the actual value of the lost jewelry and AF. Petitioners
MR denied, hence the instant petition for review on Certiorari.
ISSUE:
are the petitioners liable for the loss of the pawned articles in their possession? (Petitioners insist
that they are not liable since robbery is a fortuitous event and they are not negligent at all.)
HELD:
The Decision of the CA is AFFIRMED.
YES

Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by
stipulation, or when the nature of the obligation requires the assumption of risk, no person shall
be responsible for those events which could not be foreseen or which, though foreseen, were
inevitable.
foresee the happening is not impossibility to foresee the same.
To constitute a fortuitous event, the following elements must concur:
(a) the cause of the unforeseen and unexpected occurrence or of the failure of the debtor to
comply with obligations must be independent of human will;
(b) it must be impossible to foresee the event that constitutes the caso fortuito or, if it can be
foreseen, it must be impossible to avoid;
(c) the occurrence must be such as to render it impossible for the debtor to fulfill obligations in a
normal manner; and,
(d) the obligor must be free from any participation in the aggravation of the injury or loss.
115 | P a g e
The burden of proving that the loss was due to a fortuitous event rests on him who invokes it.
And, in order for a fortuitous event to exempt one from liability, it is necessary that one has
committed no negligence or misconduct that may have occasioned the loss.
Sicam had testified that there was a security guard in their pawnshop at the time of the robbery.
He likewise testified that when he started the pawnshop business in 1983, he thought of opening
a vault with the nearby bank for the purpose of safekeeping the valuables but was discouraged by
the Central Bank since pawned articles should only be stored in a vault inside the pawnshop. The
very measures which petitioners had allegedly adopted show that to them the possibility of
robbery was not only foreseeable, but actually foreseen and anticipated. Sicams testimony, in
effect, contradicts petitioners defense of fortuitous event.
of negligence on the part of herein petitioners.
Petitioners merely presented the police report of the Paraaque Police Station on the robbery
committed based on the report of petitioners employees which is not sufficient to establish
robbery. Such report also does not prove that petitioners were not at fault. On the contrary, by the
very evidence of petitioners, the CA did not err in finding that petitioners are guilty of concurrent
or contributory negligence as provided in Article 1170 of the Civil Code, to wit:
Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or
delay, and those who in any manner contravene the tenor thereof, are liable for damages.
**
antichresis.
property.
Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which
is required by the nature of the obligation and corresponds with the circumstances of the persons,
116 | P a g e
of time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and
2201, paragraph 2 shall apply.
If the law or contract does not state the diligence which is to be observed in the performance, that
which is expected of a good father of a family shall be required.
We expounded in Cruz v. Gangan that negligence is the omission to do something which a
affairs, would do; or the doing of something which a prudent and reasonable man would not do.
It is want of care required by the circumstances.
guilty of negligence in the operation of their pawnshop business. Sicams testimony revealed that
there were no security measures adopted by petitioners in the operation of the pawnshop.
Evidently, no sufficient precaution and vigilance were adopted by petitioners to protect the
pawnshop from unlawful intrusion. There was no clear showing that there was any security guard
at all. Or if there was one, that he had sufficient training in securing a pawnshop. Further, there is
no showing that the alleged security guard exercised all that was necessary to prevent any
untoward incident or to ensure that no suspicious individuals were allowed to enter the premises.
In fact, it is even doubtful that there was a security guard, since it is quite impossible that he
would not have noticed that the robbers were armed with caliber .45 pistols each, which were
allegedly poked at the employees. Significantly, the alleged security guard was not presented at
all to corroborate petitioner Sicams claim; not one of petitioners employees who were present
during the robbery incident testified in court.
Furthermore, petitioner Sicams admission that the vault was open at the time of robbery is
clearly a proof of petitioners failure to observe the care, precaution and vigilance that the
circumstances justly demanded.
The robbery in this case happened in petitioners pawnshop and they were negligent in not
exercising the precautions justly demanded of a pawnshop.
NOTES:
117 | P a g e
Sec. 17. Insurance of Office Building and Pawns- The place of business of a pawnshop and the
pawns pledged to it must be insured against fire and against burglary as well as for the latter(sic),
by an insurance company accredited by the Insurance Commissioner.
Sec. 17 Insurance of Office Building and Pawns The office building/premises and pawns of a
pawnshop must be insured against fire. (emphasis supplied).
118 | P a g e

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 160795
June 27, 2008
CORINTHIAN GARDENS ASSOCIATION, INC., petitioner,

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

No new construction can be started unless the building plans are approved by
the Associationand the appropriate Builders cash bond and pre-construction fees
are paid. The Association will not allow the entry of construction materials and
process identification cards for workers if the above conditions are not complied
with. Likewise, all renovations, repairs, additions and improvements to a finished
house except electrical wiring, will have to be approved by the Association. Water
service connection of a homeowner who undertakes construction work without
prior approval of the Association will be cut-off in addition to the sanctions
previously mentioned.
It goes without saying that this Manual of Rules and Regulations applies to all - or it does
not apply at all. To borrow a popular expression, what is sauce for the gander is sauce for
the goose - or ought to be. To put it matter-of-factly and bluntly, thus, its so-called "table
inspection" approval of the Cuasos building plans is no less of an approval, as approvals
come and go. And since it is an approval tainted with negligence, the necessary and
inevitable consequences which law and justice attach to such negligence must, as a matter
of law and justice, also necessarily attach to Corinthian.
And then again third party defendant-appellee Corinthian Garden required the posting of
a builders cash bond (Exh. 5-Corinthian) from the defendants-appellants Cuasos and the
third-party defendant C.B. Paraz Construction to secure the performance of their
undertaking. Surely, Corinthian does not imply that while it may take the benefits from
the Builders cash bond, it may, Pilate-like, wash its hands of any responsibility or
liability that would or might arise from the construction or building of the structure for
which the cash bond was in the first place posted. That is not only unjust and immoral,
but downright unchristian and iniquitous.
Under the same parity of reasoning, the payment by the appellants-Cuasos to the appellee
Corinthian of pre-construction and membership fees in the Association must necessarily
entail the creation of certain obligations on the part of Corinthian. For duties and
responsibilities always go hand in hand with rights and privileges. That is the law of life and that is the law of every civilized society. It is an axiom of equity that he who receives
the benefits must share the burdens.40
By its Manual of Rules and Regulations, it is reasonable to assume that Corinthian, through its
representative, in the approval of building plans, and in the conduct of periodic inspections of
on-going construction projects within the subdivision, is responsible in insuring compliance with
the approved plans, inclusive of the construction of perimeter walls, which in this case is the
subject of dispute between the Tanjangcos and the Cuasos.41 It is not just or equitable to relieve
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Corinthian of any liability when, by its very own rules, it imposes its authority over all its
members to the end that "no new construction can be started unless the plans are approved by the
Association and the appropriate cash bond and pre-construction fees are paid." Moreover,
Corinthian can impose sanctions for violating these rules. Thus, the proposition that the
inspection is merely a "table inspection" and, therefore, should exempt Corinthian from liability,
is unacceptable. After all, if the supposed inspection is merely a "table inspection" and the
approval granted to every member is a mere formality, then the purpose of the rules would be
defeated. Compliance therewith would not be mandatory, and sanctions imposed for violations
could be disregarded. Corinthian's imprimatur on the construction of the Cuasos' perimeter wall
over the property of the Tanjangcos assured the Cuasos that everything was in order.
In sum, Corinthians failure to prevent the encroachment of the Cuasos perimeter wall into
Tanjangcos property despite the inspection conducted constitutes negligence and, at the very
least, contributed to the injury suffered by the Tanjangcos.
On the second issue, our ruling in Spouses Badillo v. Tayag42 is instructive:
Citing Sia v. Court of Appeals [272 SCRA 141, May 5, 1997], petitioners argue that the
MTC may take judicial notice of the reasonable rental or the general price increase of
land in order to determine the amount of rent that may be awarded to them. In that case,
however, this Court relied on the CA's factual findings, which were based on the
evidence presented before the trial court. In determining reasonable rent,
the RTC therein took account of the following factors: 1) the realty assessment of the
land, 2) the increase in realty taxes, and 3) the prevailing rate of rentals in the vicinity.
Clearly, the trial court relied, not on mere judicial notice, but on the evidence presented
before it.
Indeed, courts may fix the reasonable amount of rent for the use and occupation of a
disputed property. However, petitioners herein erred in assuming that courts, in
determining the amount of rent, could simply rely on their own appreciation of land
values without considering any evidence. As we have said earlier, a court may fix the
reasonable amount of rent, but it must still base its action on the evidence adduced by the
parties.
In Herrera v. Bollos [G.R. No. 138258, January 18, 2002], the trial court awarded rent to
the defendants in a forcible entry case. Reversing the RTC, this Court declared that the
reasonable amount of rent could be determined not by mere judicial notice, but by
supporting evidence:
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x x x A court cannot take judicial notice of a factual matter in controversy. The

court may take judicial notice of matters of public knowledge, or which are
capable of unquestionable demonstration, or ought to be known to judges because
of their judicial functions. Before taking such judicial notice, the court must
"allow the parties to be heard thereon." Hence, there can be no judicial notice on
the rental value of the premises in question without supporting evidence.
Truly, mere judicial notice is inadequate, because evidence is required for a court to determine
the proper rental value. But contrary to Corinthian's arguments, both the RTC and the CA found
that indeed rent was due the Tanjangcos because they were deprived of possession and use of
their property. This uniform factual finding of the RTC and the CA was based on the evidence
presented below. Moreover, in Spouses Catungal v. Hao,43 we considered the increase in the
award of rentals as reasonable given the particular circumstances of each case. We noted therein
that the respondent denied the petitioners the benefits, including rightful possession, of their
property for almost a decade.
Similarly, in the instant case, the Tanjangcos were deprived of possession and use of their
property for more than two decades through no fault of their own. Thus, we find no cogent
reason to disturb the monthly rental fixed by the CA.
All told, the CA committed no reversible error.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Associate Justice
WE CONCUR:
Associate Justice
Chairperson
MA. ALICIA AUSTRIAMARTINEZ
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Associate Justice
Associate Justice
RUBEN T. REYES
Associate Justice
ATT E S TAT I O N
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 Courts Division.
Associate Justice
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons
REYNATO S. PUNO
Chief Justice
DIGEST
Facts:
Tanjangcos owned joined lots in Corinthian Gardens. Spouse Cuasos, on the other hand,
own a lot adjacent to the formers.
Before the Cuasos constructed their house, it was surveyed by De Dios Realty (surveyor)
as per recommendation of the petitioner association. Later on, the petitioner approved the
plans made by CB Paras Construction (builder). Corinthian conducted periodic ocular
inspections in order to determine compliance with the approved plans pursuant to the
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Manual of Rules and Regulations of Corinthian (MRRC). Unfortunately, after

construction, the perimeter fence of the Cuasos encroached upon the Tanjangcos lot.
Issue:
Whether Corinthian was negligent under the circumstances and, if so, whether such
negligence contributed to the injury suffered by the Tanjangcos.
Decision:
Corinthian is negligent. Its approval of the plan is tainted with negligence.
Ratio:
Petitioner is found negligent under the TEST. The MRRC provides that no new
constructions can be started without the approval of the petitioner association. Thus, it is
reasonable to assume that Corinthian, through its representative, in the approval of building
plans, and in the conduct of periodic inspections of on-going construction projects within thes
ubdivision, is responsible in insuring compliance with the approved plans, inclusive of the
construction of perimeter walls.
Corinthians failure to prevent the encroachment of the Cuasos perimeter wall into
Tanjangcos property despite the inspection conducted constitutes negligence and, at
the very least, contributed to the injury suffered by the Tanjangcos.
NB
1. The court here categorized the case as falling under tort. Take note that there are
discussions regarding similarity or difference of a QD and a tort. (just thinking out loud)
2. This is another case where the court ruled using Article 2176 despite the fact that there is
an existing contractual obligation between the parties. (just a thought to ponder on)
130 | P a g e

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 130003
October 20, 2004
JONAS AONUEVO, Petitioner.

vs.
HON. COURT OF APPEALS and JEROME VILLAGRACIA, Respondent.
DECISION
TINGA, J.:
The bicycle provides considerable speed and freedom of movement to the rider. It derives a
certain charm from being unencumbered by any enclosure, affording the cyclist the perception of
relative liberty. It also carries some obvious risks on the part of the user and has become the
subject of regulation, if not by the government, then by parental proscription.
The present petition seeks to bar recovery by an injured cyclist of damages from the driver of the
car which had struck him. The argument is hinged on the cyclists failure to install safety devices
on his bicycle. However, the lower courts agreed that the motorist himself caused the collision
with his own negligence. The facts are deceptively simple, but the resolution entails thorough
consideration of fundamental precepts on negligence.
The present petition raises little issue with the factual findings of the Regional Trial Court (RTC),
Branch 160, of Pasig City, as affirmed by the Court of Appeals. Both courts adjudged petitioner,
Jonas Aonuevo ( Aonuevo ), liable for the damages for the injuries sustained by the cyclist,
Jerome Villagracia (Villagracia). Instead, the petition hinges on a sole legal question,
characterized as "novel" by the petitioner: whether Article 2185 of the New Civil Code, which
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presumes the driver of a motor vehicle negligent if he was violating a traffic regulation at the
time of the mishap, should apply by analogy to non-motorized vehicles.1
As found by the RTC, and affirmed by the Court of Appeals, the accident in question occurred on
8 February 1989, at around nine in the evening, at the intersection of Boni Avenue and Barangka
Drive in Mandaluyong (now a city). Villagracia was traveling along Boni Avenue on his bicycle,
while Aonuevo, traversing the opposite lane was driving his Lancer car with plate number PJJ
359. The car was owned by Procter and Gamble Inc., the employer of Aonuevos brother,
Jonathan. Aonuevo was in the course of making a left turn towards Libertad Street when the
collision occurred. Villagracia sustained serious injuries as a result, which necessitated his
hospitalization several times in 1989, and forced him to undergo four (4) operations.
On 26 October 1989, Villagracia instituted an action for damages against Procter and Gamble
Phils., Inc. and Aonuevo before the RTC.2 He had also filed a criminal complaint against
Aonuevo before the Metropolitan Trial Court of Mandaluyong, but the latter was subsequently
acquitted of the criminal charge.3 Trial on the civil action ensued, and in a Decision dated 9
March 1990, the RTC rendered judgment against Procter and Gamble and Aonuevo, ordering
them to pay Villagracia the amounts of One Hundred Fifty Thousand Pesos (P150, 000.00). for
actual damages, Ten Thousand Pesos (P10,000.00) for moral damages, and Twenty Thousand
Pesos (P20,000.00) for attorneys fees, as well as legal costs.4 Both defendants appealed to the
Court of Appeals.
In a Decision5 dated 8 May 1997, the Court of Appeals Fourth Division affirmed the
RTC Decision in toto6. After the Court of Appeals denied the Motion for Reconsideration in
a Resolution7 dated 22 July 1997, Procter and Gamble and Aonuevo filed their respective
petitions for review with this Court. Procter and Gambles petition was denied by this Court in
a Resolution dated 24 November 1997. Aonuevos petition,8 on the other hand, was given due
course,9 and is the subject of this Decision.
In arriving at the assailed Decision, the Court of Appeals affirmed the factual findings of the
RTC. Among them: that it was Aonuevos vehicle which had struck Villagracia;10 that
Aonuevos vehicle had actually hit Villagracias left mid-thigh, thus causing a comminuted
fracture;11 that as testified by eyewitness Alfredo Sorsano, witness for Villagracia, Aonuevo was
"umaarangkada," or speeding as he made the left turn into Libertad;12 that considering
Aonuevos claim that a passenger jeepney was obstructing his path as he made the turn.
Aonuevo had enough warning to control his speed;13 and that Aonuevo failed to exercise the
ordinary precaution, care and diligence required of him in order that the accident could have
been avoided.14 Notably, Aonuevo, in his current petition, does not dispute the findings of
tortious conduct on his part made by the lower courts, hinging his appeal instead on the alleged
negligence of Villagracia. Aonuevo proffers no exculpatory version of facts on his part, nor
does he dispute the conclusions made by the RTC and the Court of Appeals. Accordingly, the
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Court, which is not a trier of facts,15 is not compelled to review the factual findings of the lower
courts, which following jurisprudence have to be received with respect and are in fact generally
binding.16
Notwithstanding, the present petition presents interesting questions for resolution. Aonuevos
arguments are especially fixated on a particular question of law: whether Article 2185 of the New
Civil Code should apply by analogy to non-motorized vehicles.17 In the same vein, Aonuevo
insists that Villagracias own fault and negligence serves to absolve the former of any liability for
damages.
Its is easy to discern why Aonuevo chooses to employ this line of argument. Aonuevo points
out that Villagracias bicycle had no safety gadgets such as a horn or bell, or headlights, as
invoked by a 1948 municipal ordinance.18 Nor was it duly registered with the Office of the
Municipal Treasurer, as required by the same ordinance. Finally, as admitted by Villagracia, his
bicycle did not have foot brakes.19 Before this Court, Villagracia does not dispute these
allegations, which he admitted during the trial, but directs our attention instead to the findings of
Aonuevos own negligence.20 Villagracia also contends that, assuming there was contributory
negligence on his part, such would not exonerate Aonuevo from payment of damages. The
Court of Appeals likewise acknowledged the lack of safety gadgets on Villagracias bicycle, but
characterized the contention as "off-tangent" and insufficient to obviate the fact that it was
Aonuevos own negligence that caused the accident.21
Aonuevo claims that Villagracia violated traffic regulations when he failed to register his
bicycle or install safety gadgets thereon. He posits that Article 2185 of the New Civil Code
applies by analogy. The provision reads:
Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent if at the time of the mishap he was violating any traffic regulation.
The provision was introduced for the first time in this jurisdiction with the adoption in 1950 of
the New Civil Code.22 Its applicability is expressly qualified to motor vehicles only, and there is
no ground to presume that the law intended a broader coverage.
Still, Aonuevo hypothesizes that Article 2185 should apply by analogy to all types of vehicles23.
He points out that modern-day travel is more complex now than when the Code was enacted, the
number and types of vehicles now in use far more numerous than as of then. He even suggests
that at the time of the enactment of the Code, the legislators "must have seen that only motor
vehicles were of such public concern that they had to be specifically mentioned," yet today, the
interaction of vehicles of all types and nature has "inescapably become matter of public concern"
so as to expand the application of the law to be more responsive to the times.24
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What Aonuevo seeks is for the Court to amend the explicit command of the legislature, as
embodied in Article 2185, a task beyond the pale of judicial power. The Court interprets, and not
creates, the law. However, since the Court is being asked to consider the matter, it might as well
examine whether Article 2185 could be interpreted to include non-motorized vehicles.
At the time Article 2185 was formulated, there existed a whole array of non-motorized vehicles
ranging from human-powered contraptions on wheels such as bicycles, scooters, and animaldrawn carts such as calesas andcarromata. These modes of transport were even more prevalent
on the roads of the 1940s and 1950s than they are today, yet the framers of the New Civil Code
chose then to exclude these alternative modes from the scope of Article 2185 with the use of the
term "motorized vehicles." If Aonuevo seriously contends that the application of Article 2185
be expanded due to the greater interaction today of all types of vehicles, such argument
contradicts historical experience. The ratio of motorized vehicles as to non-motorized vehicles,
as it stood in 1950, was significantly lower than as it stands today. This will be certainly affirmed
by statistical data, assuming such has been compiled, much less confirmed by persons over sixty.
Aonuevos characterization of a vibrant intra-road dynamic between motorized and nonmotorized vehicles is more apropos to the past than to the present.
There is a fundamental flaw in Aonuevos analysis of Art. 2185, as applicable today. He
premises that the need for the distinction between motorized and non-motorized vehicles arises
from the relative mass of number of these vehicles. The more pertinent basis for the segregate
classification is the difference in type of these vehicles. A motorized vehicle operates by reason
of a motor engine unlike a non-motorized vehicle, which runs as a result of a direct exertion by
man or beast of burden of direct physical force. A motorized vehicle, unimpeded by the
limitations in physical exertion. is capable of greater speeds and acceleration than non-motorized
vehicles. At the same time, motorized vehicles are more capable in inflicting greater injury or
damage in the event of an accident or collision. This is due to a combination of factors peculiar
to the motor vehicle, such as the greater speed, its relative greater bulk of mass, and greater
combustability due to the fuels that they use.
There long has been judicial recognition of the peculiar dangers posed by the motor vehicle. As
far back as 1912, in the U.S. v. Juanillo25, the Court has recognized that an automobile is capable
of great speed, greater than that of ordinary vehicles hauled by animals, "and beyond doubt it is
highly dangerous when used on country roads, putting to great hazard the safety and lives of the
mass of the people who travel on such roads."26 In the same case, the Court emphasized:
A driver of an automobile, under such circumstances, is required to use a greater degree of care
than drivers of animals, for the reason that the machine is capable of greater destruction, and
furthermore, it is absolutely under the power and control of the driver; whereas, a horse or other
animal can and does to some extent aid in averting an accident. It is not pleasant to be obliged to
slow down automobiles to accommodate persons riding, driving, or walking. It is probably more
134 | P a g e
agreeable to send the machine along and let the horse or person get out of the way in the best
manner possible; but it is well to understand, if this course is adopted and an accident occurs,
that the automobile driver will be called upon to account for his acts. An automobile driver must
at all times use all the care and caution which a careful and prudent driver would have exercised
under the circumstances.27
American jurisprudence has had occasion to explicitly rule on the relationship between the
motorist and the cyclist. Motorists are required to exercise ordinary or reasonable care to avoid
collision with bicyclists.28 While the duty of using ordinary care falls alike on the motorist and
the rider or driver of a bicycle, it is obvious, for reasons growing out of the inherent differences
in the two vehicles, that more is required from the former to fully discharge the duty than from
the latter.29
The Code Commission was cognizant of the difference in the natures and attached
responsibilities of motorized and non-motorized vehicles. Art. 2185 was not formulated to
compel or ensure obeisance by all to traffic rules and regulations. If such were indeed the evil
sought to be remedied or guarded against, then the framers of the Code would have expanded the
provision to include non-motorized vehicles or for that matter, pedestrians. Yet, that was not the
case; thus the need arises to ascertain the peculiarities attaching to a motorized vehicle within the
dynamics of road travel. The fact that there has long existed a higher degree of diligence and care
imposed on motorized vehicles, arising from the special nature of motor vehicle, leads to the
inescapable conclusion that the qualification under Article 2185 exists precisely to recognize
such higher standard. Simply put, the standards applicable to motor vehicle are not on equal
footing with other types of vehicles.
Thus, we cannot sustain the contention that Art. 2185 should apply to non-motorized vehicles,
even if by analogy. There is factual and legal basis that necessitates the distinction under Art.
2185, and to adopt Aonuevos thesis would unwisely obviate this distinction.
Even if the legal presumption under Article 2185 should not apply to Villagracia, this should not
preclude any possible finding of negligence on his part. While the legal argument as formulated
by Aonuevo is erroneous, his core contention that Villagracia was negligent for failure to
comply with traffic regulations warrants serious consideration, especially since the imputed
negligent acts were admitted by Villagracia himself.
The Civil Code characterizes negligence as the omission of that diligence which is required by
the nature of the obligation and corresponds with the circumstances of the persons, of the time
and of the place.30 However, the existence of negligence in a given case is not determined by the
personal judgment of the actor in a given situation, but rather, it is the law which determines
what would be reckless or negligent.31
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Aonuevo, asserts that Villagracia was negligent as the latter had transgressed a municipal
ordinance requiring the registration of bicycles and the installation of safety devices thereon.
This view finds some support if anchored on the long standing principle of negligence per se.
The generally accepted view is that the violation of a statutory duty constitutes negligence,
negligence as a matter of law, or negligence per se.32 In Teague vs. Fernandez,33 the Court cited
with approval American authorities elucidating on the rule:
"The mere fact of violation of a statute is not sufficient basis for an inference that such violation
was the proximate cause of the injury complained. However, if the very injury has happened
which was intended to be prevented by the statute, it has been held that violation of the statute
will be deemed to be the proximate cause of the injury." (65 C.J.S. 1156)
"The generally accepted view is that violation of a statutory duty constitutes negligence,
negligence as a matter of law, or, according to the decisions on the question, negligence per se,
for the reason that non-observance of what the legislature has prescribed as a suitable precaution
is failure to observe that care which an ordinarily prudent man would observe, and, when the
state regards certain acts as so liable to injure others as to justify their absolute prohibition, doing
the forbidden act is a breach of duty with respect to those who may be injured thereby; or, as it
has been otherwise expressed, when the standard of care is fixed by law, failure to conform to
such standard is negligence, negligence per se or negligence in and of itself, in the absence of a
legal excuse. According to this view it is immaterial, where a statute has been violated, whether
the act or omission constituting such violation would have been regarded as negligence in the
absence of any statute on the subject or whether there was, as a matter of fact, any reason to
anticipate that injury would result from such violation. x x x." (65 C.J.S. pp.623-628)
"But the existence of an ordinance changes the situation. If a driver causes an accident by
exceeding the speed limit, for example, we do not inquire whether his prohibited conduct was
unreasonably dangerous. It is enough that it was prohibited. Violation of an ordinance intended
to promote safety is negligence. If by creating the hazard which the ordinance was intended to
avoid it brings about the harm which the ordinance was intended to prevent, it is a legal cause of
the harm. This comes only to saying that in such circumstances the law has no reason to ignore
the causal relation which obviously exists in fact. The law has excellent reason to recognize it,
since it is the very relation which the makers of the ordinance anticipated. This court has applied
these principles to speed limits and other regulations of the manner of driving." (Ross vs.
Hartman, 139 Fed. 2d 14 at 15).
"x x x However, the fact that other happenings causing or contributing toward an injury
intervened between the violation of a statute or ordinance and the injury does not necessarily
make the result so remote that no action can be maintained. The test is to be found not in the
number of intervening events or agents, but in their character and in the natural and probable
136 | P a g e
connection between the wrong done and the injurious consequence. The general principle is that
the violation of a statute or ordinance is not rendered remote as the cause of an injury by the
intervention of another agency if the occurrence of the accident, in the manner in which it
happened, was the very thing which the statute or ordinance was intended to prevent." (38 Am
Jur 841)34
In Teague, the owner of a vocational school stricken by a fire resulting in fatalities was found
negligent, base on her failure to provide adequate fire exits in contravention of a Manila city
ordinance.35 In F.F. Cruz and Co., Inc. v. Court of Appeals36, the failure of the petitioner to
construct a firewall in accordance with city ordinances sufficed to support a finding of
negligence.37 In Cipriano v. Court of Appeals, 38the Court found that the failure of the petitioner
to register and insure his auto rustproofing shop in accordance with the statute constituted
negligenceper se, thus holding him liable for the damages for the destruction by fire of a
customers vehicle garaged therein.
Should the doctrine of negligence per se apply to Villagracia, resulting from his violation of an
ordinance? It cannot be denied that the statutory purpose for requiring bicycles to be equipped
with headlights or horns is to promote road safety and to minimize the occurrence of road
accidents involving bicycles. At face value, Villagracias mishap was precisely the danger sought
to be guarded against by the ordinance he violated. Aonuevo argues that Villagracias violation
should bar the latters recovery of damages, and a simplistic interpretation of negligence per
se might vindicate such an argument.
But this is by no means a simple case. There is the fact which we consider as proven, that
Aonuevo was speeding as he made the left turn, and such negligent act was the proximate cause
of the accident. This reckless behavior would have imperiled anyone unlucky enough within the
path of Aonuevos car as it turned into the intersection, whether they are fellow motorists,
pedestrians, or cyclists. We are hard put to conclude that Villagracia would have avoided injury
had his bicycle been up to par with safety regulations, especially considering that Aonuevo was
already speeding as he made the turn, or before he had seen Villagracia. Even assuming that
Aonuevo had failed to see Villagracia because the bicycle was not equipped with headlights,
such lapse on the cyclists part would not have acquitted the driver of his duty to slow down as
he proceeded to make the left turn.
This court has appreciated that negligence per se, arising from the mere violation of a traffic
statute, need not be sufficient in itself in establishing liability for damages. In Sanitary Steam
Laundry, Inc. v. Court of Appeals,39 a collision between a truck and a privately-owned Cimarron
van caused the death of three of the vans passengers. The petitioner therein, the owner of the
truck, argued that the driver of the Cimarron was committing multiple violations of the Land
Transportation and Traffic Code40 at the time of the accident. Among these violations: the
Cimarron was overloaded at the time of the accident; the front seat of the van was occupied by
137 | P a g e
four adults, including the driver; and the van had only one functioning headlight. Similar as in
this case, petitioner therein invoked Article 2185 and argued that the driver of the Cimarron
should be presumed negligent. The Court, speaking through Justice Mendoza, dismissed these
arguments:
[It] has not been shown how the alleged negligence of the Cimarron driver contributed to the
collision between the vehicles. Indeed, petitioner has the burden of showing a causal connection
between the injury received and the violation of the Land Transportation and Traffic Code. He
must show that the violation of the statute was the proximate or legal cause of the injury or that it
substantially contributed thereto. Negligence consisting in whole or in part, of violation of law,
like any other negligence, is without legal consequence unless it is a contributing cause of the
injury. Petitioner says that "driving an overloaded vehicle with only one functioning headlight
during nighttime certainly increases the risk of accident," that because the Cimarron had only
one headlight, there was "decreased visibility," and that the fact that the vehicle was overloaded
and its front seat overcrowded "decreased its maneuverability." However, mere allegations such
as these are not sufficient to discharge its burden of proving clearly that such alleged negligence
was the contributing cause of the injury.41
Sanitary Steam42 is controlling in this case. The bare fact that Villagracia was violating a
municipal ordinance at the time of the accident may have sufficiently established some degree of
negligence on his part, but such negligence is without legal consequence unless it is shown that it
was a contributing cause of the injury. If anything at all, it is but indicative of Villagracias
failure in fulfilling his obligation to the municipal government, which would then be the proper
party to initiate corrective action as a result. But such failure alone is not determinative of
Villagracias negligence in relation to the accident. Negligence is relative or comparative,
dependent upon the situation of the parties and the degree of care and vigilance which the
particular circumstances reasonably require.43 To determine if Villagracia was negligent, it is not
sufficient to rely solely on the violations of the municipal ordinance, but imperative to examine
Villagracias behavior in relation to the contemporaneous circumstances of the accident.
The rule on negligence per se must admit qualifications that may arise from the logical
consequences of the facts leading to the mishap. The doctrine (and Article 2185, for that matter)
is undeniably useful as a judicial guide in adjudging liability, for it seeks to impute culpability
arising from the failure of the actor to perform up to a standard established by a legal fiat. But the
doctrine should not be rendered inflexible so as to deny relief when in fact there is no causal
relation between the statutory violation and the injury sustained. Presumptions in law, while
convenient, are not intractable so as to forbid rebuttal rooted in fact. After all, tort law is
remunerative in spirit, aiming to provide compensation for the harm suffered by those whose
interests have been invaded owing to the conduct of others.44
138 | P a g e
Under American case law, the failures imputed on Villagracia are not grievous enough so as to
negate monetary relief. In the absence of statutory requirement, one is not negligent as a matter
of law for failing to equip a horn, bell, or other warning devise onto a bicycle.45 In most cases,
the absence of proper lights on a bicycle does not constitute negligence as a matter of law46 but is
a question for the jury whether the absence of proper lights played a causal part in producing a
collision with a motorist.47 The absence of proper lights on a bicycle at night, as required by
statute or ordinance, may constitute negligence barring or diminishing recovery if the bicyclist is
struck by a motorist as long as the absence of such lights was a proximate cause of the
collision;48 however, the absence of such lights will not preclude or diminish recovery if the
scene of the accident was well illuminated by street lights,49 if substitute lights were present
which clearly rendered the bicyclist visible,50 if the motorist saw the bicycle in spite of the
absence of lights thereon,51 or if the motorist would have been unable to see the bicycle even if it
had been equipped with lights.52 A bicycle equipped with defective or ineffective brakes may
support a finding of negligence barring or diminishing recovery by an injured bicyclist where
such condition was a contributing cause of the accident.53
The above doctrines reveal a common thread. The failure of the bicycle owner to comply with
accepted safety practices, whether or not imposed by ordinance or statute, is not sufficient to
negate or mitigate recovery unless a causal connection is established between such failure and
the injury sustained. The principle likewise finds affirmation in Sanitary Steam, wherein we
declared that the violation of a traffic statute must be shown as the proximate cause of the injury,
or that it substantially contributed thereto.54 Aonuevo had the burden of clearly proving that the
alleged negligence of Villagracia was the proximate or contributory cause of the latters injury.
On this point, the findings of the Court of Appeals are well-worth citing:
[As] admitted by appellant Aonuevo, he first saw appellee Villagracia at a distance of about ten
(10) meters before the accident. Corrolarily, therefore, he could have avoided the accident had he
[stopped] alongside with an earlier (sic) jeep which was already at a full stop giving way to
appellee. But according to [eyewitness] Sorsano, he saw appellant Aonuevo "umaarangkada"
and hit the leg of Villagracia (TSN March 14, 1990 p. 30). This earlier (sic) jeep at a full stop
gave way to Villagracia to proceed but Aonuevo at an unexpected motion (umarangkada) came
out hitting Villagracia (TSN March 9, 1990 p. 49). Appellant Aonuevo admitted that he did not
blow his horn when he crossed Boni Avenue (TSN March 21, 1990 p. 47).55
By Aonuevos own admission, he had seen Villagracia at a good distance of ten (10) meters.
Had he been decelerating, as he should, as he made the turn, Aonuevo would have had ample
opportunity to avoid hitting Villagracia. Moreover, the fact that Aonuevo had sighted
Villagracia before the accident would negate any possibility that the absence of lights on the bike
contributed to the cause of the accident.56 A motorist has been held liable for injury to or death of
a bicyclist where the motorist turned suddenly into the bicyclist so as to cause a collision.57
139 | P a g e
Neither does Aonuevo attempt before this Court to establish a causal connection between the
safety violations imputed to Villagracia and the accident itself. Instead, he relied on a putative
presumption that these violations in themselves sufficiently established negligence appreciable
against Villagracia. Since the onus on Aonuevo is to conclusively prove the link between the
violations and the accident, we can deem him as having failed to discharge his necessary burden
of proving Villagracias own liability.
Neither can we can adjudge Villagracia with contributory negligence.1wphi1 The leading case
in contributory negligence, Rakes v. Atlantic Gulf58 clarifies that damages may be mitigated if the
claimant "in conjunction with the occurrence, [contributes] only to his injury."59 To hold a person
as having contributed to his injuries, it must be shown that he performed an act that brought
about his injuries in disregard of warnings or signs of an impending danger to health and
body.60 To prove contributory negligence, it is still necessary to establish a causal link, although
not proximate, between the negligence of the party and the succeeding injury. In a legal sense,
negligence is contributory only when it contributes proximately to the injury, and not simply a
condition for its occurrence.61
As between Aonuevo and Villagracia, the lower courts adjudged Aonuevo as solely
responsible for the accident. The petition does not demonstrate why this finding should be
reversed. It is hard to imagine that the same result would not have occurred even if Villagracias
bicycle had been equipped with safety equipment. Aonuevo himself admitted having seen
Villagracia from ten (10) meters away, thus he could no longer claim not having been sufficiently
warned either by headlights or safety horns. The fact that Aonuevo was recklessly speeding as
he made the turn likewise leads us to believe that even if Villagracias bicycle had been equipped
with the proper brakes, the cyclist would not have had opportunity to brake in time to avoid the
speeding car. Moreover, it was incumbent on Aonuevo to have established that Villagracias
failure to have installed the proper brakes contributed to his own injury. The fact that Aonuevo
failed to adduce proof to that effect leads us to consider such causal connection as not proven.
All told, there is no reason to disturb the assailed judgment.
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur.
DIGEST
140 | P a g e
FACTS
Villagracia was traveling along Boni Ave. on his bicycle, while Aonuevo, traversing the
opposite lane was driving a Lancer car owned by Procter and Gamble Inc., the employer of
Aonuevos brother. Aonuevo was in the course of making a left turn towards Libertad Street
when the collision occurred. Villagracia sustained serious injuries and had to undergo four
operations. Villagracia instituted an action for damages against P&G Phils., Inc. and Aonuevo
before the RTC. He had also filed a criminal complaint against Aonuevo before the
Metropolitan Trial Court of Mandaluyong, but the latter was subsequently acquitted of the
criminal charge. Aonuevo claims that Villagracia violated traffic regulations when he failed to
register his bicycle or install safety gadgets. He posits that Article 2185 of the Civil Code applies
by analogy. Article 2185. Unless there is proof to the contrary, it is presumed that a person
driving a motor vehicle has been negligent if at the time of the mishap he was violating any
traffic regulation.
1. W/N Art. 2185 of the New Civil Code should apply to non-motorized vehicles, making
Villagracia presumptively negligent --> N
There is pertinent basis for segregating between motorized and non-motorized
vehicles. A motorized vehicle, unimpeded by the limitations in physical exertion. is
capable of greater speeds and acceleration than non-motorized vehicles. At the same
time, motorized vehicles are more capable in inflicting greater injury or damage in the
event of an accident or collision. This is due to a combination of factors peculiar to the
motor vehicle, such as the greater speed, its relative greater bulk of mass, and greater
combustibility due to the use of fuel.
2. W/N Villagracia was negligent for failure to comply with traffic regulations --> N
The existence of negligence in a given case is not determined by the personal
judgment of the actor in a given situation, but rather, it is the law which determines what
would be reckless or negligent. Aonuevo asserts that Villagracia was negligent as the
latter had transgressed traffic regulations. However, Aonuevo was speeding as he
made the left turn, and such negligent act was the proximate cause of the accident.
Even assuming that Aonuevo had failed to see Villagracia because the bicycle was not
equipped with headlights, such lapse on the cyclists part would not have acquitted the
driver of his duty to slow down as he proceeded to make the left turn.
3. W/N Villagracia is guilty of contributory negligence --> N
As between Aonuevo and Villagracia, the lower courts adjudged Aonuevo as solely
responsible for the accident. The petition does not demonstrate why this finding should be
reversed. It is hard to imagine that the same result would not have occurred even if Villagracias
bicycle had been equipped with safety equipment.
141 | P a g e

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 172200
July 6, 2010
THE HEIRS OF REDENTOR COMPLETO and ELPIDIO ABIAD, Petitioners,

vs.
SGT. AMANDO C. ALBAYDA, JR., Respondent.
DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court,
assailing the Decision1dated January 2, 2006 and the Resolution2 dated March 30, 2006 of the
Court of Appeals (CA) in CA-G.R. CV No. 68405.
The Facts
The facts of the case are as follows:
Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant of the Philippine Air Force,
527th Base Security Squadron, 520th Airbase, Philippine Air Force, located at Villamor Air Base
(VAB), Pasay City. Petitioner Redentor Completo (Completo), now represented by his heirs, was
the taxi driver of a Toyota Corolla, bearing Plate No. PYD-128, owned and operated by copetitioner Elpidio Abiad (Abiad).3 Albayda and Completo figured in an accident along the
intersection of 8th and 11th Streets, VAB. Albayda filed a complaint for damages before the
Regional Trial Court (RTC) of Pasay City. The case was docketed as Civil Case No. 98-1333.4
142 | P a g e
The amended complaint alleged that, on August 27, 1997, while Albayda was on his way to the
office to report for duty, riding a bicycle along 11th Street, the taxi driven by Completo bumped
and sideswiped him, causing serious physical injuries. Albayda was brought to the Philippine Air
Force General Hospital (PAFGH) inside VAB. However, he was immediately transferred to the
Armed Forces of the Philippines Medical Center (AFPMC) on V. Luna Road, Quezon City,
because there was a fracture in his left knee and there was no orthopedic doctor available at
PAFGH. From August 27, 1997 until February 11, 1998, he was confined therein. He was again
hospitalized at PAFGH from February 23, 1998 until March 22, 1998.5
Conciliation between the parties before the barangay failed. Thus, Albayda filed a complaint for
physical injuries through reckless imprudence against Completo before the Office of the City
Prosecutor of Pasay City. On the other hand, Completo filed a counter-charge of damage to
property through reckless imprudence against Albayda. On January 13, 1998, the Office of the
City Prosecutor issued a resolution,6 recommending the filing of an information for reckless
imprudence resulting in physical injuries against Completo. The counter-charge of damage to
property was recommended dismissed.7
The case was raffled to the Metropolitan Trial Court of Pasay City, Branch 45, where Albayda
manifested his reservation to file a separate civil action for damages against petitioners Completo
and Abiad.8
Albayda alleged that the proximate cause of the incident which necessitated his stay in the
hospital for approximately seven (7) months was the negligence of Completo who, at the time of
the accident, was in the employ of Abiad. The pain he suffered required him to undergo medical
physiotherapy for a number of years to regain normality of his left knee joint, and he claimed
that he incurred actual damages totaling Two Hundred Seventy-Six Thousand Five Hundred Fifty
Pesos (P276,550.00), inclusive of his anticipated operations.9
He further stated that aggravating the physical sufferings, mental anguish, frights, serious
anxiety, besmirched reputation, wounded feelings, moral shock, and social humiliation resulting
from his injuries, his wife abandoned him in May 1998, and left their children in his custody. He
thus demanded the amount of Six Hundred Thousand Pesos (P600,000.00) as moral damages. He
likewise asked for exemplary damages in the amount of Two Hundred Thousand Pesos
(P200,000.00) and attorneys fees of Twenty-Five Thousand Pesos (P25,000.00), plus One
Thousand Pesos (P1,000.00) per court appearance.10
In his answer to the amended complaint, Completo alleged that, on August 27, 1997, he was
carefully driving the taxicab along 8th Street, VAB, when suddenly he heard a strange sound
from the rear right side of the taxicab. When he stopped to investigate, he found Albayda lying
on the road and holding his left leg. He immediately rendered assistance and brought Albayda to
PAFGH for emergency treatment.11
143 | P a g e
Completo also asserted that he was an experienced driver who, in accordance with traffic rules
and regulations and common courtesy to his fellow motorists, had already reduced his speed to
twenty (20) kilometers per hour even before reaching the intersection of 8th and 11th Streets. In
contrast, Albayda rode his bicycle at a very high speed, causing him to suddenly lose control of
the bicycle and hit the rear door on the right side of the taxicab.12
The deep indentation on the rear right door of the taxicab was caused by the impact of Albaydas
body that hit the taxicab after he had lost control of the bicycle; while the slight indentation on
the right front door of the taxicab was caused by the impact of the bike that hit the taxicab after
Albayda let go of its handles when he had lost control of it.13
Completo maintained that Albayda had no cause of action. The accident and the physical injuries
suffered by Albayda were caused by his own negligence, and his purpose in filing the complaint
was to harass petitioners and unjustly enrich himself at their expense.14
After submission of the parties respective pleadings, a pretrial conference was held. On
December 8, 1998, the RTC issued a pretrial order. Thereafter, trial on the merits ensued.15
Albayda presented himself, Michael Navarro (Navarro), Dr. Rito Barrosa, Jr. (Dr. Barrosa), Dr.
Armando Sta. Ana, Jr., Dr. Ranny Santiago, (Dr. Santiago), and Dr. Manuel Fidel Magtira (Dr.
Magtira) as witnesses in open court.16
On direct examination, Navarro testified that, on August 27, 1997, at around 1:45 p.m., he saw a
taxicab, with Plate No. PYD-128, coming from 11th Street, running at an unusual speed. The
normal speed should have been twenty-five (25) kilometers per hour. He was at the corner of 9th
and 8th Streets when the taxicab passed by him. The side of the bicycle was hit by the taxicab at
the intersection of 11th and 8th Streets. He saw Albayda fall to the ground, grimacing in pain.
The taxicab at that moment was about ten (10) meters away from Albayda. On crossexamination, Navarro reiterated that the taxicab was running quite fast. The bicycle ridden by
Albayda reached the intersection of 8th and 11th Streets before the taxicab hit it.17
Dr. Santiago, the orthopedic surgeon who treated Albayda when the latter was admitted at
AFPMC, testified that the cause of the injury was "hard impact," and recommended an operation
to alleviate the suffering. On cross-examination, he said that there was a separation of the
fragments of the proximal leg, the injured extremity, called levia. They placed the victim on knee
traction or calcaneal traction,18 in order to avoid further swelling. They bore the calcanean bone
with a stainless steel pin so that they could put five percent (5%) of the body weight of the
patient to cool down the leg. He treated Albayda for three (3) months. He recommended surgery,
but the victim had other medical problems, like an increase in sugar level, and they were waiting
for the availability of the implant. The implant was supposed to be placed on the lateral aspect of
the proximal leg or the levia, the part with the separation. It was a long implant with screws.19
144 | P a g e
Dr. Magtira testified that Albayda was readmitted at AFPMC on January 25, 1999 because of
complaints of pain and limitation of motion on the knee joint. Upon evaluation, the pain was
caused by traumatic arthritis brought about by malunion of the lateral trivial condial. An
operation of the soft tissue release was conducted for him to mobilize his knee joint and attain
proper range of motion. After the operation, Albayda attained functional range of motion, but
because of subsisting pain, they had to do osteoplasty20 of the malunion, which was another
operation. On cross-examination, Dr. Magtira testified that he rendered free medical service at
AFPMC.21
Albayda testified that he was thirty-six (36) years old and a soldier of the Armed Forces of the
Philippines. On August 27, 1997, at around 1:40 p.m., he was riding his bike on his way to the
office, located on 916 Street, VAB. He had to stop at the corner of 11th and 8th Streets because
an oncoming taxicab was moving fast. However, the taxicab still bumped the front tire of his
bike, hit his left knee and threw him off until he fell down on the road. The taxicab stopped about
ten meters away, and then moved backwards. Its driver, Completo, just stared at him. When
somebody shouted to bring him to the hospital, two (2) persons, one of whom was Dr. Barrosa,
helped him and carried him into the taxicab driven by Completo, who brought him to PAFGH.22
Upon examination, it was found that Albayda suffered fracture in his left knee and that it
required an operation. No orthopedic doctor was available at PAFGH. Thus, he was transferred
that same afternoon to AFPMC, where he was confined until February 11, 1998.23
At AFPMC, Albaydas left leg was drilled on and attached to traction. When his leg was drilled,
it was so painful that he had to shout. After his release from the hospital, he continued to suffer
pain in his leg. He underwent reflexology and therapy which offered temporary relief from pain.
But after some time, he had to undergo therapy and reflexology again.24
On January 25, 1999, Albayda was readmitted at AFPMC and operated on. On June 24, 1999, he
was operated on again. Wire and screw were installed so that he could bend his knee.
Nonetheless, he continued to suffer pain. As of the date of his testimony in court, he was
scheduled for another operation in January 2000, when the steel that would be installed in his leg
arrives.25
For his food, Albayda spent Thirty Pesos (P30.00) each day during his six (6) months of
confinement; for his bed pan, One Thousand Pesos (P1,000.00); for his twice weekly
reflexology, Three Hundred Pesos (P300.00) every session since April 1997; for his
caretaker, P300.00 per day for six months. He also asked for P600,000.00 in moral damages
because Completo did not lend him a helping hand, and he would be suffering deformity for the
rest of his life. He demanded P25,000.00 as attorneys fees and P1,000.00 for every court
appearance of his lawyer.26
145 | P a g e
On cross-examination, Albayda testified that, on the date of the incident, he was the base guard
at VAB, and his duty was from 2 p.m. to 8 p.m. That afternoon, he was not in a hurry to go to his
place of work because it was only about 1:45 p.m., and his place of work was only six (6) meters
away. After the accident, he was brought to PAFGH, and at 3:00 p.m., he was brought to the
AFPMC. When he was discharged from the hospital, he could no longer walk.27
Dr. Barrosas testimony during cross-examination emphasized that he was with 2 other persons
when he carried Albayda into the taxicab driven by Completo. He was certain that it was not
Completo who carried the victim into the taxicab. It was only a matter of seconds when he
rushed to the scene of the accident. The taxicab backed up fifteen (15) seconds later. Albayda lay
2 meters away from the corner of 8th and 11th Streets.28
Completo, Abiad, and Benjamin Panican (Panican) testified for the defense.29
Completo alleged that he had been employed as taxi driver of FOJS Transport, owned by Abiad,
since February 1997. On August 27, 1997, he was driving the taxicab, with Plate No. PYD-128,
from 10:00 a.m. At around 1:45 p.m., he was on his way home when a bicycle bumped his
taxicab at the intersection of 8th and 11th Streets, VAB. The bicycle was travelling from south to
north, and he was going east coming from the west. The bicycle was coming from 11th Street,
while he was travelling along 8th Street.30
On cross-examination, Completo testified that when Albayda hit the rear right door of the
taxicab, the latter fell to the ground. When he heard a noise, he immediately alighted from the
taxicab. He denied that he stopped about 10 meters away from the place where Albayda fell. He
carried Albayda and drove him to the hospital.31
Panican testified that he worked as an airconditioner technician in a shop located on 8th Street
corner 11th Street. On the date and time of the incident, he was working in front of the shop near
the roadside. He saw a bicycle bump the rear right side of the taxicab. Then, the driver of the
taxicab alighted, carried Albayda, and brought him to the hospital.32
When questioned by the trial court, Panican testified that the bicycle was running fast and that he
saw it bump the taxicab. The taxicab already passed the intersection of 11th and 8th Streets when
the bicycle arrived.33
Abiad testified that, aside from being a soldier, he was also a franchise holder of taxicabs and
passenger jeepneys. When Completo applied as a driver of the taxicab, Abiad required the former
to show his bio-data, NBI clearance, and drivers license. Completo never figured in a vehicular
accident since the time he was employed in February 1997. Abiad averred that Completo was a
good driver and a good man. Being the operator of taxicab, Abiad would wake up early and
personally check all the taxicabs.34
146 | P a g e
On July 31, 2000, the trial court rendered a decision,35 the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff [Albayda] and against the
defendants [Completo and Abiad]. Accordingly, the defendants [Completo and Abiad] are hereby
ordered to pay the plaintiff [Albayda] the following sum:
1. P46,000.00 as actual damages;
2. P400,000.00 as moral damages; [and]
3. P25,000.00 as attorneys fees.
Costs against the defendants [Completo and Abiad].
SO ORDERED.36
Completo and Abiad filed an appeal. The CA affirmed the trial court with modification in a
Decision37 dated January 2, 2006, viz.:
WHEREFORE, premises considered, the appeal is DENIED for lack of merit. The assailed
Decision dated 31 July 2000 rendered by the Regional Trial Court of Pasay City, Branch 117, in
Civil Case No. 98-1333 is hereby AFFIRMED with the following MODIFICATIONS:
1. the award of Php 46,000.00 as actual damages is DELETED;
2. temperate damages in the amount of Php 40,000.00 is awarded in favor of appellee;
3. moral damages in favor of appellee is REDUCED to Php 200,000.00;
4. appellants Redentor Completo and Elpidio Abiad are solidarily liable to pay appellee
Amando C. Albayda, Jr. said temperate and moral damages, as well as the attorneys fees
in the amount of Php 25,000.00 awarded by the trial court;
5. the temperate and moral damages shall earn legal interest at 6% per annum computed
from the date of promulgation of Our Decision;
6. upon finality of Our Decision, said moral and temperate damages shall earn legal
interest at the rate of 12% per annum, in lieu of 6% per annum, until full payment. Costs
against appellants.
SO ORDERED.38
147 | P a g e
Hence, this petition.

The Issues
Petitioners presented the following issues for resolution: (1) whether the CA erred in finding that
Completo was the one who caused the collision;
(2) whether Abiad failed to prove that he observed the diligence of a good father of the family;
and (3) whether the award of moral and temperate damages and attorneys fees to Albayda had
no basis.39
The Ruling of the Court
The petition is bereft of merit.
I. On Negligence
The issues raised by petitioners essentially delve into factual matters which were already passed
upon by the RTC and the CA. Conclusions and findings of fact of the trial court are entitled to
great weight on appeal and should not be disturbed unless for strong and cogent reasons, because
the trial court is in a better position to examine real evidence, as well as to observe the demeanor
of the witnesses while testifying in the case. The fact that the CA adopted the findings of fact of
the trial court makes the same binding upon this Court. Well-settled is the rule that the Supreme
Court is not a trier of facts.40 To be sure, findings of fact of lower courts are deemed conclusive
and binding upon the Supreme Court, save only for clear and exceptional reasons,41 none of
which is present in the case at bar.
The instant case involved a collision between a taxicab and a bicycle which resulted in serious
physical injuries to the bicycle rider, Albayda. It is a rule in negligence suits that the plaintiff has
the burden of proving by a preponderance of evidence the motorists breach in his duty of care
owed to the plaintiff, that the motorist was negligent in failing to exercise the diligence required
to avoid injury to the plaintiff, and that such negligence was the proximate cause of the injury
suffered.42
Article 2176 of the Civil Code provides that whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no preexisting contractual relation between the parties, is called a quasidelict. In this regard, the question of the motorist's negligence is a question of fact.
It was proven by a preponderance of evidence that Completo failed to exercise reasonable
diligence in driving the taxicab because he was over-speeding at the time he hit the bicycle
ridden by Albayda. Such negligence was the sole and proximate cause of the serious physical
148 | P a g e
injuries sustained by Albayda. Completo did not slow down even when he approached the
intersection of 8th and 11th Streets of VAB. It was also proven that Albayda had the right of way,
considering that he reached the intersection ahead of Completo.
The bicycle occupies a legal position that is at least equal to that of other vehicles lawfully on the
highway, and it is fortified by the fact that usually more will be required of a motorist than a
bicyclist in discharging his duty of care to the other because of the physical advantages the
automobile has over the bicycle.43
At the slow speed of ten miles per hour, a bicyclist travels almost fifteen feet per second, while a
car traveling at only twenty-five miles per hour covers almost thirty-seven feet per second, and
split-second action may be insufficient to avoid an accident. It is obvious that a motor vehicle
poses a greater danger of harm to a bicyclist than vice versa. Accordingly, while the duty of
using reasonable care falls alike on a motorist and a bicyclist, due to the inherent differences in
the two vehicles, more care is required from the motorist to fully discharge the duty than from
the bicyclist.44 Simply stated, the physical advantages that the motor vehicle has over the bicycle
make it more dangerous to the bicyclist than vice versa.45
Under Article 2180 of the Civil Code, the obligation imposed by Article 2176 is demandable not
only for ones own acts or omissions, but also for those persons for whom one is responsible.
Employers shall be liable for the damages caused by their employees, but the employers
responsibility shall cease upon proof that they observed all the diligence of a good father of the
family in the selection and supervision of their employees.
When an injury is caused by the negligence of an employee, a legal presumption instantly arises
that the employer was negligent. This presumption may be rebutted only by a clear showing on
the part of the employer that he exercised the diligence of a good father of a family in the
selection and supervision of his employee. If the employer successfully overcomes the legal
presumption of negligence, he is relieved of liability. In other words, the burden of proof is on
the employer.46
The trial courts finding that Completo failed to exercise reasonable care to avoid collision with
Albayda at the intersection of 11th and 8th Streets of VAB gives rise to liability on the part of
Completo, as driver, and his employer Abiad. The responsibility of two or more persons who are
liable for quasi-delict is solidary.47 The civil liability of the employer for the negligent acts of his
employee is also primary and direct, owing to his own negligence in selecting and supervising
his employee.48 The civil liability of the employer attaches even if the employer is not inside the
vehicle at the time of the collision.49
In the selection of prospective employees, employers are required to examine them as to their
qualifications, experience, and service records. On the other hand, with respect to the supervision
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of employees, employers should formulate standard operating procedures, monitor their

implementation, and impose disciplinary measures for breaches thereof. To establish these
factors in a trial involving the issue of vicarious liability, employers must submit concrete proof,
including documentary evidence.50
Abiad testified that before he hired Completo, he required the latter to show his bio-data, NBI
clearance, and drivers license. Abiad likewise stressed that Completo was never involved in a
vehicular accident prior to the instant case, and that, as operator of the taxicab, he would wake up
early to personally check the condition of the vehicle before it is used.
The protestation of Abiad to escape liability is short of the diligence required under the law.
Abiads evidence consisted entirely of testimonial evidence, and the unsubstantiated and selfserving testimony of Abiad was insufficient to overcome the legal presumption that he was
negligent in the selection and supervision of his driver.
II. On Damages
The CA rightfully deleted the award of actual damages by the RTC because Albayda failed to
present documentary evidence to establish with certainty the amount that he incurred during his
hospitalization and treatment for the injuries he suffered. In the absence of stipulation, actual
damages are awarded only for such pecuniary loss suffered that was duly proved.51
While the amount of actual damages was not duly established with certainty, the Court
recognizes the fact that, indeed, Albayda incurred a considerable amount for the necessary and
reasonable medical expenses, loss of salary and wages, loss of capacity to earn increased wages,
cost of occupational therapy, and harm from conditions caused by prolonged immobilization.
Temperate damages, more than nominal but less than compensatory damages, may be recovered
when the court finds that some pecuniary loss has been suffered but its amount cannot, from the
nature of the case, be proved with certainty.52 Temperate damages must be reasonable under the
circumstances.53 Thus, the Court finds the award of One Hundred Thousand Pesos (P100,000.00)
as temperate damages reasonable under the circumstances.
Doubtless, Albayda suffered immeasurable pain because of the incident caused by petitioners
negligence. The CA explained:
The court vicariously feels the pain the plaintiff [Albayda] suffered a number of times. After he
was bumped by defendants cab, he cried in pain. When the doctors bore holes into his left knee,
he cried in pain. When he was tractioned, when he was subjected to an operation after operation
he suffered pain. When he took the witness stand to testify, he walked with crutches, his left knee
in bandage, stiff and unfuctional. Pain was written [on] his face. He does deserve moral
damages.54
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Moral damages are awarded in quasi-delicts causing physical injuries. The permanent deformity
and the scar left by the wounds suffered by Albayba will forever be a reminder of the pain and
suffering that he had endured and continues to endure because of petitioners negligence. Thus,
the award of moral damages in the amount of Five Hundred Thousand Pesos (P500,000.00) is
proper.
Finally, an interest rate of six percent (6%) per annum is due on the amount of P100,000.00, as
temperate damages, and P500,000.00, as moral damages, which we have awarded. The 6% per
annum interest rate on the temperate and moral damages shall commence to run from the date of
the promulgation of this Decision. Upon finality of the Decision, an interest rate of twelve
percent (12%) per annum shall be imposed on the amount of the temperate and moral damages
until full payment thereof.55
The award of attorneys fees is hereby deleted for failure to prove that petitioners acted in bad
faith in refusing to satisfy respondents just and valid claim.
WHEREFORE, in view of the foregoing, the Decision dated January 2, 2006 and the Resolution
dated March 30, 2006 of the Court of Appeals in CA-G.R. CV No. 68405 are hereby
AFFIRMED with MODIFICATION, viz.:
(1) The estate of the late Redentor Completo and Elpidio Abiad are solidarily liable to
pay One Hundred Thousand Pesos (P100,000.00), as temperate damages, and Five
Hundred Thousand Pesos (P500,000.00), as moral damages;
(2) The temperate and moral damages hereby awarded shall earn legal interest at the rate
of six percent (6%) per annum from the date of the promulgation of this Decision. Upon
finality of this Decision, an interest rate of twelve percent (12%) per annum shall be
imposed on the amount of the temperate and moral damages until full payment thereof.
SO ORDERED.
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
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DIOSDADO M. PERALTA
Associate Justice
ROBERTO A. ABAD
Associate Justice
JOSE CATRAL MENDOZA

Associate Justice
AT T E S T AT I O N
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
RENATO C. CORONA
Chief Justice
DIGEST
Facts
Albayda is a Master Sergeant of the PH Air Force, and Completo was the taxi driver of a
Toyota Corolla which was owned by Abiad. Albayda was riding a bike on his way to the office,
when Completos taxi bumped and sideswept him, causing serious physical injuries. He
[Albayda] was brought to the PH Air Force General Hospital, but he was transferred to the AFP
Medical Center because he sustained a fracture and there was no orthopedic doctor available in
the first hospital. He was confined from 27 Aug 1997 to 11 Feb 1998, and again in 23 Feb to 22
Mar 1998 [approx. 7 months].
Conciliation before the barangay failed, so Albayda filed a complaint for physical injuries
through reckless imprudence against Completo before the Office of the City Prosecutor of Pasay.
Completo filed a counter-charge of damage to property through reckless imprudence against
Albayda. The Office of the City Prosecutor recommended the filing of an information for
Albaydas complaint, and Completos complaint [against Albayda] was dismissed. Albayda
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manifested his reservation to file a separate civil action for damages against Completo and
Abiad.
Albayda alleged that Completos negligence is the proximate cause of the incident. He
demanded the following damages and their respective amounts: Actual damages
276,550; Moral damages 600,000; Exemplary damages 200,000; Attorneys fees 25,000 +
1,000 per court appearance.
On the other hand, Completo alleged that he was carefully driving the taxicab when he
heard a strange sound from the taxicabs rear right side. He found Albayda lying on the road,
holding his left leg, so he brought Albayda to PH Air Force General Hospital. Completo asserted
that he was an experienced driver, and that he already reduced his speed to 20km even before
reaching the intersection. In contrast, Albayda rode his bicycle at high speed, causing him to lose
control of the bicycle. Completo said that Albayda had no cause of action.
Several people testified for each side, but here are some notes on the testimony of the
owner of the taxi driver, Abiad. Abiad said that aside from being a soldier, he also held
franchises of taxicabs and passenger jeepneys, and being a taxicab operator, he would wake up
early to personally check the taxicabs. When Completo applied as a taxicab driver, Abiad
required him to show his bio-data, NBI clearance, and drivers license. Completo never figured
in a vehicular accident since he was employed, and according to Abiad, he [Completo] was a
good driver and good man.
RTC rendered judgment in favor of Albayda, and the defendants are ordered to pay
actual [46k] and moral [400k] damages, and attorneys fees [25k]. Upon appeal at the CA, the
court affirmed RTCs decision with modifications [no more actual damages; awarded temperate
damages [40k]; moral damages only 200k; Completo and Abiad are solidarily liable to pay
Albayda; added legal interest].
Issues and Holding
1.
WON CA erred in finding that Completo was the one who caused the collision. NO
2.
WON Abiad failed to prove that he observed the diligence of a good father of the family.
YES
3.
WON the award of moral and temperate damages and attorneys fees for Albayda had no
basis. NO / NO / YES
Ratio
On Negligence
It is a rule in negligence suits that the plaintiff has the burden of proving by a preponderance of
evidence the motorists breach in his duty of care owed to the plaintiff, that the motorist was
negligent in failing to exercise the diligence required to avoid injury to the plaintiff, and that such
negligence was the proximate cause of the injury suffered. NCC 2176 quoted, and said that the
question of the motorists negligence is a question of fact. Usually, more will be required of a
motorist [25mi/hr = 37ft/sec] than a bicyclist [10mi/hr = 15ft/sec] in discharging the duty of care
because of the physical advantages the former has over the latter.
It was proven by a preponderance of evidence that Completo failed to exercise reasonable
diligence.
153 | P a g e
He was overspeeding at the time he hit Albaydas bicycle; he did not slow down even
when he approached the intersection
Such negligence was the sole and proximate cause of the injuries sustained by Albayda
It was proven that Albayda had the right of way since he reached the intersection ahead of
Completo
NCC 2180 cited obligation imposed by NCC 2176 is demandable also for those persons for
whom one is responsible. Employers are liable for damage caused by employees, but the
responsibility ceases upon proof that employers observed the diligence of the good father of the
family in the selection and supervision of employees. The burden of proof is on the
employer. The responsibility of two or more persons who are liable for QD is solidary. The
employers civil liability for his employees negligent acts is also primary and direct, owing to
his own negligence in selecting and supervising them, and this liability attaches even if the
employer is not in the vehicle at the time of collision.
In the selection of employees, employers are required to examine them as to their
qualifications, experience, and service records. With respect to supervision, employers should
formulate SOPs and monitor their implementation, and impose disciplinary measures for
breaches. To establish these factors in a trial involving the issue of vicarious [secondary] liability,
employers must submit concrete proof, including documentary evidence.
ABIADS EVIDENCE CONSISTED ENTIRELY OF TESTIMONIAL EVIDENCE, AND THIS
IS INSUFFICIENT TO OVERCOME THE LEGAL PRESUMPTION THAT HE WAS
NEGLIGENT IN THE SELECTION AND SUPERVISION OF COMPLETO.
On Damages
CA rightfully deleted the award of actual damages because Albayda failed to present
documentary evidence to establish the amount incurred. Temperate damages may be recovered
when the court finds that some pecuniary loss has been suffered but its amount cannot be proved
with certainty. Moral damages are awarded in QDs causing physical injuries, so the award is
proper. The award of attorneys fees is deleted for failure to prove that petitioners acted in bad
faith in refusing to satisfy respondents just and valid claim.
154 | P a g e

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 169467
February 25, 2010
ALFREDO P. PACIS and CLEOPATRA D. PACIS, Petitioners,

vs.
JEROME JOVANNE MORALES, Respondent.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 11 May 2005 Decision2 and the 19 August 2005 Resolution
of the Court of Appeals in CA-G.R. CV No. 60669.
The Facts
On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D. Pacis (petitioners) filed with
the trial court a civil case for damages against respondent Jerome Jovanne Morales (respondent).
Petitioners are the parents of Alfred Dennis Pacis, Jr. (Alfred), a 17-year old student who died in
a shooting incident inside the Top Gun Firearms and Ammunitions Store (gun store) in Baguio
City. Respondent is the owner of the gun store.
The facts as found by the trial court are as follows:
On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a first year student at the
Baguio Colleges Foundation taking up BS Computer Science, died due to a gunshot wound in
155 | P a g e
the head which he sustained while he was at the Top Gun Firearm[s] and Ammunition[s] Store
located at Upper Mabini Street, Baguio City. The gun store was owned and operated by
defendant Jerome Jovanne Morales.
With Alfred Pacis at the time of the shooting were Aristedes Matibag and Jason Herbolario. They
were sales agents of the defendant, and at that particular time, the caretakers of the gun store.
The bullet which killed Alfred Dennis Pacis was fired from a gun brought in by a customer of the
gun store for repair.
The gun, an AMT Automag II Cal. 22 Rimfire Magnum with Serial No. SN-H34194 (Exhibit
"Q"), was left by defendant Morales in a drawer of a table located inside the gun store.
Defendant Morales was in Manila at the time. His employee Armando Jarnague, who was the
regular caretaker of the gun store was also not around. He left earlier and requested sales agents
Matibag and Herbolario to look after the gun store while he and defendant Morales were away.
Jarnague entrusted to Matibag and Herbolario a bunch of keys used in the gun store which
included the key to the drawer where the fatal gun was kept.
It appears that Matibag and Herbolario later brought out the gun from the drawer and placed it on
top of the table. Attracted by the sight of the gun, the young Alfred Dennis Pacis got hold of the
same. Matibag asked Alfred Dennis Pacis to return the gun. The latter followed and handed the
gun to Matibag. It went off, the bullet hitting the young Alfred in the head.
A criminal case for homicide was filed against Matibag before branch VII of this Court. Matibag,
however, was acquitted of the charge against him because of the exempting circumstance of
"accident" under Art. 12, par. 4 of the Revised Penal Code.
By agreement of the parties, the evidence adduced in the criminal case for homicide against
Matibag was reproduced and adopted by them as part of their evidence in the instant case.3
On 8 April 1998, the trial court rendered its decision in favor of petitioners. The dispositive
portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs
[Spouses Alfredo P. Pacis and Cleopatra D. Pacis] and against the defendant [Jerome Jovanne
Morales] ordering the defendant to pay plaintiffs
(1) P30,000.00 as indemnity for the death of Alfred Pacis;
(2) P29,437.65 as actual damages for the hospitalization and burial expenses incurred by
the plaintiffs;
156 | P a g e
(3) P100,000.00 as compensatory damages;

(4) P100,000.00 as moral damages;
(5) P50,000.00 as attorneys fees.
SO ORDERED.4
Respondent appealed to the Court of Appeals. In its Decision5 dated 11 May 2005, the Court of
Appeals reversed the trial courts Decision and absolved respondent from civil liability under
Article 2180 of the Civil Code.6
Petitioners filed a motion for reconsideration, which the Court of Appeals denied in its
Resolution dated 19 August 2005.
The Trial Courts Ruling
The trial court held respondent civilly liable for the death of Alfred under Article 2180 in relation
to Article 2176 of the Civil Code.7 The trial court held that the accidental shooting of Alfred
which caused his death was partly due to the negligence of respondents employee Aristedes
Matibag (Matibag). Matibag and Jason Herbolario (Herbolario) were employees of respondent
even if they were only paid on a commission basis. Under the Civil Code, respondent is liable for
the damages caused by Matibag on the occasion of the performance of his duties, unless
respondent proved that he observed the diligence of a good father of a family to prevent the
damage. The trial court held that respondent failed to observe the required diligence when he left
the key to the drawer containing the loaded defective gun without instructing his employees to be
careful in handling the loaded gun.
The Court of Appeals Ruling
The Court of Appeals held that respondent cannot be held civilly liable since there was no
employer-employee relationship between respondent and Matibag. The Court of Appeals found
that Matibag was not under the control of respondent with respect to the means and methods in
the performance of his work. There can be no employer-employee relationship where the element
of control is absent. Thus, Article 2180 of the Civil Code does not apply in this case and
respondent cannot be held liable.
Furthermore, the Court of Appeals ruled that even if respondent is considered an employer of
Matibag, still respondent cannot be held liable since no negligence can be attributed to him. As
explained by the Court of Appeals:
157 | P a g e
Granting arguendo that an employer-employee relationship existed between Aristedes Matibag

and the defendant-appellant, we find that no negligence can be attributed to him.
Negligence is best exemplified in the case of Picart vs. Smith (37 Phil. 809). The test of
negligence is this:
"x x x. Could a prudent man, in the position of the person to whom negligence is attributed,
foresee harm to the person injured as a reasonable consequence of the course about to be
pursued? If so, the law imposes a duty on the actor to refrain from that course or take precaution
against its mischievous results, and the failure to do so constitutes negligence. x x x."
Defendant-appellant maintains that he is not guilty of negligence and lack of due care as he did
not fail to observe the diligence of a good father of a family. He submits that he kept the firearm
in one of his table drawers, which he locked and such is already an indication that he took the
necessary diligence and care that the said gun would not be accessible to anyone. He puts [sic]
that his store is engaged in selling firearms and ammunitions. Such items which are per se
dangerous are kept in a place which is properly secured in order that the persons coming into the
gun store would not be able to take hold of it unless it is done intentionally, such as when a
customer is interested to purchase any of the firearms, ammunitions and other related items, in
which case, he may be allowed to handle the same.
We agree. Much as We sympathize with the family of the deceased, defendant-appellant is not to
be blamed. He exercised due diligence in keeping his loaded gun while he was on a business trip
in Manila. He placed it inside the drawer and locked it. It was taken away without his knowledge
and authority. Whatever happened to the deceased was purely accidental.8
The Issues
Petitioners raise the following issues:
I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN RENDERING THE
DECISION AND RESOLUTION IN QUESTION IN DISREGARD OF LAW AND
JURISPRUDENCE BY REVERSING THE ORDER OF THE REGIONAL TRIAL COURT
(BRANCH 59) OF BAGUIO CITY NOTWITHSTANDING CLEAR, AUTHENTIC RECORDS
AND TESTIMONIES PRESENTED DURING THE TRIAL WHICH NEGATE AND
CONTRADICT ITS FINDINGS.
II. THE APPELLATE COURT COMMITTED GRAVE, REVERSIBLE ERROR IN
RENDERING THE DECISION AND RESOLUTION IN QUESTION BY DEPARTING FROM
THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS THEREBY
IGNORING THE FACTUAL FINDINGS OF THE REGIONAL TRIAL COURT (BRANCH 59)
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OF BAGUIO CITY SHOWING PETITIONERS CLEAR RIGHTS TO THE AWARD OF

DAMAGES.9
The Ruling of the Court
We find the petition meritorious.
This case for damages arose out of the accidental shooting of petitioners son. Under Article
116110 of the Civil Code, petitioners may enforce their claim for damages based on the civil
liability arising from the crime under Article 10011 of the Revised Penal Code or they may opt to
file an independent civil action for damages under the Civil Code. In this case, instead of
enforcing their claim for damages in the homicide case filed against Matibag, petitioners opted to
file an independent civil action for damages against respondent whom they alleged was
Matibags employer. Petitioners based their claim for damages under Articles 2176 and 2180 of
the Civil Code.
Unlike the subsidiary liability of the employer under Article 10312 of the Revised Penal
Code,13 the liability of the employer, or any person for that matter, under Article 2176 of the Civil
Code is primary and direct, based on a persons own negligence. Article 2176 states:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called quasi-delict and is governed by the
This case involves the accidental discharge of a firearm inside a gun store.1avvphi1 Under PNP
Circular No. 9, entitled the "Policy on Firearms and Ammunition Dealership/Repair," a person
who is in the business of purchasing and selling of firearms and ammunition must maintain basic
security and safety requirements of a gun dealer, otherwise his License to Operate Dealership
will be suspended or canceled.14
Indeed, a higher degree of care is required of someone who has in his possession or under his
control an instrumentality extremely dangerous in character, such as dangerous weapons or
substances. Such person in possession or control of dangerous instrumentalities has the duty to
take exceptional precautions to prevent any injury being done thereby.15 Unlike the ordinary
affairs of life or business which involve little or no risk, a business dealing with dangerous
weapons requires the exercise of a higher degree of care.
As a gun store owner, respondent is presumed to be knowledgeable about firearms safety and
should have known never to keep a loaded weapon in his store to avoid unreasonable risk of
harm or injury to others. Respondent has the duty to ensure that all the guns in his store are not
159 | P a g e
loaded. Firearms should be stored unloaded and separate from ammunition when the firearms are
not needed for ready-access defensive use.16With more reason, guns accepted by the store for
repair should not be loaded precisely because they are defective and may cause an accidental
discharge such as what happened in this case. Respondent was clearly negligent when he
accepted the gun for repair and placed it inside the drawer without ensuring first that it was not
loaded. In the first place, the defective gun should have been stored in a vault. Before accepting
the defective gun for repair, respondent should have made sure that it was not loaded to prevent
any untoward accident. Indeed, respondent should never accept a firearm from another person,
until the cylinder or action is open and he has personally checked that the weapon is completely
unloaded.17 For failing to insure that the gun was not loaded, respondent himself was negligent.
Furthermore, it was not shown in this case whether respondent had a License to Repair which
authorizes him to repair defective firearms to restore its original composition or enhance or
upgrade firearms.18
Clearly, respondent did not exercise the degree of care and diligence required of a good father of
a family, much less the degree of care required of someone dealing with dangerous weapons, as
would exempt him from liability in this case.
WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May 2005 Decision and the 19
August 2005 Resolution of the Court of Appeals in CA-G.R. CV No. 60669. We REINSTATE
the trial courts Decision dated 8 April 1998.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
ARTURO D. BRION
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice
JOSE P. PEREZ
Associate Justice
AT T E S T AT I O N
160 | P a g e
ANTONIO T. CARPIO
Associate Justice
Chairperson
REYNATO S. PUNO
Chief Justice
DIGEST
FACTS: petitioners filed with the trial court a civil case for damages against respondent
Morales.
Petitioners are the parents of Alfred Pacis, a 17-year old student who died in a shooting incident
inside the Top Gun Firearms and Ammunitions Store in Baguio City. Morales is the owner of the
gun store.
On the fateful day, Alfred was in the gun store, with Matibag and Herbolario as sales agents and
caretakers of the store while owner Morales was in Manila. The gun which killed Alfred is a gun
owned by a store customer which was left with Morales for repairs, which he placed inside a
drawer. Since Morales would be going to Manila, he left the keys to the store with the caretakers.
It appears that the caretakers took the gun from the drawer and placed it on top of a table.
Attracted by the sight of the gun, the young Alfred got hold of the same. Matibag asked Alfred to
return the gun. The latter followed and handed the gun to Matibag. It went off, the bullet hitting
the young Alfred in the head.
A criminal case for homicide was filed against Matibag. Matibag, however, was acquitted of the
charge against him because of the exempting circumstance of accident under Art. 12, par. 4 of
the RPC.
By agreement of the parties, the evidence adduced in the criminal case for homicide against
Matibag was reproduced and adopted by them as part of their evidence in the instant case.
The trial court rendered its decision in favor of petitioners, ordering the defendant to pay
plaintiffs indemnity for the death of Alfred, actual damages for the hospitalization and burial,
expenses incurred by the plaintiffs, compensatory damages, MD and AF.
161 | P a g e
Respondent appealed to the CA, which reversed the trial courts Decision and absolved
respondent from civil liability under Article 2180 of the Civil Code. MR denied, hence this
petition.
ISSUE: Was Morales negligent?
HELD: Petition granted. The CA decision is set aside and the trial courts Decision reinstated.
YES
This case for damages arose out of the accidental shooting of petitioners son. Under Article 1161
of the Civil Code, petitioners may enforce their claim for damages based on the civil liability
arising from the crime under Article 100 of the RPC or they may opt to file an independent civil
action for damages under the Civil Code. In this case, instead of enforcing their claim for
damages in the homicide case filed against Matibag, petitioners opted to file an independent civil
action for damages against respondent whom they alleged was Matibags employer. Petitioners
based their claim for damages under Articles 2176 and 2180 of the Civil Code.

SUPREME COURT
Manila
EN BANC
G.R. No. L-4977
March 22, 1910
DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
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CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor,
a minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway and an electric
light system in the city of Manila. Its power plant is situated at the eastern end of a small island
in the Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may
be reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of
the island.
The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15
years of age, the son of a mechanical engineer, more mature than the average boy of his age, and
having considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of
age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an
employee of the defendant, who and promised to make them a cylinder for a miniature engine.
Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by
youthful curiosity and perhaps by the unusual interest which both seem to have taken in
machinery, spent some time in wandering about the company's premises. The visit was made on
a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the
power house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's coal, they
walked across the open space in the neighborhood of the place where the company dumped in
the cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating
caps scattered on the ground. These caps are approximately of the size and appearance of small
pistol cartridges and each has attached to it two long thin wires by means of which it may be
discharged by the use of electricity. They are intended for use in the explosion of blasting
charges of dynamite, and have in themselves a considerable explosive power. After some
discussion as to the ownership of the caps, and their right to take them, the boys picked up all
they could find, hung them on stick, of which each took end, and carried them home. After
crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all
three went to the home of the boy Manuel. The boys then made a series of experiments with the
caps. They trust the ends of the wires into an electric light socket and obtained no result. They
next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could not
find one. Then they opened one of the caps with a knife, and finding that it was filled with a
yellowish substance they got matches, and David held the cap while Manuel applied a lighted
match to the contents. An explosion followed, causing more or less serious injuries to all three.
Jessie, who when the boys proposed putting a match to the contents of the cap, became
frightened and started to run away, received a slight cut in the neck. Manuel had his hand burned
and wounded, and David was struck in the face by several particles of the metal capsule, one of
which injured his right eye to such an extent as to the necessitate its removal by the surgeons
who were called in to care for his wounds.
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The evidence does definitely and conclusively disclose how the caps came to be on the
defendant's premises, nor how long they had been there when the boys found them. It appears,
however, that some months before the accident, during the construction of the defendant's plant,
detonating caps of the same size and kind as those found by the boys were used in sinking a well
at the power plant near the place where the caps were found; and it also appears that at or about
the time when these caps were found, similarly caps were in use in the construction of an
extension of defendant's street car line to Fort William McKinley. The caps when found appeared
to the boys who picked them up to have been lying for a considerable time, and from the place
where they were found would seem to have been discarded as detective or worthless and fit only
to be thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant company to prohibit or prevent
visitors from entering and walking about its premises unattended, when they felt disposed so to
do. As admitted in defendant counsel's brief, "it is undoubtedly true that children in their play
sometimes crossed the foot bridge to the islands;" and, we may add, roamed about at will on the
uninclosed premises of the defendant, in the neighborhood of the place where the caps were
found. There is evidence that any effort ever was made to forbid these children from visiting the
defendant company's premises, although it must be assumed that the company or its employees
were aware of the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing
and mechanical engineering. About a month after his accident he obtained employment as a
mechanical draftsman and continued in that employment for six months at a salary of P2.50 a
day; and it appears that he was a boy of more than average intelligence, taller and more mature
both mentally and physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively established by
the evidence of record, and are substantially admitted by counsel. The only questions of fact
which are seriously disputed are plaintiff's allegations that the caps which were found by plaintiff
on defendant company's premises were the property of the defendant, or that they had come from
its possession and control, and that the company or some of its employees left them exposed on
its premises at the point where they were found.
The evidence in support of these allegations is meager, and the defendant company, apparently
relying on the rule of law which places the burden of proof of such allegations upon the plaintiff,
offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however,
that plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this
regard.
It was proven that caps, similar to those found by plaintiff, were used, more or less extensively,
on the McKinley extension of the defendant company's track; that some of these caps were used
in blasting a well on the company's premises a few months before the accident; that not far from
the place where the caps were found the company has a storehouse for the materials, supplies
and so forth, used by it in its operations as a street railway and a purveyor of electric light; and
that the place, in the neighborhood of which the caps were found, was being used by the
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company as a sort of dumping ground for ashes and cinders. Fulminating caps or detonators for
the discharge by electricity of blasting charges by dynamite are not articles in common use by
the average citizen, and under all the circumstances, and in the absence of all evidence to the
contrary, we think that the discovery of twenty or thirty of these caps at the place where they
were found by the plaintiff on defendant's premises fairly justifies the inference that the
defendant company was either the owner of the caps in question or had the caps under its
possession and control. We think also that the evidence tends to disclose that these caps or
detonators were willfully and knowingly thrown by the company or its employees at the spot
where they were found, with the expectation that they would be buried out of the sight by the
ashes which it was engaged in dumping in that neighborhood, they being old and perhaps
defective; and, however this may be, we are satisfied that the evidence is sufficient to sustain a
finding that the company or some of its employees either willfully or through an oversight left
them exposed at a point on its premises which the general public, including children at play,
where not prohibited from visiting, and over which the company knew or ought to have known
that young boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which
these conclusions are based by intimidating or rather assuming that the blasting work on the
company's well and on its McKinley extension was done by contractors. It was conclusively
proven, however, that while the workman employed in blasting the well was regularly employed
by J. G. White and Co., a firm of contractors, he did the work on the well directly and
immediately under the supervision and control of one of defendant company's foremen, and there
is no proof whatever in the record that the blasting on the McKinley extension was done
by independent contractors. Only one witness testified upon this point, and while he stated that
he understood that a part of this work was done by contract, he could not say so of his own
knowledge, and knew nothing of the terms and conditions of the alleged contract, or of the
relations of the alleged contractor to the defendant company. The fact having been proven that
detonating caps were more or less extensively employed on work done by the defendant
company's directions and on its behalf, we think that the company should have introduced the
necessary evidence to support its contention if it wished to avoid the not unreasonable inference
that it was the owner of the material used in these operations and that it was responsible for
tortious or negligent acts of the agents employed therein, on the ground that this work had been
intrusted to independent contractors as to whose acts the maxim respondent superior should not
be applied. If the company did not in fact own or make use of caps such as those found on its
premises, as intimated by counsel, it was a very simple matter for it to prove that fact, and in the
absence of such proof we think that the other evidence in the record sufficiently establishes the
contrary, and justifies the court in drawing the reasonable inference that the caps found on its
premises were its property, and were left where they were found by the company or some of its
employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor,
upon the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and
1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit
acts and omissions or by those in which any kind of fault or negligence occurs.
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ART. 1902 A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.
ART. 1903 The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.
The father, and on his death or incapacity the mother, is liable for the damages caused by
the minors who live with them.
xxx
xxx
xxx
Owners or directors of an establishment or enterprise are equally liable for damages

caused by their employees in the service of the branches in which the latter may be
employed or on account of their duties.
xxx
xxx
xxx
The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damage.
ART. 1908 The owners shall also be liable for the damage caused
1 By the explosion of machines which may not have been cared for with due diligence,
and for kindling of explosive substances which may not have been placed in a safe and
proper place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts
proven at the trial do not established the liability of the defendant company under the provisions
of these articles, and since we agree with this view of the case, it is not necessary for us to
consider the various questions as to form and the right of action (analogous to those raised in the
case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be
involved in a decision affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an action such as that under consideration, in order
to establish his right to a recovery, must establish by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some person for
whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
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These proposition are, of course, elementary, and do not admit of discussion, the real difficulty
arising in the application of these principles to the particular facts developed in the case under
consideration.
It is clear that the accident could not have happened and not the fulminating caps been left
exposed at the point where they were found, or if their owner had exercised due care in keeping
them in an appropriate place; but it is equally clear that plaintiff would not have been injured had
he not, for his own pleasure and convenience, entered upon the defendant's premises, and strolled
around thereon without the express permission of the defendant, and had he not picked up and
carried away the property of the defendant which he found on its premises, and had he not
thereafter deliberately cut open one of the caps and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry
upon defendant company's premises, and the intervention of his action between the negligent act
of defendant in leaving the caps exposed on its premises and the accident which resulted in his
injury should not be held to have contributed in any wise to the accident, which should be
deemed to be the direct result of defendant's negligence in leaving the caps exposed at the place
where they were found by the plaintiff, and this latter the proximate cause of the accident which
occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the
courts of last resort in the United States in the cases known as the "Torpedo" and "Turntable"
cases, and the cases based thereon.
In a typical cases, the question involved has been whether a railroad company is liable for an
injury received by an infant of tender years, who from mere idle curiosity, or for the purposes of
amusement, enters upon the railroad company's premises, at a place where the railroad company
knew, or had good reason to suppose, children would be likely to come, and there found
explosive signal torpedoes left unexposed by the railroad company's employees, one of which
when carried away by the visitor, exploded and injured him; or where such infant found upon the
premises a dangerous machine, such as a turntable, left in such condition as to make it probable
that children in playing with it would be exposed to accident or injury therefrom and where the
infant did in fact suffer injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds the owner of the
premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question
was whether a railroad company was liable for in injury received by an infant while upon its
premises, from idle curiosity, or for purposes of amusement, if such injury was, under
circumstances, attributable to the negligence of the company), the principles on which these
cases turn are that "while a railroad company is not bound to the same degree of care in regard to
mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it
is not exempt from responsibility to such strangers for injuries arising from its negligence or
from its tortious acts;" and that "the conduct of an infant of tender years is not to be judged by
the same rule which governs that of adult. While it is the general rule in regard to an adult that to
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entitle him to recover damages for an injury resulting from the fault or negligence of another he
must himself have been free from fault, such is not the rule in regard to an infant of tender years.
The care and caution required of a child is according to his maturity and capacity only, and this is
to be determined in each case by the circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply
criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs.
Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases,
especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it held,
in the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon
for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this
rule exists in favor of children who are injured by dangerous machinery naturally calculated to
attract them to the premises; (3) that an invitation or license to cross the premises of another can
not be predicated on the mere fact that no steps have been taken to interfere with such practice;
(4) that there is no difference between children and adults as to the circumstances that will
warrant the inference of an invitation or a license to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by
the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass.,
349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and
perhaps in other States.
On the other hand, many if not most of the courts of last resort in the United States, citing and
approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B.,
29, 35, 36), lay down the rule in these cases in accord with that announced in the Railroad
Company vs. Stout (supra), and the Supreme Court of the United States, in a unanimous opinion
delivered by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and
reconsidered the doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical
analysis and review of many of the adjudged cases, both English and American, formally
declared that it adhered "to the principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The
plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and
visited the defendant's premises, without defendant's express permission or invitation, and while
there, was by accident injured by falling into a burning slack pile of whose existence he had no
knowledge, but which had been left by defendant on its premises without any fence around it or
anything to give warning of its dangerous condition, although defendant knew or had reason the
interest or curiosity of passers-by. On these facts the court held that the plaintiff could not be
regarded as a mere trespasser, for whose safety and protection while on the premises in question,
against the unseen danger referred to, the defendant was under no obligation to make provision.
We quote at length from the discussion by the court of the application of the principles involved
to the facts in that case, because what is said there is strikingly applicable in the case at bar, and
would seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser,
the defendant company owed him no duty, and in no case could be held liable for injuries which
would not have resulted but for the entry of plaintiff on defendant's premises.
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We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the
case now before us, they require us to hold that the defendant was guilty of negligence in
leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could
have forbidden all persons from coming to its coal mine for purposes merely of curiosity
and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age,
to visit its mine, and witness its operation. It knew that the usual approach to the mine
was by a narrow path skirting its slack pit, close to its depot building, at which the people
of the village, old and young, would often assemble. It knew that children were in the
habit of frequenting that locality and playing around the shaft house in the immediate
vicinity of the slack pit. The slightest regard for the safety of these children would have
suggested that they were in danger from being so near a pit, beneath the surface of which
was concealed (except when snow, wind, or rain prevailed) a mass of burning coals into
which a child might accidentally fall and be burned to death. Under all the circumstances,
the railroad company ought not to be heard to say that the plaintiff, a mere lad, moved by
curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it
owed no duty, or for whose protection it was under no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps,
baited with flesh, in his own ground, so near to a highway, or to the premises of another,
that dogs passing along the highway, or kept in his neighbors premises, would probably
be attracted by their instinct into the traps, and in consequence of such act his neighbor's
dogs be so attracted and thereby injured, an action on the case would lie. "What
difference," said Lord Ellenborough, C.J., "is there in reason between drawing the animal
into the trap by means of his instinct which he can not resist, and putting him there by
manual force?" What difference, in reason we may observe in this case, is there between
an express license to the children of this village to visit the defendant's coal mine, in the
vicinity of its slack pile, and an implied license, resulting from the habit of the defendant
to permit them, without objection or warning, to do so at will, for purposes of curiosity or
pleasure? Referring it the case of Townsend vs. Wathen, Judge Thompson, in his work on
the Law of Negligence, volume 1, page 305, note, well says: "It would be a barbarous
rule of law that would make the owner of land liable for setting a trap thereon, baited
with stinking meat, so that his neighbor's dog attracted by his natural instinct, might run
into it and be killed, and which would exempt him from liability for the consequence of
leaving exposed and unguarded on his land a dangerous machine, so that his neighbor's
child attracted to it and tempted to intermeddle with it by instincts equally strong, might
thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case
of Powers vs. Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts and
impulses; and others who are chargeable with a duty of care and caution toward them
must calculate upon this, and take precautions accordingly. If they leave exposed to the
observation of children anything which would be tempting to them, and which they in
their immature judgment might naturally suppose they were at liberty to handle or play
with, they should expect that liberty to be taken.
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And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation
to visit the premises of another, says:
In the case of young children, and other persons not fully sui juris, an implied license
might sometimes arise when it would not on behalf of others. Thus leaving a tempting
thing for children to play with exposed, where they would be likely to gather for that
purpose, may be equivalent to an invitation to them to make use of it; and, perhaps, if one
were to throw away upon his premises, near the common way, things tempting to
children, the same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in the cases
of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not
less cogent and convincing in this jurisdiction than in that wherein those cases originated.
Children here are actuated by similar childish instincts and impulses. Drawn by curiosity and
impelled by the restless spirit of youth, boys here as well as there will usually be found whenever
the public is permitted to congregate. The movement of machinery, and indeed anything which
arouses the attention of the young and inquiring mind, will draw them to the neighborhood as
inevitably as does the magnet draw the iron which comes within the range of its magnetic
influence. The owners of premises, therefore, whereon things attractive to children are exposed,
or upon which the public are expressly or impliedly permitted to enter or upon which the owner
knows or ought to know children are likely to roam about for pastime and in play, " must
calculate upon this, and take precautions accordingly." In such cases the owner of the premises
can not be heard to say that because the child has entered upon his premises without his express
permission he is a trespasser to whom the owner owes no duty or obligation whatever. The
owner's failure to take reasonable precautions to prevent the child from entering his premises at a
place where he knows or ought to know that children are accustomed to roam about of to which
their childish instincts and impulses are likely to attract them is at least equivalent to an implied
license to enter, and where the child does enter under such conditions the owner's failure to take
reasonable precautions to guard the child against injury from unknown or unseen dangers, placed
upon such premises by the owner, is clearly a breach of duty, responsible, if the child is actually
injured, without other fault on its part than that it had entered on the premises of a stranger
without his express invitation or permission. To hold otherwise would be expose all the children
in the community to unknown perils and unnecessary danger at the whim of the owners or
occupants of land upon which they might naturally and reasonably be expected to enter.
This conclusion is founded on reason, justice, and necessity, and neither is contention that a man
has a right to do what will with his own property or that children should be kept under the care of
their parents or guardians, so as to prevent their entering on the premises of others is of sufficient
weight to put in doubt. In this jurisdiction as well as in the United States all private property is
acquired and held under the tacit condition that it shall not be so used as to injure the equal rights
and interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and
except as to infants of very tender years it would be absurd and unreasonable in a community
organized as is that in which we lived to hold that parents or guardian are guilty of negligence or
imprudence in every case wherein they permit growing boys and girls to leave the parental roof
unattended, even if in the event of accident to the child the negligence of the parent could in any
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event be imputed to the child so as to deprive it a right to recover in such cases a point which
we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without defendant's
express invitation or permission would not have relieved defendant from responsibility for
injuries incurred there by plaintiff, without other fault on his part, if such injury were attributable
to the negligence of the defendant, we are of opinion that under all the circumstances of this case
the negligence of the defendant in leaving the caps exposed on its premises was not the
proximate cause of the injury received by the plaintiff, which therefore was not, properly
speaking, "attributable to the negligence of the defendant," and, on the other hand, we are
satisfied that plaintiffs action in cutting open the detonating cap and putting match to its contents
was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff,
and that the defendant, therefore is not civilly responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of
plaintiff's youth the intervention of his action between the negligent act of the defendant in
leaving the caps exposed on its premises and the explosion which resulted in his injury should
not be held to have contributed in any wise to the accident; and it is because we can not agree
with this proposition, although we accept the doctrine of the Turntable and Torpedo cases, that
we have thought proper to discuss and to consider that doctrine at length in this decision. As was
said in case of Railroad Co. vs. Stout (supra), "While it is the general rule in regard to an adult
that to entitle him to recover damages for an injury resulting from the fault or negligence of
another he must himself have been free from fault, such is not the rule in regard to an infant of
tender years. The care and caution required of a child is according to his maturity and capacity
only, and this is to be determined in each case by the circumstances of the case." As we think we
have shown, under the reasoning on which rests the doctrine of the Turntable and Torpedo cases,
no fault which would relieve defendant of responsibility for injuries resulting from its negligence
can be attributed to the plaintiff, a well-grown boy of 15 years of age, because of his entry upon
defendant's uninclosed premises without express permission or invitation' but it is wholly
different question whether such youth can be said to have been free from fault when he willfully
and deliberately cut open the detonating cap, and placed a match to the contents, knowing, as he
undoubtedly did, that his action would result in an explosion. On this point, which must be
determined by "the particular circumstances of this case," the doctrine laid down in the Turntable
and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the
"Torpedo" and analogous cases which our attention has been directed, the record discloses that
the plaintiffs, in whose favor judgments have been affirmed, were of such tender years that they
were held not to have the capacity to understand the nature or character of the explosive
instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature
both mentally and physically than the average boy of his age; he had been to sea as a cabin boy;
was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred;
and the record discloses throughout that he was exceptionally well qualified to take care of
himself. The evidence of record leaves no room for doubt that, despite his denials on the witness
stand, he well knew the explosive character of the cap with which he was amusing himself. The
series of experiments made by him in his attempt to produce an explosion, as described by the
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little girl who was present, admit of no other explanation. His attempt to discharge the cap by the
use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final
success of his endeavors brought about by the application of a match to the contents of the caps,
show clearly that he knew what he was about. Nor can there be any reasonable doubt that he had
reason to anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9
years of age, who was within him at the time when he put the match to the contents of the cap,
became frightened and ran away.
True, he may not have known and probably did not know the precise nature of the explosion
which might be expected from the ignition of the contents of the cap, and of course he did not
anticipate the resultant injuries which he incurred; but he well knew that a more or less
dangerous explosion might be expected from his act, and yet he willfully, recklessly, and
knowingly produced the explosion. It would be going far to say that "according to his maturity
and capacity" he exercised such and "care and caution" as might reasonably be required of him,
or that defendant or anyone else should be held civilly responsible for injuries incurred by him
under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to
understand and appreciate the nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and precaution in the commission of such acts;
and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of
things the question of negligence necessarily depends on the ability of the minor to understand
the character of his own acts and their consequences; and the age at which a minor can be said to
have such ability will necessarily depends of his own acts and their consequences; and at the age
at which a minor can be said to have such ability will necessarily vary in accordance with the
varying nature of the infinite variety of acts which may be done by him. But some idea of the
presumed capacity of infants under the laws in force in these Islands may be gathered from an
examination of the varying ages fixed by our laws at which minors are conclusively presumed to
be capable of exercising certain rights and incurring certain responsibilities, though it can not be
said that these provisions of law are of much practical assistance in cases such as that at bar,
except so far as they illustrate the rule that the capacity of a minor to become responsible for his
own acts varies with the varying circumstances of each case. Under the provisions of the Penal
Code a minor over fifteen years of age is presumed to be capable of committing a crime and is to
held criminally responsible therefore, although the fact that he is less than eighteen years of age
will be taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10
years of age a child may, under certain circumstances, choose which parent it prefers to live with
(Code of Civil Procedure, sec. 771). At 14 may petition for the appointment of a guardian (Id.,
sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And males of 14 and females
of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be
sensible of the danger to which he exposed himself when he put the match to the contents of the
cap; that he was sui juris in the sense that his age and his experience qualified him to understand
and appreciate the necessity for the exercise of that degree of caution which would have avoided
the injury which resulted from his own deliberate act; and that the injury incurred by him must
be held to have been the direct and immediate result of his own willful and reckless act, so that
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while it may be true that these injuries would not have been incurred but for the negligence act of
the defendant in leaving the caps exposed on its premises, nevertheless plaintiff's own act was
the proximate and principal cause of the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire.
(Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his
own fault, and that he can not demand reparation therefor from another. (Law 25, tit.
5, Partida 3.)
And they even said that when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly lays down the
law touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed
upon its provisions by the supreme court of Spain, and by this court in the case of Rakes vs.
Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar
the right to recover damages from the defendant, in whole or in part, for the injuries sustained by
him.
The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil,
391), is directly in point. In that case the court said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence
is a source of obligation when between such negligence and the injury there exists the
relation of cause and effect; but if the injury produced should not be the result of acts or
omissions of a third party, the latter has no obligation to repair the same, although such
acts or omission were imprudent or unlawful, and much less when it is shown that the
immediate cause of the injury was the negligence of the injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or
negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that title in
his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision
of March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when
between it and the damage there exists the relation of cause and effect; but if the damage
caused does not arise from the acts or omissions of a third person, there is no obligation
173 | P a g e
to make good upon the latter, even though such acts or omissions be imprudent or illegal,
and much less so when it is shown that the immediate cause of the damage has been the
recklessness of the injured party himself.
And again
In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898,
have especially supported the principle, the first setting forth in detail the necessary
points of the proof, which are two: An act or omission on the part of the person who is to
be charged with the liability, and the production of the damage by said act or omission.
This includes, by inference, the establishment of a relation of cause or effect between the
act or omission and the damage; the latter must be the direct result of one of the first two.
As the decision of March 22, 1881, said, it is necessary that the damages result
immediately and directly from an act performed culpably and wrongfully; "necessarily
presupposing a legal ground for imputability." (Decision of October 29, 1887.)
Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely
settled in this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific
Co. (supra), wherein we held that while "There are many cases (personal injury cases) was
exonerated," on the ground that "the negligence of the plaintiff was the immediate cause of the
casualty" (decisions of the 15th of January, the 19th of February, and the 7th of March, 1902,
stated in Alcubilla's Index of that year); none of the cases decided by the supreme court of Spain
"define the effect to be given the negligence of its causes, though not the principal one, and we
are left to seek the theory of the civil law in the practice of other countries;" and in such cases we
declared that law in this jurisdiction to require the application of "the principle of proportional
damages," but expressly and definitely denied the right of recovery when the acts of the injured
party were the immediate causes of the accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be
made between the accident and the injury, between the event itself, without which there
could have been no accident, and those acts of the victim not entering into it, independent
of it, but contributing to his own proper hurt. For instance, the cause of the accident under
review was the displacement of the crosspiece or the failure to replace it. This produces
the event giving occasion for damagesthat is, the sinking of the track and the sliding of
the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not
174 | P a g e
contribute, although it was an element of the damage which came to himself. Had the
crosspiece been out of place wholly or partly through his act or omission of duty, that
would have been one of the determining causes of the event or accident, for which he
would have been responsible. Where he contributes to the principal occurrence, as one of
its determining factors, he can not recover. Where, in conjunction with the occurrence, he
contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the immediate cause of the
explosion, the accident which resulted in plaintiff's injury, was in his own act in putting a match
to the contents of the cap, and that having "contributed to the principal occurrence, as one of its
determining factors, he can not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon
defendant's premises the detonating caps, the property of defendant, and carrying the relation of
cause and effect between the negligent act or omission of the defendant in leaving the caps
exposed on its premises and the injuries inflicted upon the plaintiff by the explosion of one of
these caps. Under the doctrine of the Torpedo cases, such action on the part of an infant of very
tender years would have no effect in relieving defendant of responsibility, but whether in view of
the well-known fact admitted in defendant's brief that "boys are snappers-up of unconsidered
trifles," a youth of the age and maturity of plaintiff should be deemed without fault in picking up
the caps in question under all the circumstances of this case, we neither discuss nor decide.
Twenty days after the date of this decision let judgment be entered reversing the judgment of the
court below, without costs to either party in this instance, and ten days thereafter let the record be
returned to the court wherein it originated, where the judgment will be entered in favor of the
defendant for the costs in first instance and the complaint dismissed without day. So ordered.
Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., concurs in the result.
DIGEST
David Taylor was a 15 year old boy who spent time as a cabin boy at sea; he was also able to
learn some principles of mechanical engineering and mechanical drawing from his dads office
(his dad was a mechanical engineer); he was also employed as a mechanical draftsman earning
P2.50 a day all said, Taylor was mature well beyond his age.
One day in 1905, he and another boy entered into the premises of Manila Electric power plant
where they found 20-30 blasting caps which they took home. In an effort to explode the said
caps, Taylor experimented until he succeeded in opening the caps and then he lighted it using a
175 | P a g e
match which resulted to the explosion of the caps causing severe injuries to his companion and to
Taylor losing one eye.
Taylor sued Manila Electric alleging that because the company left the caps exposed to children,
they are liable for damages due to the companys negligence.
ISSUE: Whether or not Manila Electric is liable for damages.
HELD: No. The SC reiterated the elements of quasi delict as follows:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some person for whose acts
it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
In the case at bar, it is true that Manila Electric has been negligent in disposing off the caps
which they used for the power plant, and that said caps caused damages to Taylor. However, the
causal connection between the companys negligence and the injuries sustained by Taylor is
absent. It is in fact the direct acts of Taylor which led to the explosion of the caps as he even, in
various experiments and in multiple attempts, tried to explode the caps. It is from said acts that
led to the explosion and hence the injuries.
Taylor at the time of the accident was well-grown youth of 15, more mature both mentally and
physically than the average boy of his age; he had been to sea as a cabin boy; was able to earn
P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record
discloses throughout that he was exceptionally well qualified to take care. The evidence of record
leaves no room for doubt that he well knew the explosive character of the cap with which he was
amusing himself. The series of experiments made by him in his attempt to produce an explosion
admit of no other explanation. His attempt to discharge the cap by the use of electricity, followed
by his efforts to explode it with a stone or a hammer, and the final success of his endeavors
brought about by the applications of a match to the contents of the cap, show clearly that he
knew what he was about. Nor can there be any reasonable doubt that he had reason to anticipate
that the explosion might be dangerous.
The just thing is that a man should suffer the damage which comes to him through his own
fault, and that he cannot demand reparation therefor from another.
176 | P a g e

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 129792 December 21, 1999

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA
PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R.
AGUILAR, respondents.
177 | P a g e
DAVIDE, JR., J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek the
reversal of the 17 June 1996 decision 1 of the Court of Appeals in C.A. G.R. No. CV 37937 and
the resolution 2 denying their motion for reconsideration. The assailed decision set aside the 15
January 1992 judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case
No. 7119 and ordered petitioners to pay damages and attorney's fees to private respondents
Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City.
Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store's branch manager,
operations manager, and supervisor, respectively. Private respondents are spouses and the parents
of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvel's
Department Store, Makati City. CRISELDA was signing her credit card slip at the payment and
verification counter when she felt a sudden gust of wind and heard a loud thud. She looked
behind her. She then beheld her daughter ZHIENETH on the floor, her young body pinned by the
bulk of the store's gift-wrapping counter/structure. ZHIENETH was crying and screaming for
help. Although shocked, CRISELDA was quick to ask the assistance of the people around in
lifting the counter and retrieving ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The
next day ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing
on a magic slate. The injuries she sustained took their toil on her young body. She died fourteen
(14) days after the accident or on 22 May 1983, on the hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained. The provisional medical
certificate 5 issued by ZHIENETH's attending doctor described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries
due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to
laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
178 | P a g e
6. Contusion, lungs, severe

CRITICAL
After the burial of their daughter, private respondents demanded upon petitioners the
reimbursement of the hospitalization, medical bills and wake and funeral expenses 6 which they
had incurred. Petitioners refused to pay. Consequently, private respondents filed a complaint for
damages, docketed as Civil Case No. 7119 wherein they sought the payment of P157,522.86 for
actual damages, P300,000 for moral damages, P20,000 for attorney's fees and an unspecified
amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the injuries and consequent
death of ZHIENETH. They claimed that CRISELDA was negligent in exercising care and
diligence over her daughter by allowing her to freely roam around in a store filled with glassware
and appliances. ZHIENETH too, was guilty of contributory negligence since she climbed the
counter, triggering its eventual collapse on her. Petitioners also emphasized that the counter was
made of sturdy wood with a strong support; it never fell nor collapsed for the past fifteen years
since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence of
a good father of a family in the selection, supervision and control of its employees. The other
petitioners likewise raised due care and diligence in the performance of their duties and
countered that the complaint was malicious for which they suffered besmirched reputation and
mental anguish. They sought the dismissal of the complaint and an award of moral and
exemplary damages and attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and counterclaim after finding that the
preponderance of the evidence favored petitioners. It ruled that the proximate cause of the fall of
the counter on ZHIENETH was her act of clinging to it. It believed petitioners' witnesses who
testified that ZHIENETH clung to the counter, afterwhich the structure and the girl fell with the
structure falling on top of her, pinning her stomach. In contrast, none of private respondents'
witnesses testified on how the counter fell. The trial court also held that CRISELDA's negligence
contributed to ZHIENETH's accident.
In absolving petitioners from any liability, the trial court reasoned that the counter was situated at
the end or corner of the 2nd floor as a precautionary measure hence, it could not be considered as
an attractive nuisance. 8The counter was higher than ZHIENETH. It has been in existence for
fifteen years. Its structure was safe and well-balanced. ZHIENETH, therefore, had no business
climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial court its findings that:
(1) the proximate cause of the fall of the counter was ZHIENETH's misbehavior; (2) CRISELDA
was negligent in her care of ZHIENETH; (3) petitioners were not negligent in the maintenance
of the counter; and (4) petitioners were not liable for the death of ZHIENETH.
179 | P a g e
Further, private respondents asserted that ZHIENETH should be entitled to the conclusive
presumption that a child below nine (9) years is incapable of contributory negligence. And even
if ZHIENETH, at six (6) years old, was already capable of contributory negligence, still it was
physically impossible for her to have propped herself on the counter. She had a small frame (four
feet high and seventy pounds) and the counter was much higher and heavier than she was. Also,
the testimony of one of the store's former employees, Gerardo Gonzales, who accompanied
ZHIENETH when she was brought to the emergency room of the Makati Medical Center belied
petitioners' theory that ZHIENETH climbed the counter. Gonzales claimed that when
ZHIENETH was asked by the doctor what she did, ZHIENETH replied, "[N]othing, I did not
come near the counter and the counter just fell on me." 9 Accordingly, Gonzales' testimony on
ZHIENETH's spontaneous declaration should not only be considered as part ofres gestae but also
accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have
let go of ZHIENETH at the precise moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause of ZHIENETH's
death, was petitioners' negligence in failing to institute measures to have the counter permanently
nailed.
On the other hand, petitioners argued that private respondents raised purely factual issues which
could no longer be disturbed. They explained that ZHIENETH's death while unfortunate and
tragic, was an accident for which neither CRISELDA nor even ZHIENETH could entirely be
held faultless and blameless. Further, petitioners adverted to the trial court's rejection of
Gonzales' testimony as unworthy of credence.
As to private respondent's claim that the counter should have been nailed to the ground,
petitioners justified that it was not necessary. The counter had been in existence for several years
without any prior accident and was deliberately placed at a corner to avoid such accidents. Truth
to tell, they acted without fault or negligence for they had exercised due diligence on the matter.
In fact, the criminal case 10 for homicide through simple negligence filed by private respondents
against the individual petitioners was dismissed; a verdict of acquittal was rendered in their
favor.
The Court of Appeals, however, decided in favor of private respondents and reversed the
appealed judgment. It found that petitioners were negligent in maintaining a structurally
dangerous counter. The counter was shaped like an inverted "L" 11 with a top wider than the base.
It was top heavy and the weight of the upper portion was neither evenly distributed nor supported
by its narrow base. Thus, the counter was defective, unstable and dangerous; a downward
pressure on the overhanging portion or a push from the front could cause the counter to fall. Two
former employees of petitioners had already previously brought to the attention of the
management the danger the counter could cause. But the latter ignored their concern. The Court
of Appeals faulted the petitioners for this omission, and concluded that the incident that befell
ZHIENETH could have been avoided had petitioners repaired the defective counter. It was
inconsequential that the counter had been in use for some time without a prior incident.
180 | P a g e
The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the time
of the incident, was absolutely incapable of negligence or other tort. It reasoned that since a child
under nine (9) years could not be held liable even for an intentional wrong, then the six-year old
ZHIENETH could not be made to account for a mere mischief or reckless act. It also absolved
CRISELDA of any negligence, finding nothing wrong or out of the ordinary in momentarily
allowing ZHIENETH to walk while she signed the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found them
biased and prejudiced. It instead gave credit to the testimony of disinterested witness Gonzales.
The Court of Appeals then awarded P99,420.86 as actual damages, the amount representing the
hospitalization expenses incurred by private respondents as evidenced by the hospital's statement
of account. 12 It denied an award for funeral expenses for lack of proof to substantiate the same.
Instead, a compensatory damage of P50,000 was awarded for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision, 13 thus:
WHEREFORE, premises considered, the judgment of the lower court is SET
ASIDE and another one is entered against [petitioners], ordering them to pay
jointly and severally unto [private respondents] the following:
1. P50,000.00 by way of compensatory damages for
the death of Zhieneth Aguilar, with legal interest
(6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization
expenses incurred; with legal interest (6% p.a.)
from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorney's fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the same was denied in the
Court of Appeals' resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals' decision and the reinstatement of the
judgment of the trial court. Petitioners primarily argue that the Court of Appeals erred in
disregarding the factual findings and conclusions of the trial court. They stress that since the
action was based on tort, any finding of negligence on the part of the private respondents would
necessarily negate their claim for damages, where said negligence was the proximate cause of
the injury sustained. The injury in the instant case was the death of ZHIENETH. The proximate
cause was ZHIENETH's act of clinging to the counter. This act in turn caused the counter to fall
on her. This and CRISELDA's contributory negligence, through her failure to provide the proper
care and attention to her child while inside the store, nullified private respondents' claim for
181 | P a g e
damages. It is also for these reasons that parents are made accountable for the damage or injury
inflicted on others by their minor children. Under these circumstances, petitioners could not be
held responsible for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated from Syvel's at the
time he testified; hence, his testimony might have been tarnished by ill-feelings against them.
For their part, private respondents principally reiterated their arguments that neither ZHIENETH
nor CRISELDA was negligent at any time while inside the store; the findings and conclusions of
the Court of Appeals are substantiated by the evidence on record; the testimony of Gonzales,
who heard ZHIENETH comment on the incident while she was in the hospital's emergency room
should receive credence; and finally, ZHIENETH's part of the res gestae declaration "that she did
nothing to cause the heavy structure to fall on her" should be considered as the correct version of
the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or
attributable to negligence; and (2) in case of a finding of negligence, whether the same was
attributable to private respondents for maintaining a defective counter or to CRISELDA and
ZHIENETH for failing to exercise due and reasonable care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence attaches to the
defendant. 15 It is "a fortuitous circumstance, event or happening; an event happening without
any human agency, or if happening wholly or partly through human agency, an event which
under the circumstances is unusual or unexpected by the person to whom it happens." 16
On the other hand, negligence is the omission to do something which a reasonable man, guided
by those considerations which ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would not do. 17 Negligence is "the
failure to observe, for the protection of the interest of another person, that degree of care,
precaution and vigilance which the circumstances justly demand, whereby such other person
suffers injury." 18
Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident
occurs when the person concerned is exercising ordinary care, which is not caused by fault of
any person and which could not have been prevented by any means suggested by common
prudence. 19
The test in determining the existence of negligence is enunciated in the landmark case of Plicart
v. Smith, 20 thus: Did the defendant in doing the alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would have used in the same situation? If not, then
he is guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH's death
could only be attributed to negligence.
182 | P a g e
We quote the testimony of Gerardo Gonzales who was at the scene of the incident and
accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice
anything while the child was being treated?
A At the emergency room we were all surrounding the child. And
when the doctor asked the child "what did you do," the child said
"nothing, I did not come near the counter and the counter just fell
on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta
bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's statement formed (and should be
admitted as) part of theres gestae under Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling occurrence is
taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. So,
also, statements accompanying an equivocal act material to the issue, and giving it
a legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and statements made to a
physician are generally considered declarations and admissions. 23 All that is required for their
admissibility as part of the res gestaeis that they be made or uttered under the influence of a
startling event before the declarant had the time to think and concoct a falsehood as witnessed by
the person who testified in court. Under the circumstances thus described, it is unthinkable for
ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor whom she
trusted with her life. We therefore accord credence to Gonzales' testimony on the matter, i.e.,
ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through
their negligence or omission to secure or make stable the counter's base.
Gonzales' earlier testimony on petitioners' insistence to keep and maintain the structurally
unstable gift-wrapping counter proved their negligence, thus:
183 | P a g e
Q When you assumed the position as gift wrapper at the second

floor, will you please describe the gift wrapping counter, were you
able to examine?
A Because every morning before I start working I used to clean
that counter and since not nailed and it was only standing on the
floor, it was shaky.
xxx xxx xxx
Q Will you please describe the counter at 5:00 o'clock [sic] in the
afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside
the verification counter. And since the top of it was heavy and
considering that it was not nailed, it can collapse at anytime, since
the top is heavy.
xxx xxx xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky and
since Mr. Maat is fond of putting display decorations on tables, he
even told me that I would put some decorations. But since I told
him that it not [sic] nailed and it is shaky he told me "better inform
also the company about it." And since the company did not do
anything about the counter, so I also did not do anything about the
counter. 24 [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus:
Q Will you please described [sic] to the honorable Court the
counter where you were assigned in January 1983?
xxx xxx xxx
A That counter assigned to me was when my supervisor ordered
me to carry that counter to another place. I told him that the
counter needs nailing and it has to be nailed because it might cause
injury or accident to another since it was shaky.
Q When that gift wrapping counter was transferred at the second
floor on February 12, 1983, will you please describe that to the
honorable Court?
184 | P a g e
A I told her that the counter wrapper [sic] is really in good [sic]
condition; it was shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that
the counter was shaky?
A She told me "Why do you have to teach me. You are only my
subordinate and you are to teach me?" And she even got angry at
me when I told her that.
xxx xxx xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did Ms.
Panelo or any employee of the management do to that (sic)
xxx xxx xxx
Witness:
None, sir. They never nailed the counter. They only nailed the
counter after the accident happened. 25 [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were personally informed of the
danger posed by the unstable counter. Yet, neither initiated any concrete action to remedy the
situation nor ensure the safety of the store's employees and patrons as a reasonable and ordinary
prudent man would have done. Thus, as confronted by the situation petitioners miserably failed
to discharge the due diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that the
former's testimonies were biased and tainted with partiality. Therefore, the allegation that
Gonzales and Guevarra's testimonies were blemished by "ill feelings" against petitioners since
they (Gonzales and Guevarra) were already separated from the company at the time their
testimonies were offered in court was but mere speculation and deserved scant consideration.
It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not
as a general rule disturb the findings of the trial court, which is in a better position to determine
the same. The trial court has the distinct advantage of actually hearing the testimony of and
observing the deportment of the witnesses. 26However, the rule admits of exceptions such as
when its evaluation was reached arbitrarily or it overlooked or failed to appreciate some facts or
circumstances of weight and substance which could affect the result of the case. 27 In the instant
case, petitioners failed to bring their claim within the exception.
185 | P a g e
Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors
children below nine (9) years old in that they are incapable of contributory negligence. In his
book, 28 former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is conclusively presumed to
have acted without discernment, and is, on that account, exempt from criminal
liability. The same presumption and a like exemption from criminal liability
obtains in a case of a person over nine and under fifteen years of age, unless it is
shown that he has acted with discernment. Since negligence may be a felony and
aquasi-delict and required discernment as a condition of liability, either criminal
or civil, a child under nine years of age is, by analogy, conclusively presumed to
be incapable of negligence; and that the presumption of lack of discernment or
incapacity for negligence in the case of a child over nine but under fifteen years of
age is a rebuttable one, under our law. The rule, therefore, is that a child under
nine years of age must be conclusively presumed incapable of contributory
negligence as a matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over
the counter, no injury should have occurred if we accept petitioners' theory that the counter was
stable and sturdy. For if that was the truth, a frail six-year old could not have caused the counter
to collapse. The physical analysis of the counter by both the trial court and Court of Appeals and
a scrutiny of the evidence 29 on record reveal otherwise, i.e., it was not durable after all. Shaped
like an inverted "L," the counter was heavy, huge, and its top laden with formica. It protruded
towards the customer waiting area and its base was not secured. 30
CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH
held on to CRISELDA's waist, later to the latter's hand. 31 CRISELDA momentarily released the
child's hand from her clutch when she signed her credit card slip. At this precise moment, it was
reasonable and usual for CRISELDA to let go of her child. Further, at the time ZHIENETH was
pinned down by the counter, she was just a foot away from her mother; and the gift-wrapping
counter was just four meters away from CRISELDA. 32 The time and distance were both
significant. ZHIENETH was near her mother and did not loiter as petitioners would want to
impress upon us. She even admitted to the doctor who treated her at the hospital that she did not
do anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged
decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby
AFFIRMED.
SO ORDERED.
Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.
186 | P a g e
DIGEST
Facts:
Petitioner is the owner of Syvel's Department Store, Makati City. Petitioners Leonardo Kong,
Jose Tiope and Elisa Panelo are the store's branch manager, operations manager, and supervisor,
respectively. Private respondents Conrado and Criselda Aguilar are spouses and the parents of
Zhieneth Aguilar.
On May 9, 1983, Criselda and Zhieneth were at the department store. Criselda was signing her
credit card slip when she heard a loud thud. She looked behind her and beheld her daughter
pinned beneath the gift-wrapping counter structure. She was crying and shouting for help. He
was brought to Makati Medical Center, where she died after 14 days. She was 6 years old.
Private respondents demanded upon petitioners the reimbursement of the hospitalization,
medical bills and wake and funeral expenses which they had incurred. Petitioners refused to pay.
Consequently, private respondents filed a complaint for damages wherein they sought the
payment of P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for
attorney's fees and an unspecified amount for loss of income and exemplary damages. The trial
court dismissed the complaint, ruling that the proximate cause of the fall of the counter was
Zhieneths act of clinging to it. The Court of Appeals reversed the decision of the trial court. It
found that petitioners were negligent in maintaining a structurally dangerous counter. The
counter was defective, unstable and dangerous. It also ruled that the child was absolutely
incapable of negligence or tort. Petitioners now seek for the reversal of this decision.
Issues:
(1) Whether the death of ZHIENETH was accidental or attributable to negligence
(2) In case of a finding of negligence, whether the same was attributable to private respondents
for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to exercise due
and reasonable care while inside the store premises
Held:
(1) An accident pertains to an unforeseen event in which no fault or negligence attaches to the
defendant. It is "a fortuitous circumstance, event or happening; an event happening without any
human agency, or if happening wholly or partly through human agency, an event which under the
circumstances is unusual or unexpected by the person to whom it happens." On the other hand,
negligence is the omission to do something which a reasonable man, guided by those
187 | P a g e
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do. Negligence is "the failure to
observe, for the protection of the interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other person suffers injury." The
test in determining the existence of negligence is: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily prudent person would have
used in the same situation? If not, then he is guilty of negligence. We rule that the tragedy which
befell ZHIENETH was no accident and that ZHIENETH's death could only be attributed to
negligence.
(2) It is axiomatic that matters relating to declarations of pain or suffering and statements made
to a physician are generally considered declarations and admissions. All that is required for their
admissibility as part of the res gestae is that they be made or uttered under the influence of a
startling event before the declarant had the time to think and concoct a falsehood as witnessed by
the person who testified in court. Under the circumstances thus described, it is unthinkable for
ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor whom she
trusted with her life. We therefore accord credence to Gonzales' testimony on the matter, i.e.,
ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through
their negligence or omission to secure or make stable the counter's base.
Without doubt, petitioner Panelo and another store supervisor were personally informed of the
danger posed by the unstable counter. Yet, neither initiated any concrete action to remedy the
situation nor ensure the safety of the store's employees and patrons as a reasonable and ordinary
prudent man would have done. Thus, as confronted by the situation petitioners miserably failed
to discharge the due diligence required of a good father of a family. Anent the negligence
imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9)
years old in that they are incapable of contributory negligence. Even if we attribute contributory
negligence to ZHIENETH and assume that she climbed over the counter, no injury should have
occurred if we accept petitioners' theory that the counter was stable and sturdy. For if that was
the truth, a frail six-year old could not have caused the counter to collapse. The physical analysis
of the counter by both the trial court and Court of Appeals and a scrutiny of the evidence on
record reveal otherwise, i.e., it was not durable after all. Shaped like an inverted "L," the counter
was heavy, huge, and its top laden with formica. It protruded towards the customer waiting area
and its base was not secured. CRISELDA too, should be absolved from any contributory
negligence. Initially, ZHIENETH held on to CRISELDA's waist, later to the latter's hand.
CRISELDA momentarily released the child's hand from her clutch when she signed her credit
card slip. At this precise moment, it was reasonable and usual for CRISELDA to let go of her
child. Further, at the time ZHIENETH was pinned down by the counter, she was just a foot away
from her mother; and the gift-wrapping counter was just four meters away from CRISELDA.
The time and distance were both significant. ZHIENETH was near her mother and did not loiter
188 | P a g e
as petitioners would want to impress upon us. She even admitted to the doctor who treated her at
the hospital that she did not do anything; the counter just fell on her.

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-33722 July 29, 1988
FEDERICO YLARDE and ADELAIDA DORONIO petitioners,
vs.
EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents.
Buenaventura C. Evangelista for petitioners.
Modesto V. Cabanela for respondent Edgardo Aquino.
Manuel P. Pastor for respondent Mauro Soriano.
189 | P a g e
GANCAYCO, J.:
In this petition for review on certiorari seeking the reversal of the decision of the Court of
Appeals in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a
case which originated from the Court of First Instance of Pangasinan, We are again caned upon
determine the responsibility of the principals and teachers towards their students or pupils.
In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary School,
a public educational institution located in Tayug, Pangasinan-Private respondent Edgardo Aquino
was a teacher therein. At that time, the school was fittered with several concrete blocks which
were remnants of the old school shop that was destroyed in World War II. Realizing that the huge
stones were serious hazards to the schoolchildren, another teacher by the name of Sergio Banez
started burying them one by one as early as 1962. In fact, he was able to bury ten of these blocks
all by himself.
Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of his male
pupils, aged ten to eleven, after class dismissal on October 7, 1963. Being their teacher-incharge, he ordered them to dig beside a one-ton concrete block in order to make a hole wherein
the stone can be buried. The work was left unfinished. The following day, also after classes,
private respondent Aquino called four of the original eighteen pupils to continue the digging.
These four pupils Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and Novelito Ylarde,
dug until the excavation was one meter and forty centimeters deep. At this point, private
respondent Aquino alone continued digging while the pupils remained inside the pit throwing out
the loose soil that was brought about by the digging.
When the depth was right enough to accommodate the concrete block, private respondent Aquino
and his four pupils got out of the hole. Then, said private respondent left the children to level the
loose soil around the open hole while he went to see Banez who was about thirty meters away.
Private respondent wanted to borrow from Banez the key to the school workroom where he
could get some rope. Before leaving. , private respondent Aquino allegedly told the children "not
to touch the stone."
A few minutes after private respondent Aquino left, three of the four kids, Alonso, Alcantara and
Ylarde, playfully jumped into the pit. Then, without any warning at all, the remaining Abaga
jumped on top of the concrete block causing it to slide down towards the opening. Alonso and
Alcantara were able to scramble out of the excavation on time but unfortunately fo Ylarde, the
concrete block caught him before he could get out, pinning him to the wall in a standing position.
As a result thereof, Ylarde sustained the following injuries:
1. Contusion with hematoma, left inguinal region and suprapubic region.
2. Contusion with ecchymosis entire scrotal region.
3. Lacerated wound, left lateral aspect of penile skin with phimosis
190 | P a g e
4. Abrasion, gluteal region, bilateral.

5. Intraperitoneal and extrapertitoneal extravasation of blood and urine about 2
liters.
6. Fracture, simple, symphesis pubis
7. Ruptured (macerated) urinary bladder with body of bladder almost entirely
separated from its neck.
REMARKS:
1. Above were incurred by crushing injury.
2. Prognosis very poor.
(Sgd.)
MELQUIADES A.
BRAVO
Physici
an on
Duty. 1
Three days later, Novelito Ylarde died.
Ylarde's parents, petitioners in this case, filed a suit for damages against both private respondents
Aquino and Soriano. The lower court dismissed the complaint on the following grounds: (1) that
the digging done by the pupils is in line with their course called Work Education; (2) that Aquino
exercised the utmost diligence of a very cautious person; and (3) that the demise of Ylarde was
due to his own reckless imprudence. 2
On appeal, the Court of Appeals affirmed the Decision of the lower court.
Petitioners base their action against private respondent Aquino on Article 2176 of the Civil Code
for his alleged negligence that caused their son's death while the complaint against respondent
Soriano as the head of school is founded on Article 2180 of the same Code.
Art. 2176. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre- existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter.
On the other hand, the applicable provision of Article 2180 states:
191 | P a g e
Art. 2180. x x x
xxx xxx xxx
Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students or apprentices, so long as they
remain in their custody. 3
The issue to be resolved is whether or not under the cited provisions, both private respondents
can be held liable for damages.
As regards the principal, We hold that he cannot be made responsible for the death of the child
Ylarde, he being the head of an academic school and not a school of arts and trades. This is in
line with Our ruling in Amadora vs. Court of Appeals, 4 wherein this Court thoroughly discussed
the doctrine that under Article 2180 of the Civil Code, it is only the teacher and not the head of
an academic school who should be answerable for torts committed by their students. This Court
went on to say that in a school of arts and trades, it is only the head of the school who can be
held liable. In the same case, We explained:
After an exhaustive examination of the problem, the Court has come to the
conclusion that the provision in question should apply to all schools, academic as
well as non-academic. Where the school is academic rather than technical or
vocational in nature, responsibility for the tort committed by the student will
attach to the teacher in charge of such student, following the first part of the
provision. This is the general rule. In the case of establishments of arts and trades,
it is the head thereof, and only he, who shall be held liable as an exception to the
general rule. In other words, teachers in general shall be liable for the acts of their
students except where the school is technical in nature, in which case it is the head
thereof who shall be answerable. Following the canon ofreddendo singula
sinquilis 'teachers' should apply to the words "pupils and students' and 'heads of
establishments of arts and trades to the word "apprentices."
Hence, applying the said doctrine to this case, We rule that private respondent Soriano, as
principal, cannot be held liable for the reason that the school he heads is an academic school and
not a school of arts and trades. Besides, as clearly admitted by private respondent Aquino, private
respondent Soriano did not give any instruction regarding the digging.
From the foregoing, it can be easily seen that private respondent Aquino can be held liable under
Article 2180 of the Civil Code as the teacher-in-charge of the children for being negligent in his
supervision over them and his failure to take the necessary precautions to prevent any injury on
their persons. However, as earlier pointed out, petitioners base the alleged liability of private
respondent Aquino on Article 2176 which is separate and distinct from that provided for in
Article 2180.
With this in mind, the question We need to answer is this: Were there acts and omissions on the
part of private respondent Aquino amounting to fault or negligence which have direct causal
192 | P a g e
relation to the death of his pupil Ylarde? Our answer is in the affirmative. He is liable for
damages.
From a review of the record of this case, it is very clear that private respondent Aquino acted
with fault and gross negligence when he: (1) failed to avail himself of services of adult manual
laborers and instead utilized his pupils aged ten to eleven to make an excavation near the one-ton
concrete stone which he knew to be a very hazardous task; (2) required the children to remain
inside the pit even after they had finished digging, knowing that the huge block was lying nearby
and could be easily pushed or kicked aside by any pupil who by chance may go to the perilous
area; (3) ordered them to level the soil around the excavation when it was so apparent that the
huge stone was at the brink of falling; (4) went to a place where he would not be able to check on
the children's safety; and (5) left the children close to the excavation, an obviously attractive
nuisance.
The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site has
a direct causal connection to the death of the child Ylarde. Left by themselves, it was but natural
for the children to play around. Tired from the strenuous digging, they just had to amuse
themselves with whatever they found. Driven by their playful and adventurous instincts and not
knowing the risk they were facing three of them jumped into the hole while the other one jumped
on the stone. Since the stone was so heavy and the soil was loose from the digging, it was also a
natural consequence that the stone would fall into the hole beside it, causing injury on the
unfortunate child caught by its heavy weight. Everything that occurred was the natural and
probable effect of the negligent acts of private respondent Aquino. Needless to say, the child
Ylarde would not have died were it not for the unsafe situation created by private respondent
Aquino which exposed the lives of all the pupils concerned to real danger.
We cannot agree with the finding of the lower court that the injuries which resulted in the death
of the child Ylarde were caused by his own reckless imprudence, It should be remembered that
he was only ten years old at the time of the incident, As such, he is expected to be playful and
daring. His actuations were natural to a boy his age. Going back to the facts, it was not only him
but the three of them who jumped into the hole while the remaining boy jumped on the block.
From this, it is clear that he only did what any other ten-year old child would do in the same
situation.
In ruling that the child Ylarde was imprudent, it is evident that the lower court did not consider
his age and maturity. This should not be the case. The degree of care required to be exercised
must vary with the capacity of the person endangered to care for himself. A minor should not be
held to the same degree of care as an adult, but his conduct should be judged according to the
average conduct of persons of his age and experience. 5 The standard of conduct to which a child
must conform for his own protection is that degree of care ordinarily exercised by children of the
same age, capacity, discretion, knowledge and experience under the same or similar
circumstances. 6Bearing this in mind, We cannot charge the child Ylarde with reckless
imprudence.
The court is not persuaded that the digging done by the pupils can pass as part of their Work
Education. A single glance at the picture showing the excavation and the huge concrete
193 | P a g e
block 7 would reveal a dangerous site requiring the attendance of strong, mature laborers and not
ten-year old grade-four pupils. We cannot comprehend why the lower court saw it otherwise
when private respondent Aquino himself admitted that there were no instructions from the
principal requiring what the pupils were told to do. Nor was there any showing that it was
included in the lesson plan for their Work Education. Even the Court of Appeals made mention
of the fact that respondent Aquino decided all by himself to help his co-teacher Banez bury the
concrete remnants of the old school shop. 8 Furthermore, the excavation should not be placed in
the category of school gardening, planting trees, and the like as these undertakings do not expose
the children to any risk that could result in death or physical injuries.
The contention that private respondent Aquino exercised the utmost diligence of a very cautious
person is certainly without cogent basis. A reasonably prudent person would have foreseen that
bringing children to an excavation site, and more so, leaving them there all by themselves, may
result in an accident. An ordinarily careful human being would not assume that a simple warning
"not to touch the stone" is sufficient to cast away all the serious danger that a huge concrete
block adjacent to an excavation would present to the children. Moreover, a teacher who stands
in loco parentis to his pupils would have made sure that the children are protected from all harm
in his company.
We close by categorically stating that a truly careful and cautious person would have acted in all
contrast to the way private respondent Aquino did. Were it not for his gross negligence, the
unfortunate incident would not have occurred and the child Ylarde would probably be alive
today, a grown- man of thirty-five. Due to his failure to take the necessary precautions to avoid
the hazard, Ylarde's parents suffered great anguish all these years.
WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the questioned
judgment of the respondent court is REVERSED and SET ASIDE and another judgment is
hereby rendered ordering private respondent Edagardo Aquino to pay petitioners the following:
(1) Indemnity for the death of Child Ylarde P30,000.00
(2) Exemplary damages 10,000.00
(3) Moral damages 20,000.00
SO ORDERED.
Narvasa Cruz, Grio-Aquino and Medialdea, JJ., concur.
DIGEST
FACTS:
194 | P a g e
Private respondent Mariano Soriano was the principal of the Gabaldon Primary School in
Pangasinan. Defendant Edgardo Aquino was a teacher therein. During that time, the school had
several concrete blocks which were remnants of the old school shop destroyed in World War II.
Defendant decided to help clear the area so he gathered 18 of his male students and ordered them
to dig beside a one ton concrete block in making a hole where the stone can be buried. It was left
unfinished so the following day he called 4 of the 18 students including the Novelito Ylarde to
complete the excavation. Defendant left the children to level the loose soil while he went to see
Banez for the key to the school workroom where he can get some rope. It was alleged that
before leaving, he told the children not to touch the stone. After he left, the children playfully
jumped into the pit when suddenly the concrete block slide down. Unfortunately, Novelito
Ylarde was pinned to the wall causing serious physical injuries which as a consequence led to his
death, 3 days thereafter. The parents of the victim, herein petitioners, filed a suit for damages
against both Aquino and Soriano.
ISSUE: WON both Soriano and Aquino can be held liable for damages.
HELD:
As held in Amadora vs CA, it is only the teacher and not the head of an academic school who
should be answerable for torts committed by their students. Where the school is academic
rather than technical or vocational in nature, responsibility for the tort committed by the student
will attach to the teacher in charge of such student, this is the general rule. However, in casea of
establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as
an exception to the general rule. In other words, teachers in general shall be liable for the acts of
their students except where the school is technical in nature, in which case it is the head thereof
who shall be answerable. Hence, Soriano as principal cannot be held liable for the reason that
the school he heads is an academic school and he did not give any instruction regarding the
digging.
A teacher who stands in loco parentis to his tudents should make sure that the children are
protected from all harm. The excavation instructed clearly exposed the students to risk and
should not be placed under the category of Work Education such as school gardening, planting
trees etc. Aquino acted with fault and gross negligence where instead of availing himself of
adult manual laborers he instead utilized his students. Furthermore, the warning given is not
sufficient to cast away all serious danger that the concrete block adjacent to the excavation would
present to the children. He is therefore ordered to pay damages to the petitioners.
195 | P a g e

SUPREME COURT
Manila
EN BANC
G.R. No. L-32611
November 3, 1930
CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,

vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.
Gibbs and McDonough for appellant.
Benj. S. Ohnick for appellee.
STREET, J.:
196 | P a g e
This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish &
Electric Co., Inc., for the purpose of recovering from the Philippine Motors Corporation the sum
of P11,350, with interest and costs. Upon hearing the cause the trial court gave judgment in favor
of the plaintiff to recover of the defendant the sum of P9,850, with interest at 6 per centum per
annum from March 24,1927, the date of the filing of the complaint, until satisfaction of the
judgment, with costs. From this judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time of the incident with which
we are here concerned, H.D. Cranston was the representative of the plaintiff in the City of
Manila. At the same time the plaintiff was the registered owner of the motor
schooner Gwendoline, which was used in the fishing trade in the Philippine Islands. In January,
1925, Cranston decided, if practicable, to have the engine on the Gwendoline changed from a
gasoline consumer to a crude oil burner, expecting thereby to effect economy in the cost of
running the boat. He therefore made known his desire to McLeod & Co., a firm dealing in
tractors, and was told by Mc Kellar, of said company, that he might make inquiries of the
Philippine Motors Corporations, which had its office on Ongpin Street, in the City of Manila.
Cranston accordingly repaired to the office of the Philippine Motors Corporation and had a
conference with C.E. Quest, its manager, who agreed to do the job, with the understanding that
payment should be made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in business as an automobile
agency, but, under its charter, it had authority to deal in all sorts of machinery engines and
motors, as well as to build, operate, buy and sell the same and the equipment therof. Quest, as
general manager, had full charge of the corporations in all its branches.
As a result of the aforesaid interview, Quest, in company with Cranston, visited
the Gwendoline while it lay at anchor in the Pasig River, and the work of effecting the change in
the engine was begun and conducted under the supervision of Quest, chiefly by a mechanic
whom Quest took with him to the boat. In this work Quest had the assistance of the members of
the crew of the Gwendoline, who had been directed by Cranston to place themselves under
Quest's directions.
Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing
necessary to accomplish the end in view was to install a new carburetor, and a Zenith carburetor
was chosen as the one most adapted to the purpose. After this appliance had been installed, the
engine was tried with gasoline as a fuel, supplied from the tank already in use. The result of this
experiment was satisfactory. The next problem was to introduce into the carburetor the baser
fuel, consisting of a low grade of oil mixed with distillate. For this purpose a temporary tank to
contain the mixture was placed on deck above and at a short distance from the compartment
covering the engine. This tank was connected with the carburetor by a piece of tubing, which
was apparently not well fitted at the point where it was connected with the tank. Owing to this
fact the fuel mixture leaked from the tank and dripped sown into the engine compartment. The
new fuel line and that already in use between the gasoline tank and carburetor were so fixed that
it was possible to change from the gasoline fuel to the mixed fuel. The purpose of this
arrangement was to enable the operator to start the engine on gasoline and then, after the engine
had been operating for a few moments, to switch to the new fuel supply. lawphil.net
197 | P a g e
In the course of the preliminary work upon the carburetor and its connections, it was observed
that the carburetor was flooding, and that the gasoline, or other fuel, was trickling freely from the
lower part to the carburetor to the floor. This fact was called to Quest's attention, but he appeared
to think lightly of the matter and said that, when the engine had gotten to running well, the
flooding would disappear.
After preliminary experiments and adjustments had been made the boat was taken out into the
bay for a trial run at about 5 p.m. or a little later, on the evening of January 30,1925. The first
part of the course was covered without any untoward development, other than he fact that the
engine stopped a few times, owing no doubt to the use of an improper mixture of fuel. In the
course of the trial Quest remained outside of the engine compartment and occupied himself with
making distillate, with a view to ascertaining what proportion of the two elements would give
best results in the engine.
As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite, the
engine stopped, and connection again had to be made with the gasoline line to get a new start.
After this had been done the mechanic, or engineer, switched to the tube connecting with the new
mixture. A moment later a back fire occurred in the cylinder chamber. This caused a flame to
shoot back into the carburetor, and instantly the carburetor and adjacent parts were covered with
a mass of flames, which the members of the crew were unable to subdue. They were therefore
compelled, as the fire spread, to take to a boat, and their escape was safely effected, but
theGwendoline was reduced to a mere hulk. The salvage from, the wreck, when sold, brought
only the sum of P150. The value of the boat, before the accident occured, as the court found, was
P10,000.
A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the
negligence and lack of skill of Quest. The temporary tank in which the mixture was prepared was
apparently at too great an elevation from the carburetor, with the result that when the fuel line
was opened, the hydrostatic pressure in the carburetor was greater than the delicate parts of the
carburetor could sustain. This was no doubt the cause of the flooding of the carburetor; and the
result was that; when the back fire occurred, the external parts of the carburetor, already
saturated with gasoline, burst into flames, whence the fire was quickly communicated to the
highly inflammable material near-by. Ordinarily a back fire from an engine would not be
followed by any disaster, but in this case the leak along the pipe line and the flooding of the
carburetor had created a dangerous situation, which a prudent mechanic, versed in repairs of this
nature, would have taken precautions to avoid. The back fire may have been due either to the fact
that the spark was too advanced or the fuel improperly mixed.
In this connection it must be remembered that when a person holds himself out as being
competent to do things requiring professional skill, he will be held liable for negligence if he
fails to exhibit the care and skill of one ordinarily skilled in the particular work which he
attempts to do. The proof shows that Quest had had ample experience in fixing the engines of
automobiles and tractors, but it does not appear that he was experienced in the doing of similar
work on boats. For this reason, possibly the dripping of the mixture form the tank on deck and
the flooding of the carburetor did not convey to his mind an adequate impression of the danger of
fire. But a person skilled in that particular sort of work would, we think have been sufficiently
198 | P a g e
warned from those circumstances to cause him to take greater and adequate precautions against
the danger. In other words Quest did not use the skill that would have been exhibited by one
ordinarily expert in repairing gasoline engines on boats. There was here, in our opinion, on the
part of Quest, a blameworthy antecedent inadvertence to possible harm, and this constitutes
negligence. The burning of the Gwendoline may be said to have resulted from accident, but this
accident was in no sense an unavoidable accident. It would not have occured but for Quest's
carelessness or lack of skill. The test of liability is not whether the injury was accidental in a
sense, but whether Quest was free from blame.
We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or
negligence in effecting the changes which Quest undertook to accomplish; and even supposing
that our theory as to the exact manner in which the accident occurred might appear to be in some
respects incorrect, yet the origin of the fire in not so inscrutable as to enable us to say that it
was casus fortuitus.
The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of
the Gwendolineduring the experimental run, the defendant corporation was in the position of a
bailee and that, as a consequence, the burden of proof was on the defendant to exculpate itself
from responsibility by proving that the accident was not due to the fault of Quest. We are unable
to accede to this point of view. Certainly, Quest was not in charge of the navigation of the boat
on this trial run. His employment contemplated the installation of new parts in the engine only,
and it seems rather strained to hold that the defendant corporation had thereby become bailee of
the boat. As a rule workmen who make repairs on a ship in its owner's yard, or a mechanic who
repairs a coach without taking it to his shop, are not bailees, and their rights and liabilities are
determined by the general rules of law, under their contract. The true bailee acquires possession
and what is usually spoken of as special property in the chattel bailed. As a consequence of such
possession and special property, the bailee is given a lien for his compensation. These ideas seem
to be incompatible with the situation now under consideration. But though defendant cannot be
held liable in the supposition that the burden of proof had not been sustained by it in disproving
the negligence of its manager, we are nevertheless of the opinion that the proof shows by a clear
preponderance that the accident to the Gwendoline and the damages resulting therefrom are
chargeable to the negligence or lack of skill of Quest.
This action was instituted about two years after the accident in question had occured, and after
Quest had ceased to be manager of the defendant corporation and had gone back to the United
States. Upon these facts, the defendant bases the contention that the action should be considered
stale. It is sufficient reply to say that the action was brought within the period limited by the
statute of limitations and the situation is not one where the defense of laches can be properly
invoked.
It results that the judgment appealed from, awarding damages to the plaintiff in the amount of
P9,850, with interest, must be affirmed; and it is so ordered, with costs against the appellant.
Avancea, C.J., Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
199 | P a g e
DIGEST
FACTS:
The Culion Ice, Fish & Electric Co Inc (CIFECI) and Philippine Motors Corporation (PMC) are
domestic corporations. Cranston was the representative of CIFECI in the City of Manila and the
latter was the registered owner of the motor schooner Gwendoline, which was used in the fishing
trade in the Philippine Islands.
Cranston decided to have the engine on the Gwendoline changed from a gasoline consumer to a
crude oil burner. He accordingly repaired to the office of the PMC and had a conference with
Quest, its manager, who agreed to do the job. As a result of the aforesaid interview, Quest, in
company with Cranston, visited the Gwendoline while it lay at anchor in the Pasig River, and the
work of effecting the change in the engine was begun and conducted under the supervision of
Quest.
Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing
necessary to accomplish the end in view was to install a new carburetor. After this appliance had
been installed, the engine was tried with gasoline as a fuel. The next problem was to introduce
into the carburetor the baser fuel, consisting of a low grade of oil mixed with distillate. For this
purpose, a temporary tank to contain the mixture was placed on deck above and at a short
distance from the compartment covering the engine. This tank was connected with the carburetor
by a piece of tubing, which was apparently not well fitted at the point where it was connected
with the tank. Owing to this fact the fuel mixture leaked from the tank and dripped sown into the
engine compartment.
In the course of the preliminary work upon the carburetor and its connections, it was observed
that the carburetor was flooding, and that the gasoline, or other fuel, was trickling freely from the
lower part to the carburetor to the floor. This fact was called to Quests attention, but he appeared
to think lightly of the matter.
After preliminary experiments and adjustments had been made the boat was taken out into the
bay for a trial run. As the boat was coming in from this run, the engine stopped, and connection
again had to be made with the gasoline line to get a new start. A moment later a back fire
occurred in the cylinder chamber. This caused a flame to shoot back into the carburetor, and
instantly the carburetor and adjacent parts were covered with a mass of flames, which the
members of the crew were unable to subdue. They were therefore compelled, as the fire spread,
to take to a boat, and their escape was safely effected, but the Gwendoline was reduced to a mere
hulk.
An action was instituted in the CFI of Manila by CIFECI for the purpose of recovering from the
PMC the sum of P11,350, with interest and costs.
200 | P a g e
Upon hearing the cause, the trial court gave judgment in favor of CIFECI to recover the sum of
P9,850, with interest. From this judgment PMC appealed.
ISSUE:
1.
WON the lower court erred in its decision
2.
WON the action should be considered stale
HELD: The judgment appealed from, awarding damages to CIFECI must be affirmed
1. NO
A study of the testimony leads us to the conclusion that the loss of this boat was chargeable to the
negligence and lack of skill of Quest. The back fire may have been due either to the fact that the
spark was too advanced or the fuel improperly mixed.
In this connection it must be remembered that when a person holds himself out as being
competent to do things requiring professional skill, he will be held liable for negligence if he
fails to exhibit the care and skill of one ordinarily skilled in the particular work which he
attempts to do. The proof shows that Quest had had ample experience in fixing the engines of
automobiles and tractors, but it does not appear that he was experienced in the doing of similar
work on boats. For this reason, possibly the dripping of the mixture forms the tank on deck and
the flooding of the carburetor did not convey to his mind an adequate impression of the danger of
fire. But a person skilled in that particular sort of work would, we think have been sufficiently
warned from those circumstances to cause him to take greater and adequate precautions against
the danger. In other words Quest did not use the skill that would have been exhibited by one
ordinarily expert in repairing gasoline engines on boats. There was here, in our opinion, on the
part of Quest, a blameworthy antecedent inadvertence to possible harm, and this constitutes
negligence. The burning of the Gwendoline may be said to have resulted from accident, but this
accident was in no sense an unavoidable accident. It would not have occured but for Quests
carelessness or lack of skill. The test of liability is not whether the injury was accidental in a
sense, but whether Quest was free from blame.
2. NO
This action was instituted about two years after the accident in question had occured, and after
Quest had ceased to be manager of the defendant corporation and had gone back to the United
States. Upon these facts, the defendant bases the contention that the action should be considered
stale. It is sufficient reply to say that the action was brought within the period limited by the
statute of limitations and the situation is not one where the defense of laches can be properly
invoked.
NOTES:
The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of
the Gwendoline during the experimental run, the defendant corporation was in the position of a
bailee and that, as a consequence, the burden of proof was on the defendant to exculpate itself
201 | P a g e
from responsibility by proving that the accident was not due to the fault of Quest. We are unable
to accede to this point of view. Certainly, Quest was not in charge of the navigation of the boat
on this trial run. His employment contemplated the installation of new parts in the engine only,
and it seems rather strained to hold that the defendant corporation had thereby become bailee of
the boat. As a rule, workmen who make repairs on a ship in its owners yard, or a mechanic who
repairs a coach without taking it to his shop, are not bailees, and their rights and liabilities are
determined by the general rules of law, under their contract. The true bailee acquires possession
and what is usually spoken of as special property in the chattel bailed. As a consequence of such
possession and special property, the bailee is given a lien for his compensation. These ideas seem
to be incompatible with the situation now under consideration. But though defendant cannot be
held liable in the supposition that the burden of proof had not been sustained by it in disproving
the negligence of its manager, we are nevertheless of the opinion that the proof shows by a clear
preponderance that the accident to theGwendoline and the damages resulting therefrom are
chargeable to the negligence or lack of skill of Quest.

SUPREME COURT
Manila
EN BANC
G.R. No. L-12858
January 22, 1918
THE UNITED STATES, plaintiff-appellee,

vs.
SANTIAGO PINEDA, defendant-appellant.
Francisco and Lualhati for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
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This appeal requires a construction and an application, for the first time, of the penal provisions
of the Pharmacy Law.
Santiago Pineda, the defendant, is a registered pharmacist of long standing and the owner of a
drug store located at Nos. 442, 444, Calle Santo Cristo, city of Manila. One Feliciano Santos,
having some sick horses, presented a copy of a prescription obtained from Dr. Richardson, and
which on other occasions Santos had given to his horses with good results, at Pineda's drug store
for filling. The prescription read "clorato de potasa 120 gramos en seis papelitos de 20
gramos, para caballo." Under the supervision of Pineda, the prescription was prepared and
returned to Santos in the form of six papers marked, "Botica Pineda Clorato potasa 120.00
en seis papeles para caballo Sto. Cristo 442, 444, Binondo, Manila." Santos, under the
belief that he had purchased the potassium chlorate which he had asked for, put two of the
packages in water the doses to two of his sick horses. Another package was mixed with water for
another horse, but was not used. The two horses, to which had been given the preparation, died
shortly afterwards. Santos, thereupon, took the three remaining packages to the Bureau of
Science for examination. Drs. Pea and Darjuan, of the Bureau of Science, on analysis found that
the packages contained not potassium chlorate but barium chlorate. At the instance of Santos, the
two chemists also went to the drug store of the defendant and bought potassium chlorate, which
when analyzed was found to be barium chlorate. (Barium chlorate, it should be noted, is a
poison; potassium chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy on the
horses, and found that death was the result of poisoning.
Four assignments of error are made. The first is that the lower court erred in admitting the
testimony of the chemist Pena and Darjuan as to their purchase of potassium chlorate at the drug
store of the accused, which substance proved on analysis to be barium chlorate. What the
appellant is here relying on is the maxim res inter alios acta. As a general rule, the evidence of
other offenses committed by a defendant is inadmissible. But appellant has confused this maxim
and this rule with certain exceptions thereto. The effort is not to convict the accused of a second
offense. Nor is there an attempt to draw the mind away from the point at issue and thus to
prejudice defendant's case. The purpose is to ascertain defendant's knowledge and intent, and to
fix his negligence. If the defendant has on more than one occasion performed similar acts,
accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may
even be established. It has been said that there is no better evidence of negligence than the
frequency of accidents. (See 10 R. C. L., pp. 938, 940.) The United States Supreme Court has
held that:
On the trial of a criminal case the question relates to the tendency of certain testimony to
throw light upon a particular fact, or to explain the conduct of a particular person, there is
a certain discretion on the part of the trial judge which a court of errors will not interfere
with, unless it manifestly appear that the testimony has no legitimate bearing upon the
question at issue, and is calculated to prejudice the accused.
Whenever the necessity arises for a resort to circumstantial evidence, either from the
nature of the inquiry or the failure of direct proof, objections to the testimony on the
ground of irrelevancy are not favored.
203 | P a g e
Evidence is admissible in a criminal action which tends to show motive, although it tends
to prove the commission of another offense by the defendant. (Moore vs. U. S. [1893],
150 U. S., 57.)
The second assignment of error is that the lower court erred in finding that the substance sold by
the accused to Feliciano Santos on the 22d of June, 1916, was barium chlorate and not potassium
chlorate. The proof demonstrates the contrary.
The third and fourth assignments of error that the lower court erred in finding that the accused
has been proved guilty beyond a reasonable doubt of an infraction of Act No. 597, section 17, as
amended. The third assignment contains the points we should consider, including, we may
remark, a somewhat difficult question concerning which the briefs have given little assistance.
The Pharmacy Law was first enacted as Act No. 597, was later amended by Act Nos. 1921, 2236,
and 2382, and is now found as Chapter 30 of the Administrative Code. The law provides for a
board of pharmaceutical examiners, and the examination and registration of pharmacists, and
finally contains sundry provisions relative to the practice of pharmacy. High qualification for
applicants for the pharmaceutical; examination are established. The program of subjects for the
examination is wide. Responsibility for the quality of drugs is fixed by section 17 of the
Pharmacy Law, as amended (now Administrative Code [1917], section 751), in the following
term:
Every pharmacist shall be responsible for the quality of all drugs, chemicals, medicines,
and poisons he may sell or keep for sale; and it shall be unlawful for any
person whomsoever to manufacture, prepare, sell, or administer any prescription, drug,
chemical, medicine, or poison under any fraudulent name, direction, or pretense, or to
adulterate any drug, chemical, medicine, or poison so used, sold or offered for sale. Any
drug, chemical, medicine, or poison shall be held to be adulterated or deteriorated within
the meaning of this section if it differs from the standard of quality or purity given in the
United States Pharmacopoeia.
The same section of the Pharmacy Law also contains the following penal provision: "Any person
violating the provisions of this Act shall, upon conviction, be punished by a fine of not more than
five hundred dollar." The Administrative Code, section 2676, changes the penalty somewhat by
providing that:
Any person engaging in the practice of pharmacy in the Philippine Islands contrary to any
provision of the Pharmacy Law or violating any provisions of said law for which no
specific penalty s provided shall, for each offense, be punished by a fine not to exceed
two hundred pesos, or by imprisonment for not more than ninety days, or both, in the
discretion of the court.
These are the provisions of law, pursuant to which prosecution has been initiated and which it is
now incumbent upon us to construe.
204 | P a g e
Turning to the law, certain points therein as bearing on our present facts must be admitted. Thus,
defendant is a pharmacist. As a pharmacist, he is made responsible for the quality of all drugs
and poisons which he sells. And finally it is provided that it shall be unlawful for him to sell any
drug or poison under any "fraudulent name." It is the one word "fraudulent" which has given the
court trouble. What did the Legislature intend to convey by this restrictive adjective?
Were we to adhere to the technical definition of fraud, which the appellant vigorously insists
upon, it would be difficult, if not impossible, to convict any druggist of a violation of the law.
The prosecution would have to prove to a reasonable degree of certainty that the druggist made a
material representation; that it was false; that when he made it he knew that it was false or made
it recklessly without any knowledge of its truth and as positive assertion; that he made it with the
intention that it should be acted upon by the purchaser; that the purchaser acted in reliance upon
it, and that the purchased thereby suffered injury. Such a construction with a literal following of
well-known principles on the subject of fraud would strip the law of at least much of its force. It
would leave the innocent purchaser of drugs, who must blindly trust in the good faith and
vigilance of the pharmacist, at the mercy of any unscrupulous vendor. We should not, therefore,
without good reason so devitalize the law.
The profession of pharmacy, it has been said again and again, is one demanding care and skill.
The responsibility of the druggist to use care has been variously qualified as "ordinary care,"
"care of a special high degree," "the highest degree of care known to practical men." Even under
the first conservative expression, "ordinary care" with reference to the business of a druggist, the
Supreme Court of Connecticut has said must be held to signify "the highest practicable degree of
prudence, thoughtfulness, and vigilance, and most exact and reliable safeguards consistent with
the reasonable conduct of the business, in order that human life may not be constantly be
exposed to the danger flowing from the substitution of deadly poisons for harmless medicine."
(Tombari vs. Connors [1912], 85 Conn., 235. See also Willson vs. Faxon, Williams and Faxon
[1913], 208 N. Y., 108; Knoefel vs. Atkins [1907], 81 N. E., 600.) The "skill" required of a
druggist is denominated as "high" or "ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57 L.
R. A., 428.) In other words, the care required must be commensurate with the danger involved,
and the skill employed must correspond with the superior knowledge of the business which the
law demands.
Under one conception, and it should not be forgotten that the case we consider are civil in nature,
the question of negligence or ignorance is irrelevant. The druggist is responsible as an absolute
guarantor of what he sells. In a decision which stands alone, the Supreme Court of Kentucky
said:
As applicable to the owners of drug stores, or persons engaged in vending drugs and
medicines by retail, the legal maxim should be reversed. Instead of caveat emptor, it
should be caveat venditor. That is to say, let him be certain that he does not sell to a
purchaser or send to a patient one drug for another, as arsenic for calomel, cantharides for
or mixed with snakeroot and Peruvian bark, or even one innocent drug, calculated to
produce a certain effect, in place of another sent for and designed to produce a different
effect. If he does these things, he cannot escape civil responsibility, upon the alleged
pretext that it was an accidental or an innocent mistake; that he had been very careful and
205 | P a g e
particular, and had used extraordinary care and diligence in preparing or compounding
the medicines as required, etc. Such excuses will not avail him. (Fleet vs. Hollenkemp
[1852], 56 Am. Dec., 563.)
Under the other conception, in which the proof of negligence is considered as material, where a
customer calls upon a druggist for a harmless remedy, delivery of a poisonous drug by mistake
by the druggist is prima facienegligence, placing the burden on him to show that the mistake was
under the circumstances consistent with the exercise of due care. (See Knoefel vs. Atkins, supra,)
The druggist cannot, for example in filling a prescription calling for potassium chlorate give
instead to the customer barium chlorate, a poison, place this poison in a package labeled
"potassium chlorate," and expect to escape responsibility on plea of mistake. His mistake, under
the most favorable aspect for himself, was negligence. So in a case where a druggist filled an
order for calomel tablets with morphine and placed the morphine in a box labeled calomel, it was
said:
It is not suggested, nor can we apprehend that it is in any wise probable, that the act of
furnishing the wrong drug in this case was willful. If it was furnished by the clerk, it was
undoubtedly a mistake and unintentional. However, it was a mistake of the gravest kind,
and of the most disastrous effect. We cannot say that one holding himself out as
competent to handle such drugs, and who does so, having rightful access to them, and
relied upon by those dealing with him to exercise that high degree of caution and care
called for by the peculiarly dangerous nature of this business, can be heard to say that his
mistakes by which he furnishes a customer the most deadly of drugs for those
comparatively harmless is not, in and of itself, gross negligence, and that of an
aggravated form. (Smith's Admrx. vs. Middleton [1902], 56 L. R. A., 484.)
The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the
vendee do not stand at arms length as in ordinary transactions. An imperative duty is on the
druggist to take precautions to prevent death or serious injury to anyone who relies on his
absolute honesty and peculiar leaning. The nature of drugs is such that examination would not
avail the purchaser anything. It would be idle mockery for the customer to make an examination
of a compound of which he can know nothing. Consequently, it must be that the druggist
warrants that he will deliver the drug called for.
In civil cases, the druggist is made liable for any injury approximately resulting from his
negligence. If B negligently sells poison under the guise of a beneficial drug to A, he is liable for
the injury done to A. In a case, which has repeatedly been termed the leading case on the subject
and which has been followed by the United States Supreme Court, it was said, "Pharmacists or
apothecaries who compound or sell medicines, if they carelessly label a poison as a harmless
medicine, and sent it so labeled into the market, are liable to all persons who, without fault on
their part, are injured by using it as such medicine, in consequence of the false label; the rule
being that the liability in such a case arises not out of any contract or direct privity between the
wrong-doer and the person injured, but out of the duty which the law imposes on him to avoid
acts in their nature dangerous to the lives of others." (Nat. Savings Bank vs. Ward [1879], 100 U.
S., 195, following Thomas vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In reality, for the
druggist, mistake is negligence and care is no defense. Throughout the criminal law, run the same
206 | P a g e
rigorous rules. For example, apothecaries or apothecary clerks, who are guilty of negligence in
the sale of medicine when death ensues in consequence, have been held guilty of manslaughter.
(See Tessymond's Case [1828], 1 Lewin, C. C., 169.)
Bearing these general principles in mind, and remembering particularly the care and skill which
are expected of druggist, that in some jurisdictions they are liable even for their mistake and in
others have the burden placed upon them to establish that they were not negligent, it cannot be
that the Philippine Legislature intended to use the word "fraudulent" in all its strictness. A plea of
accident and mistake cannot excuse for they cannot take place unless there be wanton and
criminal carelessness and neglect. How the misfortune occurs is unimportant, if under all the
circumstances the fact of occurrence is attributed to the druggist as a legal fault. Rather
considering the responsibility for the quality of drugs which the law imposes on druggists and
the position of the word "fraudulent" in juxtaposition to "name," what is made unlawful is the
giving of a false name to the drug asked for. This view is borne out by Spanish translation, which
we are permitted to consult to explain the English text. In the Spanish "supuesto" is used, and
this word is certainly not synonymous with "fraudulent." The usual badges of fraud, falsify,
deception, and injury must be present-but not scienter.
In view of the tremendous an imminent danger to the public from the careless sale of poisons and
medicines, we do not deem it too rigid a rule to hold that the law penalizes any druggist who
shall sell one drug for another whether it be through negligence or mistake.
The judgment of the lower court, sentencing the defendant to pay a fine of P100, with subsidiary
imprisonment in case of insolvency, and to pay the costs, is affirmed with the cost of this
instance against the appellant, without prejudice to any civil action which may be instituted. So
ordered.
Arellano, C.J., Torres, Johnson, Carson, Araullo, and Street, JJ., concur.
DIGEST
FACTS:
Feliciano Santos, having some sick horses, presented a copy of a prescription obtained
from Dr. Richardson, and which on other occasions Santos had given to his horses with good
results, at Pineda's drug store for filling. (Santiago Pineda, the defendant, is a registered
pharmacist)
Under the supervision of Pineda, the prescription was prepared and returned to Santos in
the form of 6 papers marked Botica Pineda
Santos, under the belief that he had purchased the potassium chlorate which he
had asked for, put two of the packages in water the doses to two of his sick horses.
Another package was mixed with water for another horse, but was not used. The
two horses, to which had been given the preparation, died shortly afterwards.
207 | P a g e
Santos, thereupon, took the three remaining packages to the Bureau of Science for
examination. Drs. Pea and Darjuan, of the Bureau of Science, on analysis found that the
packages contained not potassium chlorate but barium chlorate.
At the instance of Santos, the two chemists also went to the drug store of the
defendant and bought potassium chlorate, which when analyzed was found to be barium
chlorate. (Barium chlorate, it should be noted, is a poison; potassium chlorate is not.)
Dr. Buencamino, a veterinarian, performed an autopsy on the horses, and found
that death was the result of poisoning
RTC: held Pineda liable
ISSUE: W/N Pineda should be liable for negligence

HELD: YES. The judgment of the lower court, sentencing the defendant to pay a fine of P100,
with subsidiary imprisonment in case of insolvency, and to pay the costs, is affirmed with the
cost of this instance against the appellant, without prejudice to any civil action which may be
instituted
Every pharmacist shall be responsible for the quality of all drugs, chemicals, medicines,
and poisons he may sell or keep for sale; and it shall be unlawful for any person whomsoever
to manufacture, prepare, sell, or administer any prescription, drug, chemical, medicine, or
poison under any fraudulent name, direction, or pretense, or to adulterate any drug, chemical,
medicine, or poison so used, sold or offered for sale. Any drug, chemical, medicine, or
poison shall be held to be adulterated or deteriorated within the meaning of this section if it
differs from the standard of quality or purity given in the United States Pharmacopoeia.
The same section of the Pharmacy Law also contains the following penal
provision: "Any person violating the provisions of this Act shall, upon conviction, be
punished by a fine of not more than five hundred dollar." The Administrative Code, section
2676, changes the penalty somewhat by providing that: Any person engaging in the practice
of pharmacy in the Philippine Islands contrary to any provision of the Pharmacy Law or
violating any provisions of said law for which no specific penalty s provided shall, for each
offense, be punished by a fine not to exceed two hundred pesos, or by imprisonment for not
more than ninety days, or both, in the discretion of the court.
As a pharmacist, he is made responsible for the quality of all drugs and poisons which he
sells. And finally it is provided that it shall be unlawful for him to sell any drug or poison
under any "fraudulent name." It is the one word "fraudulent" which has given the court
trouble. What did the Legislature intend to convey by this restrictive adjective?
Were we to adhere to the technical definition of fraud, which the appellant vigorously
insists upon, it would be difficult, if not impossible, to convict any druggist of a violation of
the law. The prosecution would have to prove to a reasonable degree of certainty that the
druggist made a material representation; that it was false; that when he made it he knew that
208 | P a g e
it was false or made it recklessly without any knowledge of its truth and as positive assertion;
that he made it with the intention that it should be acted upon by the purchaser; that the
purchaser acted in reliance upon it, and that the purchased thereby suffered injury.
Under one conception, and it should not be forgotten that the case we consider are civil in
nature, the question of negligence or ignorance is irrelevant. The druggist is responsible as an
absolute guarantor of what he sells. Instead of caveat emptor, it should be caveat venditor.

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 165622
October 17, 2008
MERCURY DRUG CORPORATION and AURMELA GANZON, petitioners,

vs.
RAUL DE LEON, respondents.
DECISION
REYES, R.T., J.:
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IN REALITY, for the druggist, mistake is negligence and care is no defense.1 Sa isang
parmasyutika, ang pagkakamali ay kapabayaan at ang pagkalinga ay hindi angkop na
dipensa.
This is a petition for review on certiorari2 of two Resolutions3 of the Court of Appeals (CA). The
first Resolution granted respondents motion to dismiss while the second denied petitioners
motion for reconsideration.
The Facts
Respondent Raul T. De Leon was the presiding judge of Branch 258, Regional Trial Court (RTC)
in Paraaque.4On October 17, 1999, he noticed that his left eye was reddish. He also had
difficulty reading.5 On the same evening, he met a friend for dinner at the Foohyui Restaurant.
The same friend happened to be a doctor, Dr. Charles Milla, and had just arrived from abroad.6
Aside from exchanging pleasantries, De Leon consulted Dr. Milla about his irritated left
eye.7 The latter prescribed the drugs "Cortisporin Opthalmic" and "Ceftin" to relieve his eye
problems.8 Before heading to work the following morning, De Leon went to the Betterliving,
Paraaque, branch of Mercury Drug Store Corporation to buy the prescribed medicines.9 He
showed his prescription to petitioner Aurmela Ganzon, a pharmacist assistant.10Subsequently, he
paid for and took the medicine handed over by Ganzon.11
At his chambers, De Leon requested his sheriff to assist him in using the eye drops.12 As
instructed, the sheriff applied 2-3 drops on respondents left eye.13 Instead of relieving his
irritation, respondent felt searing pain.14 He immediately rinsed the affected eye with water, but
the pain did not subside.15 Only then did he discover that he was given the wrong medicine,
"Cortisporin Otic Solution."16
De Leon returned to the same Mercury Drug branch, with his left eye still red and teary.17 When
he confronted Ganzon why he was given ear drops, instead of the prescribed eye drops,18 she did
not apologize and instead brazenly replied that she was unable to fully read the prescription.19 In
fact, it was her supervisor who apologized and informed De Leon that they do not have stock of
the needed Cortisporin Opthalmic.20
De Leon wrote Mercury Drug, through its president, Ms. Vivian K. Askuna, about the days
incident.21 It did not merit any response.22 Instead, two sales persons went to his office and
informed him that their supervisor was busy with other matters.23 Having been denied his simple
desire for a written apology and explanation,24 De Leon filed a complaint for damages against
Mercury Drug.25
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Mercury Drug denied that it was negligent and therefore liable for damages.26 It pointed out that
the proximate cause of De Leons unfortunate experience was his own negligence.27 He should
have first read and checked to see if he had the right eye solution before he used any on his
eye.28 He could have also requested his sheriff to do the same before the latter applied the
medicine on such a delicate part of his body.29
Also, Mercury Drug explained that there is no available medicine known as "Cortisporin
Opthalmic" in the Philippine market.30 Furthermore, what was written on the piece of paper De
Leon presented to Ganzon was "Cortisporin Solution."31 Accordingly, she gave him the only
available "Cortisporin Solution" in the market.
Moreover, even the piece of paper De Leon presented upon buying the medicine can not be
considered as proper prescription.32 It lacked the required information concerning the attending
doctors name and license number.33 According to Ganzon, she entertained De Leons purchase
request only because he was a regular customer of their branch.34
RTC Disposition
On April 30, 2003, the RTC rendered judgment in favor of respondent, the dispositive portion of
which reads:
WHEREFORE, the court finds for the plaintiff.
For pecuniary loss suffered, Mercury Drug Store is to pay ONE HUNDRED FIFTY-THREE
PESOS AND TWENTY-FIVE CENTAVOS (Php 153.25), the value of the medicine.
As moral damages defendants is (sic) ordered to pay ONE HUNDRED THOUSAND PESOS
(Php 100,000.00).
To serve as a warning to those in the field of dispensing medicinal drugs discretion of the highest
degree is expected of them, Mercury Drug Store and defendant Aurmila (sic) Ganzon are ordered
to pay plaintiff the amount of THREE HUNDRED THOUSAND PESOS (Php 300,000.00) as
exemplary damages.
Due to defendants callous reaction to the mistake done by their employee which forced plaintiff
to litigate, Defendant (sic) Mercury Drug Store is to pay plaintiff attorneys fees of P50,000.00
plus litigation expenses.
SO ORDERED.35
In ruling in favor of De Leon, the RTC ratiocinated:
211 | P a g e
The proximate cause of the ill fate of plaintiff was defendant Aurmila (sic) Ganzons negligent
exercise of said discretion. She gave a prescription drug to a customer who did not have the
proper form of prescription, she did not take a good look at said prescription, she merely
presumed plaintiff was looking for Cortisporin Otic Solution because it was the only one
available in the market and she further presumed that by merely putting the drug by the counter
wherein plaintiff looked at it, paid and took the drug without any objection meant he understood
what he was buying.36
The RTC ruled that although De Leon may have been negligent by failing to read the medicines
label or to instruct his sheriff to do so, Mercury Drug was first to be negligent.37 Ganzon
dispensed a drug without the requisite prescription.38 Moreover, she did so without fully reading
what medicine was exactly being bought.39 In fact, she presumed that since what was available
was the drug Cortisporin Otic Solution, it was what De Leon was attempting to buy.40 Said the
court:
When the injury is caused by the negligence of a servant or employee, there instantly arises a
presumption of law that there was negligence on the part of the employer or employer either in
the selection of the servant or employee, or in the supervision over him after the selection or
both.
xxxx
The theory bases the responsibility of the master ultimately on his own negligence and not on
that of his servant.41
Dissatisfied with the RTC ruling, Mercury Drug and Ganzon elevated the matter to the CA.
Accordingly, they filed their respective briefs. Raising technical grounds, De Leon moved for the
appeals dismissal.
CA Disposition
On July 4, 2008, the CA issued a resolution which granted De Leons motion and dismissed the
appeal. Said the appellate court:
As pointed out by the plaintiff-appellee, the Statement of Facts, Statement of the Case,
Assignment of Errors/issues, Arguments/ Discussions in the Brief make no references to the
pages of the records. We find this procedural lapse justify the dismissal of the appeal, pursuant to
Section 1(f), Rule 50 of the 1997 Rules of Civil Procedure x x x.42
xxxx
212 | P a g e
"The premise that underlies all appeals is that they are merely rights which arise form a statute;
therefore, they must be exercised in the manner prescribed by law. It is to this end that rules
governing pleadings and practice before the appellate court were imposed. These rules were
designed to assist the appellate court in the accomplishment of its tasks, and overall, to enhance
the orderly administration of justice."
xxxx
x x x If the statement of fact is unaccompanied by a page reference to the record, it may be
stricken or disregarded all together.43
On October 5, 2004, the CA denied Mercury Drugs and Ganzons joint motion for
reconsideration. Although mindful that litigation is not a game of technicalities,44 the CA found
no persuasive reasons to relax procedural rules in favor of Mercury Drug and Ganzon.45 The CA
opined:
In the case under consideration, We find no faithful compliance on the part of the movants that
will call for the liberal application of the Rules. Section 1(f) of Rule 50 of the 1997 Rules of
Civil Procedure explicitly provides that an appeal may be dismissed by the Court of Appeals, on
its own motion or on that of the appellee, for want of page references to the records as required
in Section 13 of Rule 44 of the same rules46
Issues
Petitioner has resorted to the present recourse and assigns to the CA the following errors:
I
THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING PETITIONERS
APPEAL BASED ON THE CASES OF DE LIANA VS. CA (370 SCRA 349) AND HEIRS OF
PALOMINIQUE VS. CA (134 SCRA 331).
II
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION IN DISMISSING PETITIONERS APPEAL DESPITE SUBSTANTIAL
COMPLIANCE WITH SECTION 1(F), RULE 60 AND SECTION 13, RULE 44 OF THE
RULES OF COURT.
III
213 | P a g e
THE HONORABLE COURT OF APPEALS ERRED WHEN IT FAVORED MERE

TECHNICALITY OVER SUBSTANTIAL JUSTICE WHICH WILL CERTAINLY CAUSE
GRAVE INJUSTICE AND GREAT PREJUDICE TO PETITIONER CONSIDERING THAT
THE ASSAILED DECISION ON APPEAL IS CLUSTERED WITH ERRORS AND IN
CONTRAST with the DECISIONS OF THIS HONORABLE SUPREME
COURT.47 (Underscoring supplied)
Our Ruling
The appeal succeeds in part.
Dismissal of an appeal under Rule 50 is discretionary.
In several cases,48 this Court stressed that the grounds for dismissal of an appeal under Section 1
of Rule 5049are discretionary upon the appellate court. The very wording of the rule uses the
word "may" instead of "shall." This indicates that it is only directory and not mandatory.50 Sound
discretion must be exercised in consonance with the tenets of justice and fair play, keeping in
mind the circumstances obtaining in each case.51
The importance of an appellants brief cannot be gainsaid. Its purpose is two-fold: (1) to present
to the court in coherent and concise form the point and questions in controversy; and (2) to assist
the court in arriving at a just and proper conclusion.52 It is considered a vehicle of counsel to
convey to the court the essential facts of a clients case, a statement of the questions of law
involved, the law to be applied, and the application one desires of it by the court.53
The absence of page reference to the record is a ground for dismissal. It is a requirement
intended to ultimately aid the appellate court in arriving at a just and proper conclusion of the
case.54 However, as earlier discussed, such dismissal is not mandatory, but discretionary on the
part of the appellate court.
This Court has held that the failure to properly cite reference to the original records is not
a fatal procedural lapse.55 When citations found in the appellants brief enable the court to
expeditiously locate the portions of the record referred to, there is substantial compliance
with the requirements of Section 13(c), (d), and (f) of Rule 44.56
In De Leon v. CA,57 this Court ruled that the citations contained in the appellants brief
sufficiently enabled the appellate court to expeditiously locate the portions of the record referred
to. They were in substantial compliance with the rules. The Court said:
Nothing in the records indicate that it was exercised capriciously, whimsically, or with a view of
permitting injury upon a party litigant. For the same reasons, we hold that the respondent Court
214 | P a g e
of Appeals did not err when it did not dismiss the appeal based on the allegation that appellants
brief failed to comply with the internal rules of said court.58
Similar to the instant case, the appellants brief in Yuchengco v. Court of Appeals59 contained
references to Exhibits and Transcript of Stenographic Notes and attachments. These were found
to have substantially complied with the requirements of Section 13(c) and (d) of Rule 44.
x x x The Appellants brief may not have referred to the exact pages of the records, however, the
same is not fatal to their cause since the references they made enabled the appellate court to
expeditiously locate the portions referred to. x x x60
It is true that in De Liano v. Court of Appeals,61 this Court held that a statement of facts
unaccompanied by a page reference to the record may be presumed to be without support in the
record and may be stricken or disregarded altogether. However, the instant case is not on all
fours with De Liano.
In De Liano, the appellants brief lacked a Subject Index and a Table of Cases and
Authorities.62 Moreover, the Statement of the Case, Statements of Facts, and Statements of
Arguments had no page references to the record.63 When notified of such defects, defendantsappellants failed to amend their brief to conform to the rules.64 Instead, they continued to argue
that their errors were harmless.65 All these omissions and non-compliance justified the dismissal
of the appeal by the CA.66
In the case under review, although there were no page references to the records, Mercury Drug
and Ganzon referred to the exhibits, TSN, and attachments of the case. Despite its deficiencies,
the brief is sufficient in form and substance as to apprise the appellate court of the essential facts,
nature of the case, the issues raised, and the laws necessary for the disposition of the same.
Reliance on Heirs of Palomique v. Court of Appeals67 is likewise misplaced. In Heirs of
Palomique, the appellants brief did not at all contain a separate statement of facts.68 This critical
omission, together with the failure to make page references to the record to support the factual
allegations, justified the dismissal of the appeal.69
Rules of procedure are intended to promote, not to defeat, substantial justice. They should not be
applied in a very rigid and technical sense.70 For reasons of justice and equity, this Court has
allowed exceptions to the stringent rules governing appeals.71 It has, in the past, refused to
sacrifice justice for technicality.72
However, brushing aside technicalities, petitioners are still liable. Mercury Drug and
Ganzon failed to exercise the highest degree of diligence expected of them.
215 | P a g e
Denying that they were negligent, Mercury Drug and Ganzon pointed out that De Leons own
negligence was the proximate cause of his injury. They argued that any injury would have been
averted had De Leon exercised due diligence before applying the medicine on his eye. Had he
cautiously read the medicine bottle label, he would have known that he had the wrong medicine.
Mercury Drug and Ganzon can not exculpate themselves from any liability. As active players in
the field of dispensing medicines to the public, the highest degree of care and diligence is
expected of them.73 Likewise, numerous decisions, both here and abroad, have laid salutary rules
for the protection of human life and human health.74 In the United States case of Tombari v.
Conners,75 it was ruled that the profession of pharmacy demands care and skill, and druggists
must exercise care of a specially high degree, the highest degree of care known to practical men.
In other words, druggists must exercise the highest practicable degree of prudence and vigilance,
and the most exact and reliable safeguards consistent with the reasonable conduct of the
business, so that human life may not constantly be exposed to the danger flowing from the
substitution of deadly poisons for harmless medicines.76
In Fleet v. Hollenkemp,77 the US Supreme Court ruled that a druggist that sells to a purchaser or
sends to a patient one drug for another or even one innocent drug, calculated to produce a certain
effect, in place of another sent for and designed to produce a different effect, cannot escape
responsibility, upon the alleged pretext that it was an accidental or innocent mistake. His
mistake, under the most favorable aspect for himself, is negligence. And such mistake cannot be
countenanced or tolerated, as it is a mistake of the gravest kind and of the most disastrous
effect.78
Smiths Admrx v. Middelton79 teaches Us that one holding himself out as competent to handle
drugs, having rightful access to them, and relied upon by those dealing with him to exercise that
high degree of caution and care called for by the peculiarly dangerous nature of the business,
cannot be heard to say that his mistake by which he furnishes a customer the most deadly of
drugs for those comparatively harmless, is not in itself gross negligence.80
In our own jurisdiction, United States v. Pineda81 and Mercury Drug Corporation v. Baking are
illustrative.82 InPineda, the potassium chlorate demanded by complainant had been intended for
his race horses. When complainant mixed with water what he thought and believed was
potassium chlorate, but which turned out to be the potently deadly barium chlorate, his race
horses died of poisoning only a few hours after.
The wisdom of such a decision is unquestionable. If the victims had been human beings instead
of horses, the damage and loss would have been irreparable.83
In the more recent Mercury Drug, involving no less than the same petitioner corporation,
Sebastian Baking went to the Alabang branch of Mercury Drug84 and presented his prescription
216 | P a g e
for Diamicron, which the pharmacist misread as Dormicum.85 Baking was given a potent
sleeping tablet, instead of medicines to stabilize his blood sugar.86 On the third day of taking the
wrong medicine, Baking figured in a vehicular accident.87 He fell asleep while driving.88
This Court held that the proximate cause of the accident was the gross negligence of the
pharmacist who gave the wrong medicine to Baking. The Court said:
x x x Considering that a fatal mistake could be a matter of life and death for a buying patient, the
said employee should have been very cautious in dispensing medicines. She should have verified
whether the medicine she gave respondent was indeed the one prescribed by his physician. The
care required must be commensurate with the danger involved, and the skill employed must
correspond with the superior knowledge of the business which the law demands.89
This Court once more reiterated that the profession of pharmacy demands great care and skill. It
reminded druggists to exercise the highest degree of care known to practical men.
In cases where an injury is caused by the negligence of an employee, there instantly arises a
presumption of law that there has been negligence on the part of the employer, either in the
selection or supervision of ones employees. This presumption may be rebutted by a clear
showing that the employer has exercised the care and diligence of a good father of the
family.90 Mercury Drug failed to overcome such presumption.91
Petitioners Mercury Drug and Ganzon have similarly failed to live up to high standard of
diligence expected of them as pharmacy professionals. They were grossly negligent in dispensing
ear drops instead of the prescribed eye drops to De Leon. Worse, they have once again attempted
to shift the blame to their victim by underscoring his own failure to read the label.
As a buyer, De Leon relied on the expertise and experience of Mercury Drug and its employees
in dispensing to him the right medicine.92 This Court has ruled that in the purchase and sale of
drugs, the buyer and seller do not stand at arms length.93 There exists an imperative duty on the
seller or the druggist to take precaution to prevent death or injury to any person who relies on
ones absolute honesty and peculiar learning.94 The Court emphasized:
x x x The nature of drugs is such that examination would not avail the purchaser anything. It
would be idle mockery for the customer to make an examination of a compound of which he can
know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug
called for.95
Mercury Drug and Ganzons defense that the latter gave the only available Cortisporin solution
in the market deserves scant consideration. Ganzon could have easily verified whether the
medicine she gave De Leon was, indeed, the prescribed one or, at the very least, consulted her
217 | P a g e
supervisor. Absent the required certainty in the dispensation of the medicine, she could have
refused De Leons purchase of the drug.
The award of damages is proper and shall only be reduced considering the peculiar facts of
the case. Moral damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation, moral damages may be recovered if they are the
proximate result of defendants wrongful act or omission.96
Moral damages are not intended to impose a penalty to the wrongdoer or to enrich the claimant
at the expense of defendant.97 There is no hard and fast rule in determining what would be a fair
and reasonable amount of moral damages since each case must be governed by its peculiar
circumstances.98 However, the award of damages must be commensurate to the loss or injury
suffered.99
Taking into consideration the attending facts of the case under review, We find the amount
awarded by the trial court to be excessive. Following the precedent case of Mercury Drug, We
reduce the amount from P100,000.00 to P50,000.00 only.100 In addition, We also deem it
necessary to reduce the award of exemplary damages from the exorbitant amount of P300,000.00
to P25,000.00 only.
This Court explained the propriety of awarding exemplary damages in the earlier Mercury
Drug case:
x x x Article 2229 allows the grant of exemplary damages by way of example or correction for
the public good. As mentioned earlier, the drugstore business is affected by public interest.
Petitioner should have exerted utmost diligence in the selection and supervision of its employees.
On the part of the employee concerned, she should have been extremely cautious in dispensing
pharmaceutical products. Due to the sensitive nature of its business, petitioner must at all times
maintain a high level of meticulousness. Therefore, an award of exemplary damages in the
amount of P25,000.00 is in order.101 (Emphasis supplied)
It is generally recognized that the drugstore business is imbued with public interest. This can not
be more real for Mercury Drug, the countrys biggest drugstore chain. This Court can not tolerate
any form of negligence which can jeopardize the health and safety of its loyal patrons. Moreover,
this Court will not countenance the cavalier manner it treated De Leon. Not only does a
pharmacy owe a customer the duty of reasonable care, but it is also duty-bound to accord one
with respect.
218 | P a g e
WHEREFORE, the petition is PARTIALLY GRANTED. The Decisions of the CA and the
RTC in Paraaque City are AFFIRMED WITH MODIFICATION, in that the award of moral
and exemplary damages is reduced toP50,000.00 and P25,000.00, respectively.
SO ORDERED.
RUBEN T. REYES
Associate Justice
WE CONCUR:
Associate Justice<brchairperson< p="">
Associate Justice
MINITA V. CHICONAZARIOADOLFO S. AZCUNA

Associate Justice
</brchairperson<>
Associate Justice
AT T E S T AT I O N
Associate Justice
Chairperson
Attestation, I certify that the conclusions in the above decision had been reached in consultation
REYNATO S. PUNO
Chief Justice
219 | P a g e
DIGEST
Facts:
1
Raul T. De Leon noticed that his left eye was reddish. He also had difficulty reading. On
the same evening, he met a friend who happened to be a doctor and had just arrived from
abroad for dinner.
De Leon consulted Dr. Milla about his irritated left eye. The latter prescribed the drugs
"Cortisporin Opthalmic" and "Ceftin" to relieve his eye problems.
Before heading to work the following morning, De Leon went to the Betterliving,
Paraaque, branch of Mercury Drug Store Corporation to buy the prescribed medicines.
He showed his prescription to petitioner Aurmela Ganzon, a pharmacist assistant.
Subsequently, he paid for and took the medicine handed over by Ganzon.
De Leon requested his sheriff to assist him in using the eye drops. As instructed, the
sheriff applied 2-3 drops on respondent's left eye.
Instead of relieving his irritation, respondent felt searing pain so immediately, he rinsed
the affected eye with water, but the pain did not subside. Only then did he discover that
he was given the wrong medicine, "Cortisporin Otic Solution.
De Leon returned to the same Mercury Drug branch and confronted Ganzon why he was
given ear drops, instead of the prescribed eye drops, she did not apologize and instead
brazenly replied that she was unable to fully read the prescription. In fact, it was
her supervisor who apologized and informed De Leon that they do not have stock of the
needed Cortisporin Opthalmic.
De Leon wrote Mercury Drug, through its president about the day's incident. It did not
merit any response. Instead, two sales persons went to his office and informed him that
their supervisor was busy with other matters. Having been denied his simple desire for a
written apology and explanation, De Leon filed a complaint for damages against Mercury
Drug.
MERCURY DRUGS CONTENTION- Mercury Drug and Ganzon pointed out that De
Leon's own negligence was the proximate cause of his injury. They argued that any
injury would have been averted had De Leon exercised due diligence before applying the
medicine on his eye. Had he cautiously read the medicine bottle label, he would have
known that he had the wrong medicine.
RTC- rendered judgment in favor of De Leon.

220 | P a g e
The proximate cause of the ill fate of plaintiff was defendant Aurmila (sic)
Ganzon's negligent exercise of said discretion. She gave a prescription drug to a
customer who did not have the proper form of prescription, she did not take a
good look at said prescription, she merely presumed plaintiff was looking for
Cortisporin Otic Solution because it was the only one available in the market and
she further presumed that by merely putting the drug by the counter wherein
plaintiff looked at it, paid and took the drug without any objection meant he
understood what he was buying.
Although De Leon may have been negligent by failing to read the medicine's label
or to instruct his sheriff to do so, Mercury Drug was first to be negligent. Ganzon
dispensed a drug without the requisite prescription. Moreover, she did so without
fully reading what medicine was exactly being bought. In fact, she presumed that
since what was available was the drug Cortisporin Otic Solution, it was what De
Leon was attempting to buy
CA dismissed the appeal and the motion for reconsideration on the ground that if statement of
fact is unaccompanied by a page reference to the record, it may be stricken or disregarded all
together. Hence the petition.
Tortious Act:
Pharmacist gave the wrong medicine
What is it?
Culpa-contractual
Legal Basis:
Druggists must exercise the highest practicable degree of prudence and vigilance, and the most
exact and reliable safeguards consistent with the reasonable conduct of the business, so that
human life may not constantly be exposed to the danger flowing from the substitution of deadly
poisons for harmless medicines.
Issue:
Mercury Drug and Ganzon had exercised the degree of diligence expected of them.
Held:
No.
Ratio:
Mercury Drug and Ganzon failed to exercise the highest degree of diligence expected of
them. Mercury Drug and Ganzon can not exculpate themselves from any liability. As active
players in the field of dispensing medicines to the public, the highest degree of care and
diligence is expected of them.
The profession of pharmacy demands care and skill, and druggists must exercise care of a
specially high degree, the highest degree of care known to practical men. In other words,
druggists must exercise the highest practicable degree of prudence and vigilance, and the
221 | P a g e
most exact and reliable safeguards consistent with the reasonable conduct of the business,
so that human life may not constantly be exposed to the danger flowing from the
substitution of deadly poisons for harmless medicines.
one holding himself out as competent to handle drugs, having rightful access to them, and
relied upon by those dealing with him to exercise that high degree of caution and care
called for by the peculiarly dangerous nature of the business, cannot be heard to say that
his mistake by which he furnishes a customer the most deadly of drugs for those
comparatively harmless, is not in itself gross negligence.
In cases where an injury is caused by the negligence of an employee, there instantly arises
a presumption of law that there has been negligence on the part of the employer, either in the
selection or supervision of one's employees. This presumption may be rebutted by a clear
showing that the employer has exercised the care and diligence of a good father of the family.
Mercury Drug failed to overcome such presumption. Mercury Drug and Ganzon have similarly
failed to live up to high standard of diligence expected of them as pharmacy professionals. They
were grossly negligent in dispensing ear drops instead of the prescribed eye drops to De Leon.
Worse, they have once again attempted to shift the blame to their victim by underscoring his own
failure to read the label.
As a buyer, De Leon relied on the expertise and experience of Mercury Drug and its
employees in dispensing to him the right medicine. This Court has ruled that in the purchase and
sale of drugs, the buyer and seller do not stand at arms length. There exists an imperative duty on
the seller or the druggist to take precaution to prevent death or injury to any person who relies on
one's absolute honesty and peculiar learning. Mercury Drug and Ganzon's defense that the latter
gave the only available Cortisporin solution in the market deserves scant consideration. Ganzon
could have easily verified whether the medicine she gave De Leon was, indeed, the prescribed
one or, at the very least, consulted her supervisor. Absent the required certainty in the
dispensation of the medicine, she could have refused De Leon's purchase of the drug.
The award of damages is proper and shall only be reduced considering the peculiar facts of
the case. Though incapable of pecuniary computation, moral damages may be recovered if they
are the proximate result of defendant's wrongful act or omission. However, the award of damages
must be commensurate to the loss or injury suffered.
It is generally recognized that the drugstore business is imbued with public interest. This
cannot be more real for Mercury Drug, the country's biggest drugstore chain. This Court cannot
tolerate any form of negligence which can jeopardize the health and safety of its loyal patrons.
Moreover, this Court will not countenance the cavalier manner it treated De Leon. Not only does
a pharmacy owe a customer the duty of reasonable care, but it is also duty-bound to accord one
with respect.
222 | P a g e

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 122445 November 18, 1997

DR. NINEVETCH CRUZ, petitioner,
vs.
COURT OF APPEALS and LYDIA UMALI, respondents.
223 | P a g e
FRANCISCO, J.:
Doctors are protected by a special rule of law. They are not guarantors of care. They do not even
warrant a good result. They are not insurers against mishaps or unusual consequences.
Furthermore, they are not liable for honest mistakes of judgment . . .
The present case against petitioner is in the nature of a medical malpractice suit, which in
simplest terms is the type of claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has caused bodily harm. In this jurisdiction,
however, such claims are most often brought as a civil action for damages under Article 2176 of
the Civil Code, 3 and in some instances, as a criminal case under Article 365 of the Revised Penal
Code 4 with which the civil action for damages is impliedly instituted. It is via the latter type of
action that the heirs of the deceased sought redress for the petitioner's alleged imprudence and
negligence in treating the deceased thereby causing her death. The petitioner and one Dr. Lina
Ercillo who was the attending anaesthesiologist during the operation of the deceased were
charged with "reckless imprudence and negligence resulting to (sic) homicide" in an information
which reads:
That on or about March 23, 1991, in the City of San Pablo, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the accused above
named, being then the attending anaesthesiologist and surgeon, respectively, did
then and there, in a negligence (sic), careless, imprudent, and incompetent
manner, and failing to supply or store sufficient provisions and facilities necessary
to meet any and all exigencies apt to arise before, during and/or after a surgical
operation causing by such negligence, carelessness, imprudence, and
incompetence, and causing by such failure, including the lack of preparation and
foresight needed to avert a tragedy, the untimely death of said Lydia Umali on the
day following said surgical operation. 5
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the abovementioned charge. On March 4, 1994, the Municipal Trial Court in Cities (MTCC) of San Pablo
City rendered a decision, the dispositive portion of which is hereunder quoted as follows:
WHEREFORE, the court finds the accused Dra. Lina Ercillo not guilty of the
offense charged for insufficiency of evidence while her co-accused Dra.
Ninevetch Cruz is hereby held responsible for the death of Lydia Umali on March
24, 1991, and therefore guilty under Art. 365 of the Revised Penal Code, and she
is hereby sentenced to suffer the penalty of 2 months and 1 day imprisonment of
arresto mayor with costs. 6
The petitioner appealed her conviction to the Regional Trial Court (RTC) which
affirmed in toto the decision of the MTCC 7 prompting the petitioner to file a petition for
review with the Court of Appeals but to no avail. Hence this petition for review
on certiorari assailing the decision promulgated by the Court of Appeals on October 24,
1995 affirming petitioner's conviction with modification that she is further directed to pay
the heirs of Lydia Umali P50,000.00 as indemnity for her death. 8
224 | P a g e
In substance, the petition brought before this Court raises the issue of whether or not
petitioner's conviction of the crime of reckless imprudence resulting in homicide, arising
from an alleged medical malpractice, is supported by the evidence on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother
to the Perpetual Help Clinic and General Hospital situated in Balagtas Street, San Pablo City,
Laguna. They arrived at the said hospital at around 4:30 in the afternoon of the same day. 9 Prior
to
March 22, 1991, Lydia was examined by the petitioner who found a "myoma" 10 in her uterus,
and scheduled her for a hysterectomy operation on March 23,
1991. 11 Rowena and her mother slept in the clinic on the evening of March 22, 1991 as the latter
was to be operated on the next day at 1:00 o'clock in the afternoon. 12 According to Rowena, she
noticed that the clinic was untidy and the window and the floor were very dusty prompting her to
ask the attendant for a rag to wipe the window and the floor with. 13 Because of the untidy state
of the clinic, Rowena tried to persuade her mother not to proceed with the operation. 14 The
following day, before her mother was wheeled into the operating room, Rowena asked the
petitioner if the operation could be postponed. The petitioner called Lydia into her office and the
two had a conversation. Lydia then informed Rowena that the petitioner told her that she must be
operated on as scheduled. 15
Rowena and her other relatives, namely her husband, her sister and two aunts waited outside the
operating room while Lydia underwent operation. While they were waiting, Dr. Ercillo went out
of the operating room and instructed them to buy tagamet ampules which Rowena's sister
immediately bought. About one hour had passed when Dr. Ercillo came out again this time to ask
them to buy blood for Lydia. They bought type "A" blood from the St. Gerald Blood Bank and
the same was brought by the attendant into the operating room. After the lapse of a few hours,
the petitioner informed them that the operation was finished. The operating staff then went inside
the petitioner's clinic to take their snacks. Some thirty minutes after, Lydia was brought out of the
operating room in a stretcher and the petitioner asked Rowena and the other relatives to buy
additional blood for Lydia. Unfortunately, they were not able to comply with petitioner's order as
there was no more type "A" blood available in the blood bank. Thereafter, a person arrived to
donate blood which was later transfused to Lydia. Rowena then noticed her mother, who was
attached to an oxygen tank, gasping for breath. Apparently the oxygen supply had run out and
Rowena's husband together with the driver of the accused had to go to the San Pablo District
Hospital to get oxygen. Lydia was given the fresh supply of oxygen as soon as it arrived. 16 But at
around 10:00 o'clock P.M. she went into shock and her blood pressure dropped to 60/50. Lydia's
unstable condition necessitated her transfer to the San Pablo District Hospital so she could be
connected to a respirator and further examined. 17 The transfer to the San Pablo District Hospital
was without the prior consent of Rowena nor of the other relatives present who found out about
the intended transfer only when an ambulance arrived to take Lydia to the San Pablo District
Hospital. Rowena and her other relatives then boarded a tricycle and followed the ambulance. 18
Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating room
and the petitioner and Dr. Ercillo re-operated on her because there was blood oozing from the
225 | P a g e
abdominal incision. 19 The attending physicians summoned Dr. Bartolome Angeles, head of the
Obstetrics and Gynecology Department of the San Pablo District Hospital. However, when Dr.
Angeles arrived, Lydia was already in shock and possibly dead as her blood pressure was already
0/0. Dr. Angeles then informed petitioner and Dr. Ercillo that there was nothing he could do to
help save the patient.20 While the petitioner was closing the abdominal wall, the patient
died. 21 Thus, on March 24, 1991, at 3:00 o'clock in the morning, Lydia Umali was pronounced
dead. Her death certificate states "shock" as the immediate cause of death and "Disseminated
Intravascular Coagulation (DIC)" as the antecedent cause. 22
In convicting the petitioner, the MTCC found the following circumstances as sufficient basis to
conclude that she was indeed negligent in the performance of the operation:
. . . , the clinic was untidy, there was lack of provision like blood and oxygen to
prepare for any contingency that might happen during the operation. The manner
and the fact that the patient was brought to the San Pablo District Hospital for
reoperation indicates that there was something wrong in the manner in which Dra.
Cruz conducted the operation. There was no showing that before the operation,
accused Dra. Cruz had conducted a cardio pulmonary clearance or any typing of
the blood of the patient. It was (sic) said in medical parlance that the "the
abdomen of the person is a temple of surprises" because you do not know the
whole thing the moment it was open (sic) and surgeon must be prepared for any
eventuality thereof. The patient (sic) chart which is a public document was not
presented because it is only there that we could determine the condition of the
patient before the surgery. The court also noticed in Exh. "F-1" that the sister of
the deceased wished to postpone the operation but the patient was prevailed upon
by Dra. Cruz to proceed with the surgery. The court finds that Lydia Umali died
because of the negligence and carelessness of the surgeon Dra. Ninevetch Cruz
because of loss of blood during the operation of the deceased for evident
unpreparedness and for lack of skill, the reason why the patient was brought for
operation at the San Pablo City District Hospital. As such, the surgeon should
answer for such negligence. With respect to Dra. Lina Ercillo, the
anaesthesiologist, there is no evidence to indicate that she should be held jointly
liable with Dra. Cruz who actually did the operation. 23
The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration
of "incompetency, negligence and lack of foresight and skill of appellant (herein petitioner) in
handling the subject patient before and after the operation." 24 And likewise affirming the
petitioner's conviction, the Court of Appeals echoed similar observations, thus:
. . . While we may grant that the untidiness and filthiness of the clinic may not by
itself indicate negligence, it nevertheless shows the absence of due care and
supervision over her subordinate employees. Did this unsanitary condition
permeate the operating room? Were the surgical instruments properly sterilized?
Could the conditions in the OR have contributed to the infection of the patient?
Only the petitioner could answer these, but she opted not to testify. This could
only give rise to the presumption that she has nothing good to testify on her
226 | P a g e
defense. Anyway, the alleged "unverified statement of the prosecution witness"

remains unchallenged and unrebutted.
Likewise undisputed is the prosecution's version indicating the following facts:
that the accused asked the patient's relatives to buy Tagamet capsules while the
operation was already in progress; that after an hour, they were also asked to buy
type "A" blood for the patient; that after the surgery, they were again asked to
procure more type "A" blood, but such was not anymore available from the
source; that the oxygen given to the patient was empty; and that the son-in-law of
the patient, together with a driver of the petitioner, had to rush to the San Pablo
City District Hospital to get the much-needed oxygen. All these conclusively
show that the petitioner had not prepared for any unforeseen circumstances before
going into the first surgery, which was not emergency in nature, but was elective
or pre-scheduled; she had no ready antibiotics, no prepared blood, properly typed
and cross-matched, and no sufficient oxygen supply.
Moreover, there are a lot of questions that keep nagging Us. Was the patient given
any cardio-pulmonary clearance, or at least a clearance by an internist, which are
standard requirements before a patient is subjected to surgery. Did the petitioner
determine as part of the pre-operative evaluation, the bleeding parameters of the
patient, such as bleeding time and clotting time? There is no showing that these
were done. The petitioner just appears to have been in a hurry to perform the
operation, even as the family wanted a postponement to April 6, 1991. Obviously,
she did not prepare the patient; neither did she get the family's consent to the
operation. Moreover, she did not prepare a medical chart with instructions for the
patient's care. If she did all these, proof thereof should have been offered. But
there is none. Indeed, these are overwhelming evidence of recklessness and
imprudence. 25
This Court, however, holds differently and finds the foregoing circumstances insufficient to
sustain a judgment of conviction against the petitioner for the crime of reckless imprudence
resulting in homicide. The elements of reckless imprudence are: (1) that the offender does or
fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without
malice; (4) that material damage results from the reckless imprudence; and (5) that there is
inexcusable lack of precaution on the part of the offender, taking into consideration his
employment or occupation, degree of intelligence, physical condition, and other circumstances
regarding persons, time and place.
Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of
his patient is to be determined according to the standard of care observed by other members of
the profession in good standing under similar circumstances bearing in mind the advanced state
of the profession at the time of treatment or the present state of medical science. 26 In the recent
case of Leonila Garcia-Rueda v. Wilfred L. Pascasio, et al., 27 this Court stated that in accepting a
case, a doctor in effect represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will employ such training, care and skill
in the treatment of his patients. He therefore has a duty to use at least the same level of care that
227 | P a g e
any other reasonably competent doctor would use to treat a condition under the same
circumstances. It is in this aspect of medical malpractice that expert testimony is essential to
establish not only the standard of care of the profession but also that the physician's conduct in
the treatment and care falls below such standard. 28 Further, inasmuch as the causes of the
injuries involved in malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually necessary to support the
conclusion as to causation. 29
Immediately apparent from a review of the records of this case is the absence of any expert
testimony on the matter of the standard of care employed by other physicians of good standing in
the conduct of similar operations. The prosecution's expert witnesses in the persons of Dr.
Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of Investigation (NBI) only
testified as to the possible cause of death but did not venture to illuminate the court on the matter
of the standard of care that petitioner should have exercised.
All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the
lack of provisions such as blood, oxygen, and certain medicines; the failure to subject the patient
to a cardio-pulmonary test prior to the operation; the omission of any form of blood typing
before transfusion; and even the subsequent transfer of Lydia to the San Pablo Hospital and the
reoperation performed on her by the petitioner. But while it may be true that the circumstances
pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the
part of the surgeon, this conclusion is still best arrived at not through the educated surmises nor
conjectures of laymen, including judges, but by the unquestionable knowledge of expert
witnesses. For whether a physician or surgeon has exercised the requisite degree of skill and care
in the treatment of his patient is, in the generality of cases, a matter of expert opinion. 30 The
deference of courts to the expert opinion of qualified physicians stems from its realization that
the latter possess unusual technical skills which laymen in most instances are incapable of
intelligently evaluating. 31 Expert testimony should have been offered to prove that the
circumstances cited by the courts below are constitutive of conduct falling below the standard of
care employed by other physicians in good standing when performing the same operation. It
must be remembered that when the qualifications of a physician are admitted, as in the instant
case, there is an inevitable presumption that in proper cases he takes the necessary precaution
and employs the best of his knowledge and skill in attending to his clients, unless the contrary is
sufficiently established. 32 This presumption is rebuttable by expert opinion which is so sadly
lacking in the case at bench.
Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack
of provisions; the failure to conduct pre-operation tests on the patient; and the subsequent
transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the
petitioner do indicate, even without expert testimony, that petitioner was recklessly imprudent in
the exercise of her duties as a surgeon, no cogent proof exists that any of these circumstances
caused petitioner's death. Thus, the absence of the fourth element of reckless imprudence: that
the injury to the person or property was a consequence of the reckless imprudence.
In litigations involving medical negligence, the plaintiff has the burden of establishing
appellant's negligence and for a reasonable conclusion of negligence, there must be proof of
228 | P a g e
breach of duty on the part of the surgeon as well as a causal connection of such breach and the
resulting death of his patient. 33 In Chan Lugay v. St. Luke's Hospital, Inc., 34 where the attending
physician was absolved of liability for the death of the complainant's wife and newborn baby,
this Court held that:
In order that there may be a recovery for an injury, however, it must be shown that
the "injury for which recovery is sought must be the legitimate consequence of the
wrong done; the connection between the negligence and the injury must be a
direct and natural sequence of events, unbroken by intervening efficient
causes." In other words, the negligence must be the proximate cause of the
injury. For, "negligence, no matter in what it consists, cannot create a right of
action unless it is the proximate cause of the injury complained of ." And "the
proximate cause of an injury is that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred." 35 (Emphasis supplied.)
Dr. Arizala who conducted an autopsy on the body of the deceased summarized his findings as
follows:
Atty. Cachero:
Q. You mentioned about your Autopsy Report which has been
marked as Exh. "A-1-b". There appears here a signature above the
typewritten name Floresto Arizala, Jr., whose signature is that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?
A. Only as to the autopsy report no. 91-09, the time and place and
everything after the post mortem findings, sir.
Q. You mentioned on your "Post Mortem Findings" about surgical
incision, 14:0 cm., infraumbilical area, anterior abdominal area,
midline, will you please explain that in your own language?
A. There was incision wound (sic) the area just below the navel,
sir.
Q. And the last paragraph of the postmortem findings which I read:
Uterus, pear-shaped and pale measuring 7.5 x 5.5 x 5.0 cm. with
some surface nodulation of the fundic area posteriorly. Cut-section
shows diffusely pale myometrium with areas of streak induration.
The ovaries and adnexal structures are missing with the raw
surfaces patched with clotted blood. Surgical sutures were noted on
the operative site.
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Intestines and mesenteries are pale with blood clots noted between
the mesentric folds.
Hemoperitoneum: 300 s.s.,
right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.,
will you please explain that on (sic) your own language or in
ordinary. . . . . . . . . . . .
A. There was a uterus which was not attached to the adnexal
structures namely ovaries which were not present and also sign of
previous surgical operation and there were (sic) clotted blood, sir.
Q. How about the ovaries and adnexal structures?
A. They are missing, sir.
Q. You mean to say there are no ovaries?
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical sutures?
A. Yes, sir.
Q. How about the intestines and mesenteries are place (sic) with
blood clots noted between the mesenteric folds, will you please
explain on (sic) this?
A. In the peritoneal cavity, they are mostly perritonial
blood . . . . . . . .
Q. And what could have caused this blood?
A. Well, ordinarily blood is found inside the blood vessel. Blood
were (sic) outside as a result of the injuries which destroyed the
integrity of the vessel allowing blood to sip (sic) out, sir.
Q. By the nature of the postmortem findings indicated in Exh. A-1B, can you tell the court the cause of death?
230 | P a g e
A. Yes, sir. The cause of death is: Gross findings are compatible
with hemorrhagic shock.
Q. Can you tell the us what could have caused this hemorrhagic
shock?
A. Well hemorrhagic shock is the result of blood loss.
Q. What could have the effect of that loss of blood?
A. Unattended hemorrhage, sir. 36 (Emphasis supplied.)
The foregoing was corroborated by Dr. Nieto Salvador:
Q. And were you able to determine the cause of death by virtue of
the examination of the specimen submitted by Dr. Arizala?
A. Without knowledge of the autopsy findings it would be difficult
for me to determine the cause of death, sir.
Q. Have you also examined the post mortem of Dr. Arizala?
A. Yes, sir, and by virtue of the autopsy report in connection with
your pathology report.
Q. What could have caused the death of the victim?
A. This pathologic examination are (sic) compatible with the
person who died, sir.
Q. Will you explain to us the meaning of hemorrhagic compatible?
A. It means that a person died of blood loss. Meaning a person
died of non-replacement of blood and so the victim before she died
there was shock of diminish of blood of the circulation. She died
most probably before the actual complete blood loss, sir.
Court: Is it possible doctor that the loss of the blood was due on
(sic) operation?
A. Based on my pathologist finding, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone surgery. Another may
be a blood vessel may be cut while on operation and this cause
231 | P a g e
(sic) bleeding, or may be set in the course of operation, or may be

(sic) he died after the operation. Of course there are other cause
(sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood replacement?
A. Yes, sir. 37 (Emphasis supplied.)
The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of
death. However, as likewise testified to by the expert witnesses in open court, hemorrhage or
hemorrhagic shock during surgery may be caused by several different factors. Thus, Dr.
Salvador's elaboration on the matter:
Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that you mentioned
you said that it could be at the moment of operation when one
losses (sic) control of the presence, is that correct? During the
operation there is lost (sic) of control of the cut vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may have slipped
later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible also to some
clotting defect, is that correct?
A. May be (sic). 38 (Emphasis supplied).
Defense witness, Dr. Bu C. Castro also gave the following expert opinion:
Q. Doctor even a patient after an operations (sic) would suffer
hemorrage what would be the possible causes of such hemorrage
(sic)?
A. Among those would be what we call Intravascular Coagulation
and this is the reason for the bleeding, sir, which cannot be
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prevented by anyone, it will happen to anyone, anytime and to any

persons (sic), sir.
COURT:
What do you think of the cause of the bleeding, the cutting or the
operations done in the body?
A. Not related to this one, the bleeding here is not related to any
cutting or operation that I (sic) have done.
Q. Aside from the DIC what could another causes (sic) that could
be the cause for the hemorrhage or bleeding in a patient by an
operations (sic)?
A. In general sir, if there was an operations (sic) and it is possible
that the ligature in the suture was (sic) become (sic) loose, it is
(sic) becomes loose if proven..
xxx xxx xxx
Q. If the person who performed an autopsy does not find any
untight (sic) clot (sic) blood vessel or any suture that become (sic)
loose the cause of the bleeding could not be attributed to the fault
of the subject?
A. Definitely, sir. 39 (Emphasis supplied.)
According to both doctors, the possible causes of hemorrhage during an operation are: (1) the
failure of the surgeon to tie or suture a cut blood vessel; (2) allowing a cut blood vessel to get out
of control; (3) the subsequent loosening of the tie or suture applied to a cut blood vessel; and (4)
and a clotting defect known as DIC. It is significant to state at this juncture that the autopsy
conducted by Dr. Arizala on the body of Lydia did not reveal any untied or unsutured cut blood
vessel nor was there any indication that the tie or suture of a cut blood vessel had become loose
thereby causing the hemorrhage. 40 Hence the following pertinent portion of Dr. Arizala's
testimony:
Q: Doctor, in examining these structures did you know whether
these were sutured ligature or plain ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if the cut structures
were tied by first suturing it and then tying a knot or the tie was
merely placed around the cut structure and tied?
233 | P a g e
A: I cannot recall, sir.

Q: As a matter of fact, you cannot recall because you did not even
bothered (sic) to examine, is that correct?
A: Well, I bothered enough to know that they were sutured, sir.
Q: So, therefore, Doctor, you would not know whether any of the
cut structures were not sutured or tied neither were you able to
determine whether any loose suture was found in the peritoneal
cavity?
A: I could not recall any loose sutured (sic), sir. 41
On the other hand, the findings of all three doctors do not preclude the probability that DIC
caused the hemorrhage and consequently, Lydia's death. DIC which is a clotting defect creates a
serious bleeding tendency and when massive DIC occurs as a complication of surgery leaving
raw surface, major hemorrhage occurs. 42And as testified to by defense witness, Dr. Bu C. Castro,
hemorrhage due to DIC "cannot be prevented, it will happen to anyone,
anytime." 43 He testified further:
Q. Now, under that circumstance one of the possibility as you
mentioned in (sic) DIC?
A. Yes, sir.
Q. And you mentioned that this cannot be prevented?
A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that will tell you
whether this patient suffered among such things as DIC?
A. Well, I did reserve because of the condition of the patient.
Q. Now, Doctor you said that you went through the record of the
deceased Lydia Umali looking for the chart, the operated (sic)
records, the post mortem findings on the histophanic (sic)
examination based on your examination of record, doctor, can you
more or less says (sic) what part are (sic) concerned could have
been the caused (sic) of death of this Lydia Umali?
234 | P a g e
A. As far as the medical record is concern (sic) the caused (sic) of

death is dessimulated (sic) Intra Vascular Coagulation or the DIC
which resulted to hemorrhage or bleedings, sir.
Q. Doctor based on your findings then there is knowing (sic) the
doctor would say whether the doctor her (sic) has been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on finding they
just read the chart as well as the other record.
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the surgeon, sir. 44
This Court has no recourse but to rely on the expert testimonies rendered by both prosecution
and defense witnesses that substantiate rather than contradict petitioner's allegation that the cause
of Lydia's death was DIC which, as attested to by an expert witness, cannot be attributed to the
petitioner's fault or negligence. The probability that Lydia's death was caused by DIC was
unrebutted during trial and has engendered in the mind of this Court a reasonable doubt as to the
petitioner's guilt. Thus, her acquittal of the crime of reckless imprudence resulting in homicide.
While we condole with the family of Lydia Umali, our hands are bound by the dictates of justice
and fair dealing which hold inviolable the right of an accused to be presumed innocent until
proven guilty beyond reasonable doubt. Nevertheless, this Court finds the petitioner civilly liable
for the death of Lydia Umali, for while a conviction of a crime requires proof beyond reasonable
doubt, only a preponderance of evidence is required to establish civil liability. 45
The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of
evidence this Court was not able to render a sentence of conviction but it is not blind to the
reckless and imprudent manner in which the petitioner carried out her duties. A precious life has
been lost and the circumstances leading thereto exacerbated the grief of those left behind. The
235 | P a g e
heirs of the deceased continue to feel the loss of their mother up to the present time 46 and this
Court is aware that no amount of compassion and commiseration nor words of bereavement can
suffice to assuage the sorrow felt for the loss of a loved one. Certainly, the award of moral and
exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case.
WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is hereby
ACQUITTED of the crime of reckless imprudence resulting in homicide but is ordered to pay
the heirs of the deceased Lydia Umali the amount of FIFTY THOUSAND PESOS (P50,000.00)
as civil liability, ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral damages, and
FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages.
Let a copy of this decision be furnished to the Professional Regulation Commission (PRC) for
appropriate action.
SO ORDERED.
Romero, Melo and Panganiban, JJ., concur.
Narvasa, C.J., is on leave.
DIGEST
Facts: On March 22, 1991, prosecution witness, Rowena Umali de Ocampo, accompanied her
mother to the Perpetual Help Clinic and General Hospital situated in Balagtas Street, San Pablo
City, Laguna. They arrived at the said hospital at around 4:30 in the afternoon of the same day.
Prior to March 22, 1991, Lydia was examined by the petitioner who found a Myoma in her
uterus, and scheduled her for a hysterectomy operation on March 23, 1991. Rowena and her
mother slept in the clinic on the evening of March 22, 1991 as the latter was to be operated on
the next day at 1pm. According to Rowena, she noticed that the clinic was untidy and the
windows and the floor were very dusty prompting her to ask the attendant fora rag to wipe the
window and floor with. Prior to the operation, Rowena tried to convince her mother to not
proceed with the operation and even asked petitioner for it to be postponed, however it still
pushed through after the petitioner told Lydia that operation must be done as scheduled. During
the operation, the assisting doctor of the petitioner, Dr. Ercillo went out of the operating room
and asked that tagmet ampules be bought which was followed by another instruction to buy a bag
of blood. After the operation, when Lydia came out of the OR, another bag of blood was
requested to be bought, however, the same was not bought due to unavailability of type A from
the blood bank. Thereafter a person arrived to donate blood which was later transferred to Lydia.
Rowena then noticed her mother, who was attached to an oxygen tank, gasping for breathe
apparently, the oxygen tank is empty, so her husband and petitioners driver bought an oxygen.
Later, without the knowledge of Lydias relatives, she was decided by the doctors to be
transferred to San Pablo District Hospital were she was supposed to be re-operated. After Lydia
experienced shocks, she died.
236 | P a g e
Issue: Whether or not petitioner has been negligent which caused the death of Lydia Umali.
Held: Yes. Whether or not a physician has committed an inexcusable lack of precaution in the
treatment of his patient to be determined according to the standard of care observed by other
members of the profession in good standing under similar circumstances bearing in mind the
advanced state of the profession at the time of treatment or the present state of medical science.
A doctor in effect represents that, having the needed training and skill possessed by physicians
and surgeons practicing in the same field, he will employ such training, care and skill in the
treatment of his patients. He therefore has a duty to use at least the same level of care that any
other reasonably competent doctor would use to treat a condition under the same circumstances.
It is in this aspect of medical malpractice that expert testimony is essential to establish not only
the standard of care of the profession but also that the physicians conduct in the treatment and
care falls below such standard. Further, in as much as the causes of the injuries involved in
malpractice actions are determinable only in the light of scientific knowledge, it has been
recognized that expert testimony is usually necessary to the conclusion as to causation.
appellants negligence and for a reasonable conclusion of negligence, there must be proof of
breach of duty on the part of the surgeon as well as causal connection of such breach and the
resulting death of his patient.
In order that there may be recovery for an injury, however, it must be shown that the injury for
which recovery is sought must be legitimate consequence of the wrong done; the connection
between the negligence and the injury must be a direct and natural reference of events, unbroken
by intervening efficient causes. In other words, the negligence must be the proximate cause of
the injury. For negligence, no matter what it consists, cannot create a right of action unless it is
the proximate cause of the injury complained of and the proximate cause of an injury is that
cause, which in natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury and without which the result would have occurred.
The elements of reckless imprudence are:
1.
2.
3.
4.
5.
That the offender does or fails to do an act;

That the doing or the failure to do that act is voluntary;
That it be without malice;
That material damage results from the reckless imprudence; and
That there is inexcusable lack of precaution on the part of the offender, taking into
consideration his employment or occupation, degree of intelligence, physical
condition, and other circumstances regarding persons, time, and place.
The possible causes of hemorrhage during an operation are: 1.) the failure of the surgeon to tie or
suture a cut blood vessel; 2.) allowing a cut blood vessel to get out of control; 3.) the subsequent
loosening of the tie or suture applied to a cut blood vessel; and 4.) and a clotting defect known as
DIC.
237 | P a g e

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 192973
September 29, 2014
PEDRITO DELA TORRE, Petitioner,

vs.
DR. ARTURO IMBUIDO, DRA. NORMA IMBUIDO in their capacity as owners and
operators of DIVINE SPIRIT GENERAL HOSPITAL and/or DR. NESTOR
PASAMBA, Respondents.
RESOLUTION
REYES, J.:
238 | P a g e
This resolves the petition for review on certiorari1 filed by petitioner Pedrito Dela Torre (Pedrito)
assailing the Decision2 dated December 15, 2009 and Resolution3 dated July 27, 2010 of the
Court of Appeals (CA) in CA-G.R. CV No. 78534.
The case stemmed from a complaint4 for damages filed by Pedrito against herein respondents Dr.
ArturoImbuido and Dr. Norma Imbuido (Dr. Norma), in their capacity as the ownersand
operators of the Divine Spirit General Hospital in Olongapo City, and Dr. Nestor Pasamba (Dr.
Nestor) (respondents). Pedrito alleged in his complaint that he was married to one Carmen
Castillo Dela Torre(Carmen), who died while admitted at the Divine Spirit General Hospital on
February 13, 1992. Carmen was due to give birth on February 2,1992 and was brought at around
11:30 p.m. on that day by Pedrito to the Divine Spirit General Hospital. When Carmen still had
not delivered her baby at the expected time, Dr. Norma discussed with Pedrito the possibility of a
caesarean section operation.5
At around 3:00 p.m. on February 3, 1992, Carmen was brought to the hospitals operating room
for her caesarian section operation, which was to be performed by Dr. Nestor. By 5:30 p.m. of
the same day, Pedrito was informed of his wifes delivery of a baby boy. In the early morning of
February 4, 1992, Carmen experienced abdominal pain and difficulty in urinating. She was
diagnosed to be suffering from urinary tract infection (UTI), and was prescribed medications by
Dr. Norma. On February 10, 1992, Pedrito noticed that Carmens stomach was getting bigger, but
Dr. Norma dismissed the patients condition as mere flatulence (kabag).6
When Carmens stomach still grewbigger despite medications, Dr. Norma advised Pedrito of the
possibility of a second operation on Carmen. Dr. Norma, however, provided no detailson its
purpose and the doctor who would perform it. At around 3:00 p.m. on February 12, 1992,
Carmen had her second operation. Later in the evening, Dr. Norma informed Pedrito that
"everything was going on fine with [his] wife."7
The condition of Carmen, however, did not improve. It instead worsened that on February 13,
1992, she vomited dark red blood. At 9:30 p.m. on the same day, Carmen died.8 Per her
certificate of death upon information provided by the hospital,the immediate cause of Carmens
death was "cardio-respiratory arrest secondary to cerebro vascular accident, hypertension and
chronic nephritis induced by pregnancy."9 An autopsy Report10prepared by Dr. Richard
Patilano(Dr. Patilano), Medico-Legal Officer-Designate of Olongapo City, however, provided
that the cause of Carmens death was "shock due to peritonitis, severe, with multiple intestinal
adhesions; Status post C[a]esarian Section and Exploratory Laparotomy."
Pedrito claimed in his complaint that the respondents "failed to exercise the degree of diligence
required of them" as members of the medical profession, and were "negligent for practicing
surgery on [Carmen] in the most unskilled, ignorant and cruel manner, x x x[.]"11
239 | P a g e
In their answer12 to the complaint, the respondents argued that they "observed the required
standard of medical care in attending to the needs of Carmen."13 The respondents explained that
Carmen was admitted in Divine Spirit General Hospital for "pregnancy in labor and preeclampsia." Her condition was closely monitored during her confinement. A caesarian section
operation became necessary, as she manifested no significant progress for the spontaneous
delivery of her baby.14 No unusual events were observed during the course of Carmens caesarian
section operation. The second surgery, however, became necessary due to suspected intestinal
obstruction and adhesions. This procedure was fully explained to Carmen and Pedrito prior to its
conduct. During the second operation, the diagnosis of intestinal obstruction and adhesion was
confirmed but resolved by her doctors. Despite the observance of due care by the doctors,
however, Carmen died on February 13, 1992.15
The respondents included in their answer a counterclaim for P48,515.58 as unpaid hospital
charges, professional fees and medicines, P3,000,000.00 for moral damages, P1,500,000.00 for
exemplary damages, and attorneys fees.16
After the pre-trial conference, trial proper ensued. To support his claim, Pedrito presented the
testimony of Dr. Patilano, the medicolegal officer who conducted an autopsy on the body of
Carmen upon a telephone request made by the City Health Officer of Olongapo City, Dr.
Generoso Espinosa. Among Dr. Patilanos observations, as narrated in the lower courts decision,
were as follows:
In the intestines, [Dr. Patilano] found outthat it was more reddish than the normal condition
which is supposed to bepinkish. There was presence of adhesions, meaning, it sticks to each
other and these areas were dilated. There were constricted areas. He concluded that there might
have been foreign organic matters in the intestines. He did not see any swelling but assuming that
there was, it would be concomitant to the enlargement. x x x He came to the conclusion that the
cause of death was peritonitis, with the multiple adhesions status in the post caesarian section. In
connection with peritonitis, this is the inflammation of the abdomen. This peritonitis in the
abdominal cavity may be caused by several conditions which are supposed to be infections,
entrance of foreign bodies in the intestines in connection with ruptured peptic ulcer or [may be]
somewhere in the spleen. The entrance of foreign object in the abdominal cavities may cause
severe infections of the intra-abdominal cavities resulting [in] multiple adhesions of the
intestines. In cases of surgical operation, it [may be] due to the conditions of the instruments
used, the materials used in the operating room being not aseptic and the ladies assisting the
operation were not in uniform. x x x.17
Dr. Patilano claimed that peritonitis could have been prevented through proper medical
procedures and medicines. He also stated that if the cause of Carmens death was actually
cerebro-vascular accident, there would have been ruptured blood vessels and blood clot in her
head; but there were none in Carmens case.18
240 | P a g e
Among those who testified to refutePedritos claim was Dr. Nestor. He claimed that when
Carmen was referred to him on February 3, 1992, she was in full term uterine pregnancy, with
pre-eclampsia, fetal distress and active labor pains. A caesarian section operation became
necessary to terminate the pregnancy for her safety. Carmen was ready to go home four days
after giving birth, but was advised by the doctors to stay more because of her persistent
hypertension.19
The second surgery performed on Carmen was necessary after she showed symptoms of
intestinal obstruction, which happens as the intestines get twisted due to adhesions and the
normal flow of intestinal contents are obstructed. For Dr. Nestor, this occurrence was not
preventable since any interference of the abdominal cavity would irritate the serosa of the
intestines, inviting adhesions that could cause obstruction. Surgery could remedy the adhesions
and obstruction.20 Both Carmen and Pedrito gave their written consent to this second procedure.21
Dr. Bienvenido G. Torres (Dr. Torres), Chief of the Medico-Legal Division of the Philippine
National Police (PNP) Crime Laboratory Service,22 also testified for the respondents.He claimed
that based on Dr. Patilanos report, vital internal organs of Carmen, such as her brain, lungs,
kidneys, liver and adrenal glands, were not examined during the autopsy.23
On January 28, 2003, the Regional Trial Court (RTC) of Olongapo City, Branch 75, rendered its
Decision24 in favor of Pedrito. The trial court gave greater weight to the testimony of Dr. Patilano
and thus disposed of the case as follows:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and
against the defendants, ordering the latter to pay jointly and severally, the former, the following
sums of money, to wit:
1.) the sum of Php 28,759.46 as actual damages;
2.) the sum of Fifty Thousand (Php 50,000.00) Pesos as indemnity for the death of
Carmen dela Torre;
3.) the sum of Fifty Thousand (Php 50,000.00) Pesos as moral damages and the further
sum of Twenty Thousand (Php 20,000.00) Pesos as exemplary damages;
4.) the sum of Twenty Thousand (Php 20,000.00) Pesos as attorneys fees; and
5.) the costs of [suit].
SO ORDERED.25
241 | P a g e
Dissatisfied with the RTC ruling, the respondents appealed to the CA. On December 15, 2009,
the CA rendered its Decision reversing and setting aside the decision of the RTC. For the
appellate court, it was not established that the respondents failed to exercisethe degree of
diligence required of them by their profession as doctors. The CA also granted the respondents
counterclaim for the amount of P48,515.58, as it held:
WHEREFORE, the Decision of the Regional Trial Court of Olongapo City dated January 28,
2003 in Civil Case No. 165-0-92 is hereby REVERSED AND SET ASIDE.
Plaintiff-appellee is directed to pay the unpaid balance for hospital bills, professional fees and
other expenses in the amount of [P]48,515.58.
SO ORDERED.26
Hence, this petition for review on certiorariin which Pedrito insists that the respondents should
be held liable for the death of Carmen.
The petition is denied.
"[M]edical malpractice or, more appropriately, medical negligence, is that type of claim which a
victim has available to him or her to redress a wrong committed by a medical professionalwhich
has caused bodily harm." In order to successfully pursue such a claim, a patient, or his or her
family as in this case, "must prove that a health care provider, in most cases a physician, either
failed to do something which a reasonably prudent health care provider would have done, or that
he or she did something that a reasonably prudent provider would not have done; and that failure
or action caused injury to the patient."27
The Court emphasized in Lucas, et al. v. Tuao28 that in medical negligence cases, there is a
physician-patient relationship between the doctor and the victim, but just like in any other
proceeding for damages, four essential elements must be established by the plaintiff, namely: (1)
duty; (2) breach; (3) injury; and (4) proximate causation. All four elements must be present in
order to find the physician negligent and, thus, liable for damages.29
It is settled that a physicians duty tohis patient relates to his exercise of the degree of care, skill
and diligence which physicians in the same general neighborhood, and in the same general line
of practice, ordinarily possess and exercise in like cases. There is breach of this duty when the
patient is injured in body or in health. Proof of this breach rests upon the testimony of an expert
witness that the treatment accorded to the patient failed to meet the standard level of care, skill
and diligence. To justify an award of damages, the negligence of the doctor must be established
to be the proximate cause of the injury.30
242 | P a g e
Through the instant petition, Pedritoseeks the reinstatement of the decision of the RTC whose
finding of the respondents medical negligence depended mainly on the testimony of Dr.
Patilano. Upon review, however, the Court agrees with the CA that the report and testimony of
Dr. Patilano failed to justify Pedritos entitlement to the damages awarded by the RTC.
For the trial court to give weightto Dr. Patilanos report, it was necessary to show first Dr.
Patilanos specialization and competence to testify on the degree of care, skill and diligence
needed for the treatment of Carmens case. Considering that it was not duly established that Dr.
Patilano practiced and was an expert inthe fields that involved Carmens condition, he could not
have accurately identified the said degree of care, skill, diligence and the medical procedures that
should have been applied by her attending physicians.
Similarly, such duty, degree of care, skill and diligence were not sufficiently established in this
case because the testimony of Dr. Patilano was based solely on the results of his autopsy on the
cadaver of Carmen. His study and assessment were restrictedby limitations that denied his full
evaluation of Carmens case. He could have only deduced from the injuries apparent in Carmens
body, and in the condition when the body was examined. Judging from his testimony, Dr.
Patilano did not even take full consideration of the medical history of Carmen, her actual health
condition at the time of hospital admission, and her condition as it progressed while she was
being monitored and treated by the respondents. There was also no reference to the respondents
defense that the emergency caesarian section operation had to be performed in order to protect
the lives and safety of Carmen and her then unborn child. For lack of sufficient information on
Carmens health condition while still alive, Dr. Patilano could not have fully evaluated the
suitability of the respondents decisions in handling Carmens medical condition as it turned
critical.
On the other hand, the CA pointed out that Dr. Nestor, a surgeon, possessed the reasonable
degree of learning, skill and experience required by his profession for the treatment ofCarmen.
The respondents also emphasized in their pleadings beforethe RTC that Dr. Nestor had his
training and experience in surgery and obstetrics since 1970.1wphi1 Without sufficient proof
from the claimant on a different degree of care, skill and diligence that should be expected from
the respondents, it could not be said with certainty that a breachwas actually committed.
Moreover, while Dr. Patilano opined that Carmen died of peritonitis which could be due to the
poor state of the hospital equipment and medical supplies used during her operation, there was
no sufficient proof that any such fault actually attended the surgery of Carmen, caused her illness
and resulted in her death. It is also significant that the Chief of the Medico-Legal Division of the
PNP Crime Laboratory Service, Dr. Torres, testified before the trial court that based on the
autopsy report issued by Dr. Patilano, the latter did not comply with the basic autopsy procedure
when he examined the cadaver of Carmen. Dr. Patilano did not appear to have thoroughly
examined Carmens vital organs such as her heart, lungs, uterus and brain during the autopsy. His
243 | P a g e
findings were then inconclusive on the issue of the actual cause of Carmen's death, and the claim
of negligence allegedly committed by the respondents.
As the Court held in Spouses Flores v. Spouses Pineda, et al.,31 the critical and clinching factor in
a medical negligence case is proof of the causal connection between the negligence and the
injuries. The claimant must prove not only the injury but also the defendant's fault, and that such
fault caused the injury. A verdict in a malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a reasonable medical probability based upon
competent expert testimony,32 which the Court finds absent in the case at bar. As regards the
respondents' counterclaim, the CA's award of P48,515.58 is sustained, considering that among
the parties' stipulations during the pre-trial indicated:
5. That at the time of the death of the patient Carmen C. dela Torrell there was an unpaid balance
for hospital bills, professional fees and other expenses in the amount of P48,515.58, incurred by
plaintiff when the patient was confined at said hospital from February 3 to 13, 1992.33
WHEREFORE, the petition is DENIED. The Decision dated December 15, 2009 and Resolution
dated July 27, 2010 of the Court of Appeals in CA-G.R. CV No. 78534 are AFFIRMED.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
WE CONCUR:
Associate Justice
Chairperson
DIOSDADO M. PERALTA
Associate Justice
MARTIN S. VILLARAMA, JR.

Associate Justice
FRANCIS H. JARDELEZA
Associate Justice
AT T E S T AT I O N
I attest that the conclusions in the above Resolution had been reached in consultation before the
case was assigned to the writer of the 9pinion of the Court's Division.
244 | P a g e

Associate Justice
Chairperson
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Resolution 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
DIGEST
Facts:
At around 3:00pm of February 3, 1992, Carmen was brought to Divine Spirit General Hospitals
operating room for her caesarian section operation, which was to be performed by Dr. Nestor. By
5:30pm, of the same day, Pedrito was informed by his wifes delivery of a baby boy. In the early
morning of February 4, 1992, Carmen experienced abdominal pains and difficulty in urinating.
She was diagnosed to be suffering from urinary tract infection (UTI), and was prescribed
medication by Dr. Norma. On February 10, 1992, Pedrito noticed that Carmens stomach was
getting bigger, but Dr. Norma dismissed the patients condition as mere fratulence. When
Carmens stomach still grow bigger despite medications, Dr. Norma advised Pedrito of the
possibility of a second operation on Carmen. Dr. Norma, however, provided no details on its
purpose and the doctor who would perform it. At around 3:00pm on February 12, 1992 Carmen
had her second operation. Later in the evening, Dr. Norma informed Pedrito that everything was
going on fine with his wife. The condition of Carmen, however, did not improve. It instead
worsened that on February 13, 1992, she vomited dark red blood. At 9:30pm of the same day,
Carmen died. Per her death certificate upon information provided by the hospital, the immediate
cause of Carmens death was cardio-respiratory arrest secondary to cerebro vascular accident,
hypertension and chronic nephritis induced by pregnancy. An autopsy report prepared by Dr.
Partilano, medico-legal officer designate of Olongapo City, however, provided that the cause of
Carmens death was shock due to peritonitis severe with multiple intestinal adhesions; status post
caesarian section and exploratory laparotomy. Pedrito claimed in his complaint that the
respondents failed to exercise the degree of diligence required of them as members of the
medical profession, and were negligent for practicing surgery on Carmen in the most unskilled,
ignorant, and cruel manner.
245 | P a g e
Issue:
Whether or not respondents were liable for medical malpractice that resulted to Carmens death.
Held:
No. Medical malpractice or, more appropriately, medical negligence, is that type of claim which
a victim has available to him or her to redress a wrong committed by a medical professional
which has caused bodily harm. In order to successfully pursue such a claim, a patient, or his or
her family as in this case, must prove that healthcare provider, in most cases, a physician, either
he or she did something that a reasonably prudent provider would not have done; and that failure
or action caused injury to the patient.
Four essential elements must be established namely: 1.) duty; 2.) breach; 3.) injury and 4.)
proximate causation. All four elements must be present in order to find the physician negligent
and thus, liable for damages.
For the trial court to give weight to Dr. Partilanos report, it was necessary to show first Dr.
Partilanos specialization and competence to testify on the degree of care, skill and diligence
needed for the treatment of Carmens case. Considering that it was not duly established that Dr.
Partilano practiced and was an expert on the fields that involved Carmens condition, he could
not have accurately identified the said degree of care, skill and diligence and the medical
procedure, that should have been applied.
246 | P a g e

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 171127
March 11, 2015
NOEL CASUMPANG, RUBY SANGA-MIRANDA and SAN JUAN DEDIOS

HOSPITAL, Petitioners,
vs.
NELSON CORTEJO, Respondent.
x-----------------------x
G.R. No. 171217
DRA. RUBY SANGA-MIRANDA, Petitioner,
vs.
x-----------------------x
G.R. No. 171228
SAN JUAN DEDIOS HOSPITAL, Petitioner,
vs.
DECISION
BRION, J.:
247 | P a g e
We resolve the three (3) consolidated petitions for review on Certiorari1 involving medical
negligence, commonly assailing the October 29, 2004 decision2 and the January 12, 2006
resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 56400. This CA decision affirmed
en totothe ruling of the Regional Trial Court (RTC), Branch 134, Makati City.
The RTC awarded Nelson Cortejo (respondent) damages in the total amount of P595,000.00, for
the wrongful death of his son allegedly due to the medical negligence of the petitioning doctors
and the hospital.
Factual Antecedents
The common factual antecedents are briefly summarized below.
On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo brought her 11-year old
son, Edmer Cortejo (Edmer), to the Emergency Room of the San Juan de Dios Hospital (SJDH)
because of difficulty in breathing, chest pain, stomach pain, and fever.4
Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined Edmer. In her testimony,
Mrs. Cortejo narrated that in the morning of April 20, 1988, Edmer had developed a slight fever
that lasted for one day; a few hours upon discovery, she brought Edmer to their family doctor;
and two hours after administering medications, Edmers fever had subsided.5
After taking Edmers medical history, Dr. Livelo took his vital signs, body temperature, and
blood pressure.6 Based on these initial examinations and the chest x-ray test that followed, Dr.
Livelo diagnosed Edmer with "bronchopneumonia.7 " Edmers blood was also taken for testing,
typing, and for purposes of administering antibiotics. Afterwards, Dr. Livelo gave Edmer an
antibiotic medication to lessen his fever and to loosen his phlegm.
Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care card and was referred
to an accredited Fortune Care coordinator, who was then out of town. She was thereafter
assigned to Dr. Noel Casumpang (Dr. Casumpang), a pediatrician also accredited with Fortune
Care.8
At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time examined Edmer in
his room. Using only a stethoscope, he confirmed the initial diagnosis of "Bronchopneumonia."9
At that moment, Mrs. Cortejo recalled entertaining doubts on the doctors diagnosis. She
immediately advised Dr. Casumpang that Edmer had a high fever, and had no colds or
cough10 but Dr. Casumpang merely told her that her sons "blood pressure is just being
active,"11 and remarked that "thats the usual bronchopneumonia, no colds, no phlegm."12 Dr.
Casumpang next visited and examined Edmer at 9:00 in the morning the following day.13 Still
suspicious about his sons illness, Mrs. Cortejo again called Dr. Casumpangs attention and stated
248 | P a g e
that Edmer had a fever, throat irritation, as well as chest and stomach pain. Mrs. Cortejo also
alerted Dr. Casumpang about the traces of blood in Edmers sputum. Despite these pieces of
information, however, Dr. Casumpang simply nodded, inquired if Edmer has an asthma, and
reassured Mrs. Cortejo that Edmers illness is bronchopneumonia.14
At around 11:30 in the morning of April 23, 1988, Edmer vomited "phlegm with blood
streak"15 prompting the respondent (Edmers father) to request for a doctor at the nurses
station.16 Forty-five minutes later, Dr. Ruby Miranda-Sanga (Dr. Sanga), one of the resident
physicians of SJDH, arrived. She claimed that although aware that Edmer had vomited "phlegm
with blood streak," she failed to examine the blood specimen because the respondent washed it
away. She then advised the respondent to preserve the specimen for examination.
Thereafter, Dr. Sanga conducted a physical check-up covering Edmers head, eyes, nose, throat,
lungs, skin and abdomen; and found that Edmer had a low-grade non-continuing fever, and
rashes that were not typical of dengue fever.17 Her medical findings state:
the patients rapid breathing and then the lung showed sibilant and the patients nose is flaring
which is a sign that the patient is in respiratory distress; the abdomen has negative finding; the
patient has low grade fever and not continuing; and the rashes in the patients skin were not
"Hermans Rash" and not typical of dengue fever.18
At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing Dr. Sanga, the
respondent showed her Edmers blood specimen, and reported that Edmer had complained of
severe stomach pain and difficulty in moving his right leg.19
Dr. Sanga then examined Edmers "sputum with blood" and noted that he was bleeding.
Suspecting that he could be afflicted with dengue, she inserted a plastic tube in his nose, drained
the liquid from his stomach with ice cold normal saline solution, and gave an instruction not to
pull out the tube, or give the patient any oral medication.
Dr. Sanga thereafter conducted a tourniquet test, which turned out to be negative.20 She likewise
ordered the monitoring of the patients blood pressure and some blood tests. Edmers blood
pressure was later found to be normal.21
At 4:40 in the afternoon, Dr. Sanga called up Dr. Casumpang at his clinic and told him about
Edmers condition.22Upon being informed, Dr. Casumpang ordered several procedures done
including: hematocrit, hemoglobin, blood typing, blood transfusion and tourniquet tests.
The blood test results came at about 6:00 in the evening.
249 | P a g e
Dr. Sanga advised Edmers parents that the blood test results showed that Edmer was suffering
from "Dengue Hemorrhagic Fever." One hour later, Dr. Casumpang arrived at Edmers room and
he recommended his transfer to the Intensive Care Unit (ICU), to which the respondent
consented. Since the ICU was then full, Dr. Casumpang suggested to the respondent that they
hire a private nurse. The respondent, however, insisted on transferring his son to Makati Medical
Center.
After the respondent had signed the waiver, Dr. Casumpang, for the last time, checked Edmers
condition, found that his blood pressure was stable, and noted that he was "comfortable." The
respondent requested for an ambulance but he was informed that the driver was nowhere to be
found. This prompted him to hire a private ambulance that cost him P600.00.23
At 12:00 midnight, Edmer, accompanied by his parents and by Dr. Casumpang, was transferred
to Makati Medical Center.
Dr. Casumpang immediately gave the attending physician the patients clinical history and
laboratory exam results. Upon examination, the attending physician diagnosed "Dengue Fever
Stage IV" that was already in its irreversible stage.
Edmer died at 4:00 in the morning of April 24, 1988.24 His Death Certificate indicated the cause
of death as "Hypovolemic Shock/hemorrhagic shock;" "Dengue Hemorrhagic Fever Stage IV."
Believing that Edmers death was caused by the negligent and erroneous diagnosis of his doctors,
the respondent instituted an action for damages against SJDH, and its attending physicians: Dr.
Casumpang and Dr. Sanga (collectively referred to as the "petitioners") before the RTC of
Makati City.
The Ruling of the Regional Trial Court
In a decision25 dated May 30, 1997, the RTC ruled in favor of the respondent, and awarded actual
and moral damages, plus attorney's fees and costs.
In ruling that the petitioning doctors were negligent, the RTC found untenable the petitioning
doctors contention that Edmers initial symptoms did not indicate dengue fever. It faulted them
for heavily relying on the chest x-ray result and for not considering the other manifestations that
Edmers parents had relayed. It held that in diagnosing and treating an illness, the physicians
conduct should be judged not only by what he/she saw and knew, but also by what he/she could
have reasonably seen and known. It also observed that based on Edmers signs and symptoms,
his medical history and physical examination, and also the information that the petitioning
doctors gathered from his family members, dengue fever was a reasonably foreseeable illness;
250 | P a g e
yet, the petitioning doctors failed to take a second look, much less, consider these indicators of
dengue.
The trial court also found that aside from their self-serving testimonies, the petitioning doctors
did not present other evidence to prove that they exercised the proper medical attention in
diagnosing and treating the patient, leading it to conclude that they were guilty of negligence.
The RTC also held SJDH solidarily liable with the petitioning doctors for damages based on the
following findings of facts: first, Dr. Casumpang, as consultant, is an ostensible agent of SJDH
because before the hospital engaged his medical services, it scrutinized and determined his
fitness, qualifications, and competence as a medical practitioner; and second, Dr. Sanga, as
resident physician, is an employee of SJDH because like Dr. Casumpang, the hospital, through
its screening committee, scrutinized and determined her qualifications, fitness,and competence
before engaging her services; the hospital also exercised control over her work.
The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants,
ordering the latter to pay solidarily and severally plaintiff the following:
(1) Moral damages in the amount of P500,000.00;
(2) Costs of burial and funeral in the amount of P45,000.00;
(3) Attorneys fees of P50,000.00; and
(4) Cost of this suit.
SO ORDERED.
The petitioners appealed the decision to the CA.
The Ruling of the Court of Appeals
In its decision dated October 29, 2004, the CA affirmed en toto the RTCs ruling, finding that
SJDH and its attending physicians failed to exercise the minimum medical care, attention, and
treatment expected of an ordinary doctor under like circumstances.
The CA found the petitioning doctors failure to read even the most basic signs of "dengue fever"
expected of an ordinary doctor as medical negligence. The CA also considered the petitioning
doctors testimonies as self-serving, noting that they presented no other evidence to prove that
they exercised due diligence in diagnosing Edmers illness.
251 | P a g e
The CA likewise found Dr. Rodolfo Jaudians (Dr. Jaudian) testimony admissible. It gave
credence to his opinion26that: (1) given the exhibited symptoms of the patient, dengue fever
should definitely be considered, and bronchopneumonia could be reasonably ruled out; and (2)
dengue fever could have been detected earlier than 7:30 in the evening of April 23, 1988 because
the symptoms were already evident; and agreed with the RTC that the petitioning doctors should
not have solely relied on the chest-x-ray result, as it was not conclusive.
On SJDHs solidary liability, the CA ruled that the hospitals liability is based on Article 2180 of
the Civil Code. The CA opined that the control which the hospital exercises over its consultants,
the hospitals power to hire and terminate their services, all fulfill the employer-employee
relationship requirement under Article 2180.
Lastly, the CA held that SJDH failed to adduce evidence showing that it exercised the diligence
of a good father of a family in the hiring and the supervision of its physicians.
The petitioners separately moved to reconsider the CA decision, but the CA denied their motion
in its resolution of January 12, 2006; hence, the present consolidated petitions pursuant to Rule
45 of the Rules of Court.
The Petitions
I. Dr. Casumpangs Position (G.R. No. 171127)
Dr. Casumpang contends that he gave his patient medical treatment and care to the best of his
abilities, and within the proper standard of care required from physicians under similar
circumstances. He claims that his initial diagnosis of bronchopneumonia was supported by the
chest x-ray result.
Dr. Casumpang also contends that dengue fever occurs only after several days of confinement.
He alleged that when he had suspected that Edmer might be suffering from dengue fever, he
immediately attended and treated him.
Dr. Casumpang likewise raised serious doubts on Dr. Jaudians credibility, arguing that the CA
erred in appreciating his testimony as an expert witness since he lacked the necessary training,
skills, and experience as a specialist in dengue fever cases.
II. Dr. Sangas Position (G.R. No. 171217)
In her petition, Dr. Sanga faults the CA for holding her responsible for Edmers wrong diagnosis,
stressing that the function of making the diagnosis and undertaking the medical treatment
devolved upon Dr. Casumpang, the doctor assigned to Edmer, and who confirmed
"bronchopneumonia."
252 | P a g e
Dr. Sanga also alleged that she exercised prudence in performing her duties as a physician,
underscoring that it was her professional intervention that led to the correct diagnosis of "Dengue
Hemorrhagic Fever." Furthermore, Edmers Complete Blood Count (CBC) showed leukopenia
and an increase in balance as shown by the differential count, demonstrating that Edmers
infection, more or less, is of bacterial and not viral in nature.
Dr. Sanga as well argued that there is no causal relation between the alleged erroneous diagnosis
and medication for "Bronchopneumonia," and Edmers death due to "Dengue Hemorrhagic
Fever."
Lastly, she claimed that Dr. Jaudianis not a qualified expert witness since he never presented any
evidence of formal residency training and fellowship status in Pediatrics.
III. SJDHs Position (G.R. No. 171228)
SJDH, on the other hand, disclaims liability by asserting that Dr. Casumpang and Dr. Sanga are
mere independent contractors and "consultants" (not employees) of the hospital. SJDH alleges
that since it did not exercise control or supervision over the consultants exercise of medical
profession, there is no employer-employee relationship between them, and consequently, Article
2180 of the Civil Code does not apply.
SJDH likewise anchored the absence of employer-employee relationship on the following
circumstances: (1) SJDH does not hire consultants; it only grants them privileges to admit
patients in the hospital through accreditation; (2) SJDH does not pay the consultants wages
similar to an ordinary employee; (3) the consultants earn their own professional fees directly
from their patients; SJDH does not fire or terminate their services; and (4) SJDH does not control
or interfere with the manner and the means the consultants use in the treatment of their patients.
It merely provides them with adequate space in exchange for rental payment.
Furthermore, SJDH claims that the CA erroneously applied the control test when it treated the
hospitals practice of accrediting consultants as an exercise of control. It explained that the
control contemplated by law is that which the employer exercises over the: (i) end result; and the
(ii) manner and means to be used to reach this end, and not any kind of control, however
significant, in accrediting the consultants.
SJDH moreover contends that even if the petitioning doctors are considered employees and not
merely consultants of the hospital, SJDH cannot still be held solidarily liable under Article 2180
of the Civil Code because it observed the diligence of a good father of a family in their selection
and supervision as shown by the following: (1) the adequate measures that the hospital
undertakes to ascertain the petitioning doctors qualifications and medical competence; and (2)
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the documentary evidence that the petitioning doctors presented to prove their competence in the
field of pediatrics.27
SJDH likewise faults the CA for ruling that the petitioning doctors are its agents, claiming that
this theory, aside from being inconsistent with the CAs finding of employment relationship, is
unfounded because: first, the petitioning doctors are independent contractors, not agents of
SJDH; and second, as a medical institution, SJDH cannot practice medicine, much more, extend
its personality to physicians to practice medicine on its behalf.
Lastly, SJDH maintains that the petitioning doctors arrived at an intelligently deduced and
correct diagnosis. It claimed that based on Edmer's signs and symptoms at the time of admission
(i.e., one day fever,28 bacterial infection,29 and lack of hemorrhagic manifestations30), there was
no reasonable indication yet that he was suffering from dengue fever, and accordingly, their
failure to diagnose dengue fever, does not constitute negligence on their part.
The Case for the Respondent
In his comment, the respondent submits that the issues the petitioners raised are mainly factual in
nature, which a petition for review on certiorari under Rule 45 of the Rules of Courts does not
allow.
In any case, he contends that the petitioning doctors were negligent in conducting their medical
examination and diagnosis based on the following: (1) the petitioning doctors failed to timely
diagnose Edmers correct illness due to their non-observance of the proper and acceptable
standard of medical examination; (2) the petitioning doctors medical examination was not
comprehensive, as they were always in a rush; and (3) the petitioning doctors employed a
guessing game in diagnosing bronchopneumonia.
The respondent also alleges that there is a causal connection between the petitioning doctors
negligence and Edmers untimely death, warranting the claim for damages.
The respondent, too, asserted that SJDH is also negligent because it was not equipped with
proper paging system, has no bronchoscope, and its doctors are not proportionate to the number
of its patients. He also pointed out that out of the seven resident physicians in the hospital, only
two resident physicians were doing rounds at the time of his sons confinement.
The Issues
The case presents to us the following issues:
1. Whether or not the petitioning doctors had committed "inexcusable lack of precaution"
in diagnosing and in treating the patient;
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2. Whether or not the petitioner hospital is solidarily liable with the petitioning doctors;
3. Whether or not there is a causal connection between the petitioners negligent
act/omission and the patients resulting death; and
4. Whether or not the lower courts erred in considering Dr. Rodolfo Tabangcora Jaudian
as an expert witness.
Our Ruling
We find the petition partly meritorious.
A Petition for Review on Certiorari
under Rule 45 of the Rules of Court
is Limited to Questions of Law.
The settled rule is that the Courts jurisdiction in a petition for review on certiorari under Rule 45
of the Rules of Court is limited only to the review of pure questions of law. It is not the Courts
function to inquire on the veracity of the appellate courts factual findings and conclusions; this
Court is not a trier of facts.31
A question of law arises when there is doubt as to what the law is on a certain state of facts,
while there is a question of fact when the doubt arises as to the truth or falsity of the alleged
facts.32
These consolidated petitions before us involve mixed questions of fact and law. As a rule, we do
not resolve questions of fact. However, in determining the legal question of whether the
respondent is entitled to claim damages under Article 2176 of the Civil Code for the petitioners
alleged medical malpractice, the determination of the factual issues i.e., whether the petitioning
doctors were grossly negligent in diagnosing the patients illness, whether there is causal relation
between the petitioners act/omission and the patients resulting death, and whether Dr. Jaudian is
qualified as an expert witness must necessarily be resolved. We resolve these factual questions
solely for the purpose of determining the legal issues raised.
Medical Malpractice Suit as a
Specialized Area of Tort Law
The claim for damages is based on the petitioning doctors negligence in diagnosing and treating
the deceased Edmer, the child of the respondent. It is a medical malpractice suit, an action
available to victims to redress a wrong committed by medical professionals who caused bodily
harm to, or the death of, a patient.33 As the term is used, the suit is brought whenever a medical
255 | P a g e
practitioner or health care provider fails to meet the standards demanded by his profession, or
deviates from this standard, and causes injury to the patient.
To successfully pursue a medical malpractice suit, the plaintiff (in this case, the deceased
patients heir) must prove that the doctor either failed to do what a reasonably prudent doctor
would have done, or did what a reasonably prudent doctor would not have done; and the act or
omission had caused injury to the patient.34 The patients heir/s bears the burden of proving
his/her cause of action.
The Elements of a Medical Malpractice Suit
The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4) proximate
causation.
Duty refers to the standard of behavior that imposes restrictions on one's conduct.35 It requires
proof of professional relationship between the physician and the patient. Without the professional
relationship, a physician owes no duty to the patient, and cannot therefore incur any liability.
A physician-patient relationship is created when a patient engages the services of a
physician,36 and the latter accepts or agrees to provide care to the patient.37 The establishment of
this relationship is consensual,38 and the acceptance by the physician essential. The mere fact that
an individual approaches a physician and seeks diagnosis, advice or treatment does not create the
duty of care unless the physician agrees.39
The consent needed to create the relationship does not always need to be express.40 In the
absence of an express agreement, a physician-patient relationship may be implied from the
physicians affirmative action to diagnose and/or treat a patient, or in his participation in such
diagnosis and/or treatment.41 The usual illustration would be the case of a patient who goes to a
hospital or a clinic, and is examined and treated by the doctor. In this case, we can infer, based on
the established and customary practice in the medical community that a patient-physician
relationship exists.
Once a physician-patient relationship is established, the legal duty of care follows. The doctor
accordingly becomes duty-bound to use at least the same standard of care that a reasonably
competent doctor would use to treat a medical condition under similar circumstances.
Breach of duty occurs when the doctor fails to comply with, or improperly performs his duties
under professional standards. This determination is both factual and legal, and is specific to each
individual case.42
If the patient, as a result of the breach of duty, is injured in body or in health, actionable
malpractice is committed, entitling the patient to damages.43
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To successfully claim damages, the patient must lastly prove the causal relation between the
negligence and the injury. This connection must be direct, natural, and should be unbroken by
any intervening efficient causes. In other words, the negligence must be the proximate cause of
the injury.44 The injury or damage is proximately caused by the physicians negligence when it
appears, based on the evidence and the expert testimony, that the negligence played an integral
part in causing the injury or damage, and that the injury or damage was either a direct result, or a
reasonably probable consequence of the physicians negligence.45
a. The Relationship Between Dr. Casumpang and Edmer
In the present case, the physician-patient relationship between Dr. Casumpang and Edmer was
created when the latters parents sought the medical services of Dr. Casumpang, and the latter
knowingly accepted Edmer as a patient. Dr. Casumpangs acceptance is implied from his
affirmative examination, diagnosis and treatment of Edmer. On the other hand, Edmers parents,
on their sons behalf, manifested their consent by availing of the benefits of their health care
plan, and by accepting the hospitals assigned doctor without objections.
b. The Relationship Between Dr. Sanga and Edmer
With respect to Dr. Sanga, her professional relationship with Edmer arose when she assumed the
obligation to provide resident supervision over the latter. As second year resident doctor tasked
to do rounds and assist other physicians, Dr. Sanga is deemed to have agreed to the creation of
physician-patient relationship with the hospitals patients when she participated in the diagnosis
and prescribed a course of treatment for Edmer.
The undisputed evidence shows that Dr. Sanga examined Edmer twice (at around 12:00 and 3:30
in the afternoon of April 23, 1988),and in both instances, she prescribed treatment and
participated in the diagnosis of Edmers medical condition. Her affirmative acts amounted to her
acceptance of the physician-patient relationship, and incidentally, the legal duty of care that went
with it.
In Jarcia, Jr. v. People of the Philippines,46 the Court found the doctors who merely passed by and
were requested to attend to the patient, liable for medical malpractice. It held that a physicianpatient relationship was established when they examined the patient, and later assured the mother
that everything was fine.
In the US case of Mead v. Legacy Health System,47 the Court also considered the rendering of an
opinion in the course of the patients care as the doctors assent to the physician-patient
relationship. It ruled that the relationship was formed because of the doctors affirmative action.
Likewise, in Wax v. Johnson,48 the court found that a physician patient relationship was formed
between a physician who "contracts, agrees, undertakes, or otherwise assumes" the obligation to
257 | P a g e
provide resident supervision at a teaching hospital, and the patient with whom the doctor had no
direct or indirect contract.
Standard of Care and Breach of Duty
A determination of whether or not the petitioning doctors met the required standard of care
involves a question of mixed fact and law; it is factual as medical negligence cases are highly
technical in nature, requiring the presentation of expert witnesses to provide guidance to the
court on matters clearly falling within the domain of medical science, and legal, insofar as the
Court, after evaluating the expert testimonies, and guided by medical literature, learned treatises,
and its fund of common knowledge, ultimately determines whether breach of duty took place.
Whether or not Dr. Casumpang and Dr. Sanga committed a breach of duty is to be measured by
the yardstick of professional standards observed by the other members of the medical profession
in good standing under similar circumstances.49 It is in this aspect of medical malpractice that
expert testimony is essential to establish not only the professional standards observed in the
medical community, but also that the physicians conduct in the treatment of care falls below
such standard.50
In the present case, expert testimony is crucial in determining first, the standard medical
examinations, tests, and procedures that the attending physicians should have undertaken in the
diagnosis and treatment of dengue fever; and second, the dengue fever signs and symptoms that
the attending physicians should have noticed and considered.
Both the RTC and the CA relied largely on Dr. Jaudians expert testimony on dengue diagnosis
and management to support their finding that the petitioning doctors were guilty of breach of
duty of care.
Dr. Jaudian testified that Edmers rapid breathing, chest and stomach pain, fever, and the
presence of blood in his saliva are classic symptoms of dengue fever. According to him, if the
patient was admitted for chest pain, abdominal pain, and difficulty in breathing coupled with
fever, dengue fever should definitely be considered;51 if the patient spits coffee ground with the
presence of blood, and the patients platelet count drops to 47,000, it becomes a clear case of
dengue fever, and bronchopneumonia can be reasonably ruled out.52
Furthermore, the standard of care according to Dr. Jaudian is to administer oxygen inhalation,
analgesic, and fluid infusion or dextrose.53 If the patient had twice vomited fresh blood and
thrombocytopenia has already occurred, the doctor should order blood transfusion, monitoring of
the patient every 30 minutes, hemostatic to stop bleeding, and oxygen if there is difficulty in
breathing.54
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We find that Dr. Casumpang, as Edmers attending physician, did not act according to these
standards and, hence, was guilty of breach of duty. We do not find Dr. Sanga liable for the
reasons discussed below.
Dr. Casumpangs Negligence
a. Negligence in the Diagnosis
At the trial, Dr. Casumpang declared that a doctors impression regarding a patients illness is
90% based on the physical examination, the information given by the patient or the latters
parents, and the patients medical history.55 He testified that he did not consider either dengue
fever or dengue hemorrhagic fever because the patients history showed that Edmer had low
breath and voluntary submission, and that he was up and about playing basketball.56 He based his
diagnosis of bronchopneumonia on the following observations: "difficulty in breathing, clearing
run nostril, harsh breath sound, tight air, and sivilant sound."57
It will be recalled that during Dr. Casumpangs first and second visits to Edmer, he already had
knowledge of Edmers laboratory test result (CBC), medical history, and symptoms (i.e., fever,
rashes, rapid breathing, chest and stomach pain, throat irritation, difficulty in breathing, and
traces of blood in the sputum). However, these information did not lead Dr. Casumpang to the
possibility that Edmer could be suffering from either dengue fever, or dengue hemorrhagic fever,
as he clung to his diagnosis of broncho pneumonia. This means that given the symptoms
exhibited, Dr. Casumpang already ruled out the possibility of other diseases like dengue.
In other words, it was lost on Dr. Casumpang that the characteristic symptoms of dengue (as Dr.
Jaudian testified) are: patients rapid breathing; chest and stomach pain; fever; and the presence
of blood in his saliva. All these manifestations were present and known to Dr. Casumpang at the
time of his first and second visits to Edmer. While he noted some of these symptoms in
confirming bronchopneumonia, he did not seem to have considered the patients other
manifestations in ruling out dengue fever or dengue hemorrhagic fever.58 To our mind, Dr.
Casumpang selectively appreciated some, and not all of the symptoms; worse, he casually
ignored the pieces of information that could have been material in detecting dengue fever. This is
evident from the testimony of Mrs. Cortejo:
TSN, Mrs. Cortejo, November 27, 1990
Q: Now, when Dr. Casumpang visited your son for the first time at 5:30 p.m., what did he do, if
any?
A: He examined my son by using stethoscope and after that, he confirmed to me that my son was
suffering from broncho pneumonia.
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Q: After he confirmed that your son was suffering broncho pneumonia, what did you say if any?
A: Again, I told Dr. Casumpang, how come it was broncho pneumonia when my son has no
cough or colds.
Q: What was the answer of Dr. Casumpang to your statement?
xxxx
A: And then, Dr. Casumpang answered "THATS THE USUAL BRONCHO PNEUMONIA, NO
COLDS, NO PHLEGM."
Q: How long did Dr. Casumpang stay in your sons room?
A: He stayed for a minute or 2.
xxxx
Q: When Dr. Casumpang arrived at 9:00 oclock a.m. on April 23, what did you tell him, if any?
xxxx
A: I told Dr. Casumpang After examining my son using stethoscope and nothing more, I told
Dr. Casumpang about the traces of blood in my sons sputum and I told him what is all about and
he has throat irritation.
Q: What did he tell you?
A: He just nodded his head but he did not take the initiative of looking at the throat of my son.
Q: So what happened after that?
A: I also told Dr. Casumpang about his chest pain and also stomach pain.
Q: So what did Dr. Casumpang do after you have narrated all these complaints of your son?
A: Nothing. He also noticed the rapid breathing of my son and my son was almost moving
because of rapid breathing and he is swaying in the bed.
Q: Do you know what action was taken by Dr. Casumpang when you told him that your son is
experiencing a rapid breathing?
A: No action. He just asked me if my son has an asthma but I said none.
260 | P a g e
Q: So how long did Dr. Casumpang stay and attended your son on April 23?
A: More or less two (2) minutes then I followed him up to the door and I repeated about the fever
of my son.
Q: What did he tell you, if any, regarding that information you gave him that your son had a
fever?
A: He said, that is broncho pneumonia, Its only being active now. [Emphasis supplied]
We also find it strange why Dr. Casumpang did not even bother to check Edmers throat despite
knowing that as early as 9:00 in the morning of April 23, 1988, Edmer had blood streaks in his
sputum. Neither did Dr. Casumpang order confirmatory tests to confirm the source of bleeding.
The Physicians Progress Notes59 stated: "Blood streaks on phlegm can be due to bronchial
irritation or congestion," which clearly showed that Dr. Casumpang merely assumed, without
confirmatory physical examination, that bronchopneumonia caused the bleeding.
Dr. Jaudian likewise opined that Dr. Casumpangs medical examination was not comprehensive
enough to reasonably lead to a correct diagnosis.60 Dr. Casumpang only used a stethoscope in
coming up with the diagnosis that Edmer was suffering from bronchopneumonia; he never
confirmed this finding with the use of a bronchoscope. Furthermore, Dr. Casumpang based his
diagnosis largely on the chest x-ray result that is generally inconclusive.61
Significantly, it was only at around 5:00 in the afternoon of April 23, 1988 (after Edmers third
episode of bleeding) that Dr. Casumpang ordered the conduct of hematocrit, hemoglobin, blood
typing, blood transfusion and tourniquet tests. These tests came too late, as proven by: (1) the
blood test results that came at about 6:00 in the evening, confirming that Edmers illness had
developed to "Dengue Hemorrhagic Fever;" and (2) Dr. Jaudians testimony that "dengue fever
could have been detected earlier than 7:30 in the evening of April 23, 1988 because the
symptoms were already evident."62
In Spouses Flores v. Spouses Pineda,63 a case involving a medical malpractice suit, the Court
ruled that the petitioner doctors were negligent because they failed to immediately order tests to
confirm the patients illness. Despite the doctors suspicion that the patient could be suffering
from diabetes, the former still proceeded to the D&C operation. In that case, expert testimony
showed that tests should have been ordered immediately on admission to the hospital in view of
the symptoms presented. The Court held:
When a patient exhibits symptoms typical of a particular disease, these symptoms should, at the
very least, alert the physician of the possibility that the patient may be afflicted with the
suspected disease.
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The Court also ruled that reasonable prudence would have shown that diabetes and its
complications were foreseeable harm. However, the petitioner doctors failed to take this into
consideration and proceeded with the D&C operation. Thus, the Court ruled that they failed to
comply with their duty to observe the standard of care to be given to hyperglycemic/diabetic
patients.
Similarly, in Jarcia,64 involving the negligence of the doctors in failing to exercise reasonable
prudence in ascertaining the extent of the patients injuries, this Court declared that:
In failing to perform an extensive medical examination to determine the extent of Roy Jr.s
injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the medical
profession. Assuming for the sake of argument that they did not have the capacity to make such
thorough evaluation at that stage, they should have referred the patient to another doctor with
sufficient training and experience instead of assuring him and his mother that everything was all
right. [Emphasis supplied]
Even assuming that Edmers symptoms completely coincided with the diagnosis of
bronchopneumonia (so that this diagnosis could not be considered "wrong"), we still find Dr.
Casumpang guilty of negligence.
First, we emphasize that we do not decide the correctness of a doctors diagnosis, or the accuracy
of the medical findings and treatment. Our duty in medical malpractice cases is to decide based
on the evidence adduced and expert opinion presented whether a breach of duty took place.
Second, we clarify that a wrong diagnosis is not by itself medical malpractice.65 Physicians are
generally not liable for damages resulting from a bona fide error of judgment. Nonetheless, when
the physicians erroneous diagnosis was the result of negligent conduct (e.g., neglect of medical
history, failure to order the appropriate tests, failure to recognize symptoms), it becomes an
evidence of medical malpractice.
Third, we also note that medicine is not an exact science;66 and doctors, or even specialists, are
not expected to give a 100% accurate diagnosis in treating patients who come to their clinic for
consultations. Error is possible as the exercise of judgment is called for in considering and
reading the exhibited symptoms, the results of tests, and in arriving at definitive conclusions. But
in doing all these, the doctor must have acted according to acceptable medical practice standards.
In the present case, evidence on record established that in confirming the diagnosis of
bronchopneumonia, Dr. Casumpang selectively appreciated some and not all of the symptoms
presented, and failed to promptly conduct the appropriate tests to confirm his findings. In sum,
Dr. Casumpang failed to timely detect dengue fever, which failure, especially when reasonable
262 | P a g e
prudence would have shown that indications of dengue were evident and/or foreseeable,
a. Negligence in the Treatment and Management of Dengue
Apart from failing to promptly detect dengue fever, Dr. Casumpang also failed to promptly
undertake the proper medical management needed for this disease.
As Dr. Jaudian opined, the standard medical procedure once the patient had exhibited the classic
symptoms of dengue fever should have been: oxygen inhalation, use of analgesic, and infusion of
fluids or dextrose;67 and once the patient had twice vomited fresh blood, the doctor should have
ordered: blood transfusion, monitoring of the patient every 30 minutes, hemostatic to stop
bleeding, and oxygen if there is difficulty in breathing.68
Dr. Casumpang failed to measure up to these standards. The evidence strongly suggests that he
ordered a transfusion of platelet concentrate instead of blood transfusion. The tourniquet test was
only conducted after Edmers second episode of bleeding, and the medical management (as
reflected in the records) did not include antibiotic therapy and complete physical examination.
Dr. Casumpangs testimony states:
Q: Now, after entertaining After considering that the patient Edmer Cortero was already
suffering from dengue hemorrhagic fever, what did you do, if any?
A: We ordered close monitoring of the blood pressure, the cardiac rate and respiratory rate of the
patient.
Q: Now, was your instructions carried on?
A: Yes, sir.
Q: What was the blood pressure of the patient?
A: During those times, the blood pressure of the patient was even normal during those times.
Q: How about the respiratory rate?
A: The respiratory rate was fast because the patient in the beginning since admission had
difficulty in breathing.
Q: Then, after that, what did you do with the patient? Doctor?
A: We transfused platelet concentrate and at the same time, we monitor [sic] the patient.
263 | P a g e
Q: Then, who monitor [sic] the patient?

A: The pediatric resident on duty at that time.
Q: Now, what happened after that?
Q: While monitoring the patient, all his vital signs were _____; his blood pressure was normal so
we continued with the supportive management at that time.
Q: Now, after that?
A: In the evening of April 23, 1988, I stayed in the hospital and I was informed by the pediatric
resident on duty at around 11:15 in the evening that the blood pressure of the patient went down
to .60 palpatory.
Q: What did you do upon receipt of that information?
A: I immediately went up to the room of the patient and we changed the IV fluid from the
present fluid which was D5 0.3 sodium chloride to lactated ringers solution.
Q: You mean to say you increased the dengue [sic] of the intervenus [sic] fluid?
A: We changed the IV fluid because lactated ringers was necessary to resume the volume and to
bring back the blood pressure, to increase the blood pressure. [Emphasis supplied]
Although Dr. Casumpang presented the testimonies of Dr. Rodolfo Jagonap and Dr. Ellewelyn
Pasion (Dr. Pasion), Personnel Officer and Medical Director of SJDH, respectively as well as the
testimonies of Dr. Livelo and Dr. Reyes (the radiologist who read Edmers chest x-ray result),
these witnesses failed to dispute the standard of action that Dr. Jaudian established in his expert
opinion. We cannot consider them expert witnesses either for the sole reason that they did not
testify on the standard of care in dengue cases.69
On the whole, after examining the totality of the adduced evidence, we find that the lower courts
correctly did not rely on Dr. Casumpangs claim that he exercised prudence and due diligence in
handling Edmers case. Aside from being self-serving, his claim is not supported by competent
evidence. As the lower courts did, we rely on the uncontroverted fact that he failed, as a medical
professional, to observe the most prudent medical procedure under the circumstances in
diagnosing and treating Edmer.
Dr. Sanga is Not Liable for Negligence
264 | P a g e
In considering the case of Dr. Sanga, the junior resident physician who was on-duty at the time
of Edmers confinement, we see the need to draw distinctions between the responsibilities and
corresponding liability of Dr. Casumpang, as the attending physician, and that of Dr. Sanga.
In his testimony, Dr. Pasion declared that resident applicants are generally doctors of medicine
licensed to practice in the Philippines and who would like to pursue a particular specialty.70 They
are usually the front line doctors responsible for the first contact with the patient. During the
scope of the residency program,71 resident physicians (or "residents")72 function under the
supervision of attending physicians73 or of the hospitals teaching staff. Under this arrangement,
residents operate merely as subordinates who usually defer to the attending physician on the
decision to be made and on the action to be taken.
The attending physician, on the other hand, is primarily responsible for managing the residents
exercise of duties. While attending and resident physicians share the collective responsibility to
deliver safe and appropriate care to the patients,74 it is the attending physician who assumes the
principal responsibility of patient care.75Because he/she exercises a supervisory role over the
resident, and is ultimately responsible for the diagnosis and treatment of the patient, the
standards applicable to and the liability of the resident for medical malpractice is theoretically
less than that of the attending physician. These relative burdens and distinctions, however, do not
translate to immunity from the legal duty of care for residents,76 or from the responsibility arising
from their own negligent act.
In Jenkins v. Clark,77 the Ohio Court of Appeals held that the applicable standard of care in
medical malpractice cases involving first-year residents was that of a reasonably prudent
physician and not that of interns. According to Jenkins:
It is clear that the standard of care required of physicians is not an individualized one but of
physicians in general in the community. In order to establish medical malpractice, it must be
shown by a preponderance of the evidence that a physician did some particular thing or things
that a physician or surgeon of ordinary skill, care and diligence would not have done under like
or similar conditions or circumstances, or that he failed or omitted to do some particular thing or
things that a physician or surgeon of ordinary skill, care and diligence would have done under
like or similar conditions or circumstances, and that the inquiry complained of was the direct
result of such doing or failing to do such thing or things.
We note that the standard of instruction given by the court was indeed a proper one. It clearly
informed the jury that the medical care required is that of reasonably careful physicians or
hospital emergency room operators, not of interns or residents. [Emphasis supplied]
A decade later, Centman v. Cobb,78 affirmed the Jenkins ruling and held that interns and first-year
residents are "practitioners of medicine required to exercise the same standard of care applicable
265 | P a g e
to physicians with unlimited licenses to practice." The Indiana Court held that although a firstyear resident practices under a temporary medical permit, he/she impliedly contracts that he/she
has the reasonable and ordinary qualifications of her profession and that he/she will exercise
reasonable skill, diligence, and care in treating the patient.
We find that Dr. Sanga was not independently negligent. Although she had greater patient
exposure, and was subject to the same standard of care applicable to attending physicians, we
believe that a finding of negligence should also depend on several competing factors, among
them, her authority to make her own diagnosis, the degree of supervision of the attending
physician over her, and the shared responsibility between her and the attending physicians.
In this case, before Dr. Sanga attended to Edmer, both Dr. Livelo and Dr. Casumpang had
diagnosed Edmer with bronchopneumonia. In her testimony, Dr. Sanga admitted that she had
been briefed about Edmers condition, his medical history, and initial diagnosis;79 and based on
these pieces of information, she confirmed the finding of bronchopneumonia.
Dr. Sanga likewise duly reported to Dr. Casumpang, who admitted receiving updates regarding
Edmers condition.80 There is also evidence supporting Dr. Sangas claim that she extended
diligent care to Edmer. In fact, when she suspected during Edmers second episode of
bleeding that Edmer could be suffering from dengue fever, she wasted no time in conducting
the necessary tests, and promptly notified Dr. Casumpang about the incident. Indubitably, her
medical assistance led to the finding of dengue fever.
We note however, that during Edmers second episode of bleeding,81 Dr. Sanga failed to
immediately examine and note the cause of the blood specimen. Like Dr. Casumpang, she
merely assumed that the blood in Edmers phlegm was caused by bronchopneumonia. Her
testimony states:
TSN, June 8, 1993:
Q: Let us get this clear, you said that the father told you the patient cocked [sic] out phlegm.
A: With blood streak.
Q: Now, you stated specimen, were you not able to examine the specimen?
A: No, sir, I did not because according to the father he wash [sic] his hands.
xxxx
Q: Now, from you knowledge, what does that indicate if the patient expels a phlegm and blood
streak?
266 | P a g e
A: If a patient cocked [sic] out phlegm then the specimen could have come from the lung
alone.82 [Emphasis supplied]
xxxx
TSN, June 17, 1993:
Q: Now, in the first meeting you had, when that was relayed to you by the father that Edmer
Cortejo had coughed out blood, what medical action did you take?
A: I examined the patient and I thought that, that coughed out phlegm was a product of broncho
pneumonia.
xxxx
Q: So what examination did you specifically conduct to see that there was no internal bleeding?
A: At that time I did not do anything to determine the cause of coughing of the blood because I
presumed that it was a mucous (sic) produced by broncho pneumonia, And besides the patient
did not even show any signs of any other illness at that time.83
Based on her statements we find that Dr. Sanga was not entirely faultless. Nevertheless, her
failure to discern the import of Edmers second bleeding does not necessarily amount to
negligence as the respondent himself admitted that Dr. Sanga failed to examine the blood
specimen because he wash edit away. In addition, considering the diagnosis previously made by
two doctors, and the uncontroverted fact that the burden of final diagnosis pertains to the
attending physician (in this case, Dr. Casumpang), we believe that Dr. Sangas error was merely
an honest mistake of judgment influenced in no small measure by her status in the hospital
hierarchy; hence, she should not be held liable for medical negligence.
Dr. Jaudians Professional Competence and Credibility
One of the critical issues the petitioners raised in the proceedings before the lower court and
before this Court was Dr. Jaudians competence and credibility as an expert witness. The
petitioners tried to discredit his expert testimony on the ground that he lacked the proper training
and fellowship status in pediatrics.
Criteria in Qualifying as an Expert Witness
The competence of an expert witness is a matter for the trial court to decide upon in the exercise
of its discretion. The test of qualification is necessarily a relative one, depending upon the subject
matter of the investigation, and the fitness of the expert witness.84 In our jurisdiction, the
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criterion remains to be the expert witness special knowledge experience and practical training
that qualify him/her to explain highly technical medical matters to the Court.
In Ramos v. Court of Appeals,85 the Court found the expert witness, who is a pulmonologist, not
qualified to testify on the field of anesthesiology. Similarly, in Cereno v. Court of Appeals,86 a
2012 case involving medical negligence, the Court excluded the testimony of an expert witness
whose specialty was anesthesiology, and concluded that an anesthesiologist cannot be considered
an expert in the field of surgery or even in surgical practices and diagnosis.
Interestingly in this case, Dr. Jaudian, the expert witness was admittedly not a pediatrician but a
practicing physician who specializes in pathology.87 He likewise does not possess any formal
residency training in pediatrics. Nonetheless, both the lower courts found his knowledge
acquired through study and practical experience sufficient to advance an expert opinion on
dengue-related cases.
We agree with the lower courts.
A close scrutiny of Ramos and Cereno reveals that the Court primarily based the witnesses
disqualification to testify as an expert on their incapacity to shed light on the standard of care
that must be observed by the defendant-physicians. That the expert witnesses specialties do not
match the physicians practice area only constituted, at most, one of the considerations that
should not be taken out of context. After all, the sole function of a medical expert witness,
regardless of his/her specialty, is to afford assistance to the courts on medical matters, and to
explain the medical facts in issue.
Furthermore, there was no reasonable indication in Ramos and Cereno that the expert witnesses
possess a sufficient familiarity with the standard of care applicable to the physicians specialties.
US jurisprudence on medical malpractice demonstrated the trial courts wide latitude of
discretion in allowing a specialist from another field to testify against a defendant specialist.
In Brown v. Sims,88 a neurosurgeon was found competent to give expert testimony regarding a
gynecologist's standard of pre-surgical care. In that case, the court held that since negligence was
not predicated on the gynecologists negligent performance of the operation, but primarily on the
claim that the pre-operative histories and physicals were inadequate, the neurosurgeon was
competent to testify as an expert.
Frost v. Mayo Clinic89 also allowed an orthopedic surgeon to testify against a neurologist in a
medical malpractice action. The court considered that the orthopedic surgeons opinion on the
"immediate need for decompression" need not come from a specialist in neurosurgery. The court
held that:
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It is well established that "the testimony of a qualified medical doctor cannot be excluded simply
because he is not a specialist x x x." The matter of "x x x training and specialization of the
witness goes to the weight rather than admissibility x x x."
xxxx
It did not appear to the court that a medical doctor had to be a specialist in neurosurgery to
express the opinions permitted to be expressed by plaintiffs doctors, e.g., the immediate need for
a decompression in the light of certain neurological deficits in a post-laminectomy patient. As
stated above, there was no issue as to the proper execution of the neurosurgery. The medical
testimony supported plaintiffs theory of negligence and causation. (Citations omitted)
In another case,90 the court declared that it is the specialists knowledge of the requisite subject
matter, rather than his/her specialty that determines his/her qualification to testify.
Also in Evans v. Ohanesian,91 the court set a guideline in qualifying an expert witness:
To qualify a witness as a medical expert, it must be shown that the witness (1) has the required
professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him
to speak with authority on the subject; and (2) is familiar with the standard required of a
physician under similar circumstances; where a witness has disclosed sufficient knowledge of the
subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes
more to the weight of the evidence than to its admissibility.
xxxx
Nor is it critical whether a medical expert is a general practitioner or a specialist so long as he
exhibits knowledge of the subject. Where a duly licensed and practicing physician has gained
knowledge of the standard of care applicable to a specialty in which he is not directly engaged
but as to which he has an opinion based on education, experience, observation, or association wit
that specialty, his opinion is competent.(Emphasis supplied)
Finally, Brown v. Mladineo92 adhered to the principle that the witness familiarity, and not the
classification by title or specialty, which should control issues regarding the expert witness
qualifications:
The general rule as to expert testimony in medical malpractice actions is that "a specialist in a
particular branch within a profession will not be required." Most courts allow a doctor to testify
if they are satisfied of his familiarity with the standards of a specialty, though he may not
practice the specialty himself. One court explained that "it is the scope of the witness knowledge
and not the artificial classification by title that should govern the threshold question of
admissibility. (Citations omitted)
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Application to the Present Case

In the case and the facts before us, we find that Dr. Jaudian is competent to testify on the
standard of care in dengue fever cases.1avvphi1
Although he specializes in pathology, it was established during trial that he had attended not less
than 30 seminars held by the Pediatric Society, had exposure in pediatrics, had been practicing
medicine for 16 years, and had handled not less than 50 dengue related cases.
As a licensed medical practitioner specializing in pathology, who had practical and relevant
exposure in pediatrics and dengue related cases, we are convinced that Dr. Jaudian demonstrated
sufficient familiarity with the standard of care to be applied in dengue fever cases. Furthermore,
we agree that he possesses knowledge and experience sufficient to qualify him to speak with
authority on the subject.
The Causation Between Dr. Casumpangs
Negligent Act/Omission, and the Patients
Resulting Death was Adequately Proven
Dr. Jaudians testimony strongly suggests that due to Dr. Casumpangs failure to timely diagnose
Edmer with dengue, the latter was not immediately given the proper treatment. In fact, even after
Dr. Casumpang had discovered Edmers real illness, he still failed to promptly perform the
standard medical procedure. We agree with these findings.
As the respondent had pointed out, dengue fever, if left untreated, could be a life threatening
disease. As in any fatal diseases, it requires immediate medical attention.93 With the correct and
timely diagnosis, coupled with the proper medical management, dengue fever is not a life
threatening disease and could easily be cured.94
Furthermore, as Dr. Jaudian testified, with adequate intensive care, the mortality rate of dengue
fever should fall to less than 2%. Hence, the survival of the patient is directly related to early and
proper management of the illness.95
To reiterate, Dr. Casumpang failed to timely diagnose Edmer with dengue fever despite the
presence of its characteristic symptoms; and as a consequence of the delayed diagnosis, he also
failed to promptly manage Edmers illness. Had he immediately conducted confirmatory tests,
(i.e., tourniquet tests and series of blood tests)and promptly administered the proper care and
management needed for dengue fever, the risk of complications or even death, could have been
substantially reduced.
Furthermore, medical literature on dengue shows that early diagnosis and management of dengue
is critical in reducing the risk of complications and avoiding further spread of the virus.96 That
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Edmer later died of "Hypovolemic Shock/hemorrhagic shock," "Dengue Hemorrhagic Fever

Stage IV," a severe and fatal form of dengue fever, established the causal link between Dr.
Casumpangs negligence and the injury.
Based on these considerations, we rule that the respondent successfully proved the element of
causation.
Liability of SJDH
We now discuss the liability of the hospital.
The respondent submits that SJDH should not only be held vicariously liable for the petitioning
doctors negligence but also for its own negligence. He claims that SJDH fell short of its duty of
providing its patients with the necessary facilities and equipment as shown by the following
circumstances:
(a) SJDH was not equipped with proper paging system;
(b) the number of its doctors is not proportionate to the number of patients;
(c) SJDH was not equipped with a bronchoscope;
(d) when Edmers oxygen was removed, the medical staff did not immediately provide
him with portable oxygen;
(e) when Edmer was about to be transferred to another hospital, SJDHs was not ready
and had no driver; and
(f) despite Edmers critical condition, there was no doctor attending to him from 5:30
p.m. of April 22, to 9:00 a.m. of April 23, 1988.
SJDH on the other hand disclaims liability by claiming that the petitioning doctors are not its
employees but are mere consultants and independent contractors.
We affirm the hospitals liability not on the basis of Article 2180 of the Civil Code, but on the
basis of the doctrine of apparent authority or agency by estoppel.
There is No Employer-Employee Relationship
Between SJDH and the Petitioning Doctors
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In determining whether an employer-employee relationship exists between the parties, the

following elements must be present: (1) selection and engagement of services; (2) payment of
wages; (3) the power to hire and fire; and (4) the power to control not only the end to be
achieved, but the means to be used in reaching such an end.97
Control, which is the most crucial among the elements, is not present in this case.
Based on the records, no evidence exists showing that SJDH exercised any degree of control
over the means, methods of procedure and manner by which the petitioning doctors conducted
and performed their medical profession. SJDH did not control their diagnosis and treatment.
Likewise, no evidence was presented to show that SJDH monitored, supervised, or directed the
petitioning doctors in the treatment and management of Edmers case. In these lights, the
petitioning doctors were not employees of SJDH, but were mere independent contractors.
SJDH is Solidarily Liable Based
on The Principle of Agency or Doctrine
of Apparent Authority
Despite the absence of employer-employee relationship between SJDH and the petitioning
doctors, SJDH is not free from liability.98
As a rule, hospitals are not liable for the negligence of its independent contractors. However, it
may be found liable if the physician or independent contractor acts as an ostensible agent of the
hospital. This exception is also known as the "doctrine of apparent authority."99
The US case of Gilbert v. Sycamore Municipal Hospital100 abrogated the hospitals immunity to
vicarious liability of independent contractor physicians. In that case, the Illinois Supreme Court
held that under the doctrine of apparent authority, hospitals could be found vicariously liable for
the negligence of an independent contractor:
Therefore, we hold that, under the doctrine of apparent authority, a hospital can be held
vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of
whether the physician is an independent contractor, unless the patient knows, or should have
known, that the physician is an independent contractor. The elements of the action have been set
out as follows:
For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1)
the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that
the individual who was alleged to be negligent was an employee or agent of the hospital; (2)
where the acts of the agent create the appearance of authority, the plaintiff must also prove that
the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance
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upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.
(Emphasis supplied)
The doctrine was applied in Nogales v. Capitol Medical Center101 where this Court, through the
ponencia of Associate Justice Antonio T. Carpio, discussed the two factors in determining
hospital liability as follows:
The first factor focuses on the hospitals manifestations and is sometimes described as an inquiry
whether the hospital acted in a manner which would lead a reasonable person to conclude that
the individual who was alleged to be negligent was an employee or agent of the hospital. In this
regard, the hospital need not make express representations to the patient that the treating
physician is an employee of the hospital; rather a representation may be general and implied.
xxxx
The second factor focuses on the patient's reliance. It is sometimes characterized as an inquiry on
whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent
with ordinary care and prudence. (Citation omitted)
In sum, a hospital can be held vicariously liable for the negligent acts of a physician (or an
independent contractor) providing care at the hospital if the plaintiff can prove these two factors:
first, the hospitals manifestations; and second, the patients reliance.
a. Hospitals manifestations
It involves an inquiry on whether the hospital acted in a manner that would lead a reasonable
person to conclude that the individual alleged to be negligent was an employee or agent of the
hospital. As pointed out in Nogales, the hospital need not make express representations to the
patient that the physician or independent contractor is an employee of the hospital; representation
may be general and implied.102
In Pamperin v. Trinity Memorial Hospital,103 questions were raised on "what acts by the hospital
or its agent are sufficient to lead a reasonable person to conclude that the individual was an agent
of the hospital." In ruling that the hospitals manifestations can be proven without the express
representation by the hospital, the court relied on several cases from other jurisdictions, and held
that:
(1) the hospital, by providing emergency room care and by failing to advise patients that
they were being treated by the hospitals agent and not its employee, has created the
appearance of agency; and
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(2) patients entering the hospital through the emergency room, could properly assume
that the treating doctors and staff of the hospital were acting on its behalf.1wphi1
In this case, the court considered the act of the hospital of holding itself out as provider of
complete medical care, and considered the hospital to have impliedly created the appearance of
authority.
b. Patients reliance
It involves an inquiry on whether the plaintiff acted in reliance on the conduct of the hospital or
its agent, consistent with ordinary care and prudence.104
In Pamperin, the court held that the important consideration in determining the patients reliance
is: whether the plaintiff is seeking care from the hospital itself or whether the plaintiff is looking
to the hospital merely as a place for his/her personal physician to provide medical care.105 Thus,
this requirement is deemed satisfied if the plaintiff can prove that he/she relied upon the hospital
to provide care and treatment, rather than upon a specific physician. In this case, we shall limit
the determination of the hospitals apparent authority to Dr. Casumpang, in view of our finding
that Dr. Sanga is not liable for negligence.
SJDH Clothed Dr. Casumpang With Apparent Authority
SJDH impliedly held out and clothed Dr. Casumpang with apparent authority leading the
respondent to believe that he is an employee or agent of the hospital.
Based on the records, the respondent relied on SJDH rather than upon Dr. Casumpang, to care
and treat his son Edmer. His testimony during trial showed that he and his wife did not know any
doctors at SJDH; they also did not know that Dr. Casumpang was an independent contractor.
They brought their son to SJDH for diagnosis because of their family doctors referral. The
referral did not specifically point to Dr. Casumpang or even to Dr. Sanga, but to SJDH.
Significantly, the respondent had relied on SJDHs representation of Dr. Casumpangs authority.
To recall, when Mrs. Cortejo presented her Fortune Care card, she was initially referred to the
Fortune Care coordinator, who was then out of town. She was thereafter referred to Dr.
Casumpang, who is also accredited with Fortune Care. In both instances, SJDH through its agent
failed to advise Mrs. Cortejo that Dr. Casumpang is an independent contractor.
Mrs. Cortejo accepted Dr. Casumpangs services on the reasonable belief that such were being
provided by SJDH or its employees, agents, or servants. By referring Dr. Casumpang to care and
treat for Edmer, SJDH impliedly held out Dr. Casumpang, not only as an accredited member of
Fortune Care, but also as a member of its medical staff. SJDH cannot now disclaim liability since
there is no showing that Mrs. Cortejo or the respondent knew, or should have known, that Dr.
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Casumpang is only an independent contractor of the hospital. In this case, estoppel has already
set in.
We also stress that Mrs. Cortejos use of health care plan (Fortune Care) did not affect SJDHs
liability. The only effect of the availment of her Fortune Care card benefits is that her choice of
physician is limited only to physicians who are accredited with Fortune Care. Thus, her use of
health care plan in this case only limited the choice of doctors (or coverage of services, amount
etc.) and not the liability of doctors or the hospital.
WHEREFORE, premises considered, this Court PARTLY GRANTS the consolidated petitions.
The Court finds Dr. Noel Casumpang and San Juan de Dios Hospital solidarily liable for
negligent medical practice. We SET ASIDE the finding of liability as to Dr. Ruby MirandaSanga. The amounts of P45,000.00 as actual damages andP500,000.00 as moral damages should
each earn legal interest at the rate of six percent (6%) per annum computed from the date of the
judgment of the trial court. The Court AFFIRMS the rest of the Decision dated October 29, 2004
and the Resolution dated January 12, 2006 in CA-G.R. CV No. 56400.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
MARTIN S. VILLARAMA, JR.*
Associate Justice
JOSE CATRAL MENDOZA

Associate Justice
MARVIC M.V.F. LEONEN

Associate Justice
AT T E S T AT I O N
case was assigned to the write the opinion of the Court's Division.
ANTONIO T. CARPIO
Associate Justice
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Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's
before the case was assigned to the writer of the opinion of the Court's Division.
MARIA LOURDES P.A. SERENO
Chief Justice
FACTS:
On April 22, 1988, at about 11:30 in the morning, Mrs. Cortejo brought her 11-year old son,
Edmer, to the Emergency Room of the San Juan de Dios Hospital (SJDH) because of
difficulty in breathing, chest pain, stomach pain, and fever. Thereafter, she was referred and
assigned to Dr. Casumpang, a pediatrician. At 5:30 in the afternoon of the same day, Dr.
Casumpang, upon examination using only a stethoscope, confirmed the diagnosis of
Bronchopneumonia. Mrs. Cortejo immediately advised Dr. Casumpang that Edmer had a
high fever, and had no colds or cough but Dr. Casumpang merely told her that her son's
bloodpressure is just being active and remarked that that's the usual bronchopneumonia, no
colds, no phlegm.
Dr. Casumpang next visited the following day. Mrs. Cortejo again called Dr. Casumpang's
attention and stated that Edmer had a fever, throat irritation, as well as chest and stomach
pain. Mrs. Cortejo also alerted Dr. Casumpang about the traces of blood in Edmer's sputum.
Despite these pieces of information, however, Dr. Casumpang simply nodded and reassured
Mrs. Cortejo that Edmer's illness is bronchopneumonia.
At around 11:30 in the morning of April 23, 1988, Edmer vomited phlegm with blood streak
prompting the Edmer's father to request for a doctor. Later, Miranda, one of the resident
physicians of SJDH, arrived. She claimed that although aware that Edmer had vomited
phlegm with blood streak she failed to examine the blood specimen. She then advised the
respondent to preserve the specimen for examination. Thereafter, Dr. Miranda conducted a
check-up on Edmer and found that Edmer had a low-grade fever and rashes.
At 3:00 in the afternoon, Edmer once again vomited blood. Dr. Miranda then examined
Edmer's sputum with blood and noted that he was bleeding. Suspecting that he could be
afflicted with dengue, Dr. Miranda conducted a tourniquet test, which turned out to be
negative. Dr. Miranda then called up Dr. Casumpang at his clinic and told him about Edmer's
condition. Upon being informed, Dr. Casumpang ordered several procedures done. Dr.
Miranda advised Edmer's parents that the blood test results showed that Edmer was suffering
from Dengue Hemorrhagic Fever. Dr. Casumpang recommended Edmers transfer to the
ICU, but since the ICU was then full, the respondent, insisted on transferring his son to
Makati Medical Center.
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At 12:00 midnight, Edmer, accompanied by his parents and by Dr. Casumpang, was
transferred to Makati Medical Center. Upon examination, the attending physician diagnosed
Dengue Fever Stage IV that was already in its irreversible stage. Edmer died at 4:00 in the
morning of April 24, 1988. His Death Certificate indicated the cause of death as
Hypovolemic Shock/hemorrhagic shock/Dengue Hemorrhagic Fever Stage IV.
Believing that Edmer's death was caused by the negligent and erroneous diagnosis of his
doctors, the respondent instituted an action for damages against SJDH, and its attending
physicians: Dr. Casumpang and Dr. Miranda.
circumstances.
Dr. Miranda argued that the function of making the diagnosis and undertaking the medical
treatment devolved upon Dr. Casumpang, the doctor assigned to Edmer. Dr. Miranda also
alleged that she exercised prudence in performing her duties as a physician, underscoring that
it was her professional intervention that led to the correct diagnosis of Dengue Hemorrhagic
Fever.
SJDH, on the other hand, disclaims liability by asserting that Dr. Casumpang and Dr.
Miranda are mere independent contractors and consultants (not employees) of the hospital;
hence, Article 2180 of the Civil Code does not apply.
ISSUES:
1. W/N Casumpang had committed inexcusable lack of precaution in diagnosing and in treating
the patient
2. W/N Miranda had committed inexcusable lack of precaution in diagnosing and in treating the
patient
3. W/N Whether or not the petitioner hospital is solidarity liable with the petitioner doctors
4. W/N or not there is a causal connection between the petitioners' negligent act/omission and
the patient's resulting death
HELD/RATIO:
1. YES, Casumpang was negligent.
Even assuming that Edmer's symptoms completely coincided with the diagnosis of
bronchopneumonia, we still find Dr. Casumpang guilty of negligence. Wrong diagnosis is not
by itself medical malpractice. Physicians are generally not liable for damages resulting from
a bona fide error of judgment and from acting according to acceptable medical practice
277 | P a g e
standards. Nonetheless, when the physician's erroneous diagnosis was the result of negligent
conduct, it becomes an evidence of medical malpractice.
bronchopneumonia, Dr. Casumpang selectively appreciated some and not all of the
symptoms presented, and failed to promptly conduct the appropriate tests to confirm his
findings. In sum, Dr. Casumpang failed to timely detect dengue fever, which failure,
especially when reasonable prudence would have shown that indications of dengue were
evident and/or foreseeable, constitutes negligence. Apart from failing to promptly detect
dengue fever, Dr. Casumpang also failed to promptly undertake the proper medical
management needed for this disease. Dr. Casumpang failed to measure up to the acceptable
medical standards in diagnosing and treating dengue fever.
Dr. Casumpang's claim that he exercised prudence and due diligence in handling Edmer's
case, sside from being self-serving, is not supported by competent evidence. He failed, as a
medical professional, to observe the most prudent medical procedure under the circumstances
in diagnosing and treating Edmer.
2. No, Dr. Miranda is not liable for negligence.
We find that Dr. Miranda was not independently negligent. Although she was subject to the
same standard of care applicable to attending physicians, as a resident physician, she merely
operates as a subordinate who usually refer to the attending physician on the decision to be
made and on the action to be taken. We also believe that a finding of negligence should also
depend on several competing factors. In this case, before Dr. Miranda attended to Edmer, Dr.
Casumpang had diagnosed Edmer with bronchopneumonia. There is also evidence
supporting Dr. Miranda's claim that she extended diligent care to Edmer. In fact, when she
suspected, during Edmer's second episode of bleeding, that Edmer could be suffering from
dengue, she wasted no time in conducting the necessary tests, and promptly notified Dr.
Casumpang about the incident. Indubitably, her medical assistance led to the finding of
dengue fever. Dr. Miranda's error was merely an honest mistake of judgment; hence, she
should not be held liable for medical negligence.
3. Yes, causal connection between the petitioners' negligence and the patient's resulting
death was established
Casumpang failed to timely diagnose Edmer with dengue fever despite the presence of its
characteristic symptoms; and as a consequence of the delayed diagnosis, he also failed to
promptly manage Edmer's illness. Had he immediately conducted confirmatory tests, and
promptly administered the proper care and management needed for dengue fever, the risk of
complications or even death, could have been substantially reduced. That Edmer later died of
Dengue Hemorrhagic Fever Stage IV, a severe and fatal form of dengue fever, established the
causal link between Dr. Casumpang's negligence and the injury. The element of causation is
successfully proven.
4. YES, SJDH is solidarily liable.

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As a rule, hospitals are not liable for the negligence of its independent contractors. However,
it may be found liable if the physician or independent contractor acts as an ostensible agent
of the hospital. This exception is also known as the doctrine of apparent authority.
respondent to believe that he is an employee or agent of the hospital. Based on the records,
the respondent relied on SJDH rather than upon Dr. Casumpang, to care and treat his son
Edmer. His testimony during trial showed that he and his wife did not know any doctors at
SJDH; they also did not know that Dr. Casumpang was an independent contractor. They
brought their son to SJDH for diagnosis because of their family doctor's referral. The referral
did not specifically point to Dr. Casumpang or even to Dr. Miranda, but to SJDH.
Mrs. Cortejo accepted Dr. Casumpang's services on the reasonable belief that such were
being provided by SJDH or its employees, agents, or servants. By referring Dr. Casumpang
to care and treat for Edmer, SJDH impliedly held out Dr. Casumpang as a member of its
medical staff. SJDH cannot now disclaim liability since there is no showing that Mrs. Cortejo
or the respondent knew, or should have known, that Dr. Casumpang is only an independent
contractor of the hospital. In this case, estoppel has already set in.
SECOND DIVISION
G.R. No. 191018, January 25, 2016
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CARLOS BORROMEO, Petitioner, v. FAMILY CARE HOSPITAL, INC. AND RAMON S.

INSO, M.D.,Respondents.
DECISION
BRION, J.:
Carlos Borromeo lost his wife Lillian when she died after undergoing a routine appendectomy.
The hospital and the attending surgeon submit that Lillian bled to death due to a rare, lifethreatening condition that prevented her blood from clotting normally. Carlos believes, however,
that the hospital and the surgeon were simply negligent in the care of his late wife.
On January 22, 2010, the Court of Appeals (CA) in CA-G.R CV No. 890961 dismissed Carlos'
complaint and thus reversed the April 10, 2007 decision of the Regional Trial Court (RTC)
in Civil Case No. 2000-603-MK2 which found the respondents liable for medical negligence.
The present petition for review on certiorari seeks to reverse the CA's January 22, 2010 decision.
ANTECEDENTS
The petitioner, Carlos Borromeo, was the husband of the late Lilian V. Borromeo (Lilian). Lilian
was a patient of the respondent Family Care Hospital, Inc. (Family Care) under the care of
respondent Dr. Ramon Inso (Dr. Inso).
On July 13, 1999, the petitioner brought his wife to the Family Care Hospital because she had
been complaining of acute pain at the lower stomach area and fever for two days. She was
admitted at the hospital and placed under the care of Dr. Inso.
Dr. Inso suspected that Lilian might be suffering from acute appendicitis. However, there was
insufficient data to rule out other possible causes and to proceed with an appendectomy. Thus, he
ordered Lilian's confinement for testing and evaluation.
Over the next 48 hours, Lilian underwent multiple tests such as complete blood count, urinalysis,
stool exam, pelvic ultrasound, and a pregnancy test. However, the tests were not conclusive
enough to confirm that she had appendicitis.
Meanwhile, Lilian's condition did not improve. She suffered from spiking fever and her
abdominal pain worsened. The increasing tenderness of her stomach, which was previously
confined to her lower right side, had also extended to her lower left side. Lilian abruptly
developed an acute surgical abdomen.
On July 15, 1999, Dr. Inso decided to conduct an exploratory laparotomy on Lilian because of
the findings on her abdomen and his fear that she might have a ruptured appendix. Exploratory
laparotomy is a surgical procedure involving a large incision on the abdominal wall that would
enable Dr. Inso to examine the abdominal cavity and identify the cause of Lilian's symptoms.
After explaining the situation, Dr. Inso obtained the patient's consent to the laparotomy.
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At around 3:45 P.M., Lilian was brought to the operating room where Dr. Inso conducted the
surgery. During the operation, Dr. Inso confirmed that Lilian was suffering from acute
appendicitis. He proceeded to remove her appendix which was already infected and congested
with pus.
The operation was successful. Lilian's appearance and vital signs improved. At around 7:30 P.M.,
Lilian was brought back to her private room from the recovery room.
At around 1:30 A.M. on July 16, 1999, roughly six hours after Lilian was brought back to her
room, Dr. Inso was informed that her blood pressure was low. After assessing her condition, he
ordered the infusion of more intravenous (IV) fluids which somehow raised her blood pressure.
Despite the late hour, Dr. Inso remained in the hospital to monitor Lilian's condition.
Subsequently, a nurse informed him that Lilian was becoming restless. Dr. Inso immediately
went to Lilian and saw that she was quite pale. He immediately requested a blood transfusion.
Lilian did not respond to the blood transfusion even after receiving two 500 cc-units of blood.
Various drugs, such as adrenaline or epinephrine, were administered.
Eventually, an endotracheal tube connected to an oxygen tank was inserted into Lilian to ensure
her airway was clear and to compensate for the lack of circulating oxygen in her body from the
loss of red blood cells. Nevertheless, her condition continued to deteriorate.
Dr. Inso observed that Lilian was developing petechiae in various parts of her
body. Petechiae are small bruises caused by bleeding under the skin whose presence indicates a
blood-coagulation problem - a defect in the ability of blood to clot. At this point, Dr. Inso
suspected that Lilian hadDisseminated Intravascular Coagulation (DIC), a blood disorder
characterized by bleeding in many parts of her body caused by the consumption or the loss of the
clotting factors in the blood. However, Dr. Inso did not have the luxury to conduct further tests
because the immediate need was to resuscitate Lilian.
Dr. Inso and the nurses performed cardiopulmonary resuscitation (CPR) on Lilian. Dr. Inso also
informed her family that there may be a need to re-operate on her, but she would have to be put
in an Intensive Care Unit (ICU). Unfortunately, Family Care did not have an ICU because it was
only a secondary hospital and was not required by the Department of Health to have one. Dr.
Inso informed the petitioner that Lilian would have to be transferred to another hospital.
At around 3:30 A.M., Dr. Inso personally called the Perpetual Help Medical Center to arrange
Lilian's transfer, but the latter had no available bed in its ICU. Dr. Inso then personally
coordinated with the Muntinlupa Medical Center (MMC) which had an available bed.
At around 4:00 A.M., Lilian was taken to the MMC by ambulance accompanied by the resident
doctor on duty and a nurse. Dr. Inso followed closely behind in his own vehicle.
Upon reaching the MMC, a medical team was on hand to resuscitate Lilian. A nasogastric tube
(NGT) was inserted and IV fluids were immediately administered to her. Dr. Inso asked for a
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plasma expander. Unfortunately, at around 10:00 A.M., Lilian passed away despite efforts to
resuscitate her.
At the request of the petitioner, Lilian's body was autopsied at the Philippine National Police
(PNP) Camp Crame Crime Laboratory. Dr. Emmanuel Reyes (Dr. Reyes), the medico-legal
assigned to the laboratory, conducted the autopsy. Dr. Reyes summarized his notable findings as:
x x x I opened up the body and inside the abdominal cavity which you call peritoneal cavity there
were 3,000 ml of clot and unclot blood accumulated thereat. The peritoneal cavity was also free
from any adhesion. Then, I opened up the head and the brain revealed paper white in color and
the heart revealed abundant petechial hemorrhages from the surface and it was normal. The
valvular leaflets were soft and pliable, and of course, the normal color is reddish brown as noted.
And the coronary arteries which supply the heart were normal and unremarkable. Next, the lungs
appears [sic] hemorrhagic. That was the right lung while the left lung was collapsed and paled.
For the intestines, I noted throughout the entire lengths of the small and large intestine were
hemorrhagic areas. Noted absent is the appendix at the ileo-colic area but there were continuous
suture repair done thereat. However, there was a 0.5 x 0.5 cm opening or left unrepaired at that
time. There was an opening on that repair site. Meaning it was not repaired. There were also at
that time clot and unclot blood found adherent thereon. The liver and the rest of the visceral
organs were noted exhibit [sic] some degree of pallor but were otherwise normal. The stomach
contains one glassful about 400 to 500 ml.3ChanRoblesVirtualawlibrary
Dr. Reyes concluded that the cause of Lilian's death was hemorrhage due to bleeding petechial
blood vessels: internal bleeding. He further concluded that the internal bleeding was caused by
the 0.5 x 0.5 cm opening in the repair site. He opined that the bleeding could have been avoided
if the site was repaired with double suturing instead of the single continuous suture repair that he
found.
Based on the autopsy, the petitioner filed a complaint for damages against Family Care and
against Dr. Inso for medical negligence.
During the trial, the petitioner presented Dr. Reyes as his expert witness. Dr. Reyes testified as to
his findings during the autopsy and his opinion that Lilian's death could have been avoided if Dr.
Inso had repaired the site with double suture rather than a single suture.
However, Dr. Reyes admitted that he had very little experience in the field of pathology and his
only experience was an on-the-job training at the V. Luna Hospital where he was only on
observer status. He further admitted that he had no experience in appendicitis or appendectomy
and that Lilian's case was his first autopsy involving a death from appendectomy.
Moreover, Dr. Reyes admitted that he was not intelligently guided during the autopsy because he
was not furnished with clinical, physical, gross, histopath, and laboratory information that were
important for an accurate conclusion. Dr. Reyes also admitted that an appendical stump is
initially swollen when sutured and that the stitches may loosen during the healing process when
the initial swelling subside.
In their defense, Dr. Inso and Family Care presented Dr. Inso, and expert witnesses Dr. Celso
Ramos (Dr. Ramos) and Dr. Herminio Hernandez (Dr. Hernandez).
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Dr. Ramos is a practicing pathologist with over 20 years of experience. He is an associate

professor at the Department of Surgery of the Fatima Medical Center, the Manila Central
University, and the Perpetual Help Medical Center. He is a Fellow of the Philippine College of
Surgeons, a Diplomate of the Philippine Board of Surgery, and a Fellow of the Philippine Society
of General Surgeons.
Dr. Ramos discredited Dr. Reyes' theory that the 0.5 x 0.5 cm opening at the repair site caused
Lilian's internal bleeding. According to Dr. Ramos, appendical vessels measure only 0.1 to 0.15
cm, a claim that was not refuted by the petitioner. If the 0.5 x 0.5 cm opening had caused Lilian's
hemorrhage, she would not have survived for over 16 hours; she would have died immediately,
within 20 to 30 minutes, after surgery.
Dr. Ramos submitted that the cause of Lilian's death was hemorrhage due to DIC, a blood
disorder that leads to the failure of the blood to coagulate; Dr. Ramos considered the abundant
petechial hemorrhage in the myocardic sections and the hemorrhagic right lung; the multiple
bleeding points indicate that Lilian was afflicted with DIC.
Meanwhile, Dr. Hernandez is a general surgeon and a hospital administrator who had been
practicing surgery for twenty years as of the date of his testimony.
Dr. Hernandez testified that Lilian's death could not be attributed to the alleged wrong suturing.
He submitted that the presence of blood in the lungs, in the stomach, and in the entire length of
the bowels cannot be reconciled with Dr. Reyes' theory that the hemorrhage resulted from a
single-sutured appendix.
Dr., Hernandez testified that Lilian had uncontrollable bleeding in the microcirculation as a result
of DIC. In DIC, blood oozes from very small blood vessels because of a problem in the clotting
factors of the blood vessels. The microcirculation is too small to be seen by the naked eye; the
red cell is even smaller than the tip of a needle. Therefore, the alleged wrong suturing could not
have caused the amount of hemorrhaging that caused Lilian's death.
Dr. Hernandez further testified that the procedure that Dr. Inso performed was consistent with the
usual surgical procedure and he would not have done anything differently.4
The petitioner presented Dr. Rudyard Avila III (Dr. Avila) as a rebuttal witness. Dr. Avila, also a
lawyer, was presented as an expert in medical jurisprudence. Dr. Avila testified that between Dr.
Reyes who autopsied the patient and Dr. Ramos whose findings were based on medical records,
greater weight should be given to Dr. Reyes' testimony.
On April 10, 2007, the RTC rendered its decision awarding the petitioner P88,077.50 as
compensatory damages; P50,000.00 as death indemnity; P3,607,910.30 as loss of earnings;
P50,000.00 as moral damages; P30,000.00 as exemplary damages; P50,000.00 as attorney's fees,
and the costs of the suit.
The RTC relied on Dr. Avila's opinion and gave more weight to Dr. Reyes' findings regarding the
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cause of Lilian's death. It held that Dr. Inso was negligent in using a single suture on the repair
site causing Lilian's death by internal hemorrhage. It applied the doctrine of res ipsa loquitur,
holding that a patient's death does not ordinarily occur during an appendectomy.
The respondents elevated the case to the CA and the appeal was docketed as CA-G.R. CV No.
89096.
On January 22, 2010, the CA reversed the RTC's decision and dismissed the complaint. The CA
gave greater weight to the testimonies of Dr. Hernandez and Dr. Ramos over the findings of Dr.
Reyes because the latter was not an expert in pathology, appendectomy, nor in surgery. It
disregarded Dr. Avila's opinion because the basic premise of his testimony was that the doctor
who conducted the autopsy is a pathologist of equal or of greater expertise than Dr. Ramos or Dr.
Hernandez.
The CA held that there was no causal connection between the alleged omission of Dr. Inso to use
a double suture and the cause of Lilian's death. It also found that Dr. Inso did, in fact, use a
double suture ligation with a third silk reinforcement ligation on the repair site which, as Dr.
Reyes admitted on cross-examination, loosened up after the initial swelling of the stump
subsided.
The CA denied the applicability of the doctrine of res ipsa loquitur because the element of
causation between the instrumentality under the control and management of Dr. Inso and the
injury that caused Lilian's death was absent; the respondents sufficiently established that the
cause of Lilian's death was DIC.
On March 18, 2010, the petitioner filed the present petition for review on certiorari.
THE PETITION
The petitioner argues: (1) that Dr. Inso and Family Care were negligent in caring for Lilian
before, during, and after her appendectomy and were responsible for her death; and (2) that the
doctrine ofres ipsa loquitur is applicable to this case.
In their Comment, the respondents counter: (1) that the issues raised by the petitioner are not
pure questions of law; (2) that they exercised utmost care and diligence in the treatment of
Lilian; (3) that Dr. Inso did not deviate from the standard of care observed under similar
circumstances by other members of the profession in good standing; (4) that res ipsa loquitur is
not applicable because direct evidence as to the cause of Lilian's death and the presence/absence
of negligence is available; and (5) that doctors are not guarantors of care and cannot be held
liable for the death of their patients when they exercised diligence and did everything to save the
patient.
OUR RULING
The petition involves factual questions.
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Under Section 1 of Rule 45, a petition for review on certiorari shall only raise questions of law.
The Supreme Court is not a trier of facts and it is not our function to analyze and weigh evidence
that the lower courts had already passed upon.
The factual findings of the Court of Appeals are, as a general rule, conclusive upon this Court.
However, jurisprudence has also carved out recognized exceptions5 to this rule, to wit: (1) when
the findings are grounded entirely on speculation, surmises, or conjectures;6 (2) when the
inference made is manifestly mistaken, absurd, or impossible;7 (3) when there is grave abuse of
discretion;8 (4) when the judgment is based on a misapprehension of facts;9 (5) when the findings
of facts are conflicting;10(6) 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;11(7) when the findings are contrary to those of the trial court's;12 (8) when the
findings are conclusions without citation of specific evidence on which they are based;13 (9)
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;14 (10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record;15 and (11) when the Court of
Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if
properly considered, would justify a different conclusion.16
Considering that the CA's findings with respect to the cause of Lilian's death contradict those of
the RTC, this case falls under one of the exceptions. The Court will thus give due course to the
petition to dispel any perception that we denied the petitioner justice.
The requisites of establishing medical malpractice
Whoever alleges a fact has the burden of proving it. This is a basic legal principle that equally
applies to civil and criminal cases. In a medical malpractice case, the plaintiff has the duty of
proving its elements, namely: (1) a duty of the defendant to his patient; (2) the
defendant's breach of this duty; (3) injury to the patient; and (4) proximate causation between the
breach and the injury suffered.17 In civil cases, the plaintiff must prove these elements by a
preponderance of evidence.
A medical professional has the duty to observe the standard of care and exercise the degree of
skill, knowledge, and training ordinarily expected of other similarly trained medical
professionals acting under the same circumstances.18 A breach of the accepted standard of care
constitutes negligence or malpractice and renders the defendant liable for the resulting injury to
his patient.19
The standard is based on the norm observed by other reasonably competent members of the
profession practicing the same field of medicine.20 Because medical malpractice cases are often
highly technical, expert testimony is usually essential to establish: (1) the standard of care that
the defendant was bound to observe under the circumstances; (2) that the defendant's conduct fell
below the acceptable standard; and (3) that the defendant's failure to observe the industry
standard caused injury to his patient.21
The expert witness must be a similarly trained and experienced physician. Thus, a pulmonologist
285 | P a g e
is not qualified to testify as to the standard of care required of an anesthesiologist22 and an

autopsy expert is not qualified to testify as a specialist in infectious diseases.23
The petitioner failed to present an expert witness.
In ruling against the respondents, the RTC relied on the findings of Dr. Reyes in the light of Dr.
Avila's opinion that the former's testimony should be given greater weight than the findings of
Dr. Ramos and Dr. Hernandez. On the other hand, the CA did not consider Dr. Reyes or Dr. Avila
as expert witnesses and disregarded their testimonies in favor of Dr. Ramos and Dr. Hernandez.
The basic issue, therefore, is whose testimonies should carry greater weight?
We join and affirm the ruling of the CA.
Other than their conclusion on the culpability of the respondents, the CA and the RTC have
similar factual findings. The RTC ruled against the respondents based primarily on the following
testimony of Dr. Reyes.
Witness: Well, if I remember right during my residency in my extensive training, during
the operation of the appendix, your Honor, it should really be sutured twice which
we call double.
Court:
What would be the result if there is only single?
Witness: We cannot guarranty [sic] the bleeding of the sutured blood vessels, your Honor.
Court:
So, the bleeding of the patient was caused by the single suture?
Witness: It is possible.24
Dr. Reyes testified that he graduated from the Manila Central University (MCU) College of
Medicine and passed the medical board exams in 1994.25 He established his personal practice at
his house clinic before being accepted as an on-the-job trainee in the Department of Pathology at
the V. Luna Hospital in 1994. In January 1996, he joined the PNP Medico-Legal Division and
was assigned to the Crime Laboratory in Camp Crame. He currently heads the Southern Police
District Medico-Legal division.26His primary duties are to examine victims of violent crimes and
to conduct traumatic autopsies to determine the cause of death.
After having conducted over a thousand traumatic autopsies, Dr. Reyes can be considered an
expert in traumatic autopsies or autopsies involving violent deaths. However, his expertise in
traumatic autopsies does not necessarily make him an expert in clinical and pathological
autopsies or in surgery.
Moreover, Dr. Reyes' cross-examination reveals that he was less than candid about his
qualifications during his initial testimony:
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Atty.
Castro:
Dr. Reyes, you mentioned during your direct testimony last March 5, 2002 that you
graduated in March of 1994, is that correct?
Witness: Yes, sir.

Atty.
Castro:
You were asked by Atty. Fajardo, the counsel for the plaintiff, when did you finish
your medical works, and you answered the following year of your graduation which
was in 1994?
Witness: Not in 1994, it was in 1984, sir.

Atty.
Castro:
And after you graduated Mr. Witness, were there further study that you undergo
after graduation? [sic]
Witness: It was during my service only at the police organization that I was given the chance
to attend the training, one year course.
Atty.
Castro:
Did you call that what you call a post graduate internship?
Witness: Residency.
Atty.
Castro:
Since you call that a post graduate, you were not undergo post graduate? [sic]
Witness: I did.
Atty.
Castro:
Where did you undergo a post graduate internship?
Witness: Before I took the board examination in the year 1984, sir.
Atty.
That was where?

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Castro:
Witness: MCU Hospital, sir.
Atty.
Castro:
After the post graduate internship that was the time you took the board examination?
Witness: Yes, sir.

Atty.
Castro:
And I supposed that you did it for the first take?
Witness: Yes, sir.

Atty.
Castro:
Are you sure of that?
Witness: Yes, sir.

Atty.
Castro:
After you took the board examination, did you pursue any study?
Witness: During that time, no sir.

Atty.
Castro:
You also testified during the last hearing that "page 6 of March 5, 2002, answer of
the witness: then I was accepted as on the job training at the V. Luna Hospital at the
Department of Pathologist in 1994", could you explain briefly all of this Mr.
witness?
Witness: I was given an order that I could attend the training only as a civilian not as a
member of the AFP because at that time they were already in the process of
discharging civilian from undergoing training.
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Atty.
Castro:
So in the Department of Pathology, what were you assigned to?
Witness: Only as an observer status.

Atty.
Castro:
So you only observed.
Witness: Yes, sir.

Atty.
Castro:
And on the same date during your direct testimony on March 5, 2002, part of which
reads "well if I remember right during my residency in my extensive training during
the operation of the appendix," what do you mean by that Mr. witness?
Witness: I was referring to my internship, sir.

Atty.
Castro:
So this is not a residency training?
Witness: No, sir.

Atty.
Castro:
This is not a specialty training?
Witness: No, sir.

Atty.
Castro:
This was the time the year before you took the board examination?
Witness: That's right, sir. Yes, sir.

Atty.
Castro:
You were not then a license[d] doctor?
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Witness: No, sir.

Atty.
Castro:
And you also mentioned during the last hearing shown by page 8 of the same
transcript of the stenographic notes, dated March 5,2002 and I quote "and that is
your residence assignment?", and you answered "yes, sir." What was the meaning of
your answer? What do you mean when you say yes, sir?
xxxx
Witness: Okay, I stayed at the barracks of the Southern Police District Fort Bonifacio.
Atty.
Castro:
So this is not referring to any kind of training?
Witness: No, sir.

Atty.
Castro:
This is not in anyway related to appendicitis?
Witness: No, sir.27

Atty. Reyes appears to have inflated his qualifications during his direct testimony. First, his
"extensive training during [his] residency" was neither extensive actual training, nor part of
medical residency. His assignment to the V. Luna Hospital was not as an on-the-job trainee but as
a mere observer. This assignment was also before he was actually licensed as a doctor. Dr. Reyes
also loosely used the terms "residence" and "residency" - terms that carry a technical meaning
with respect to medical practice -during his initial testimony28 to refer to (1) his physical place of
dwelling and (2) his internship before taking the medical board exams. This misled the trial court
into believing that he was more qualified to give his opinion on the matter than he actually was.
Perhaps nothing is more telling about Dr. Reyes' lack of expertise in the subject matter than the
petitioner's counsel's own admission during Dr. Reyes' cross examination.
Atty.
How long were you assigned to observe with the Department of Pathology?
Castro:
Witness: Only 6 months, sir.
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Atty.
Castro:
During your studies in the medical school, Mr. Witness, do you recall attending or
having participated or [sic] what you call motivity mortality complex?
Atty.
Fajardo:
Your honor, what is the materiality?
Atty.
Castro:
That is according to his background, your honor. This is a procedure which could
more or less measure his knowledge in autopsy proceedings when he was in medical
school and compared to what he is actually doing now.
Atty.
Fajardo:
The witness is not an expert witness, your honor.
Atty.
He is being presented as an expert witness, your honor.29
Castro:
When Atty. Castro attempted to probe Dr. Reyes about his knowledge on the subject of medical
or pathological autopsies, Dr. Fajardo objected on the ground that Dr. Reyes was not an expert in
the field. His testimony was offered to prove that Dr. Inso was negligent during the surgery
without necessarily offering him as an expert witness.
Villaran Borromeo. 30
Dr. Reyes is not an expert witness who could prove Dr. Inso's alleged negligence. His testimony
could not have established the standard of care that Dr. Inso was expected to observe nor
assessed Dr. Inso's failure to observe this standard. His testimony cannot be relied upon to
determine if Dr. Inso committed errors during the operation, the severity of these errors, their
impact on Lilian's probability of survival, and the existence of other diseases/conditions that
might or might not have caused or contributed to Lilian's death.
The testimony of Dr. Avila also has no probative value in determining whether Dr. Inso was at
fault. Dr. Avila testified in his capacity as an expert in medical jurisprudence, not as an expert in
medicine, surgery, or pathology. His testimony fails to shed any light on the actual cause of
Lilian's death.
On the other hand, the respondents presented testimonies from Dr. Inso himself and from two
expert witnesses in pathology and surgery.
Dr. Ramos graduated from the Far Eastern University, Nicanor Reyes Medical Foundation, in
1975. He took up his post-graduate internship at the Quezon Memorial Hospital in Lucena City,
before taking the board exams. After obtaining his professional license, he underwent residency
training in pathology at the Jose R. Reyes Memorial Center from 1977 to 1980. He passed the
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examination in Anatomic, Clinical, and Physical Pathology in 1980 and was inducted in 1981.
He also took the examination in anatomic pathology in 1981 and was inducted in 1982.31
At the time of his testimony, Dr. Ramos was an associate professor in pathology at the Perpetual
Help Medical School in Bian, Laguna, and at the De La Salle University in Dasmarias, Cavite.
He was the head of the Batangas General Hospital Teaching and Training Hospital where he also
headed the Pathology Department. He also headed the Perpetual Help General Hospital
Pathology department.32
Meanwhile, Dr. Hernandez at that time was a General Surgeon with 27 years of experience as a
General Practitioner and 20 years of experience as a General Surgeon. He obtained his medical
degree from the University of Santo Tomas before undergoing five years of residency training as
a surgeon at the Veterans Memorial Center hospital. He was certified as a surgeon in 1985. He
also holds a master's degree in Hospital Administration from the Ateneo de Manila University.33
He was a practicing surgeon at the: St. Luke's Medical Center, Fatima Medical Center, Unciano
Medical Center in Antipolo, Manila East Medical Center of Taytay, and Perpetual Help Medical
Center in Bian.34He was also an associate professor at the Department of Surgery at the Fatima
Medical Center, the Manila Central University, and the Perpetual Help Medical Center. He also
chaired the Department of Surgery at the Fatima Medical Center.35
Dr. Hernandez is a Fellow of the American College of Surgeons, the Philippine College of
Surgeons, and the Philippine Society of General Surgeons. He is a Diplomate of the Philippine
Board of Surgery and a member of the Philippine Medical Association and the Antipolo City
Medical Society.36
Dr. Hernandez affirmed that Dr. Inso did not deviate from the usual surgical procedure.37 Both
experts agreed that Lilian could not have died from bleeding of the appendical vessel. They
identified Lilian's cause of death as massive blood loss resulting from DIC.
To our mind, the testimonies of expert witnesses Dr. Hernandez and Dr. Ramos carry far greater
weight than that of Dr. Reyes. The petitioner's failure to present expert witnesses resulted in his
failure to prove the respondents' negligence. The preponderance of evidence clearly tilts in favor
of the respondents.
Res ipsa loquitur is not applicable when the failure to observe due care is not immediately
apparent to the layman.
The petitioner cannot invoke the doctrine of res ipsa loquitur to shift the burden of evidence onto
the respondent. Res ipsa loquitur, literally, "the thing speaks for itself;" is a rule of evidence that
presumes negligence from the very nature of the accident itself using common human
knowledge or experience.
The application of this rule requires: (1) that the accident was of a kind which does not ordinarily
occur unless someone is negligent; (2) that the instrumentality or agency which caused the injury
was under the exclusive: control of the person charged with negligence; and (3) that the injury
292 | P a g e
suffered must not have been due to any voluntary action or contribution from the injured
person.38 The concurrence of these elements creates a presumption of negligence that, if
unrebutted, overcomes the plaintiffs burden of proof.
This doctrine is used in conjunction with the doctrine of common knowledge. We have applied
this doctrine in the following cases involving medical practitioners:
a. Where a patient who was scheduled for a cholecystectomy (removal of gall
stones) but was otherwise healthy suffered irreparable brain damage after being
administered anesthesia prior to the operation.39
b. Where after giving birth, a woman woke up with a gaping burn wound close to
her left armpit;40
c. The removal of the wrong body part during the operation; and
d. Where an operating surgeon left a foreign object (i.e., rubber gloves) inside the
body of the patient.41
The rule is not applicable in cases such as the present one where the defendant's alleged failure to
observe due care is not immediately apparent to a layman.42 These instances require expert
opinion to establish the culpability of the defendant doctor. It is also not applicable to cases
where the actual cause of the injury had been identified or established.43
While this Court sympathizes with the petitioner's loss, the petitioner failed to present sufficient
convincing evidence to establish: (1) the standard of care expected of the respondent and (2) the
fact that Dr. Inso fell short of this expected standard. Considering further that the respondents
established that the cause of Lilian's uncontrollable bleeding (and, ultimately, her death) was a
medical disorder -Disseminated Intravascular Coagulation we find no reversible errors in the
CA's dismissal of the complaint on appeal.
WHEREFORE, we hereby DENY the petition for lack of merit. No costs.
SO ORDERED.
Carpio, (Chairperson), Del Castillo, Mendoza, and Leonen, JJ., concur.
NO CASE DIGEST
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SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 173180
August 24, 2011
ALBERT TISON and CLAUDIO L. JABON, Petitioners,

vs.
SPS. GREGORIO POMASIN and CONSORCIA PONCE POMASIN, DIANNE
POMASIN PAGUNSAN, CYNTHIA POMASIN, SONIA PEROL, ANTONIO SESISTA,
GINA SESISTA, and REYNALDO SESISTA, Respondents.
DECISION
PEREZ, J.:
Two vehicles, a tractor-trailer and a jitney,1 figured in a vehicular mishap along Maharlika
Highway in Barangay Agos, Polangui, Albay last 12 August 1994. Laarni Pomasin (Laarni) was
driving the jitney towards the direction of Legaspi City while the tractor-trailer, driven by
Claudio Jabon (Jabon), was traversing the opposite lane going towards Naga City.2
The opposing parties gave two different versions of the incident.
Gregorio Pomasin (Gregorio), Laarnis father, was on board the jitney and seated on the
passengers side. He testified that while the jitney was passing through a curve going downward,
he saw a tractor-trailer coming from the opposite direction and encroaching on the jitneys lane.
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The jitney was hit by the tractor-trailer and it was dragged further causing death and injuries to
its passengers.3
On the other hand, Jabon recounted that while he was driving the tractor-trailer, he noticed a
jitney on the opposite lane falling off the shoulder of the road. Thereafter, it began running in a
zigzag manner and heading towards the direction of the truck. To avoid collision, Jabon
immediately swerved the tractor-trailer to the right where it hit a tree and sacks of palay.
Unfortunately, the jitney still hit the left fender of the tractor-trailer before it was thrown a few
meters away. The tractor-trailer was likewise damaged.4
Multiple death and injuries to those in the jitney resulted.
Gregorio was injured and brought to the Albay Provincial Hospital in Legaspi City. His daughter,
Andrea Pomasin Pagunsan, sister Narcisa Pomasin Roncales and Abraham Dionisio Perol died
on the spot. His other daughter Laarni, the jitney driver, and granddaughter Annie Jane Pomasin
Pagunsan expired at the hospital. His wife, Consorcia Pomasin, another granddaughter Dianne
Pomasin Pagunsan, Ricky Ponce, Vicente Pomasin, Gina Sesista, Reynaldo Sesista, Antonio
Sesista and Sonia Perol sustained injuries.5 On the other hand, Jabon and one of the passengers in
the tractor-trailer were injured.6
Albert Tison (Tison), the owner of the truck, extended financial assistance to respondents by
giving themP1,000.00 each immediately after the accident and P200,000.00 to Cynthia Pomasin
(Cynthia), one of Gregorios daughters. Cynthia, in turn, executed an Affidavit of Desistance.
On 14 November 1994, respondents filed a complaint for damages against petitioners before the
Regional Trial Court (RTC) of Antipolo. They alleged that the proximate cause of the accident
was the negligence, imprudence and carelessness of petitioners. Respondents prayed for
indemnification for the heirs of those who perished in the accident at P50,000.00
each; P500,000.00 for hospitalization, medical and burial expenses; P350,000.00 for continuous
hospitalization and medical expenses of Spouses Pomasin; P1,000,000.00 as moral
damages;P250,000.00 as exemplary damages; P30,000.00 for loss of income of
Cynthia; P100,000.00 as attorneys fees plus P1,000.00 per court appearance; P50,000.00 for
litigation expenses; and cost of suit.7
In their Answer, petitioners countered that it was Laarnis negligence which proximately caused
the accident. They further claimed that Cynthia was authorized by Spouses Pomasin to enter into
an amicable settlement by executing an Affidavit of Desistance. Notwithstanding the affidavit,
petitioners complained that respondents filed the instant complaint to harass them and profit
from the recklessness of Laarni. Petitioners counterclaimed for damages.
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Petitioners subsequently filed a motion to dismiss the complaint in view of the Affidavit of
Desistance executed by Cynthia. The motion was denied for lack of merit.8
On 7 February 2000, the Regional Trial Court rendered judgment in favor of petitioners
dismissing the complaint for damages, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the defendants and against plaintiffs
hereby DISMISSING the instant complaint considering that plaintiffs have authorized Cynthia
Pomasin to settle the case amicably forP200,000.00; and that the proximate cause of the accident
did not arise from the fault or negligence of defendants driver/employee but from plaintiffs
driver.9
The trial court considered the testimony of Jabon regarding the incident more convincing and
reliable than that of Gregorios, a mere passenger, whose observation and attention to the road is
not as focused as that of the driver. The trial court concluded that Laarni caused the collision of
the jitney and the tractor-trailer. The trial court likewise upheld the Affidavit of Desistance as
having been executed with the tacit consent of respondents.
The Court of Appeals disagreed with the trial court and ruled that the reckless driving of Jabon
caused the vehicular collision. In support of such finding, the Court of Appeals relied heavily on
Gregorios testimony that Jabon was driving the tractor-trailer downward too fast and it
encroached the lane of the jitney. Based on the gravity of the impact and the damage caused to
the jitney resulting in the death of some passengers, the Court of Appeals inferred that Jabon
must be speeding. The appellate court noted that the restriction in Jabons drivers license was
violated, thus, giving rise to the presumption that he was negligent at the time of the accident.
Tison was likewise held liable for damages for his failure to prove due diligence in supervising
Jabon after he was hired as driver of the truck. Finally, the appellate court disregarded the
Affidavit of Desistance executed by Cynthia because the latter had no written power of attorney
from respondents and that she was so confused at the time when she signed the affidavit that she
did not read its content.
The dispositive portion of the assailed Decision states:
WHEREFORE, the present appeal is granted, and the trial courts Decision dated February 7,
2003 is set aside. Defendants-appellees are ordered to pay plaintiffs-appellants or their heirs the
following:
a) Actual damages of P136,000.00 as above computed, to be offset with the P200,000.00
received by plaintiff-appellant Cynthia Pomasin;
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b) Civil indemnity of P50,000.00 for the death of each victim, to be offset with the
balance of P64,000.00 from the aforementioned P200,000.00 of civil indemnity received
by plaintiff-appellant Cynthia Pomasin. Hence, the net amount is computed at P37,200.00
each, as follows:
Narcisa Pomasin P37,200.00
Laarni Pomasin P37,200.00
Andrea P. Pagunsan P37,200.00
Dionisio Perol P37,200.00
Annie Jane P. Pagunsan P37,200.00
c) Moral damages of P50,000.00 to each of the victims; and
d) Attorneys fees of 10% of the total award.10
Petitioners filed a Motion for Reconsideration, which was, however, denied by the Court of
Appeals in a Resolution11 dated 19 July 2006.
The petition for review raises mixed questions of fact and law which lead back to the very issue
litigated by the trial court: Who is the negligent party or the party at fault?
The issue of negligence is factual in nature.12 And the rule, and the exceptions, is that factual
findings of the Court of Appeals are generally conclusive but may be reviewed when: (1) the
factual findings of the Court of Appeals and the trial court are contradictory; (2) the findings are
grounded entirely on speculation, surmises or conjectures; (3) the inference made by the Court of
Appeals from its findings of fact is manifestly mistaken, absurd or impossible; (4) there is grave
abuse of discretion in the appreciation of facts; (5) the appellate court, in making its findings,
goes beyond the issues of the case and such findings are contrary to the admissions of both
appellant and appellee; (6) the judgment of the Court of Appeals is premised on a
misapprehension of facts; (7) the Court of Appeals fails to notice certain relevant facts which, if
properly considered, will justify a different conclusion; and (8) the findings of fact of the Court
of Appeals are contrary to those of the trial court or are mere conclusions without citation of
specific evidence, or where the facts set forth by the petitioner are not disputed by respondent, or
where the findings of fact of the Court of Appeals are premised on the absence of evidence but
are contradicted by the evidence on record.13
297 | P a g e
The exceptions to the rule underscore the substance and weight of the findings of the trial court.
They render inconclusive contrary findings by the appellate court. The reason is now a
fundamental principle:
[A]ppellate courts do not disturb the findings of the trial courts with regard to the assessment of
the credibility of witnesses. The reason for this is that trial courts have the unique opportunity to
observe the witneses first hand and note their demeanor, conduct and attitude under grilling
examination.
The exceptions to this rule are when the trial courts findings of facts and conclusions are not
supported by the evidence on record, or when certain facts of substance and value, likely to
change the outcome of the case, have been overlooked by the trial court, or when the assailed
decision is based on a misapprehension of facts.14
This interplay of rules and exceptions is more pronounced in this case of quasi-delict in which,
according to Article 2176 of the Civil Code, whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the damage done. To sustain a claim
based on quasi-delict, the following requisites must concur: (a) damage suffered by the plaintiff;
(b) fault or negligence of defendant; and (c) connection of cause and effect between the fault or
negligence of defendant and the damage incurred by the plaintiff.15 These requisites must be
proved by a preponderance of evidence.16 The claimants, respondents in this case, must,
therefore, establish their claim or cause of action by preponderance of evidence, evidence which
is of greater weight, or more convincing than that which is offered in opposition to it.17
The trial court found that the jitney driver was negligent. We give weight to this finding greater
than the opposite conclusion reached by the appellate court that the driver of the tractor-trailer
caused the vehicular collision.
One reason why the trial court found credible the version of Jabon was because his concentration
as driver is more focused than that of a mere passenger. The trial court expounded, thus:
In the appreciation of the testimony of eye-witnesses, one overriding consideration is their
opportunity for observation in getting to know or actually seeing or observing the matter they
testify to. This most particularly holds true in vehicular collision or accident cases which
oftentimes happen merely momentarily or in the split of a second. In the case of a running or
travelling vehicle, especially in highway travel which doubtless involves faster speed than in
ordinary roads, the driver is concentrated on his driving continuously from moment to moment
even in long trips. While in the case of a mere passenger, he does not have to direct his attention
to the safe conduct of the travelling vehicle, as in fact he may converse with other passengers and
pay no attention to the driving or safe conduct of the travelling vehicle, as he may even doze off
to sleep if he wants to, rendering his opportunity for observation on the precise cause of the
298 | P a g e
accident or collision or immediately preceding thereto not as much as that of the driver whose
attention is continuously focused on his driving. So that as between the respective versions of the
plaintiffs thru their passenger and that of the defendants thru their driver as to the cause or
antecedent causes that led to the vehicular collision in this case, the version of the driver of
defendant should ordinarily be more reliable than the version of a mere passenger of Plaintiffs
vehicle, simply because the attention of the passenger is not as much concentrated on the driving
as that of the driver, consequently the capacity for observation of the latter of the latter on the
matter testified to which is the precise point of inquiry --- the proximate cause of the accident --is more reasonably reliable. Moreover, the passengers vision is not as good as that of the driver
from the vantage point of the drivers seat especially in nighttime, thus rendering a passengers
opportunity for observation on the antecedent causes of the collision lesser than that of the driver.
This being so, this Court is more inclined to believe the story of defendants driver Claudio
Jabon that the jitney driven by Laarni Pomasin fell off the shoulder of the curved road causing it
to run thereafter in a zigzag manner and in the process the two vehicles approaching each other
from opposite directions at highway speed came in contact with each other, the zigzagging jeep
hitting the left fender of the truck all the way to the fuel tank, the violent impact resulting in the
lighter vehicle, the jitney, being thrown away due to the disparate size of the truck.18
The appellate court labelled the trial courts rationalization as a "sweeping conjecture"19 and
countered that Gregorio was actually occupying the front seat of the jitney and had actually a
clear view of the incident despite the fact that he was not driving.
While it is logical that a drivers attention to the road travelled is keener than that of a mere
passenger, it should also be considered that the logic will hold only if the two are similarly
circumstanced, and only as a general rule, so that, it does not necessarily follow that between the
opposing testimonies of a driver and a passenger, the former is more credible. The factual setting
of the event testified on must certainly be considered.
The trial court did just that in the instant case. Contrary to the observation of the Court of
Appeals, the relative positions of a driver and a passenger in a vehicle was not the only basis of
analysis of the trial court. Notably, aside from Jabons alleged vantage point to clearly observe
the incident, the trial court also took into consideration Gregorios admission that prior to the
accident, the jitney was running on the "curving and downward" portion of the highway. The
appellate court, however, took into account the other and opposite testimony of Gregorio that it
was their jitney that was going uphill and when it was about to reach a curve, he saw the
incoming truck running very fast and encroaching the jitneys lane.
We perused the transcript of stenographic notes and found that the truck was actually ascending
the highway when it collided with the descending jitney.
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During the direct examination, Jabon narrated that the tractor-trailer was ascending at a speed of
35 to 40 kilometers per hour when he saw the jitney on the opposite lane running in a zigzag
manner, thus:
Q: Now, when you passed by the municipality of Polangui, Albay at about 5:00 of August 12,
1994, could you tell the Court if there was any untoward incident that happened?
A: There was sir.
Q: Could you please tell the Court?
A: While on my way to Liboro coming from Sorsogon, I met on my way a vehicle going on a
zigzag direction and it even fell on the shoulder and proceeded going on its way on a zigzag
direction.
Q: Could you describe to the Court what was the kind of vehicle you saw running in zigzag
direction?
A: A Toyota-jitney loaded with passengers with top-load.
Q: You said that the top[-]load of the jeep is loaded?
A: Yes, sir.
Q: Could you please tell the Court what was your speed at the time when you saw that jeepney
with top[-]load running on a zigzag manner?
A: I was running 35 to 40 kilometers per hour because I was ascending plain. (Emphasis
supplied).20
In that same direct examination, Jabon confirmed that he was ascending, viz:
Q: Could you please describe the condition in the area at the time of the incident, was it dark or
day time?
A: It was still bright.
COURT: But it was not approaching sunset?
A: Yes, sir.
Q: Was there any rain at that time?
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A: None sir.
Q: So the road was dry?
A: Yes sir.
Q: You said you were ascending towards the direction of Liboro, Camarines Sur, is that correct at
the time the incident happened?
A: Yes sir.21 (Emphasis supplied).
Upon the other hand, Gregorio, during his direct examination described the road condition where
the collision took place as "curving and downward," thus:
Q: Could you please describe the place where the incident happened in so far as the road
condition is concerned?
A: The road was curving and downward.
Q: And the road was of course clear from traffic, is that correct?
A: Yes sir.
Q: And practically, your jitney was the only car running at that time?
A: Yes sir.22 (Emphasis supplied).
Significantly, this is a confirmation of the testimony of Jabon.
However, on rebuttal, Gregorio turned around and stated that the jitney was going uphill when he
saw the tractor-trailer running down very fact and encroaching on their lane, to wit:
Q: Mr. Claudio Jabon, the driver of the trailer truck that collided with your owner jeepney that
you were riding testified in open Court on July 24, 1997 which I quote, while on my way to
Liboro coming to Sorsogon I met a vehicle going on a zig-zag direction and it even fell on the
shoulder and proceeded going on its way on zig-zag direction, what can you say about this
statement of this witness?
A: We were no[t] zigzagging but because we were going uphill and about to reach a curved (sic)
we saw the on-coming vehicle going down very fast and encroaching on our lane so our driver
swerved our vehicle to the right but still we were hit by the on-coming vehicle.23 (Emphasis
supplied).
301 | P a g e
The declaration of Jabon with respect to the road condition was straightforward and
consistent.1awp The recollection of Gregorio veered from "curving and downward" to
uphill.24 On this point, Jabon and his testimony is more credible.
The fact that the jitney easily fell into the road shoulder, an undebated fact, supports the trial
courts conclusion that the jitney was indeed going downhill which, it may be repeated, was the
original testimony of Gregorio that the road was "curving and downward."25 It is this conclusion,
prodded by the inconsistency of Gregorios testimony, that gives credence to the further
testimony of Jabon that the herein respondents jitney, "loaded with passengers with top-load"
"was running in a zigzag manner."26
Going downward, the jitney had the tendency to accelerate. The fall into the shoulder of the road
can result in the loss of control of the jitney, which explains why it was running in a zigzag
manner before it hit the tractor-trailer.
There was no showing that the tractor-trailer was speeding. There is a preponderance of evidence
that the tractor-trailer was in fact ascending. Considering its size and the weight of the tractortrailer, its speed could not be more than that of a fully loaded jitney which was running downhill
in a zigzagging manner.
Neither can it be inferred that Jabon was negligent. In hindsight, it can be argued that Jabon
should have swerved to the right upon seeing the jitney zigzagging before it collided with the
tractor-trailer. Accidents, though, happen in an instant, and, understandably in this case, leaving
the driver without sufficient time and space to maneuver a vehicle the size of a tractor-trailer
uphill and away from collision with the jitney oncoming downhill.
Clearly, the negligence of Gregorios daughter, Laarni was the proximate cause of the accident.
We did not lose sight of the fact that at the time of the incident, Jabon was prohibited from
driving the truck due to the restriction imposed on his drivers license, i.e., restriction code 2 and
3. As a matter of fact, Jabon even asked the Land Transportation Office to reinstate his
articulated license containing restriction code 8 which would allow him to drive a tractor-trailer.
The Court of Appeals concluded therefrom that Jabon was violating a traffic regulation at the
time of the collision.
Driving without a proper license is a violation of traffic regulation. Under Article 2185 of the
Civil Code, the legal presumption of negligence arises if at the time of the mishap, a person was
violating any traffic regulation. However, in Sanitary Steam Laundry, Inc. v. Court of
Appeals,27 we held that a causal connection must exist between the injury received and the
violation of the traffic regulation. It must be proven that the violation of the traffic regulation was
the proximate or legal cause of the injury or that it substantially contributed thereto. Negligence,
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consisting in whole or in part, of violation of law, like any other negligence, is without legal
consequence unless it is a contributing cause of the injury.28 Likewise controlling is our ruling in
Aonuevo v. Court of Appeals29 where we reiterated that negligence per se, arising from the
mere violation of a traffic statute, need not be sufficient in itself in establishing liability for
damages. In said case, Aonuevo, who was driving a car, did not attempt "to establish a causal
connection between the safety violations imputed to the injured cyclist, and the accident itself.
Instead, he relied on a putative presumption that these violations in themselves sufficiently
established negligence appreciable against the cyclist. Since the onus on Aonuevo is to
conclusively prove the link between the violations and the accident, we can deem him as having
failed to discharge his necessary burden of proving the cyclists own liability."30 We took the
occasion to state that:
The rule on negligence per se must admit qualifications that may arise from the logical
consequences of the facts leading to the mishap. The doctrine (and Article 2185, for that matter)
is undeniably useful as a judicial guide in adjudging liability, for it seeks to impute culpability
arising from the failure of the actor to perform up to a standard established by a legal fiat. But the
doctrine should not be rendered inflexible so as to deny relief when in fact there is no causal
relation between the statutory violation and the injury sustained. Presumptions in law, while
convenient, are not intractable so as to forbid rebuttal rooted in fact. After all, tort law is
remunerative in spirit, aiming to provide compensation for the harm suffered by those whose
interests have been invaded owing to the conduct of other.31
In the instant case, no causal connection was established between the tractor-trailer drivers
restrictions on his license to the vehicular collision. Furthermore, Jabon was able to sufficiently
explain that the Land Transportation Office merely erred in not including restriction code 8 in his
license.
Petitioners presented the Affidavit of Desistance executed by Cynthia to exonerate them from
any liability. An affidavit of desistance is usually frowned upon by courts. Little or no persuasive
value is often attached to a desistance.32 The subject affidavit does not deserve a second look
more so that it appears that Cynthia was not armed with a special power of attorney to enter into
a settlement with petitioners. At any rate, it is an exercise of futility to delve into the effects of
the affidavit of desistance executed by one of the respondents since it has already been
established that petitioners are not negligent.
WHEREFORE, the petition is GRANTED. The challenged Decision and Resolution of the Court
of Appeals are REVERSED and SET ASIDE. Civil Case No. 94-3418 lodged before the
Regional Trial Court of Antipolo City, Branch 74, is DISMISSED for lack of merit.
SO ORDERED.
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JOSE PORTUGAL PEREZ

Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
PRESBITERO J. VELASCO, JR.*
Associate Justice
ARTURO D. BRION
Associate Justice
JOSE CATRAL MENDOZA**

Associate Justice
AT T E S T AT I O N
ANTONIO T. CARPIO
Associate Justice
Chairperson
Attestation, it is hereby certified 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 Courts Division.
RENATO C. CORONA
Chief Justice
DIGEST
Facts:
This is a case of an action for reconveyance of a parcel of land and an apartment. Teodora
Guerrero died and left a parcel of land and an apartment. Her husband Martin Guerrero
adjudicates the said land to him and consequently sold to Teodora Domingo. The nephews and
304 | P a g e
nieces Tison et al seek to inherit by right of representation from the property disputed property
presenting documentary evidence to prove filial relation. The respondent contended that the
documents/evidence presented is inadmissible for being hearsay since the affiants were never
presented for cross-examination.
Issue:
Whether or not the evidence presented is hearsay evidence and is inadmissible.
Held:
The evidence submitted does not conform to the rules on their admissibility; however the same
may be admitted by reason of private respondent's failure to interpose any timely objection
thereto at the time they were being offered in evidence. It is elementary that an objection shall be
made at the time when an alleged inadmissible document is offered in evidence; otherwise, the
objection shall be treated as waived, since the right to object is merely a privilege which the
party may waive.
The primary proof that was considered in ascertaining the relationship between the parties
concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller
Guerrero in her lifetime, or sometime in 1946, categorically declared that the former is Teodora's
niece. Such a statement is considered a declaration about pedigree which is admissible, as an
exception to the hearsay rule, under Section 39, Rule 130 of the Rules of Court, subject to the
following conditions: (1) that the declarant is dead or unable to testify; (2) that the declarant be
related to the person whose pedigree is the subject of inquiry; (3) that such relationship be shown
by evidence other than the declaration; and (4) that the declaration was made ante litem motam,
that is, not only before the commencement of the suit involving the subject matter of the
declaration, but before any controversy has arisen thereon.
305 | P a g e

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 119092 December 10, 1998

SANITARY STEAM LAUNDRY, INC., petitioner,
vs.
THE COURT OF APPEALS, NICANOR BERNABE III, JOSEFINA BERNABE, in their
individual capacities and as HEIRS OF JASON BERNABE, JOHN JOSEPH BERNABE,
VICTOR IGNACIO, JULIETA ENRIQUEZ and RAMON ENRIQUEZ, RENE
TABLANTE, LEOMAR MACASPAC, JR., CHARITO ESTOLANO, NENITA SALUNOY,
in their individual capacities and as HEIRS OF DALMACIO SALUNOY, respondents.
MENDOZA, J.:
This case involves a collision between a Mercedes Bent panel truck of petitioner Sanitary Steam
Laundry and a Cimarron which caused the death of three persons and the injuries of several
others. The accident took place at the Aguinaldo Highway in Imus, Cavite on August 31, 1980.
306 | P a g e
All the victims were riding in the Cimarron. One of those who died was the driver. The Regional
Trial Court of Makati found petitioner's driver to be responsible for the vehicular accident and
accordingly held petitioner liable to private respondents for P472,262.30 in damages and
attorney's fees. Its decision was affirmed in toto by the Court of Appeals. It is here for a review
of the appellate court's decision.
The passengers of the Cimarron were mostly employees of the Project Management Consultants,
Inc. (PMCI). They had just visited the construction site of a company project at Lian, Batangas.
The other passengers were family members and friends whom they invited to an excursion to the
beach after the visit to the construction site. The group stayed at Lian beach until 5:30 p.m.,
when they decided to go back to Manila.
The Cimarron, with Plate No. 840-45, was owned by Salvador Salenga, father of one of the
employees of PMCI. Driving the vehicle was Rolando Hernandez. It appears that at about 8:00
p.m., as it was traveling along Aguinaldo Highway in Imus, Cavite on its way back to Manila,
the Cimarron was hit on its front portion by petitioner's panel truck, bearing Plate No. 581 XM,
which was traveling in the opposite direction. The panel truck was on its way to petitioner's plant
in Dasmarias, Cavite after delivering some linen to the Makati Medical Center. The driver,
Herman Hernandez, claimed that a jeepney in front of him suddenly stopped. He said he stepped
on the brakes to avoid hitting the jeepney and that this caused his vehicle to swerve to the left
and encroach on a portion of the opposite lane. As a result, his panel truck collided with the
Cimarron on the north-bound lane.
The driver of the Cimarron, Rolando Hernandez, and two of his passengers, namely, Jason
Bernabe and Dalmacio Salunoy, died. Several of the other passengers of the Cimarron were
injured and taken to various hospitals.
On December 4, 1980, private respondents filed this civil case for damages before the then Court
of First Instance of Rizal, Pasig Branch, against petitioner.
On November 23, 1990, the Regional Trial Court of Makati, to which the case was transferred
following the reorganization of the judiciary, rendered judgment for private respondents. The
dispositive portion of its decision reads:
It is for the reasons stated above that the court is persuaded to award the damages
incurred by the plaintiffs as proved in the trial as follows:
Actual or compensatory expenses:
a. Charito Estolano P35,813.87 (Exh. J)
b. Nicanor Bernabe III 20,024.94
& Josefina C. Bernabe
c. Julieta, Ailyn & 45,830.45 (Exh. QQ)
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Josefina Enriquez
and Josefina Valeiro
d. Leonor Macaspac 2,740.00
e. Victor Rey Ignacio 14,820.64 (Exh. EEE)
f. Rene Tablante 10,032.40 (Exh. QQQ)
g. Nenita Salonoy, widow; 20,000.00
and Jack & Manilyn,
children
Moral damages should also be awarded as follows:
For the injuries sustained by:
a. Charito Estolano P10,000.00 (Exh. F)
b. Julieta P. Enriquez 15,000.00 (Exh. MM)
c. Ailyn C. Enriquez 8,000.00 (Exh. NN)
d. Josefina R. Enriquez 10,000.00 (Exh. OO)
e. Josefina P. Valerio 2,000.00 (Exh. PP)
f. Nenita Salonoy 20,000.00 (Exh. DD)
g. Nicanor Bernabe III 8,000.00 (Exh. Q)
h. Josephine Bernabe 2,000.00 (Exh. R)
i. John Joseph Bernabe 10,000.00
j. Manilyn G. Salonoy 10,000.00 (Exh. EE)
k. Jack Salonoy 10,000.00 (Exh. JJ)
l. Leonor C. Macaspac 2,000.00 (Exh. AAA)
m. Victor Ignacio 8,000.00 (Exh. DDD)
308 | P a g e
n. Rene Tablanta 8,000.00 (Exh. FFF)

and finally the heirs of Jason Bernabe should be awarded the sum of P50,000.00
for the latter's death. The heirs of Dalmacio Salunoy should be given the sum of
P100,000.00 for moral damages and unearned income.
The foregoing considered, judgment is rendered in favor of plaintiffs ordering
defendant to pay the amounts aforecited and to pay the further sum of P50,000.00
for attorney's fees and the costs.
SO ORDERED.
As already stated, the Court of Appeals, to which the decision of the trial court was appealed,
affirmed the decision on January 26, 1995. Hence, this appeal.
First. Petitioner contends that the driver of the Cimarron was guilty of contributory negligence
and, therefore, its liability should be mitigated, if not totally extinguished. It claims that the
driver of the Cimarron was guilty or violation of traffic rules and regulations at the time of the
mishap. Hence, in accordance with Art. 2185 of the Civil Code, he was presumed to be
negligent.
According to petitioner, the negligence consisted of the following.
1. The Cimarron was overloaded because there were from 20 to 25 passengers inside when the
passenger capacity of the vehicle was only 17.
2. The front seat of the Cimarron was occupied by four adults, including the driver.
3. The Cimarron had only one headlight on (its right headlight) as its left headlight was not
functioning.
Petitioner cites Art. III, 2 of R.A. No. 4136, known as the Land Transportation and Traffic
Code, which provides that "No person operating any vehicle shall allow more passengers or
more freight or cargo in his vehicle than its registered carry capacity" and Art. IV, 3(e) which
states that "Every motor vehicle of more than one meter of projected width, while in use on any
public highway shall bear two headlights. . . which not later than one-half hour after sunset and
until at least one-half hour before sunrise and whenever weather conditions so require, shall both
be lighted."
Petitioner asserts that the fact that its panel truck encroached on a portion of the lane of the
Cimarron does not show that its driver was negligent. Petitioner cites the case of Bayasen v.
Court of Appeals, 1 which allegedly held that the sudden swerving of a vehicle caused by its
driver stepping on the brakes is not negligence per se. Petitioner further claims that even if
petitioner's swerving to the lane of respondents were considered proof of negligence, this fact
would not negate the presumption of negligence on the part of the other driver arising from his
violations of traffic rules and regulations.
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Petitioner likewise invokes the ruling in Mckee v. Intermediate Appellate Court, 2 in which a
driver who invaded the opposite lane and caused a collision between his car and a truck coming
from the opposite lane, was exonerated based on the doctrine of last clear chance, which states
that a person who has the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent, is solely responsible for the consequences of
the accident.
Petitioner contends that the ruling in that case should be applied to the present case. According to
petitioner, although the driver of the panel truck was initially negligent, the driver of the
Cimarron had the last opportunity to avoid the accident. However, because of his negligence
(i.e., the aforementioned violations of traffic rules and regulations such as the use of only one
headlight at night and the overcrowding at the front seat of the vehicle), he was not able to avoid
a collision with the panel truck.
We find the foregoing contention to be without merit.
First of all, it has not been shown how the alleged negligence of the Cimarron driver contributed
to the collision between the vehicles. Indeed, petitioner has the burden of showing a causal
connection between the injury received and the violation of the Land Transportation and Traffic
Code. He must show that the violation of the statute was the proximate or legal cause of the
injury or that it substantially contributed thereto. Negligence, consisting in whole or in part, of
violation of law, like any other negligence, is without legal consequence unless it is a
contributing cause of the injury. 3 Petitioner says that "driving an overloaded vehicle with only
one functioning headlight during nighttime certainly increases the risk of accident," 4 that
because the Cimarron had only one headlight, there was "decreased visibility," and that the tact
that the vehicle was overloaded and its front seat overcrowded "decreased [its]
maneuverability," 5 However, mere allegations such as these are not sufficient to discharge its
burden of proving clearly that such alleged negligence was the contributing cause of the injury.
Furthermore, based on the evidence in this case, there was no way either driver could have
avoided the collision. The panel truck driver testified: 6
Q. You stated you were following a jeepney along the highway in
Imus, Cavite, what happened afterwards, if any?
A. The passenger jeepney I was following made a sudden stop so I
stepped on the brakes.
Q. Upon stepping on your brakes, what happened if any?
A. The Mercedes Benz (panel) suddenly swerved to the left, sir.
Q. How big was the swerving to the left?
310 | P a g e
A. The distance which my vehicle swerved beyond the middle line

or center line to the left was about this distance, sir (witness
demonstrating by using both hands the distance).
ATTY. ALILING:
Can we stipulate that it is 1 foot, Your Honor.
ATTY. GONZALES:
A little more, 1 1/2 feet.
ATTY. ALILING:
1 1/4 feet.
ATTY. GONZALES:
Between 1 1/4 and 1 1/2 feet.
The panel truck driver's testimony is consistent with the testimonies of private respondents that
the panel truck went out of control and simply smashed into the Cimarron in which they were
riding. Thus, Nicanor Bernabe III
testified: 7
Q: And did you see how the accident happened?
A: I just saw a glare of light. That is all and then the impact.
Q: Where did you see that glare of light?
A: Coming in front ahead of us.
Q: When you say ahead of you, was it . . . ?
A: Towards us.
xxx xxx xxx
Q: And from what did those glare of light come from.
A: Based on information I received, the light came from the
headlights of a certain panel owned by Sanitary Steam Laundry,
Inc.
xxx xxx xxx
311 | P a g e
Q: You said that the lights were going towards you. Now, at what
pace did these lights come toward you?
A: Fast pace.
Charito Estolano, another passenger who was seated in front of the Cimarron, similarly testified
that they just saw the panel truck hurtling toward them. She said: 8
Q Now, you said earlier that you were involved in an accident.
What was that accident?
A An approaching vehicle hit us.
Q Now, why do you know that there was the approaching vehicle?
A There was a light which glared us and I knew that it came from a
vehicle. We were blinded.
Q Where was this vehicle headed for?
A Headed for Cavite.
Q Coming from?
A Coming from Manila, I think.
Q So that, actually, in relation to your vehicle, it was coming from
the opposite direction?
A Yes, sir.
Q Now, you said that the light headed towards your vehicle. On
which side of the highway was your Tamaraw vehicle travelling at
that time?
A We were on the right lane.
Q Did you actually see this light from the vehicle coming from the
opposite direction heading towards your vehicle?
A Yes, sir,
Q And what happened after that?
A After that, there was an impact.
312 | P a g e
Q All right. Will you tell the Court which bumped which?
A We were bumped by the vehicle which was coming from the
opposite direction.
The foregoing testimonies show that the driver of the panel truck lost control of his vehicle and
bumped the Cimarron. Hence, even if both headlights of the Cimarron were lighted, it would
have been bumped just the same because the driver of the panel truck could not stop despite the
fact that he applied the brakes. Petitioner's contention that because of "decreased visibility,"
caused by the fact that the Cimarron allegedly had only one headlight on, its driver failed to see
the Cimarron is without any basis in fact. Only its driver claimed that the Cimarron had only one
headlight on. The police investigator did not state in his report or in his testimony that the
Cimarron had only one headlight on.
Nor is there any basis in fact for petitioner's contention that because of overcrowding in the front
seat of the Cimarron there was "decreased maneuverability" which prevented the Cimarron
driver from avoiding the panel truck. There is absolutely no basis for this claim. There is nothing
in the testimonies of the passengers of the Cimarron, particularly Charito Estolano, who was
seated in front, which suggest that the driver had no elbow room for maneuvering the vehicle. To
the contrary, from the testimony of some of the witnesses, 9 it appears that the driver of the
Cimarron tried to avoid the collision but because of the emergency created by the speeding panel
truck coming from the opposite direction he was not able to fully move his Cimarron away from
the path of the oncoming vehicle. We are convinced that no "manuevering" which the Cimarron
driver could have done would have avoided a collision with the panel truck, given the
suddenness of the events. Clearly, the overcrowding in the front seat was immaterial.
All these point to the fact that the proximate cause of the accident was the negligence of
petitioner's driver. As the trial court noted, the swerving of petitioner's panel truck to the opposite
lane could mean not only that petitioner's driver was running the vehicle at a very high speed but
that he was tailgating the passenger jeepney ahead of it as well.
Petitioner's driver claimed that the distance between the panel truck and the passenger jeepney in
front was about 12 meters. 10 If this was so, he would have had no difficulty bringing his panel
truck to a stop. It is very probable that the driver did not really apply his brakes (which is why
there were no skid marks) but that finding the jeepney in front of him to be in close proximity, he
tried to avoid hitting it by swerving his vehicle to the left. In the process, however, he invaded a
portion of the opposite lane and consequently hit the Cimarron. Indeed, the panel truck driver
testified that his vehicle was running at the speed of 60 miles per hour. 11 He tried to correct
himself when asked by petitioner's counsel whether the panel truck speedometer indicated miles
or kilometers by saying that the speedometer measured kilometers and not miles, but on cross
examination his testimony got muddled. 12
Be that as it may, whether the driver meant 60 miles per hour (which could be 96.77 kilometers
per hour) or 60 kilometers per hour, the fact remains that the panel truck was overspeeding
because the maximum allowable speed for truck and buses on open country roads, such as the
Aguinaldo Highway in Imus, Cavite, is only 50 kilometers per hour. 13
313 | P a g e
The case of Bayasen, which petitioner invokes, cannot apply to this case. There was no swerving
of the vehicle in that case but skidding, and it was caused by the fact that the road was wet and
slippery. In this case, the road was dry and safe. There was no reason for the vehicle to swerve
because of road condition. The only explanation for this occurrence was human error.
Petitioner's reliance on the McKee case is also misplaced. In that case, the driver of the vehicle at
fault, a truck, had an opportunity to avoid the collision but he ignored the signals from the other
vehicle, a car, to slow down and allow it to safely pass the bridge. In this case, there was no such
opportunity given the Cimarron on the night of the mishap. Everything happened so quickly that
before the passengers of the Cimarron knew it, the vehicle had been bumped by the truck.
Second. On its liability as employer of the negligent driver, petitioner contends that the nonsubmission of the NBI clearance and police clearance of its driver does not mean that it failed to
exercise the diligence of a good father of the family in the selection and supervision of its
employees. It argues that there is no law requiring employees to submit NBI and police clearance
prior to their employment. Hence, petitioner's failure to require submission of these documents
does not mean that it did not exercise due diligence in the selection and supervision of its
employees. On the other hand, it asserts that its employment of Herman Hernandez as a driver
means that he had passed the screening tests of the company, including submission of the
aforementioned documents. Petitioner maintains that the presumption is that the said driver
submitted NBI and police clearance.
Petitioner likewise contends that the Court of Appeal's position that it failed to exercise due
diligence in the selection and supervision of its employees by not requiring its prospective
employees to undergo psychological and physical tests before employment has no basis in law
because there is no law requiring such tests prior to hiring employees.
The petitioner's contention has no merit. The Court of Appeals did not say that petitioner's failure
to submit NBI and police clearances of its driver was proof that petitioner failed to exercise due
diligence in the selection of its employees. What the Court of Appeals said was that petitioner's
policy of requiring prospective employees to submit NBI and police clearance and to have at
least two (2) years experience as driver prior to employment was not enough to prove the
exercise of due diligence and that even this policy petitioner failed to prove by its failure to
present the driver's NBI and police records during the trial.
With respect to the requirement of passing psychological and physical tests prior to his
employment, although no law requires it, such circumstance would certainly be a reliable
indicator of the exercise of due diligence. As the trial court said: 14
. . . No tests of skill, physical as well as mental and emotional, were conducted on
their would-be employees. No on-the-job training and seminars reminding
employees, especially drivers, of road courtesies and road rules and regulations
were done. There were no instructions given to defendant's drivers as to how to
react in cases of emergency nor what to do after an emergency occurs. There was
even failure on the part of defendant to present its concerned employee's 204 file.
All these could only mean failure on the part of defendant to exercise the
314 | P a g e
diligence required of it of a good father of a family in the selection and

supervision of its employees.
Indeed, driving exacts a more than usual toll on the senses. 15 Accordingly, it behooves
employers to exert extra care in the selection and supervision of their employees. They
must go beyond the minimum requirements fixed by law. In this case, David Bautista, the
office manager of petitioner in its Dasmarias plant, said that petitioner has a policy of
requiring job applicants to submit clearances from the police and the NBI. In the case of
applicants for the position of driver they are required to have at least two (2) years
driving experience and to be holders of a professional driver's license for at least two
years. But the supposed company policies on employment were not in writing. Nor did
Bautista show in what manner he supervised the drivers to ensure that they drove their
vehicles in a safe way.
Third. With respect to the question of damages, we find no reversible error committed in the
award of actual damages to private respondents. To justify an award of actual damages, there
must be competent proof of the actual amount of loss. Credence can be given only to claims
which are duly supported by receipts. 16 Here, the actual damages claimed by private respondents
were duly supported by receipts and appear to have been really incurred.
As to the moral damages awarded, we find them to be reasonable and necessary in view of the
circumstances of this case. Moral damages are awarded to allow the victims to obtain means,
diversion, or amusement to alleviate the moral suffering they had undergone due to the
defendant's culpable action. 17 In this case, private respondents doubtless suffered some ordeal
because some of them lost their loved ones, while others lost their future. Within the meaning of
Art. 2217 of the Civil Code, they suffered sleepless night, mental anguish, serious anxiety, and
wounded feelings. An award of moral damages in their favor is thus justified.
The award of P50,000,00 to the heirs of Jason Bernabe as death indemnity is likewise in
accordance with law. 18However, the award of P100,000 to the heirs of Dalmacio Salunoy,
denominated in the decision of the trial court as "moral damages and unearned income" cannot
be upheld. The heirs were already included among those awarded moral damages. Marilyn
Salunoy was ordered to be paid P10,000, Jack Salunoy, P10,000, and their mother Nenita
Salunoy, P20,000, as moral damages. The amount of P100,000 was presumably awarded
primarily for loss of earning capacity but even then the amount must be modified. In accordance
with our cases 19 on this question, the formula for determining the life expectancy of Dalmacio
Salunoy must be determined by applying the formula 2/3 multiplied by (80 minus the age of the
deceased). Since Salunoy was 46 years of age at the time of his death, as stated in his death
certificate, then his life expectancy was 22.6 years, or up to 68 years old.
Next, his net earnings must be computed. At the time of his death. Dalmacio Salunoy was
earning more than P900.00 a month as bookkeeper at the PMCI so that his annual gross earning
was about P11,000.00. From this amount, about 50% should be deducted as reasonable and
necessary living expenses because it seems his wife occasionally finds work and thus helps in the
household expenses.
315 | P a g e
Based on the foregoing, his net earning capacity was P124,300.00 computed as follows: 20
net earning life Gross reasonable &
capacity (x) = expectany x annual less necessary
income living
expenses
x = [2 (80-46)] x [P11,000 - P5,500]
3
= 22.6 x 5,500
= P124,300.00
In addition, the heirs of Dalmacio Salunoy should be paid P50,000.00 as death indemnity.
Finally, the award of attorney's fees should be disallowed as the trial court did not give any
justification for granting it in its decision. It is now settled that awards of attorney's fees must be
based on findings of fact and law, stated in the decision of the trial court. 21
WHEREFORE, the decision of the Court of Appeals is MODIFIED in the sense that the award
of P100,000.00 denominated "for moral damages and unearned income" is deleted, and in lieu
thereof the amount of P124,300.00 for loss of earning capacity and the further amount of
P50,000.00 for death indemnity are awarded to the heirs of Dalmacio Salunoy and the award of
P50,000.00 for attorney's fees is disallowed. In all other respects the appealed decision is
AFFIRMED.
SO ORDERED.
Bellosillo, Puno and Martinez, JJ., concur.
DIGEST
FACTS: on August 31, 1980, a Mercedes Benz panel truck of petitioner Sanitary Steam Laundry
collided with a Cimarron which caused the death of three persons and the injuries of several
others. The passengers of the Cimarron were mostly employees of the Project Management
Consultants, Inc. (PMCI). The Cimarron was owned by Salvador Salenga, father of one of the
employees of PMCI. Driving the vehicle was Rolando Hernandez. The driver of the truck
claimed that a jeepney in front of him suddenly stopped. He said he stepped on the brakes to
avoid hitting the jeepney and that this caused his vehicle to swerve to the left and encroach on a
316 | P a g e
portion of the opposite lane. As a result, his panel truck collided with the Cimarron on the northbound lane. RTC: Rendered judgment for private respondents. CA: Affirmed the decision of the
RTC
ISSUE: Whether or not the driver of Cimarron was guilty of contributory negligence.
SC: First of all, it has not been shown how the alleged negligence of the Cimarron driver
contributed to the collision between the vehicles. Indeed, petitioner has the burden of showing a
causal connection between the injury received and the violation of the Land Transportation and
Traffic Code. He must show that the violation of the statute was the proximate or legal cause of
the injury or that it substantially contributed thereto. Negligence, consisting in whole or in part,
of violation of law, like any other negligence, is without legal consequence unless it is a
contributing cause of the injury. Petitioner says that driving an overloaded vehicle with only one
functioning headlight during nighttime certainly increases the risk of accident, that because the
Cimarron had only one headlight, there was decreased visibility, and that the fact that the
vehicle was overloaded and its front seat overcrowded decreased [its] maneuverability.
However, mere allegations such as these are not sufficient to discharge its burden of proving
clearly that such alleged negligence was the contributing cause of the injury. Furthermore, based
on the evidence in this case, there was no way either driver could have avoided the collision.
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 126297
January 31, 2007
PROFESSIONAL SERVICES, INC., Petitioner,

vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467
January 31, 2007
NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE

AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and
ENRIQUE AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
317 | P a g e
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 mankinds 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 hospitals 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 Natividads 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
318 | P a g e
"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. Ampils 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 Natividads 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.
319 | P a g e
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 attorneys 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
320 | P a g e
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
Natividads 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 defendantappellant 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.
321 | P a g e
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
Natividads 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 Courts attention to other possible causes
of Natividads detriment. He argues that the Court should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in Natividads 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 Natividads body.
Dr. Ampils 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 Natividads 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.
322 | P a g e
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 patients 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 patients 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 patients 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 patients 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
323 | P a g e
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
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 Natividads 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. Ampils negligence is the proximate cause12 of Natividads 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 Natividads
vagina established the causal link between Dr. Ampils 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 Natividads 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 plaintiffs 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 defendants want of care, and the burden of proof is shifted to him to establish that he
has observed due care and diligence.14
324 | P a g e
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 Natividads 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
325 | P a g e
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 patients 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
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 ones 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.
326 | P a g e
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 physicians 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 hospitals 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:
327 | P a g e
"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 physicians 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 PSIs 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
hospitals 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
328 | P a g e
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 physicians 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, PSIs 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:
329 | P a g e
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 hospitals act of listing him and his specialty in its lobby directory, as in the case herein.
The high costs of todays 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 hospitals 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 judiciarys 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 hospitals
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:
330 | P a g e
(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 PSIs 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 PSIs 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 PSIs 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 Natividads case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of
the Medical City Hospitals 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
331 | P a g e
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 patients 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 hospitals
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
332 | P a g e
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
Associate Justice
ADOLFO S. AZCUNA
Asscociate Justice
(No Part)
CANCIO C. GARCIA
Associate Justice
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 Courts Division.
REYNATO S. PUNO
Chief Justice
DIGEST
FACTS: On 14 April 1984, Natividad Agana was rushed to The Medical City General Hospital
due to bowel movement difficulty and bloody anal discharge. She was diagnosed by Dr. Miguel
Ampil to be suffering from cancer of the sigmoid. Upon performing anterior resection surgery
on Natividad, Dr. Ampil found that cancer had spread on her left ovary. Dr. Ampil sought the
333 | P a g e
consent of Enrique Agana (Natividads husband) to permit Dr. Juan Fuentes to perform
hysterectomy on her. After Dr. Fuentes completed hysterectomy, Dr. Ampil took over to
complete the operation and to close the incision. However, the operation appeared to be flawed.
A couple of days after her release, Natividad complained of excruciating pain in her anal region.
Her doctors told her that said pain was the consequence of her operation. Dr. Ampil
recommended that she consult an oncologist to examine the cancerous node they were not able to
remove. Natividad then went to the US for further treatment and was later found free from
cancer. She then returned to the Philippines. Two weeks after Natividads arrival, her daughter
found a piece of gauze protruding from her vagina. Dr. Ampil removed said piece, and assured
her that the pains would vanish soon. Still suffering from pain, Natividad sought help from
Polymedic General Hospital where it was found that another piece of gauze badly infected her
vaginal vault. She took another surgery to remove the same. The spouses Agana then filed a
complaint for damages against Professional Services, Inc (owner of The Medical City), Dr.
Ampil and Dr. Fuentes. Enrique likewise filed administrative cases against Dr. Ampil (who was
unfortunately abroad at that time, so case did not proceed) and Dr. Fuentes. Pending said cases,
Natividad died and was substituted by her children. RTC favored the spouses, but the
administrative complaint against Dr. Fuentes was dismissed. CA affirmed that Dr. Ampil was
liable for damages but exonerated Dr. Fuentes from liability. Hence, these three consolidated
petitions for review on certiorari.
ISSUE (As to GR No. 126297): Whether PSI should be liable for the negligence of Dr. Ampil.
HOLDING: YES.
Courts came to realize that modern hospitals are increasingly taking active role in supplying
and regulating medical care to patients. No longer were a hospitals functions limited to
furnishing room, food, facilities for treatment and operation, and attendants for its
patients. Thus, in Bing v. Thunig, 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
Appealsthat for purposes of apportioning 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 PSIs liability. Its liability
is also anchored upon the agency principle ofapparent authority or agency by estoppel and the
doctrine of corporate negligence which have gained acceptance in the determination of a
hospitals 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.
334 | P a g e
Apparent authority, or what is sometimes referred to as the holding out theory, or doctrine
of ostensible agency or agency by estoppel, 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. 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.
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. 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 physicians 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, PSIs 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 hospitals
act of listing him and his specialty in its lobby directory, as in the case herein.
The high costs of todays medical and health care should at least exact on the
335 | P a g e
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.
336 | P a g e

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 182705
July 18, 2014
VICENTE JOSEFA, Petitioner,

vs.
MANILA ELECTRIC COMPANY, Respondent.
DECISION
BRION, J.:
We resolve the petition for review on certiorari1 filed by petitioner Vicente Josefa, doing business
under the name and style of 747 Lumber and Construction Supply, to challenge the January 31,
2008 decision2 and the April 29, 2008 resolution3 of the Court of Appeals (CA) in CA-G.R. CV
No. 87512.
The Factual Antecedents
At around 1 :45 p.m. on April 21, 1991, a dump truck, a j eepney and a car figured in a vehicular
accident along Ortigas Avenue, Pasig City.4 As a result of the accident, a 45-foot wooden
electricity post, three 75 KVA transformers, and other electrical line attachments were
damaged.5 Upon investigation, respondent Manila Electric Company (Meralco) discovered that it
was the truck with plate number PAK-874 and registered in Josefas name that hit the electricity
post.6
In a letter dated April 19, 1993, Meralco demanded from Josefa reimbursement for the
replacement cost of the electricity post and its attachments, but Josefa refused to pay.7 Thus, on
September 28, 1993, Meralco sued Josefa and Pablo Manoco, the truck driver, for damages
before the Regional Trial Court (RTC) of Pasig City.8
Proceedings before the RTC
In its complaint, Meralco alleged that Manocos reckless driving resulted in damage to
itsproperties. It also imputed primary liability on Josefa for his alleged negligence in the
selection and supervision of Manoco. It thus prayed for the indemnification of the amount
of P384,846.00 as actual damages, P50,000.00 as attorneys fees,P10,000.00 as litigation
expenses, and the costs of the suit.9
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In defense, Josefa denied thatManoco was his employee when the accident occurred. He also
maintained that he exercised the diligence of a good father of a family in the selection and
supervision of all his employees. As a counterclaim, he sought the payment of attorneys fees for
Meralcos filing of a baseless complaint.10
On January 11, 1994, Meralco amended its complaint to correct the name "Pablo Manoco"
toPablo Manojo Bautista (Bautista),11 but soon dropped him as a party defendant in the case for
failure to serve him summons.12
A. Evidence for Meralco
During trial, Meralco offered the testimonies of six witnesses as well as documentary evidence to
substantiate its claim for damages against Josefa:
Juan Fernandez, Meralcos senior legal investigator, testified that he arrived at the scene of the
accident at around 2:30 p.m. on that fateful day and saw Meralco employees installing a new
electricity post. He interviewed the people in the vicinity who told him that it was the truck that
rammed the electricity post.13 He thus proceeded to the police station at Caruncho Complex,
Pasig City and talked toSPO2 Alexander Galang who informed him that the owner of the
offending vehicle was Josefa.14 Fernandez also identified and authenticated the investigation
report dated April 21, 199115 (Exhibit "A") summarizing the result of his investigation.16 Elmer
Albio identified himself as the driver of the jeepney that was involved in the accident. He
testified thata truck suddenly hit the rear of his jeepney while he was driving along
OrtigasAvenue, Pasig City; he thus lost control of the jeepney and hit a Nissan car on the other
lane of the road. Thereafter, the truck hit the electricity post.
SPO2 Manuel Valiente testified that he immediately went to the scene of the accident after a
concerned citizen went to the police station and informed him about the accident.17 However, he
could no longer recall the trucks exact position with reference to the electricity post at the time
of his arrival at the scene of the accident.18
SPO2 Galang stated that one of his functions as a traffic accident investigator was to record
vehicular accidents in the police blotter book. He identified and authenticated a certified true
copy of the police blotter dated January 7, 1994 (Exhibit "B") but admitted that he neither saw
nor investigated the accident.19
Vitaliano Espiritu, Meralcos foreman,testified that he replaced the damaged electricity post,
transformers, and other electrical line attachments after receiving an emergency radio call from a
Meralco personnel.20
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Carlos Zapanta, Meralcos supervising accountant, affirmed that Meralco incurred actual
damages totalingP384,846.00. To support his finding, he identified and authenticated two pieces
ofevidence, the memorandum dated October 7, 1992 (Exhibit "C") and the document dated
March 29, 1993 (Exhibit "D"). Exhibit "C" is a letter from Meralcos legal department requesting
the accounting department for a computation of actual damages.21On the other hand, Exhibit "D"
provides a detailed computation of actual damages that Meralco allegedly suffered.22 On crossexamination, Zapanta stated that the computation was based on "supplementary time sheets,"
"trip tickets," and other documents provided by Meralcos distribution office;23 however, Meralco
did not present these documents during trial.
In an order dated January 15, 1997, the RTC admitted all documentary evidence that Meralco
offered after its presentation of testimonial evidence.24
B. Evidence for Josefa
Upon Meralcos presentment of evidence, Josefa filed a demurrer to Evidence25 , but was denied
by the RTC.26Josefa assailed the denial of his demurrer in a petition for certiorari before the CA
which, however, affirmed the RTC rulings.27 Thereafter, Josefa filed a motion for extension to
file a petition for review on certiorari before the Court. After we denied the motion for its
procedural infirmities,28 the RTC ordered Josefa to present his evidence-in-chief. The RTC
eventually declared the case as submitted for decision without Josefas evidence-in-chief due to
the numerous and unreasonable delays that he incurred in the presentation of evidence.29
The RTC Ruling
In a decision dated April 10, 2006,the RTC dismissed the complaint for insufficiency of
evidence. The RTC held that Meralco failed to establish that it was the truck that hit the
electricity post. The RTC ruled that SPO2 Galangs account of the accident was merely hearsay
since he did not personally witness the incident. It alsodid not give probative value to the police
blotter entry dated January 7, 1994 since the accident had long occurred in 1991. The RTC
likewise denied Meralcos claim for actual damages for lack of evidentiary support.30
The CA Ruling
The CA reversed the RTC ruling and held that the RTC erred in disregarding the parties
stipulation at the pre-trial that it was the truck that hit the electricity post. The CA also found that
Bautista was Josefas employee when the accident occurred since Josefa did not specifically
deny this material allegation in the amended complaint. It likewise noted that the sheriffs return
stated that Bautista was under Josefas employ until 1993.
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The CA concluded that the fact thatthe truck hit the electricity post was sufficient to hold Josefa
vicariously liable regardless of whether Bautista was negligent in driving the truck. In the same
breath, the CA also stated that the employers presumptive liability in quasi-delicts was anchored
on injuries caused by the employees negligence. It further ruled that Josefa failed to rebut the
presumption that he negligently selected and supervised Bautista in employment since he did not
present his evidence-inchief during trial. Even assuming thatBautista was not Josefas employee,
the CA maintained that Josefa would still be liable for damages since the law presumes that the
registered owner has control of his vehicle and its driver at the time of the accident. It thus
ordered Josefa to pay Meralco: (1) P384,846.00 as actual damages; (2) P50,000.00 as attorneys
fees; (3) P10,000.00 as expenses of litigation; and (4) double the costs of the suit.
Josefa filed the present petition after the CA denied31 his motion for reconsideration.32
The Petition
Josefa argues that the CA gravely erred in reversing the RTCs factual findings. He insists that
the finding that it was the truck that hit the electricity post lacks evidentiary support.
Furthermore, Meralco failed to substantiate its claim for actual damages by competent
testimonial and documentary evidence. Josefa likewise asserts that Meralco is not entitled to
attorneys fees since it also contributedto the delay in the proceedings. He points out that
Meralco sought for postponements of hearings during trial and failed to assist the sheriff in
serving the summons to Bautista.33
The Respondents Position
In its Comment, Meralco takes the opposite view that it is the RTC ruling that is unsupported by
evidence. Meralco maintains that the RTC erroneously ruled in favor of Josefawho did not
present his evidence-inchief during trial. Meralco also posits that Josefas vicariously liability
finds support in Articles 2176 and 2180 of the Civil Code which hold the employer primarily
liable for damages caused by the employee who acted within the scope of his assigned tasks. It
also asserts that Josefas unjustified refusal to pay its just and valid claim for actual damages
warrants the award of attorneys fees.34
The Issues
This case presents to us the following issues:
(1) Whether the truck with plate number PAK-874 hit the electricity post;
(2) Whether Bautista exercised due diligence in driving when the truck hit the electricity
post;
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(3) Whether Josefa is vicariously liable for Bautistas negligence under paragraph 5,
Article 2180 of the Civil Code;
(a) Whether there is an employer-employee relationship between Bautista and Josefa;
(b) Whether Josefa exercised the diligence of a good father of a family in the selection
and supervision of Bautista; and
(4) Whether Meralco is entitled to actual damages, attorneys fees, and expenses of
litigation.
Our Ruling
We partially affirm the CAs ruling.
I. The Court may review factual
questions in a petition for review on
certiorari when a conflict exists in
findings of the lower courts
We are aware that the issues beforeus involve factual questions which require us to review the
presented pieces of evidence before the trial court. While a petition for review on
certiorariprecludes this Court from entertaining factual issues, we can review the pieces of
evidence, by way of exception, when a conflict exists in the findings of the RTC and the
CA.35 We see this exceptional situation here and thus examine the relevant pieces of evidence
presented before the trial court.
II. Bautistas negligence was the
proximate cause of the property
damage caused to Meralco
A. The truck hit the electricity post
Whoever by act or omission causes damage to another, there being fault or negligence, is obliged
to pay for the damage done. This fault or negligence, if there is no pre-existing contractual
relation between the parties, is called quasi-delict.36 Thus, for a quasi-delict case to prosper, the
complainant must establish: (1) damages to the complainant; (2) negligence, by act or omission,
of the defendant or by some person for whose acts the defendant must respond, was guilty; and
(3) the connection of cause and effect between such negligence and the damages.37 With respect
to the third element, the negligent act or omission must be the proximate cause of the injury.
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Contrary to the CAs finding, the parties did not stipulate that the truck hit the electricity post.
The pre-trial order shows that the parties merely agreed that the truck "was involvedin an
accident on April 21, 1991 at around 1:45 oclock in the afternoon along Ortigas Avenue,
Rosario, Pasig City." The parties in fact posed the issue of whether the truck rammed the
electricity post as one of the factual questions to be resolved by the trial court during the pre-trial
conference.38
We also agree with Josefa that Fernandez and SPO2 Galangs testimonies regarding the truck
hitting the electricity post are hearsay and should not be given credence. Fernandez and SPO2
Galang merely testified and conveyed to the court matters only narrated to them by other people
who were not presented in court. Hearsay evidence has no probative value because it is merely
the witness recitation of what someone else has told him, whether orally or in writing. A witness
can testify only to those facts which are derived from his own perception.39
Nonetheless, Meralco has sufficiently established the direct causal link between the truck and the
electricity post through Abios testimony. Abio categorically stated during trial that he saw the
truck hit the electricity post. We find his first-hand account of the incident during the
directexamination frank and straightforward. More importantly, Josefa failed to impeach the
veracity of Abios testimony during the cross-examination. Abio even reiterated that it was
Josefas truck that rammed the electricity post.40 We thus give full faith and credence to his
positive, unrebutted, and categorical declaration on the witness stand, made under solemn oath,
that it was the truck that caused damage to Meralcos property.
Even without Abios testimony, it does not escape this Courts attention that Josefa judicially
admittedin his motions and pleading that his truck hit the electricity post. In a motion to dismiss
dated March 17, 1997, Josefa stated:
"1. This action was commenced by plaintiff to recover from defendant the sum of P384,846.00 as
actual damages resulting from the vehicular mishap which occurred on April 21, 1991 along
Ortigas Avenue, Rosario, Pasig City, Metro Manila, whereby defendants dump truck with plate
No. PAK 874 hit and bumped plaintiffs 45-foot wooden pole;41 " (emphasis and underline ours)
Josefa further declared in his motion for reconsideration dated February 22, 2008:
[T]he manner who and why the accident occurred was not explained. In the absence of any
description on such important aspect, fault or negligence cannot be properly imputed to Pablo
Manojo Bautista simply because the truck he was then driving bumped to electric post. The
causal connection between the fault or negligence and the damage must be shown. x x x
Analyzing the testimony of Elmer Abio, what was established is the following:
a) Somebodybumped the back of the jeepney he was driving on April 21, 1991;
342 | P a g e
b) When his back was bumped, he had no control because it was so sudden;
c) He bumped the approaching car, while the truck bumped into the Meralco post that
three (3) transformers;
d) The pole with 3 transformers fell on the truck.
It may be asked: "Who was that somebody that bumped the back of Abio" "What was the reason
why the truck bumped the post?""What happened to the car that was bumped by Abio because he
had no control?" "Which happened first, the bumping of the back of Abio or the bumping of the
post by the truck?" "Was the bumping of the back of Abio and the bumping of the car the
proximate cause why the truck hit the Meralco post?"42(Emphases and underlines ours) Lastly,
Josefa pleaded in his petition before this Court:
Nowhere in the records was it shown how and why the accident occurred on April 21, 1991.
In the absence of any description on such important aspect, fault or negligence cannot be
properly imputed to petitioner, simply because his truck bumped into Meralcos electricity post.
The causal connection between the petitioners supposed negligence and the damage was not
shown. Neither was it proved tobe the proximate cause of the damage.43 (Emphases and
underlines ours)
These statements constitute deliberate, clear and unequivocal admissions of the causation in fact
between the truck and the electricity post.Judicial admissions made by the parties in the
pleadings or in the course of the trial or other proceedingsin the same case are conclusive and do
not require further evidence to prove them. These admissions cannot be contradicted unless
previously shown to have been made through palpable mistake or that no such admission was
made.44 A party who judicially admits a fact cannot later challenge this fact for the reason that
judicial admissions remove an admitted fact from the field of controversy.45
B. Bautista is presumed to be
negligent in driving the truck
under the doctrine of res ipsa
loquitur
Contrary to the CAs opinion, the finding that it was the truck that hit the electricity post would
not immediately result in Josefas liability. It is a basic rule that it is essentially the wrongful or
negligent act or omission that creates the vinculum jurisin extra-contractual obligations.46 In turn,
the employees negligence established to bethe proximate cause of the damage would give rise to
the disputable presumption that the employer did not exercise the diligence of a good father of a
family in the selection and supervision of the erring employee.47
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Nonetheless, in some cases where negligence is difficult to prove, the doctrine of res ipsa
loquitur permits an inference of negligence on the part of the defendant or some other person
who is charged with negligence where the thing or transaction speaks for itself.48 This doctrine
postulates that, as a matter of common knowledge and experience and in the absence of some
explanation by the defendant who is charged with negligence, the very nature of occurrences
may justify an inference of negligence on the part of the person who controls the instrumentality
causing the injury. In other words, res ipsa loquitur is grounded on the superior logic of ordinary
human experience that negligence may be deduced from the mere occurrence of the accident
itself.49
The procedural effect of res ipsa loquiturin quasi-delict cases is that the defendants negligence is
presumed.1awp++i1 In other words, the burden of evidence shifts to the defendant to prove that
he did not act with negligence.50 This doctrine thus effectively furnishes a bridge by which the
complainant, without knowledge of the cause of the injury, reaches over to the defendant, who
knows or should know the cause, for any explanation of care exercised by him to prevent the
injury.51 For this doctrine to apply, the complainant must show that: (1) the accident is of such
character as to warrant an inference that it would not have happened except for the defendants
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.
The present case satisfiesall the elements of res ipsa loquitur. It is very unusual and extraordinary
for the truck to hit an electricity post, an immovable and stationary object, unless Bautista, who
had the exclusive management and control of the truck, acted with fault or negligence. We
cannot also conclude that Meralco contributed to the injury since it safely and permanently
installed the electricity post beside the street. Thus, in Republic v. Luzon Stevedoring Corp.,52 we
imputed vicarious responsibility to Luzon Stevedoring Corp. whose barge rammed the bridge,
also an immovable and stationary object. In that case, we found it highly unusual for the barge to
hit the bridge which had adequate openings for the passage of water craft unless Luzon
Stevedoring Corp.s employee had acted with negligence.
In his pleadings, Josefa raises the possibility that the fault or negligence of the jeepney and/or the
car drivers may have been the proximate cause of the damage. As a matter of defense, Josefa
should have substantiated this theory considering that the burden of evidence has shifted against
him after Meralco had established that it was the truck that hit the electricity post. However,
Josefa did not adduce any evidence in support of his defense during trial. Consequently, we
sustain the CAs finding that there is a direct and proximate causal link between the truck and the
injury that Meralco suffered.
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III. Josefa is vicariously liable under

paragraph 5, Article 2180 of the
Civil Code
A. There is an employeremployee relations between
Bautista and Josefa
The finding that Bautista acted withnegligence in driving the truck gives rise to the application of
paragraph 5, Article 2180 of the Civil Code which holds the employer vicariouslyliable for
damages caused by his employees within the scope of their assigned tasks. In the present case,
Josefa avoids the application of this provision by denying that Bautista was his employee at the
time of the incident.
Josefa cannot evade his responsibility by mere denial of his employment relations with Bautista
in the absence of proof that his truck was used without authorization or that it was stolen when
the accident occurred.53 In quasi-delict cases, the registered owner of a motor vehicle is the
employer of its driver in contemplation of law.54 The registered owner of any vehicle, even if not
used for public service, would primarily be responsible to the public or to third persons for
injuries caused while the vehicle was being driven on highways or streets. The purpose of motor
vehicle registration is precisely to identify the owner so that if any injury is caused by the
vehicle, responsibility canbe imputed to the registered owner.55
B. Josefa failed to show that he
exercised the diligence of a
good father of a family in the
selection and supervision of
Bautista
In order for Josefa to be relieved of his vicarious liability, he must show that he exercised due
diligence in the selection and supervision of Bautista. In concrete terms, Josefa should show by
competent object or documentary evidence that he examined Bautista as to the latters
qualifications, experience and service records prior to employment. He should likewise prove by
competent objector documentary evidence that he formulated standard operating procedures,
monitored their implementation and imposed disciplinary measures for breach of these
procedures.56 However, Josefa failed to overcome the presumption of negligence against him
since he waived his right to present evidence during trial. We are thus left with no other
conclusion other than to rule that Josefa is primarily liable for all natural and probable
consequences of Bautistas negligence.57
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IV. Meralco is only entitled to

temperate damages with interest at
legal rate
A. Meralco failed to prove its
entitlement to actual damages
Despite Josefas vicarious liability inthis case, Meralco failed to point out the specific facts that
afforda basis for its claim for actual damages.58 Actual damages cannot be presumed; they must
be pleaded and proven in court in order to be recoverable. One is entitled to an adequate
compensation only for the pecuniary loss that he has adequately proved based upon competent
proof and on the best evidence obtainable by him.59
We cannot give weight to Exhibit "D" as to the amount of actual damages for being
hearsay.Exhibit "D" constitutes hearsay evidence since it was derived on alleged pieces of
documentary evidence that were not identified and authenticated in court during trial. The trial
court thus erred in even admitting Exhibit "D" in evidence whose contents were offered without
any other competent evidence to corroborate them. Consequently, we delete the CAs award of
actual damages for lack of evidentiary support.
B. Meralco is entitled to
temperate damages because it
clearly suffered pecuniary loss
as a result of Bautista and
Josefas negligence
Nonetheless, Meralco is entitled totemperate damages because there is no doubt that it suffered
pecuniary loss as a result of Bautista and Josefas negligence.60 When the court finds that some
pecuniary loss has been suffered but the amount cannot, from the nature of the case, be proven
with certainty, the court may award temperate damages in the exercise of its sound
discretion.61 Considering the attendant circumstances of this case, we find the amount
of P200,000.00 to be a fair and sufficient award by way of temperate damages.
C. Meralco is not entitled to
attorneys fees and expenses
of litigation
The CA likewise erred in awarding Meralco attorneys fees and expenses of litigation without
explaining its basis.1wphi1In Buan v. Camaganacan,62 we held that the text of the decision
should state the reason why attorney's fees are being awarded; otherwise, the award should be
disallowed. Besides, no bad faith has been imputed to Josefa that would warrant the award of
346 | P a g e
attorneys fees under Article 2208 (5) of the Civil Code. It is a settled rule that attorney'sfees
shall not be recovered as cost where the partys persistence in litigation is based on his mistaken
belief in he righteousness of his cause.63 There is also no factual, legal, or equitable justification
that would justify the Court's award of attorney's fees under Article 2208 (11) of the Civil Code.
D. The award of temperate
damages is subject to 6% per
annum reckoned from the
promulgation of the decision
until fully paid
Finally, we impose an interest rate of 6% per annum on temperate damages pursuant to the
guidelines enunciated in Eastern Shipping Lines v. CA,64 as modified by Nacar v. Gallery
Frames.65 The interest rate shall commence to run from the promulgation of this decision, the
date when the amount of temperate damages has been determined with certainty. WHEREFORE,
premises considered, we PARTIALLY GRANT the petition. The January 31, 2008 decision and
the April 29, 2008 resolution of the Court of Appeals in CA-G.R. CV. No. 87512 is AFFIRMED
with MODIFICATION. Petitioner Vicente Josefa is ordered to pay respondent Manila Electric
Company the amount of P200,000.00 as temperate damages with legal interest at 6% per annum
from the promulgation of this decision until full payment has been effected. Costs against
petitioner Vicente Josefa.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
Associate Justice
JOSE PORTUGAL PEREZ

Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
AT T E S T AT I O N
347 | P a g e
case was assigned to the writer of the opinion of the Court's Division.
ANTONIO T. CARPIO
Associate Justice
MARIA LOURDES P. A. SERENO
Chief Justice
NO CASE DIGEST
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FIRST DIVISION
March 24, 2014
G.R. No. 161151
BJDC CONSTRUCTION, REPRESENTED BY ITS MANAGER/PROPRIETOR JANET
S. DELA CRUZ, Petitioner,
vs.
NENA E. LANUZO, CLAUDETTE E. LANUZO, JANET E. LANUZO, JOAN BERNABE
E. LANUZO, and RYAN JOSEE. LANUZO, Respondent.
DECISION
BERSAMIN, J.:
The party alleging the negligence of the other as the cause of injury has the burden to establish
the allegation with competent evidence. If the action based on negligence is civil in nature, the
proof required is preponderance of evidence.
This case involves a claim for damages arising from the death of a motorcycle rider in a
nighttime accident due to the supposed negligence of a construction company then undertaking
re-blocking work on a national highway. The plaintiffs insisted that the accident happened
because the construction company did not provide adequate lighting on the site, but the latter
countered that the fatal accident was caused by the negligence of the motorcycle rider himself.
The trial court decided in favor of the construction company, but the Court of Appeals (CA)
reversed the decision and ruled for the plaintiffs.
Hence, this appeal.
Antecedents
On January 5, 1998, Nena E. Lanuzo (Nena) filed a complaint for damages1 against BJDC
Construction (company), a single proprietorship engaged in the construction business under its
Manager/Proprietor Janet S. de la Cruz. The company was the contractor of the re-blocking
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project to repair the damaged portion of one lane of the national highway at San Agustin, Pili,
Camarines Sur from September 1997to November 1997.
Nena alleged that she was the surviving spouse of the late Balbino Los Baos Lanuzo (Balbino)
who figured in the accident that transpired at the site of the re-blocking work at about 6:30 p.m.
on October 30, 1997; that Balbinos Honda motorcycle sideswiped the road barricade placed by
the company in the right lane portion of the road, causing him to lose control of his motorcycle
and to crash on the newly cemented road, resulting in his instant death; and that the companys
failure to place illuminated warning signs on the site of the project, especially during night time,
was the proximate cause of the death of Balbino. She prayed that the company be held liable for
damages, to wit: (a) P5,000.00 as the actual damage to Balbinos motorcycle; (b) P100,000.00 as
funeral and burial expenses; (c) P559,786.00 representing the "unearned income in expectancy"
of Balbino; (d) P100,000.00 as moral damages; (e) P75,000.00 as attorneys fees, plus P1,500.00
per court appearance; and (f) P20,000.00 as litigation costs and other incidental expenses.
In its answer,2 the company denied Nenas allegations of negligence, insisting that it had installed
warning signs and lights along the highway and on the barricades of the project; that at the time
of the incident, the lights were working and switched on; that its project was duly inspected by
the Department of Public Works and Highways (DPWH), the Office of the Mayor of Pili, and the
Pili Municipal Police Station; and that it was found to have satisfactorily taken measures to
ensure the safety of motorists.
The company further alleged that since the start of the project in September 1997, it installed
several warning signs, namely: (a) big overhead streamers containing the words SLOW DOWN
ROAD UNDER REPAIR AHEAD hung approximately 100 meters before the re-blocking site,
one facing the Pili-bound motorists and another facing the Naga-bound motorists; (b) road signs
containing the words SLOW DOWN ROAD UNDER REPAIR 100 METERS AHEAD placed
on the road shoulders below the streamers; (c) road signs with the words SLOW DOWN ROAD
UNDER REPAIR 50 METERS AHEAD placed 50 meters before the project site; (d) barricades
surrounded the affected portion of the highway, and a series of 50-watt light bulbs were installed
and switched on daily from 6:00 p.m. until the following morning; (e) big warning signs
containing the words SLOW DOWN ROAD UNDER REPAIR and SLOW DOWN MEN
WORKING were displayed at both ends of the affected portion of the highway with illumination
from two 50-watt bulbs from 6:00 p.m. until the following morning; and (f) the unaffected
portion of the highway was temporarily widened in the adjacent road shoulder to allow two-way
vehicular traffic.
The company insisted that the death of Balbino was an accident brought about by his own
negligence, as confirmed by the police investigation report that stated, among others, that
Balbino was not wearing any helmet at that time, and the accident occurred while Balbino was
overtaking another motorcycle; and that the police report also stated that the road sign/barricade
350 | P a g e
installed on the road had a light. Thus, it sought the dismissal of the complaint and prayed, by
way of counterclaim, that the Nena be ordered to pay P100,000.00 as attorneys fees, as well as
moral damages to be proven in the course of trial.
The RTC subsequently directed the amendment of the complaint to include the children of Nena
and Balbino as co-plaintiffs, namely: Janet, Claudette, Joan Bernabe and Ryan Jose, all surnamed
Lanuzo. Hence, the plaintiffs are hereinafter be referred to as the Lanuzo heirs.
Decision of the RTC
On October 8, 2001, the RTC rendered judgment in favor of the company, as follows:
Plaintiffs are the survivors of Balbino Los Baos Lanuzo who met a traumatic death on 30
October, 1997 at about 6:30 p.m., when he bumped his motorcycle on a barricade that was
lighted with an electric bulb, protecting from traffic the newly-reblocked cement road between
San Agustin and San Jose, Pili, Camarines Sur; they claim defendants OMISSION in lighting up
the barricaded portion of the reblocking project being undertaken by defendant was the
proximate cause of the accident, leaving them bereaved and causing them actual and moral
damages.
Defendant DENIED the claim of plaintiffs; both parties offered testimonial and documentary
evidence, from which this Court,
FINDS
that: plaintiff DID NOT present an eyewitness account of the death of their decedent; on the
contrary, the flagman of defendant was present when the accident occurred, which was caused by
the decedent having overtaken a motorcycle ahead of [him] and on swerving, to avoid the
barricade, hit it, instead, breaking the lighted electric bulb on top of the barricade, resulting in the
fall of the decedent about 18 paces from where his motorcycle fell on the reblocked pavement;
the police investigator, policeman Corporal, by Exh. 1, confirmed the tale of the flagman, aside
from confirming the presence of the warning devices placed not only on the premises but at
places calculated to warn motorists of the ongoing reblocking project.
OPINION
From the foregoing findings, it is the opinion of this Court that the plaintiffs were unable to make
out a case for damages, with a preponderance of evidence.
WHEREFORE, Judgment is hereby rendered, DISMISSING the complaint.3
Decision of the CA
351 | P a g e
The Lanuzo heirs appealed to the CA.

On August 11, 2003, the CA promulgated its decision declaring that the issue was whether the
company had installed adequate lighting in the project so that motorists could clearly see the
barricade placed on the newly cemented lane that was then still closed to vehicular
traffic,4 thereby reversing the judgment of the RTC, and holding thusly:
WHEREFORE, premises considered, the present appeal is hereby GRANTED and the decision
appealed from in Civil Case No. P-2117 is hereby REVERSED and SET ASIDE. A new
judgment is hereby entered ordering the defendant-appellee to pay the plaintiff-appellants, heirs
of the victim Balbino L. B. Lanuzo, the sums of P50,000.00 as death indemnity, P20,000.00 by
way of temperate damages and P939,736.50 as loss of earning capacity of the deceased Balbino
L. B. Lanuzo.
SO ORDERED.5
The CA ruled that the following elements for the application of the doctrine of res ipsa loquitur
were present, namely: (1) the accident was of such character as to warrant an inference that it
would not have happened except for the defendants 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.
The CA regarded as self-serving the testimony of Eduardo Zamora, an employee of the company
who testified that there was an electric bulb placed on top of the barricade on the area of the
accident. It held that Zamoras statement was negated by the statements of Ernesto Alto and
Asuncion Sandia to the effect that they had passed by the area immediately before the accident
and had seen the road to be dark and lit only by a gas lamp. It noted that SPO1 Corporal, the
police investigator, had noticed the presence of lighted electric bulbs in the area, but the same
had been installed on the other side of the street opposite the barricade.
The CA ruled that the placing of road signs and streamers alone did not prove that the electric
bulbs were in fact switched on at the time of the accident as to sufficiently light up the newly reblocked portion of the highway. It opined that "[t]he trial court gave undue weight to the selfserving statement of appellees employee, Eduardo Zamora, which was supposedly corroborated
by SPO1 Pedro Corporal. SPO1 Corporal arrived at the scene only after the accident occurred,
and thus the electric bulbs could have already been switched on by Zamora who was at the area
of the project." It concluded that the negligence of the company was the proximate cause of
Balbinos death; hence, the company was liable for damages.
352 | P a g e
The company filed a motion for reconsideration,6 but the CA denied the motion in the resolution
promulgated on November 13, 2003.
Issues
In this appeal, the company submits the following issues, namely:
I. The application by the Honorable Court of Appeals of the doctrine of res ipsa loquitur to the
case at bar, despite and contrary to the finding, among others, by the trial court that the
proximate cause of the accident is the victims own negligence, is "not in accord with the law or
with the applicable decisions of the Supreme Court" [Sec. 6 (a), Rule 45, Rules of Court].
II. The Honorable Court of Appeals, by substituting its own findings of fact and conclusion with
those of the trial court despite the lack of "strong or cogent reasons" therefor, "has so far
departed from the accepted and usual course of judicial proceedings ... as to call for an exercise
of the power of supervision" by this Honorable Supreme Court [Sec. 6 (b), Ibid.].
III. The findings by the Honorable Court of Appeals that respondents (appellants therein) "had
satisfactorily presented a prima facie case of negligence which the appellee (petitioner herein)
had not overcome with an adequate explanation" and which alleged negligence is "the proximate
cause of death of Lanuzo" are manifestations of grave abuse of discretion in the appreciation of
facts, and constitute a judgment based on a misinterpretation of facts, which justify a review by
this Honorable Supreme Court.7
The company reiterates the categorical finding of the RTC that the proximate cause of the
accident was Balbinos own negligence, and that such finding was based on the conclusion stated
by SPO1 Corporal in his investigation report to the effect that the incident was "purely self
accident," and on the unrebutted testimony of Zamora to the effect that Balbino was driving his
motorcycle at a fast speed trying to overtake another motorcycle rider before hitting the
barricade. On the other hand, it insists that its documentary and testimonial evidence proved its
exercise of due care and observance of the legally prescribed safety requirements for contractors.
The company maintains that Balbino was familiar with the re- blocking project that had been
going on for months because he had been passing the area at least four times a day during
weekdays in going to and from his place of work in the morning and in the afternoon; and that he
could have avoided the accident had he exercised reasonable care and prudence.
The company assails the application of the doctrine of res ipsa loquitur, positing that the Lanuzo
heirs did not establish all the requisites for the doctrine to apply.
Anent the first requisite, the company states that the Lanuzo heirs did not successfully counter its
documentary and testimonial evidence showing that Balbinos own negligence had caused the
353 | P a g e
accident. It cites the fact that Balbino was familiar with the road conditions and the re-blocking
project because he had been passing there daily; and that Balbino had been driving too fast and
not wearing the required helmet for motorcycle drivers, which were immediately evident because
he had been thrown from his motorcycle and had landed "18 paces away" from the barricade that
he had hit.
On the second requisite, the company argues that Balbinos driving and operation of his
motorcycle on the day of the accident indicated that the accident was not within its exclusive
management and control; and that as to the matters that were within its control, it sufficiently
showed its observance of due and reasonable care and its compliance with the legally prescribed
safety requirements.
Regarding the third requisite, the company reminds that Zamora and SPO1 Corporal revealed
that Balbino was overtaking another motorcycle rider before hitting the barricade. The credibility
of said witnesses was not challenged, and their testimonies not rebutted; hence, the CA erred in
relying on the recollections of Asuncion Sandia and Ernesto Alto who were not present when the
incident took place. Sandia and Altos testimonies could not be accorded more weight than
Zamoras eyewitness account, considering that the latter was believed by the trial judge who had
the first-hand opportunity to observe the demeanor of the witnesses.
Whose negligence was the proximate cause of the death of Balbino?
Ruling of the Court
Inasmuch as the RTC and the CA arrived at conflicting findings of fact on who was the negligent
party, the Court holds that an examination of the evidence of the parties needs to be undertaken
to properly determine the issue.8The Court must ascertain whose evidence was preponderant, for
Section 1, Rule 133 of the Rules of Court mandates that in civil cases, like this one, the party
having the burden of proof must establish his case by a preponderance of evidence.9
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.10 It is basic that
whoever alleges a fact has the burden of proving it because a mere allegation is not
evidence.11 Generally, the party who denies has no burden to prove.12In civil cases, the burden of
proof is on the party who would be defeated if no evidence is given on either side.13The burden
of proof is on the plaintiff if the defendant denies the factual allegations of the complaint in the
manner required by the Rules of Court, but it may rest on the defendant if he admits expressly or
impliedly the essential allegations but raises affirmative defense or defenses, which if proved,
will exculpate him from liability.14
By preponderance of evidence, according to Raymundo v. Lunaria:15
354 | P a g e
x x x is meant that the evidence as a whole adduced by one side is superior to that of the other. It
refers to the weight, credit and value of the aggregate evidence on either side and is usually
considered to be synonymous with the term "greater weight of evidence" or "greater weight of
the credible evidence." It is evidence which is more convincing to the court as worthy of belief
than that which is offered in opposition thereto.
In addition, according to United Airlines, Inc. v. Court of Appeals,16 the plaintiff must rely on the
strength of his own evidence and not upon the weakness of the defendants.
Upon a review of the records, the Court affirms the findings of the RTC, and rules that the
Lanuzo heirs, the parties carrying the burden of proof, did not establish by preponderance of
evidence that the negligence on the part of the company was the proximate cause of the fatal
accident of Balbino.
Negligence, the Court said in Layugan v. Intermediate Appellate Court,17 is "the omission to do
something which a reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a prudent and reasonable
man would not do,18 or as Judge Cooley defines it, (t)he failure to observe for the protection of
the interests of another person, that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury."19 In order that a party
may be held liable for damages for any injury brought about by the negligence of another, the
claimant must prove that the negligence was the immediate and proximate cause of the injury.
Proximate cause is defined as "that cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury and without which the result would not
have occurred."20
The test by which the existence of negligence in a particular case is determined is aptly stated in
the leading case of Picart v. Smith,21 as follows:
follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in
a given case is not determined by reference to the personal judgment of the actor in the situation
before him. The law considers what would be reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must
of course be always determined in the light of human experience and in view of the facts
involved in the particular case. Abstract speculation cannot here be of much value but this much
355 | P a g e
can be profitably said: Reasonable men govern their conduct by the circumstances which are
before them or known to them. They are not, and are not supposed to be, omniscient of the
future. Hence they can be expected to take care only when there is something before them to
suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as
a result of the course actually pursued? If so, it was the duty of the actor to take precautions to
guard against that harm. Reasonable foresight of harm, followed by the ignoring of the
suggestion born of this prevision, is always necessary before negligence can be held to exist.
Stated in these terms, the proper criterion for determining the existence of negligence in a given
case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor
would have foreseen that an effect harmful to another was sufficiently probable to warrant his
foregoing the conduct or guarding against its consequences.
First of all, we note that the Lanuzo heirs argued in the trial and appellate courts that there was a
total omission on the part of the company to place illuminated warning signs on the site of the
project, especially during night time, in order to warn motorists of the project. They claim that
the omission was the proximate cause of the death of Balbino.22 In this appeal, however, they
contend that the negligence of the company consisted in its omission to put up adequate lighting
and the required signs to warn motorists of the project, abandoning their previous argument of a
total omission to illuminate the project site.
During the trial, the Lanuzo heirs attempted to prove inadequacy of illumination instead of the
total omission of illumination. Their first witness was Cesar Palmero, who recalled that lights
had been actually installed in the site of the project. The next witness was Ernesto Alto, who
stated that he had seen three light bulbs installed in the site, placed at intervals along the stretch
of the road covered by the project. Alto further stated that he had passed the site on board his
tricycle on October 30, 1997 prior to the accident, and had seen only a gas lamp, not light bulbs,
on his approach. Another witness of the plaintiffs, Asuncion Sandia, claimed that she had also
passed the site on board a bus on the night just prior to the accident, and had seen the site to be
dark, with only one lane open to traffic, with no light at all. Obviously, the witnesses of the
plaintiffs were not consistent on their recollections of the significant detail of the illumination of
the site.
In contrast, the company credibly refuted the allegation of inadequate illumination. Zamora, its
flagman in the project, rendered an eyewitness account of the accident by stating that the site had
been illuminated by light bulbs and gas lamps, and that Balbino had been in the process of
overtaking another motorcycle rider at a fast speed when he hit the barricade placed on the newly
cemented road. On his part, SPO1 Corporal, the police investigator who arrived at the scene of
the accident on October 30, 1997, recalled that there were light bulbs on the other side of the
barricade on the lane coming from Naga City; and that the light bulb on the lane where the
accident had occurred was broken because it had been hit by the victims motorcycle. Witnesses
356 | P a g e
Gerry Alejo and Engr. Victorino del Socorro remembered that light bulbs and gas lamps had been
installed in the area of the project.
Secondly, the company presented as its documentary evidence the investigation report dated
December 3, 1997 of SPO1 Corporal (Annex 1), the relevant portions of which indicated the
finding of the police investigator on the presence of illumination at the project site, viz:
SUBJECT: Investigation Report Re: Homicide Thru Reckless Imprudence
(Self Accident)
xxxx
II.MATTERS INVESTIGATED:
1.To determine how the incident happened.
2.To determine the vehicle involved.
III. FACTS OF THE CASE:
3.At 6:45 P.M. October 30, 1997, Elements of Pili Municipal Police Station led by SPO2
Melchor Estallo, SPO2 Cesar Pillarda, both members of the patrol section and SPO1
Pedro D. Corporal, investigator reported having conducted an on the spot investigation
re: vehicular incident (Self Accident) that happened on or about 6:30 oclock in the
evening of October 30, 1997 along national highway, San Agustin, Pili, Camarines Sur,
wherein one Balbino Lanuzo y Doe, of legal age, married, a public school teacher, a
resident of San Jose, Pili, Camarines Sur while driving his Honda motorcycle 110 CC
enroute to San Jose, Pili, Camarines Sur from Poblacion, this municipality and upon
reaching at road re: blocking portion of the national highway at barangay San Agustin,
Pili, Camarines Sur and while overtaking another motorcycle ahead incidentally sideswiped a road sign/barricade installed at the lane road re: blocking of the national
highway, causing said motorcycle rider to swerved his ridden motorcycle to the right and
stumble down and fell to the concrete cemented road. Victim was rushed to Bicol
Medical Center, Naga City for treatment but was pronounced dead on arrival.
4.That upon arrival at the scene of the incident it was noted that road sign/barricade
installed on the road has a light.
5.That said road was under repair for almost a month which one lane portion of the
national highway is possible of all passing vehicles from south and north bound.
357 | P a g e
6.That said motorcycle stumble down on the newly repair portion of the national highway
and the driver lying down beside the motorcycle.
xxxx
8.That one of the passerby revealed that the victim possibly be miscalculated the road
block that made him to tumble down when he applied sudden brake.
IV. FINDINGS/DISCUSSION:
9.The time of the incident was at about 6:30 oclock in the evening a time wherein dark
of the night is approaching the vision of the driver is affected with the changing condition
and it is all the time when driver should lights his driven vehicle, as to this case, the
driver Balbino Lanuzo y Doe (victim has exercise all precautionary measures to avoid
accident but due to self accident he incidentally sideswiped the road sign/barricade of the
re: Blocking portion of the national highway resulting him to stumble down his
motorcycle and fell down to the concrete cement road.
10.The driver/victim met unexpectedly (sic) along that one lane potion of the re: blocking
and considering it was night time, confusion overthrew him and because of sudden
impulse, he lost control on the motorcycle he was driving.
11.That the driver/victim has no crush (sic) helmet at the time of the incident considering
that it should be a basic requirement as to prevent from any accident.
V. RECOMMENDATION:
12.Basing on the above discussion and facts surroundings the case was purely self
accident resulting to Homicide Thru Reckless Imprudence and the case must be closed.
(Emphasis ours.)23
Additionally, the company submitted the application for lighting permit covering the project site
(Annex 7) to prove the fact of installation of the electric light bulbs in the project site.
In our view, the RTC properly gave more weight to the testimonies of Zamora and SPO1
Corporal than to those of the witnesses for the Lanuzo heirs.1wphi1 There was justification for
doing so, because the greater probability pertained to the former. Moreover, the trial courts
assessment of the credibility of the witnesses and of their testimonies is preferred to that of the
appellate courts because of the trial courts unique first-hand opportunity to observe the
witnesses and their demeanor as such. The Court said in Cang v. Cullen:24
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The findings of the trial court on the credibility of witnesses are accorded great weight and
respect - even considered as conclusive and binding on this Court - since the trial judge had the
unique opportunity to observe the witness firsthand and note his demeanor, conduct and attitude
under grueling examination. Only the trial judge can observe the furtive glance, blush of
conscious shame, hesitation, flippant or sneering tone, calmness, sigh of a witness, or his scant or
full realization of an oath - all of which are useful aids for an accurate determination of a witness'
honesty and sincerity. He can thus be expected to determine with reasonable discretion which
testimony is acceptable and which witness is worthy of belief.
Absent any showing that the trial court's calibration of the credibility of the witnesses was
flawed, we are bound by its assessment. This Court will sustain such findings unless it can be
shown that the trial court ignored, overlooked, misunderstood, misappreciated, or misapplied
substantial facts and circumstances, which, if considered, would materially affect the result of the
case.25
The Court observes, too, that SPO1 Corporal, a veteran police officer detailed for more than 17
years at the Pili Police Station, enjoyed the presumption of regularity in the performance of his
official duties.26 The presumption, although rebuttable, stands because the Lanuzo heirs did not
adduce evidence to show any deficiency or irregularity in the performance of his official duty as
the police investigator of the accident. They also did not show that he was impelled by any ill
motive or bias to testify falsely.
Thirdly, the CA unreasonably branded the testimonies of Zamora and SPO1 Corporal as "selfserving." They were not. Self-serving evidence refers to out-of-court statements that favor the
declarants interest;27 it is disfavored mainly because the adverse party is given no opportunity to
dispute the statement and their admission would encourage fabrication of testimony.28 But court
declarations are not self-serving considering that the adverse party is accorded the opportunity to
test the veracity of the declarations by cross-examination and other methods.
There is no question that Zamora and SPO1 Corporal were thoroughly cross-examined by the
counsel for the Lanuzo heirs. Their recollections remained unchallenged by superior contrary
evidence from the Lanuzo heirs.
Fourthly, the doctrine of res ipsa loquitur had no application here. In Tan v. JAM Transit,
Inc.,29 the Court has discussed the doctrine thusly:
Res ipsa loquitur is a Latin phrase that literally means "the thing or the transaction speaks for
itself." It is a maxim for the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiff's prima facie case, and present a question of fact for defendant to meet with
an explanation. Where the thing that caused the injury complained of is shown to be under the
359 | P a g e
management of the defendant or his servants; and the accident, in the ordinary course of things,
would not happen if those who had management or control used proper care, it affords
reasonable evidence in the absence of a sufficient, reasonable and logical explanation by
defendant that the accident arose from or was caused by the defendant's want of care. This
rule is grounded on the superior logic of ordinary human experience, and it is on the basis of
such experience or common knowledge that negligence may be deduced from the mere
occurrence of the accident itself. Hence, the rule is applied in conjunction with the doctrine of
common knowledge.
For the doctrine to apply, the following requirements must be shown to exist, namely: (a) the
accident is of a kind that ordinarily does not occur in the absence of someones negligence; (b) it
is caused by an instrumentality within the exclusive control of the defendant or defendants; and
(c) the possibility of contributing conduct that would make the plaintiff responsible is
eliminated.30
The Court has warned in Reyes v. Sisters of Mercy Hospital,31 however, that "res ipsa loquitur is
not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case."
Based on the evidence adduced by the Lanuzo heirs, negligence cannot be fairly ascribed to the
company considering that it has shown its installation of the necessary warning signs and lights
in the project site. In that context, the fatal accident was not caused by any instrumentality within
the exclusive control of the company. In contrast, Balbino had the exclusive control of how he
operated and managed his motorcycle. The records disclose that he himself did not take the
necessary precautions. As Zamora declared, Balbino overtook another motorcycle rider at a fast
speed, and in the process could not avoid hitting a barricade at the site, causing him to be thrown
off his motorcycle onto the newly cemented road. SPO1 Corporals investigation report
corroborated Zamoras declaration. This causation of the fatal injury went uncontroverted by the
Lanuzo heirs.
Moreover, by the time of the accident, the project, which had commenced in September 1997,
had been going on for more than a month and was already in the completion stage. Balbino, who
had passed there on a daily basis in going to and from his residence and the school where he then
worked as the principal, was thus very familiar with the risks at the project site. Nor could the
Lanuzo heirs justly posit that the illumination was not adequate, for it cannot be denied that
Balbinos motorcycle was equipped with headlights that would have enabled him at dusk or night
time to see the condition of the road ahead. That the accident still occurred surely indicated that
he himself did not exercise the degree of care expected of him as a prudent motorist.
According to Dr. Abilay, the cause of death of Balbino was the fatal depressed fracture at the
back of his head, an injury that Dr. Abilay opined to be attributable to his head landing on the
360 | P a g e
cemented road after being thrown off his motorcycle. Considering that it was shown that Balbino
was not wearing any protective head gear or helmet at the time of the accident, he was guilty of
negligence in that respect. Had he worn the protective head gear or helmet, his untimely death
would not have occurred.
The RTC was correct on its conclusions and findings that the company was not negligent in
ensuring safety at the project site. All the established circumstances showed that the proximate
and immediate cause of the death of Balbino was his own negligence. Hence, the Lanuzo heirs
could not recover damages.32
WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and SETS
ASIDE the decision promulgated on August 11, 2003 by the Court of Appeals; REINSTATES the
decision rendered on October 8, 2001 by the Regional Trial Court, Branch 32, in Pili, Camarines
Sur dismissing the complaint; and MAKES no pronouncements on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
Chief Justice
TERESITA J. LEONARDO-DE
CASTRO
Associate Justice
ARTURO D. BRION*
Associate Justice
BIENVENIDO L. REYES
Associate Justice
Decision had been reached in consultation before the case was assigned to the writer of the
Chief Justice
361 | P a g e
DIGEST
FACTS:
This case involves a claim for damages arising from the death of a motorcycle rider in
a nighttime accident due to the supposed negligence of a construction company then undertaking
reblocking work on a national highway. The plaintiffs insisted that the accident happened
because the construction company did not provide adequate lighting on the site, but the latter
countered that the fatal accident was caused by the negligence of the motorcycle rider himself.
Nena alleged that she was the surviving spouse of the late Balbino who figured in the
accident that transpired at the site of the reblocking work at about 6:30 p.m. on October 30,
1997; that Balbinos Honda motorcycle sideswiped the road barricade placed by the company in
the right lane portion of the road, causing him to lose control of his motorcycle and to crash on
the newly cemented road, resulting in his instant death; and that the companys failure to place
illuminated warning signs on the site of the project, especially during night time, was the
proximate cause of the death of Balbino.
In its answer, BJDC denied Nenas allegations of negligence, insisting that it had
installed warning signs and lights along the highway and on the barricades of the project; that at
the time of the incident, the lights were working and switched on; that its project was duly
inspected by the Department of Public Works and Highways (DPWH), the Office of the Mayor
of Pili, and the Pili Municipal Police Station; and that it was found to have satisfactorily taken
measures to ensure the safety of motorists.
ISSUE:
Whether or not heirs of Balbino were able to establish by preponderance of evidence
thenegligence of BJDC.
HELD:
NO. The party alleging the negligence of the other as the cause of injury has the
burden to establish the allegation with competent evidence. If the action based on negligence is
civil in nature, the proof required is preponderance of evidence.
In civil cases, the burden of proof is on the party who would be defeated if no evidence
is given on either side. The burden of proof is on the plaintiff if the defendant denies the factual
allegations of the complaint in the manner required by the Rules of Court, but it may rest on the
defendant if he admits expressly or impliedly the essential allegations but
raises affirmative defense or defenses, which if proved, will exculpate him from liability.
The Court affirmed the findings of the RTC, and rules that the Lanuzo heirs, the parties
carrying the burden of proof, did not establish by preponderance of evidence that
362 | P a g e
the negligence on the part of the company was the proximate cause of the fatal accident of
Balbino.
During the trial, the Lanuzo heirs attempted to prove inadequacy of illumination
instead of the total omission of illumination. In contrast, the company credibly refuted the
allegation of inadequate illumination. The Court observes, too, that SPO1 Corporal, a veteran
police officer detailed for more than 17 years at the Pili Police Station, enjoyed the presumption
of regularity in the performance of his officialduties. In his report, it was mentioned that upon
arrival at the scene of the incident it was noted that road sign/barricade installed on the road has a
light.

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 73998 November 14, 1988
PEDRO T. LAYUGAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERS
MULTI-INDEMNITY CORPORATION, respondents.
Edralin S. Mateo for petitioner.
Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.
Roberto T. Vallarta for respondent Godofredo Isidro.
SARMIENTO, J.:
Assailed in this petition for review on certiorari are 1) the decision 1 of the then Intermediate
Appellate Court 2 in AC-G.R. CV No. 01055, entitled "Pedro T. Layugan, Plaintiff-Appellee,
versus Godofredo Isidro, Defendant-Appellant and Third-Party Plaintiff-Appellee, versus
Travellers Multi-Indemnity Corporation, Third Party Defendant- Appellant, "which reversed and
set aside the decision 3 of the Regional Trial Court, Third Judicial Region, Branch XXVI,
363 | P a g e
Cabanatuan City, and also dismissed the complaint, third party complaint, and the counter claims
of the parties and 2) the resolution 4 denying the plaintiff-appellee's (herein petitioner) motion for
reconsideration, for lack of merit.
The findings of fact by the trial court which were adopted by the appellate court are as follows: 5
xxx xxx xxx
Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging
that on May 15, 1979 while at Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff
and a companion were repairing the tire of their cargo truck with Plate No. SU730 which was parked along the right side of the National Highway; that
defendant's truck bearing Plate No. PW-583, driven recklessly by Daniel Serrano
bumped the plaintiff, that as a result, plaintiff was injured and hospitalized at Dr.
Paulino J. Garcia Research and Medical Center and the Our Lady of Lourdes
Hospital; that he spent TEN THOUSAND PESOS (Pl0,000.00) and will incur
more expenses as he recuperates from said injuries; that because of said injuries
he would be deprived of a lifetime income in the sum of SEVENTY THOUSAND
PESOS (P70,000.00); and that he agreed to pay his lawyer the sum of TEN
THOUSAND PESOS (Pl0,000.00).
As prayed for by the plaintiffs counsel, the Court declared the defendant in default
on October 12, 1979, and plaintiff's evidence was received ex-parte on January
11, 1978 and February 19, 1980. The decision on behalf of the plaintiff was set
aside to give a chance to the defendant to file his answer and later on, a thirdparty complaint.
Defendant admitted his ownership of the vehicle involved in the accident driven
by Daniel Serrano. Defendant countered that the plaintiff was merely a bystander,
not a truck helper being a brother-in-law law of the driver of said truck; that the
truck allegedly being repaired was parked, occupying almost half of the right lane
towards Solano, Nueva Vizcaya, right after the curve; that the proximate cause of
the incident was the failure of the driver of the parked truck in installing the early
warning device, hence the driver of the parked car should be liable for damages
sustained by the truck of the herein defendant in the amount of more than
P20,000.00; that plaintiff being a mere bystander and hitchhiker must suffer all
the damages he incurred. By way of counterclaim defendant alleged that due to
plaintiffs baseless complaint he was constrained to engage the services of counsel
for P5,000.00 and P200.00 per court appearance; that he suffered sleepless nights,
humiliation, wounded feelings which may be estimated at P30.000.00.
On May 29, 1981, a third-party complaint was filed by the defendant against his
insurer, the Travellers Multi Indemnity Corporation; that the third-party plaintiff,
without admitting his liability to the plaintiff, claimed that the third-party
defendant is liable to the former for contribution, indemnity and subrogation by
virtue of their contract under Insurance Policy No. 11723 which covers the
364 | P a g e
insurer's liability for damages arising from death, bodily injuries and damage to
property.
Third-party defendant answered that, even assuming that the subject matter of the
complaint is covered by a valid and existing insurance policy, its liability shall in
no case exceed the limit defined under the terms and conditions stated therein;
that the complaint is premature as no claim has been submitted to the third party
defendant as prescribed under the Insurance Code; that the accident in question
was approximately caused by the carelessness and gross negligence of the
plaintiff-, that by reason of the third-party complaint, third-party defendant was
constrained to engage the services of counsel for a fee of P3,000.00.
Pedro Layugan declared that he is a married man with one (1) child. He was
employed as security guard in Mandaluyong, Metro Manila, with a salary of SIX
HUNDRED PESOS (600.00) a month. When he is off-duty, he worked as a truck
helper and while working as such, he sustained injuries as a result of the bumping
of the cargo truck they were repairing at Baretbet, Bagabag, Nueva Vizcaya by the
driver of the defendant. He used to earn TWO HUNDRED PESOS (P200.00) to
THREE HUNDRED PESOS (P300.00) monthly, at the rate of ONE HUNDRED
PESOS (Pl00.00) per trip. Due to said injuries, his left leg was amputated so he
had to use crutches to walk. Prior to the incident, he supported his family
sufficiently, but after getting injured, his family is now being supported by his
parents and brother.
GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his truck
involved in this vehicular accident is insured with the Travellers Multi Indemnity
Corporation covering own damage and third-party liability, under vehicle policy
No. 11723 (Exh. "1") dated May 30, 1978; that after he filed the insurance claim
the insurance company paid him the sum of P18,000.00 for the damages sustained
by this truck but not the third party liability.
DANIEL SERRANO, defendant driver, declared that he gave a statement before
the municipal police of Bagabag, Nueva Vizcaya on May 16, 1979; that he knew
the responsibilities of a driver; that before leaving, he checked the truck. The
truck owner used to instruct him to be careful in driving. He bumped the truck
being repaired by Pedro Layugan, plaintiff, while the same was at a stop position.
From the evidence presented, it has been established clearly that the injuries
sustained by the plaintiff was caused by defendant's driver, Daniel Serrano. The
police report confirmed the allegation of the plaintiff and admitted by Daniel
Serrano on cross-examination. The collision dislodged the jack from the parked
truck and pinned the plaintiff to the ground. As a result thereof, plaintiff sustained
injuries on his left forearm and left foot. The left leg of the plaintiff from below
the knee was later on amputated (Exh. "C") when gangrene had set in, thereby
rendering him incapacitated for work depriving him of his income. (pp. 118 to
120, Record on Appeal.)
365 | P a g e
xxx xxx xxx

Upon such findings, amply supported by the evidence on record, the trial court rendered its
decision, the dispositive part of which reads as follows: 6
WHEREFORE, premises considered, the defendant is hereby ordered:
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS actual and
compensatory damages;
b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;
c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and
d) To pay the costs of this suit. On the third-party complaint, the third-party
defendant is ordered to indemnify the defendant/third party plaintiff-.
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and
compensatory damages; and
b) The costs of this suit.
The Intermediate Appellate Court as earlier stated reversed the decision of the trial court and
dismissed the complaint, the third-party complaint, and the counterclaims of both appellants. 7
The petitioner alleges the following errors. 8
1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE
APPELLATE COURT ACTED CORRECTLY IN REVERSING AND SETTING
ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S COMPLAINT.
2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED
CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA LOQUITUR"
WITH PROPER JURIS- PRUDENTIAL (sic) BASIS.
The crux of the controversy lies in the correctness or error of the decision of the respondent court
finding the petitioner negligent under the doctrine of Res ipsa loquitur (The thing speaks for
itself).<re||an1w> Corollary thereto, is the question as to who is negligent, if the doctrine is
inapplicable.
The respondent corporation stresses that the issues raised in the petition being factual, the same
is not reviewable by this Court in a petition for review by certiorari. 9
366 | P a g e
Indeed, it is an elementary rule in the review of decisions of the Court of Appeals that its
findings of fact are entitled to great respect and will not ordinarily be disturbed by this
Court. 10 For if we have to review every question of fact elevated to us, we would hardly have
any more time left for the weightier issues compelling and deserving our preferential
attention. 11 Be that as it may, this rule is not inflexible. Surely there are established
exceptions 12 when the Court should review and rectify the findings of fact of the lower court,
such as:
1) when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2)
the inference made is manifestly mistaken; 3) there is grave abuse of discretion; 4) the judgment
is based on misapprehension of facts; 5) the Court of Appeals went beyond the issues of the case
if the findings are contrary to the admission of both the appellant and the appellee; 6) the
findings of the Court of Appeals are contrary to those of the trial court; 7) the said findings of
fact are conclusions without citation of specific evidence on which they are based; 8) the facts set
forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondents; and 9) when the findings of fact of the Court of Appeals are premised on the
absence of evidence and are contradicted on record.
Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a deviation from the general
rule.
From its finding that the parked truck was loaded with ten (10) big round logs 13 the Court of
Appeals inferred that because of its weight the truck could not have been driven to the shoulder
of the road and concluded that the same was parked on a portion of the road 14 at the time of the
accident. Consequently, the respondent court inferred that the mishap was due to the negligence
of the driver of the parked truck. 15 The inference or conclusion is manifestly erroneous. In a
large measure, it is grounded on speculation, surmise, or conjecture. How the respondent court
could have reversed the finding of the trial court that a warning device was installed 16 escapes us
because it is evident from the record that really such a device, in the form of a lighted kerosene
lamp, was installed by the driver of the parked truck three to four meters from the rear of his
parked truck. 17 We see this negative finding of the respondent appellate court as a misreading of
the facts and the evidence on record and directly contravening the positive finding of the trial
court that an early warning device was in proper place when the accident happened and that the
driver of the private respondent was the one negligent. On the other hand, the respondent court,
in refusing to give its "imprimatur to the trial court's finding and conclusion that Daniel Serrano
(private respondent Isidro's driver) was negligent in driving the truck that bumped the parked
truck", did not cite specific evidence to support its conclusion. In cavalier fashion, it simply and
nebulously adverted to unspecified "scanty evidence on record." 18
On the technical aspect of the case, the respondent corporation would want us to dismiss this
petition on the ground that it was filed out of time. It must be noted that there was a motion for
extension, 19 albeit filed erroneously with the respondent court, dated March 19, 1986, requesting
for 30 days from March 20, 1986, to file the necessary petition or pleading before the Supreme
Court". Also, on April 1, 1986, an appearance of a new lawyer for the petitioner before the
Supreme Court" with motion 20 was filed, again erroneously, with the Court of Appeals,
requesting for 20 days extension "to file the Petition for Review on Certiorari." Likewise a
367 | P a g e
similar motion 21 was filed with this Court also on April 1, 1986. On the other hand, the instant
petition for review was filed on April 17, 1986 22 but it was only after three months, on August 1,
1986, in its comment 23 that the respondent corporation raised the issue of tardiness. The
respondent corporation should not have waited in ambush before the comment was required and
before due course was given. In any event, to exact its "a pound of flesh", so to speak, at this
very late stage, would cause a grave miscarriage of justice. Parenthetically, it must be noted that
private respondent Isidro did not raise this issue of late filing.
We now come to the merits of this petition.
The question before us is who was negligent? Negligence is the omission to do something which
a reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a prudent and reasonable man would
not do 24 or as Judge Cooley defines it, "(T)he failure to observe for the protection of the interests
of another person, that degree of care, precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers injury. 25
In Picart vs. Smith, 26 decided more than seventy years ago but still a sound rule, we held:
follows: Did the defendant in doing the alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would have used in the same situation? If not, then
he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by
the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of
negligence in a given case is not determined by reference to the personal judgment of the actor in
the situation before him. The Law considers what would be reckless, blameworthy, or negligent
in the man of ordinary intelligence and prudence and determines liability by that.
Respondent Isidro posits that any immobile object along the highway, like a parked truck, poses
serious danger to a moving vehicle which has the right to be on the highway. He argues that since
the parked cargo truck in this case was a threat to life and limb and property, it was incumbent
upon the driver as well as the petitioner, who claims to be a helper of the truck driver, to exercise
extreme care so that the motorist negotiating the road would be properly forewarned of the peril
of a parked vehicle. Isidro submits that the burden of proving that care and diligence were
observed is shifted to the petitioner, for, as previously claimed, his (Isidro's) Isuzu truck had a
right to be on the road, while the immobile cargo truck had no business, so to speak, to be there.
Likewise, Isidro proffers that the petitioner must show to the satisfaction of a reasonable mind
that the driver and he (petitioner) himself, provided an early warning device, like that required by
law, or, by some other adequate means that would properly forewarn vehicles of the impending
danger that the parked vehicle posed considering the time, place, and other peculiar
circumstances of the occasion. Absent such proof of care, as in the case at bar, Isidro concludes,
would, under the doctrine of Res ipsa loquitur, evoke the presumption of negligence on the part
of the driver of the parked cargo truck as well as his helper, the petitioner herein, who was fixing
the flat tire of the said truck. 27
Respondent Isidro's contention is untenable.
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The evidence on record discloses that three or four meters from the rear of the parked truck, a
lighted kerosene lamp was placed. 28 Moreover, there is the admission of respondent Isidro's
driver, Daniel Serrano, to Wit: 29
Question No. 8 (by Patrolman Josefino Velasco)Will you narrate to me in brief
how the accident happens (sic) if you can still remember?
Answer: (by Daniel Serrano)
That on or about 10:40 p.m., 15 May 1979 while driving Isuzu
truck at Baretbet, Bagabag, Nueva Vizcaya and at KM 285, I met
another vehicle who (sic) did not dim his (sic) lights which
cause (sic) me to be blinded with intense glare of the light that's
why I did not notice a parked truck who (sic) was repairing a front
flat tire. When I was a few meters away, I saw the truck which was
loaded with round logs. I step (sic) on my foot brakes but it did not
function with my many attempts. I have (sic) found out later that
the fluid pipe on the rear right was cut that's why the breaks did
not function. (Emphasis supplied).
Whether the cargo truck was parked along the road or on half the shoulder of the right side of the
road would be of no moment taking into account the warning device consisting of the lighted
kerosene lamp placed three or four meters from the back of the truck. 30 But despite this warning
which we rule as sufficient, the Isuzu truck driven by Daniel Serrano, an employee of the private
respondent, still bumped the rear of the parked cargo truck. As a direct consequence of such
accident the petitioner sustained injuries on his left forearm and left foot. His left leg was later
amputated from below the knee when gangrene had set in. 31
It is clear from the foregoing disquisition that the absence or want of care of Daniel Serrano has
been established by clear and convincing evidence. It follows that in stamping its imprimatur
upon the invocation by respondent Isidro of the doctrine of Res ipsa loquitur to escape liability
for the negligence of his employee, the respondent court committed reversible error.
The respondent court ruled: 32
xxx xxx xxx
In addition to this, we agree with the following arguments of appellant Godofredo
Isidro which would show that the accident was caused due to the negligence of
the driver of the cargo truck:
xxx xxx xxx
... In the case at bar the burden of proving that care and diligence
was (sic) observed is shifted evidently to the plaintiff, for, as
adverted to, the motorists have the right to be on the road, while
369 | P a g e
the immobile truck has no business, so to speak, to be there. It is

thus for the plaintiff to show to the satisfaction of a reasonable
mind that the driver and he himself did employ early warning
device such as that required by law or by some other adequate
means or device that would properly forewarn vehicles of the
impending danger that the parked vehicle posed considering the
time, place and other peculiar circumstances of the occasion.
Absent such proof of care, as in the case at bar, will evoke the
presumption of negligence under the doctrine of res ipsa loquitur,
on the part of the driver of the parked cargo truck as well as
plaintiff who was fixing the flat tire of said truck. (pp. 14-17,
Appellant's Brief). (Emphasis supplied).
At this juncture, it may be enlightening and helpful in the proper resolution of the issue of
negligence to examine the doctrine of Res ipsa loquitur.
This doctrine is stated thus: "Where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the ordinary course of things does
not happen if those who have the management use proper care, it affords reasonable evidence, in
the absence of an explanation by the defendant, that the accident arose from want of care. 33 Or
as Black's Law Dictionary 34 puts it:
Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or inference
that defendant was negligent, which arises upon proof that instrumentality causing
injury was in defendant's exclusive control, and that the accident was one which
ordinarily does not happen in absence of negligence. Res ipsa loquitur is rule of
evidence whereby negligence of alleged wrongdoer may be inferred from mere
fact that accident happened provided character of accident and circumstances
attending it lead reasonably to belief that in absence of negligence it would not
have occurred and that thing which caused injury is shown to have been under
management and control of alleged wrongdoer. Hillen v. Hooker Const. Co., Tex.
Civ. App., 484 S.W. 2d 133, 155. Under doctrine of "res ipsa loquitur" the
happening of an injury permits an inference of negligence where plaintiff
produces substantial evidence that injury was caused by an agency or
instrumentality under exclusive control and management of defendant, and that
the occurrence was such that in the ordinary course of things would not happen if
reasonable care had been used.
In this jurisdiction we have applied this doctrine in quite a number of cases, notably in Africa et
al. vs. Caltex, Inc., et al., 35 and the latest is in the case of F.F. Cruz and Co., Inc. vs. CA. 36
The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence. 37 The doctrine is not a rule of substantive law 38 but
merely a mode of proof or a mere procedural convenience. 39 The rule, when applicable to the
facts and circumstances of a particular case, is not intended to and does not dispense with the
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requirement of proof of culpable negligence on the part of the party charged. 40 It merely
determines and regulates what shall be prima facie evidence thereof and facilitates the burden of
plaintiff of proving a breach of the duty of due care. 41 The doctrine can be invoked when and
only when, under the circumstances involved, direct evidence is absent and not readily
available. 42 Hence, it has generally been held that the presumption of inference arising from the
doctrine cannot be availed of, or is overcome, where plaintiff has knowledge and testifies or
presents evidence as to the specific act of negligence which is the cause of the injury complained
of or where there is direct evidence as to the precise cause of the accident and all the facts and
circumstances attendant on the occurrence clearly appear. 43 Finally, once the actual cause of
injury is established beyond controversy, whether by the plaintiff or by the defendant, no
presumptions will be involved and the doctrine becomes inapplicable when the circumstances
have been so completely eludicated that no inference of defendant's liability can reasonably be
made, whatever the source of the evidence, 44 as in this case.
The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil
Code. In the latter, when an injury is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on the part of the master or
employer either in the selection of the servant or employee, or in supervision over him after
selection, or both. Such presumption is juris tantum and not juris et de jure and consequently,
may be rebutted. If follows necessarily that if the employer shows to the satisfaction of the court
that in the selection and in the supervision he has exercised the care and diligence of a good
father of a family, the presumption is overcome and he is relieved from liability. 45 In disclaiming
liability for the incident, the private respondent stresses that the negligence of his employee has
already been adequately overcome by his driver's statement that he knew his responsibilities as a
driver and that the truck owner used to instruct him to be careful in driving.46
We do not agree with the private respondent in his submission. In the first place, it is clear that
the driver did not know his responsibilities because he apparently did not check his vehicle
before he took it on the road. If he did he could have discovered earlier that the brake fluid pipe
on the right was cut, and could have repaired it and thus the accident could have been avoided.
Moveover, to our mind, the fact that the private respondent used to intruct his driver to be careful
in his driving, that the driver was licensed, and the fact that he had no record of any accident, as
found by the respondent court, are not sufficient to destroy the finding of negligence of the
Regional Trial Court given the facts established at the trial 47 The private respondent or his
mechanic, who must be competent, should have conducted a thorough inspection of his vehicle
before allowing his driver to drive it. In the light of the circumstances obtaining in the case, we
hold that Isidro failed to prove that the diligence of a good father of a family in the supervision
of his employees which would exculpate him from solidary liability with his driver to the
petitioner. But even if we concede that the diligence of a good father of a family was observed by
Isidro in the supervision of his driver, there is not an iota of evidence on record of the observance
by Isidro of the same quantum of diligence in the supervision of his mechanic, if any, who would
be directly in charge in maintaining the road worthiness of his (Isidro's) truck. But that is not all.
There is paucity of proof that Isidro exercised the diligence of a good father of a family in the
selection of his driver, Daniel Serrano, as well as in the selection of his mechanic, if any, in order
to insure the safe operation of his truck and thus prevent damage to others. Accordingly, the
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responsibility of Isidro as employer treated in Article 2180, paragraph 5, of the Civil Code has
not ceased.
WHEREFORE, the petition is hereby GRANTED. The Decision of the respondent court as well
as its Resolution denying the petitioner's motion for reconsideration are hereby SET ASIDE and
the decision of the trial court, dated January 20, 1983, is hereby REINSTATED in toto. With
costs against the private respondents.
SO ORDERED.
Melencio-Herrera, (Chairman), Paras and Padilla, JJ., concur.
DIGEST
Facts:
Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that while at
Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companion were repairing the tire of their
cargo truck which was parked along the right side of the National Highway; that defendant's
truck, driven recklessly by Daniel Serrano bumped the plaintiff, that as a result, plaintiff was
injured and hospitalized where he incurred and will incur more expenses as he recuperates from
said injuries; Plaintiff's right leg was amputated and that because of said injuries he would be
deprived of a lifetime income.
To free themselves from liability, defendants Isidro [owner] and Serrano [driver] averred that he
knows his responsibilities as a driver and further contends that it was the negligence of plaintiff
that was the proximate cause of the accident. They alleged that plaintiff parked his truck in a
manner which occupied a part of the highway and he did not even put a warning sign.
Subsequently, a third-party complaint was filed by the defendant against his insurer, the
Travellers Multi Indemnity Corporation; that the third-party plaintiff [Isidro], without admitting
his liability to the plaintiff, claimed that the third-party defendant [Travellers] is liable to the
former for contribution, indemnity and subrogation by virtue of their insurance contract which
covers the insurer's liability for damages arising from death, bodily injuries and damage to
property. The Insurance company argued that it is only liable for the amount agreed in the policy
and the complaint was premature since no claim was made to it.
The RTC ruled in favor of the Petitioners. The CA reversed the decision, stating that it is the
petitioners who were negligent since they did not exercise caution by putting warning signs that
372 | P a g e
their truck is park on the shoulder of the highway.

Issue:
Whether or not Isidro is liable as employer of Serrano.
Ruling:
Yes!
The SC held that the CA erroneously appreciated the evidence. It was proven that the petitioner
placed a warning sign within 3 to 4 meters from their truck in the form of a lighted kerosene
lamp. The existence of this warning sings was corroborated by Serrano, respondent's driver, and
further stated that when he saw a parked truck, he kept on stepping on the brake pedal but it did
not function. Thus despite this warning signs, the truck recklessly driven by Serrano and owned
by Respondent Isidro bumped the truck of petitioner.
The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil
Code. In the latter, when an injury is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on the part of the master or
employer either in the selection of the servant or employee, or in supervision over him after
selection, or both. Such presumption is juris tantum and not juris et de jure and consequently,
may be rebutted. If follows necessarily that if the employer shows to the satisfaction of the court
that in the selection and in the supervision he has exercised the care and diligence of a good
father of a family, the presumption is overcome and he is relieved from liability. In disclaiming
liability for the incident, the private respondent stresses that the negligence of his employee has
already been adequately overcome by his driver's statement that he knew his responsibilities as a
driver and that the truck owner used to instruct him to be careful in driving.
We do not agree with the private respondent in his submission. In the first place, it is clear that
the driver did not know his responsibilities because he apparently did not check his vehicle
before he took it on the road. If he did he could have discovered earlier that the brake fluid pipe
on the right was cut, and could have repaired it and thus the accident could have been avoided.
Moveover, to our mind, the fact that the private respondent used to intruct his driver to be careful
in his driving, that the driver was licensed, and the fact that he had no record of any accident, as
found by the respondent court, are not sufficient to destroy the finding of negligence of the
Regional Trial Court given the facts established at the trial. The private respondent or his
mechanic, who must be competent, should have conducted a thorough inspection of his vehicle
before allowing his driver to drive it.
In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove that the
diligence of a good father of a family in the supervision of his employees which would exculpate
him from solidary liability with his driver to the petitioner. But even if we concede that the
diligence of a good father of a family was observed by Isidro in the supervision of his driver,
there is not an iota of evidence on record of the observance by Isidro of the same quantum of
diligence in the supervision of his mechanic, if any, who would be directly in charge in
maintaining the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of
proof that Isidro exercised the diligence of a good father of a family in the selection of his driver,
373 | P a g e
Daniel Serrano, as well as in the selection of his mechanic, if any, in order to insure the safe
operation of his truck and thus prevent damage to others. Accordingly, the responsibility of Isidro
as employer treated in Article 2180, paragraph 5, of the Civil Code has not ceased.

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 183198
November 25, 2009
LUZ PALANCA TAN, Petitioner,

vs.
JAM TRANSIT, INC., Respondent.
DECISION
NACHURA, J.:
This is a petition for review on certiorari1 under Rule 45 of the Rules of Court, seeking the
reversal of the Decision2 dated June 2, 2008 of the Court of Appeals (CA) in CA-G.R. CV No.
89046 and the reinstatement of the Decision3 dated December 20, 2006 of the Regional Trial
Court (RTC), Branch 27, Santa Cruz, Laguna in Civil Case No. SC-3838.
The antecedents are as follows
In her Complaint, petitioner Luz Palanca Tan (Tan) alleged that she was the owner of a
passenger-type jitney with plate number DKF-168. On March 14, 1997, at around 5:00 a.m., the
said jitney figured in an accident at an intersection along Maharlika Highway, Barangay
374 | P a g e
Bangyas, Calauan, Laguna, as it collided with a JAM Transit passenger bus bound for Manila,
bearing plate number DVG-557 and body number 8030. The bus was driven by Eddie Dimayuga
(Dimayuga).
At the time of the collision, Tans jitney was loaded with quail eggs and duck eggs (balot and
salted eggs). It was driven by Alexander M. Ramirez (Ramirez). Tan alleged that Dimayuga was
reckless, negligent, imprudent, and not observing traffic rules and regulations, causing the bus to
collide with the jitney which was then, with care and proper light direction signals, about to
negotiate a left turn towards the feeder or barangay road of Barangay Bangyas, Calauan, Laguna
going to the Poblacion. The jitney turned turtle along the shoulder of the road and the cargo of
eggs was destroyed. Ramirez and his helper were injured and hospitalized, incurring expenses
for medical treatment at the Pagamutang Pangmasa in Bay, Laguna. Tan prayed for damages in
the amount ofP400,000.00 for the damaged jitney, P142,210.00 for the destroyed
shipment, P20,000.00 for moral damages, attorneys fees of P20,000.00 plus P1,000.00 per court
appearance of counsel, and other reliefs warranted under the premises.
In its Answer with Counterclaim, respondent JAM Transit, Inc. (JAM) admitted ownership of the
subject passenger bus and that Dimayuga was under its employ. However, it denied the
allegations in the Complaint, and claimed that the accident occurred due to the gross negligence
of
Ramirez. As counterclaim, JAM sought payment of P100,000.00 for the damages sustained by
the bus,P100,000.00 for loss of income, and P50,000.00 as attorneys fees plus P3,000.00 per
court appearance of counsel.
After pretrial, trial on the merits ensued.
Tan proffered testimonial evidence, summarized by the RTC, and quoted by the CA, as follows:
LUZ PALANCA TAN, 47 years old, married, a resident of Sta. Cruz, Laguna and a
businesswoman, testified to the facts stated in the complaint that: She is engaged in the business
of nets and ropes, and egg dealership based [in] Santa Cruz, Laguna. She supplies her products to
her customers [in] San Pablo and Lucena. On March 14, 1997, while at home, she was informed
by her husband that one of their jeepneys, which was loaded with eggs, was bumped by a JAM
Transit bus when the latter overtook the jeepney. The vehicle was driven by one Alexander
Ramirez, who has one "Monching" as a companion. As a result of the accident, she incurred
damages in the amount of P650,000.00 based on the following computation: P400,000.00 as
actual damage sustained by the jeepney, from an estimate (Exhibit "D") furnished by Plantilla
Motors; P142,000.00 for the lost value of the egg shipment, based on a certification issued by the
Calauan Police Station; and P15,000.00, for the hospitalization and treatment of the driver and
his companion. The jeepney is duly registered as evidenced by its registration receipt (Exhibit
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"G"). On cross examination, she testified that Ramirez, the jeepney driver when the accident
occurred, was under her employ since 1993 and is still working for her.
On redirect, the plaintiff testified that prior to March 13, 1997, the day the accident happened,
Ramirez has not met any vehicular accident and that it was only in the aforestated date when he
figured in one. On re-cross, she testified that she has no knowledge of Ramirez prior experience
as a driver. She did not ask Ramirez for his NBI or police clearance prior to her hiring the said
driver. On additional redirect, the plaintiff testified that she is satisfied with the performance of
Ramirez as a driver as he is kind.
ALEXANDER RAMIREZ, 35 years old, married, resident of Sta. Cruz, Laguna, and a driver
testified that: He knows the plaintiff Luz Palanca Tan because she is his manager. He worked for
her as a driver sometime in 1993. He sometimes drove a jeepney or a truck.
On March 13, 1997, at around 4:00 oclock in the morning, he reported for work at his
employers warehouse located [in] Pagsawitan, Sta. Cruz. He got the passenger jeep loaded with
salted eggs, "balot" and quail eggs for delivery to Lucena City upon instruction of Tan. In going
to Lucena City, he chose to drive on the Maharlika Road at San Isidro, Brgy. Bangyas, Calauan,
Laguna because it is better than the road along Brgy. Dayap of the same municipality. However,
while at the Maharlika Road, he met an accident at around 5:00 a.m. The jitney turned turtle.
PO3 DANIEL C. ESCARES, 37 years old, married, resident of Calauan, Laguna, and a member
of PNP-Calauan, Laguna, testified that: He was on police duty as of March 14, 1997. On that
day, he issued a certification (Exhibit "B") pertaining to a vehicular accident which occurred
earlier. He came to know of the accident as relayed to their office by a concerned citizen. He
proceeded to the place of the accident, which was at Maharlika Highway, in an intersection at
Brgy. Bangyas, Calauan, Laguna for an investigation. Upon reaching the place, as a rule
followed by police officers, he inquired from some of the residents about the incident. As relayed
to him, the jeepney with Plate No. 168 was going towards the direction of San Isidro, followed
by another jeepney, a truck and then by a JAM Transit bus. The bus overtook the jeepney it was
following then side swept the jeepney (which figured in the accident) dragging it along
("nakaladkad") towards the sampaguita gardens. [NOTE: The testimony of the witness regarding
the information gathered was ordered by the Court to be deleted.] Then, he went personally to
the place where the incident happened.
He stated it was cloudy that day. He described the highway where the incident happened as
having a double straight yellow line which prohibits overtaking on both sides of the road. The
said place is near the intersection of Maharlika Highway and the barangay road leading to Brgy.
San Isidro.
376 | P a g e
On cross examination, he stated he cannot remember if he was with other police officers during
the investigation of the incident but he can recall having interviewed a certain Mercy Ponteiros
and one Rodel, who are both residents of the place.
On redirect, he stated that the witness Mercy Ponteiros is still residing at Brgy. Bangyas[.]
On additional direct examination, he stated that the accident site is still fresh in his mind and he
drew a sketch (Exhibit "F" to "F-7") of the said place. He identified in the sketch the direction of
the highway which leads to Manila and to Sta. Cruz, Laguna. The road, per his approximation,
was about 10 meters wide, with the shoulder about 5 meters except that it was diminished to
about 2 meters on account of some encroachment. The highway has a painted crosswalk. It also
has a yellow line without any cut which means no vehicle could overtake from both sides of the
road. He showed in the sketch the spot where the jitney and the bus were at the time of the
incident. Shown the photographs (Exhibits "E" to "E-6"), he stated that they are truly reflective
of the scene of the incident, the damages in both the jeepney and the bus, as of March 13, 1997.
On cross, he stated that what he saw was the situation after the incident. He came to learn of the
accident at around 5:10 in the morning from a report received by their office, as relayed by a
concerned citizen. He remembers that SPO4 Rogelio Medina, now retired, as one of his
companions at the accident site. The site is about a kilometer away from their police station. He
can recall the scene of the incident because of the photographs. The persons he investigated were
the jitney driver, his "pahinante" (helper) and some people in the vicinity. He could not
remember the names of those persons but they were listed in the police blotter.
RODRIGO CONDINO, 38 years old, married, resident of Victoria, Laguna and a mechanic,
testified that: He is a mechanic of Plantilla Motors at Bubucal, Sta. Cruz, Laguna. He knows the
plaintiff Luz Tan as he and his chief (mechanic) repaired the jeepney owned by the latter after it
figured in an accident on March 13, 1997. He came to know of the accident when the said
vehicle was brought to their motor shop. They made an estimate (Exhibit "D") of the damage
sustained by the said vehicle, which amounted to P450,000.00.4
Tan also formally offered as exhibits the following documents:
Exhibit "A" - Articles of Incorporation of JAM Transit, Inc.;
Exhibit "B" - Certification issued by the Calauan Municipal Police Station regarding the
vehicular accident;
Exhibit "C" - PNP-Calauan Police Report regarding the jitney shipment;
Exhibit "D" - Estimate of damages sustained by the jitney, from A. Plantilla Motors
Repair Shop;
377 | P a g e
Exhibit "E" - Six (6) photographs depicting the site of the vehicular accident;
Exhibit "F" - Four (4) pages of receipts representing hospital and medical expenses paid
by the plaintiff for injuries sustained by her driver and helper in the accident;
Exhibit "G" - Certificate of Registration of plaintiffs jitney;
Exhibit "H" - Drivers license of Eddie Dimayuga, defendants bus driver;
Exhibit "I" - Sketch of the site where the vehicular accident occurred.5
On the other hand, JAM offered the following testimonial evidence
EDGARDO DIMAYUGA, 49 years old, married, resident of Sta. Cruz, Laguna and bus driver of
JAM Transit Inc., testified that: He has been a passenger bus driver since 1983. He was
previously employed with the Batangas Laguna Tayabas Bus Company (BLTB). He was
employed with JAM Transit since 1992. He has a professional drivers license, D-12-78008462562.
On March 14, 1997, he reported for work. He met an accident while driving a bus. The other
vehicle involved, a jitney, belongs to Luz Palanca Tan and driven by Alexander Ramirez. The
accident happened along the intersection of Maharlika Highway, Brgy. Bangyas at around 5:00
oclock in the morning. He was driving the bus with a speed of 40 km/h when suddenly, a
vehicle overtook the bus from the right side going to Calauan. He was not able to evade the
vehicle as there was no way for him to do so. The front portion of the bus and the mirror were
destroyed.
On cross examination, he stated that his route as of March 14, 1997 was Sta. Cruz-Lawton. He
cannot recall the bus conductor who was on Bangyas, Calauan. He stated he was not able to
evade the jitney as there was no way for him to avoid the situation, causing the jitney to be
dragged to the side. Nothing else happened after the bus hit the jeepney. He and other persons
took the driver from the jeepney and brought him to a hospital.
On redirect, he stated that bus conductors change duties every two or three days.6
JAM did not offer any documentary counter-evidence.
Applying the doctrine of res ipsa loquitur, the RTC found the JAM passenger bus driver at fault
as he was then violating a traffic regulation when the collision took place. Thus, the RTC ruled in
favor of Tan and disposed as follows
378 | P a g e
WHEREFORE, judgment is hereby rendered against the defendants who are hereby adjudged to
pay the plaintiff jointly and solidarily, the following:
1. actual damages of P142,210.00 for the lost and damaged cargoes; P400,000.00 for the
destroyed jitney;P1,327.00 medical expenses of the jitney driver and his companion, for a
total amount of [P543,537.00];
2. P10,000.00 as moral damages;
3. P10,000.00 as attorneys fees[;]
4. Costs of suit[.]
SO ORDERED.7
Aggrieved, JAM appealed to the CA. The CA granted the appeal and dismissed the complaint on
the ground that there was nothing on record that supported the RTCs finding that the JAM
passenger bus was overtaking Tans jitney. The CA noted that Ramirez only testified that, on
March 14, 1997, he met an accident at around 5:00 a.m., while transporting eggs along
Maharlika Road in San Isidro, Barangay Bangyas, Calauan, Laguna, causing the jitney he was
driving to turn turtle. The CA also observed that the Certification (Exhibit "B") made no mention
that the JAM passenger bus was overspeeding or that it was overtaking the jitney; and, thus,
there was no evidence as to who between Ramirez and Dimayuga was negligent in connection
with the vehicular accident. The CA held that the doctrine of res ipsa loquitur can only be
invoked when direct evidence is nonexistent or not accessible. It further said that Tan had access
to direct evidence as to the precise cause of the mishap, such that the circumstances of the
vehicular accident or the specific act constituting the supposed negligence of Dimayuga could
have been testified to by Ramirez or by the latters companion. The CA concluded that res ipsa
loquitur could not apply in this case because the doctrine does not dispense with the requirement
of establishing proof of negligence.
Hence, this petition, with petitioner positing that the doctrine of res ipsa loquitur is applicable
given the circumstances of the case.
Res ipsa loquitur is a Latin phrase that literally means "the thing or the transaction speaks for
itself." It is a maxim for the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with
an explanation. Where the thing that caused the injury complained of is shown to be under the
management of the defendant or his servants; and the accident, in the ordinary course of things,
would not happen if those who had management or control used proper care, it affords
379 | P a g e
reasonable evidence -- in the absence of a sufficient, reasonable and logical explanation by

defendant -- that the accident arose from or was caused by the defendants want of care. This rule
is grounded on the superior logic of ordinary human experience, and it is on the basis of such
experience or common knowledge that negligence may be deduced from the mere occurrence of
the accident itself. Hence, the rule is applied in conjunction with the doctrine of common
knowledge.8
However, res ipsa loquitur is not a rule of substantive law and does not constitute an independent
or separate ground for liability. Instead, it is considered as merely evidentiary, a mode of proof,
or a mere procedural convenience, since it furnishes a substitute for, and relieves a plaintiff of,
the burden of producing a specific proof of negligence. In other words, mere invocation and
application of the doctrine do not dispense with the requirement of proof of negligence. It is
simply a step in the process of such proof, permitting plaintiff to present, along with the proof of
the accident, enough of the attending circumstances to invoke the doctrine, creating an inference
or presumption of negligence, and thereby placing on defendant the burden of going forward
with the proof.9 Still, before resort to the doctrine may be allowed, the following requisites must
be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of someones
negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or
defendants; and
3. The possibility of contributing conduct which would make the plaintiff responsible is
eliminated.10
Was petitioner able to establish the above requisites? We answer in the affirmative. We do not
subscribe to the finding of the CA that petitioner had direct access to the evidence surrounding
the accident, but since she failed to present it, the doctrine would not operate to apply. While
Ramirez took the witness stand, he was only able to testify that he drove along Maharlika
Highway in San Isidro, Barangay Bangyas, Calauan, Laguna, Tans passenger jitney loaded with
salted eggs, balot and quail eggs for delivery at around 5:00 a.m. when he met an accident,
causing the vehicle to turn turtle. Obviously, Ramirez had no vivid recollection of how the
passenger jitney was actually hit by the JAM passenger bus. Further, for some unknown reasons,
the other possible eyewitnesses to the mishap were not available to testify. With the dearth of
testimonial or direct evidence, should petitioner now be left without remedy? The answer is NO.
We cannot agree with the CA when it said that how the incident happened could not be
established, neither from the photographs offered in evidence in favor of petitioner, nor from the
Certification11 that quoted an excerpt from the records on the Police Blotter of the Calauan
380 | P a g e
Municipal Police Station. The CA, likewise, discounted the probative value of the Police Blotter
because, although prepared in the regular performance of official duty, it was not conclusive
proof of the truth of its entries, since police blotters are usually incomplete and inaccurate; and
sometimes based on partial suggestion, inaccurate reporting and hearsay.12
It is worth noting, however, that photographs are in the nature of physical evidence13 -- a mute
but eloquent manifestation of truth ranking high in the hierarchy of trustworthy evidence.14 When
duly verified and shown by extrinsic evidence to be faithful representations of the subject as of
the time in question, they are, in the discretion of the trial court, admissible in evidence as aids in
arriving at an understanding of the evidence, the situation or condition of objects or premises, or
the circumstances of an accident.15
The photographs16 proffered by petitioner indeed depicted the relative positions of her jitney and
of the JAM passenger bus immediately after the accident took place. An examination of the
photographs would readily show that the highway where the accident occurred was marked by
two yellow continuous parallel lines at the center, separating the right lane from the left. Based
on evidence, the JAM passenger bus was moving along the highway towards Manila, and the
jitney was going along the same route, until it was about to turn left to the barangay road towards
the Poblacion. After the incident, the photographs would show that both vehicles were found on
the opposite lane of the highway. The front right portion of the bus was shown to have collided
with or hit the left portion of the jitney with such an impact, causing the latter to turn turtle with
extensive damage, injuring its driver and his companion, and completely destroying its cargo.17
Although the person who took the pictures was not able to testify because he predeceased the
trial, Senior Police Officer II Daniel Escares (Escares) was recalled to the witness stand to
authenticate the said pictures. He testified that the pictures were faithful representations of the
circumstances immediately after the accident.18 Escares also made an appropriately labeled
sketch19 of the situation after the collision, and testified as to the physical circumstances thereof,
including the width of the road and the road shoulder, especially the double yellow lines at the
center of the highway.20
As regards police blotters, it should be remembered that although they are of little probative
value, they are nevertheless admitted and considered in the absence of competent evidence to
refute the facts stated therein. Entries in police records made by a police officer in the
performance of a duty especially enjoined by law are prima facie evidence of the facts therein
stated, and their probative value may be either substantiated or nullified by other competent
evidence.21 In this case, the Certification,22 whose entries were adopted from the police blotter of
the Calauan Municipal Police Station, the sketch23 prepared by Escares, and the photographs,
taken together would prove that the jitney and the bus were going along the same way; that the
jitney was about to negotiate the intersection going to the left towards the feeder road in the
381 | P a g e
direction of the Poblacion; and that the bus hit the left-turning jitney causing the smaller vehicle
to turn turtle.
Indeed, no two motor vehicles traversing the same lane of a highway with double yellow center
lines will collide as a matter of course, both ending up on the opposite lane, unless someone is
negligent. Dimayuga was driving the JAM passenger bus which, from the evidence adduced,
appears to have precipitated the collision with petitioners jitney. Driving the bus gave Dimayuga
exclusive management and control over it. Despite the claim of JAM to the contrary, no
contributory negligence could be attributed to Ramirez relative to the incident on the basis of the
available evidence. Inevitably, the requisites being present, the doctrine of res ipsa loquitur
applies.
We, thus, quote with concurrence the findings of the RTC
As both parties are asserting claim for the damages each has respectively sustained from the
subject collision, the negligence of either driver of the bus or of the jitney must be shown, and
the burden to prove the negligence, by preponderance of evidence, lies upon both who are
alleging the others negligence. Preponderance of evidence is "evidence as a whole which is
superior to that of the defendant {or the other}" [Pacific Banking Employees Organization vs.
CA, 286 SCRA 495].
To prove negligence of the bus driver, plaintiff relies heavily upon the testimony of PO3
DANIEL C. ESCARES, who identified the police report of the incident [Exhibit "B"] as well as
the sketch of the site [Exhibit "I"] and the pictures taken as reflective of the scene of the incident
[Exhibits "E" with sub-markings], invoking [in plaintiffs memorandum] the application of the
doctrine of "res ipsa loquitor."
From the said exhibits, the plaintiff postulates that her jitney then being driven by Alexander
Ramirez, as well as the bus driven by defendant Dimayuga were heading the same direction
towards Manila, but when the jitney was about to negotiate the left side road intersection towards
the feeder/Barangay road of Brgy. Bangyas, Calauan, Laguna, it was bumped by the
oncoming/overtaking bus driven by Dimayuga, that caused the jitney to turn turtle at the road
shoulder causing damages on the jitney, the cargoes and injuries to the jitney driver and his
companion. It was allegedly improper for the bus to overtake as the road bears a double yellow
line at the middle which prohibits overtaking.
On the other hand, the bus driver who is the lone witness/evidence for the defendant testified he
was driving at the Maharlika Highway at 40 km/hr when the jitney "overtook" from the right and
that there was no way for him to evade the latter so it was dragged to the side [TSN, May 18,
2006, p. 13]. In its memorandum, defendants postulate that it was the jitney driver who was
negligent as it overtook the bus from the right which is not proper. Plaintiff allegedly could not
382 | P a g e
claim damages for its failure to prove the bus drivers negligence, and it was the jitneys own
negligence that is the proximate cause of his injury.
No direct evidence was presented with respect to the exact road position of the bus and the jitney
at the time of the collision such that the same can only be inferred from the pictures of the
colliding vehicles taken immediately after the incident [Exhibits "E"].
At this juncture, it was established from exhibits "E-5" and "E-6" that the jitneys left side
portion was directly hit by the front-right portion of the bus. This is consistent with the plaintiffs
theory that the jitney was then negotiating the left portion of the road when it was hit by the
oncoming bus causing the jitney to have a 90-degree turn around. The bus and the jitney were
almost perpendicular to each other when the collision took place, with the bus directly hitting the
jitney head on.
The statement of the bus driver that the jitney "overtook" from the right only presumes that at the
point of collision, the bus was at the left lane of the road overtaking the vehicle/s at the right.
This scenario, in fact, was affirmed by the police report of the incident [Exhibit "B"]. It is not
quite logical that the jitney, in allegedly overtaking the bus from the right came from the right
shoulder of the road, a rough road merely 5 meters in width [Exhibit "F"] and even diminished
by two (2) meters because of the encroachment at the sides [TSN, 11-6-02]. No evidence was
shown that the jitney came from the right shoulder. The jitney then loaded with eggs for delivery,
was about to negotiate the left lane towards the feeder/barangay road intersection, and it would
be illogical in such a situation that the jitney driver would take the right shoulder. The foregoing
suggest the fact that the bus overtook the passing vehicles at the right lane and in the course
thereof, the jitney in front that was about to negotiate the left lane, was hit.24
Verily, although there was no direct evidence that the JAM passenger bus was overtaking the
vehicles running along the right lane of the highway from the left lane, the available evidence
readily points to such fact. There were two continuous yellow lines at the center of the highway,
which meant that no vehicle in the said area should overtake another on either side of the road.
The "double yellow center lines" regulation, which this Court takes judicial notice of as an
internationally recognized pavement regulation, was precisely intended to avoid accidents along
highways, such as what happened in this case. This prohibition finds support in Republic Act
(R.A.) No. 4136 (Land Transportation and Traffic Code), Section 41(e).25 Furthermore, it is
observed that the area of collision was an intersection. Section 41(c)26 of R.A. No. 4136,
likewise, prohibits overtaking or passing any other vehicle proceeding in the same direction at
any intersection of highways, among others. Thus, by overtaking on the left lane, Dimayuga was
not only violating the "double yellow center lines" regulation, but also the prohibition on
overtaking at highway intersections. Consequently, negligence can be attributed only to him,
which negligence was the proximate cause of the injury sustained by petitioner. This prima facie
383 | P a g e
finding of negligence was not sufficiently rebutted or contradicted by Dimayuga. Therefore, a

finding that he is liable for damages to petitioner is warranted.1avvphi1
The liability of Dimayuga is solidary with JAM, pursuant to Article 2176, in relation to Article
2180 of the Civil Code of the Philippines, which provides
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the provisions
of this Chapter.
Art. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or
omissions, but also for those of persons for whom one is responsible.
xxxx
Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any
business or industry.
xxxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage.
Whenever an employees negligence causes damage or injury to another, there instantly arises a
presumption juris tantum that the employer failed to exercise diligentissimi patris families in the
section (culpa in eligiendo) or supervision (culpa in vigilando) of its employees.27 To avoid
liability for a quasi-delict committed by its employee, an employer must overcome the
presumption, by presenting convincing proof that he exercised the care and diligence of a good
father of a family in the selection and supervision of his employee.28
In this case, aside from the testimony of Dimayuga, JAM did not present any other evidence,
whether documentary or testimonial, in its favor. Inevitably, the presumption of its negligence as
Dimayugas employer stands and it is, thus, solidarily liable for the damages sustained by
petitioner.
As regards the award for actual damages, we, however, concur with respondent that the award
of P400,000.00 for the damage to the jitney is not warranted, considering that the evidence
submitted to support this claim was merely an estimate made by A. Plantilla Motors. The same
reason holds true with respect to the amount of damages for the destroyed cargo of eggs,
considering that the document submitted by petitioner to support the claim of P142,210.00 was
384 | P a g e
merely a Certification,29 as the information found thereon was supplied by petitioner herself per
the number of pieces of the different eggs and the corresponding price per piece.
To warrant an award of actual or compensatory damages for repair to damage sustained, the best
evidence should be the receipts or other documentary proofs of the actual amount
expended.30 However, considering that it was duly proven that the jitney was damaged and had to
be repaired, as it was repaired, and that the cargo of eggs was indeed destroyed, but the actual
amounts expended or lost were not proven, we deem it appropriate to award P250,000.00 by way
of temperate damages. Under Article 2224 of the Civil Code, temperate damages may be
recovered when pecuniary loss has been suffered but its amount cannot be proved with
certainty.31 We, however, sustain the trial courts award of P1,327.00 as regards the medical
expenses incurred by petitioner, the same being duly supported by receipts.32
The award of P10,000.00 as moral damages, P10,000.00 as attorneys fees, and the costs of suit
are sustained, the same being in order and authorized by law. Although the basis for the award of
attorneys fees was not indicated in the trial courts Decision, we deem it justified as petitioner
was compelled to litigate before the courts and incur expenses in order to vindicate her rights
under the premises.33
WHEREFORE, the petition is GRANTED. The Decision dated June 2, 2008 of the Court of
Appeals in CA-G.R. CV No. 89046 is REVERSED and SET ASIDE. The Decision dated
December 20, 2006 of the Regional Trial Court, Branch 27, Sta. Cruz, Laguna in Civil Case No.
SC-3838 is REINSTATED with the MODIFICATION that the award of actual damages is
reduced to P1,327.00, and, in lieu of actual damages with respect to the damage or loss sustained
with respect to the passenger jitney and the cargo of eggs, the amount of P250,000.00 is awarded
by way of temperate damages.
SO ORDERED.
Associate Justice
WE CONCUR:
RENATO C. CORONA
Associate Justice
Chairperson
Associate Justice

Associate Justice
385 | P a g e
DIOSDADO M. PERALTA
Associate Justice
AT T E S T AT I O N
RENATO C. CORONA
Associate Justice
REYNATO S. PUNO
Chief Justice
NO CASE DIGEST

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 155604
November 22, 2007
COLLEGE ASSURANCE PLAN and COMPREHENSIVE ANNUITY PLAN and

PENSION CORPORATION,petitioners,
vs.
BELFRANLT DEVELOPMENT INC., respondent.
386 | P a g e
DECISION
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
assailing the February 28, 2002 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No.
63283, which modified the April 14, 1999 Decision2 of the Regional Trial Court (Branch 221),
Quezon City (RTC) in Civil Case No. Q-95-23118.
The antecedent facts are as summarized by the RTC.
Belfranlt Development, Inc. (respondent) is the owner of Belfranlt Building in Angeles City,
Pampanga. It leased to petitioners College Assurance Plan Phil., Inc. (CAP) and Comprehensive
Annuity Plans and Pension Corporation (CAPP) several units on the second and third floors of
the building.3
On October 8, 1994, fire destroyed portions of the building, including the third floor units being
occupied by petitioners. An October 20, 1994 field investigation report by an unnamed arson
investigator assigned to the case disclosed:
0.5 Origin of Fire: Store room occupied by CAP, located at the 3rd floor of the bldg.
0.6 Cause of Fire: Accidental (overheated coffee percolator).4
These findings are reiterated in the October 21, 1994 certification which the BFP City Fire
Marshal, Insp. Teodoro D. del Rosario issued to petitioners as supporting document for the
latter's insurance claim.5
Citing the foregoing findings, respondent sent petitioners on November 3, 1994 a notice to
vacate the leased premises to make way for repairs, and to pay reparation estimated at P1.5
million.
On November 11, 1994, petitioners vacated the leased premises, including the units on the
second floor,6 but they did not act on the demand for reparation.
Respondent wrote petitioners another letter, reiterating its claim for reparation, this time
estimated by professionals to be no less than P2 million.7 It also clarified that, as the leased units
on the second floor were not affected by the fire, petitioners had no reason to vacate the same;
hence, their lease on said units is deemed still subsisting, along with their obligation to pay for
the rent.8
387 | P a g e
In reply, petitioners explained that they could no longer re-occupy the units on the second floor
of the building for they had already moved to a new location and entered into a binding contract
with a new lessor. Petitioners also disclaimed liability for reparation, pointing out that the fire
was a fortuitous event for which they could not be held responsible.9
After its third demand10 went unheeded, respondent filed with the RTC a complaint against
petitioners for damages. The RTC rendered a Decision dated April 14, 1999, the dispositive
portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the
plaintiff [respondent] and against the herein defendants [petitioners]. Defendants are
ordered to pay the plaintiff joint[sic] and severally the following amounts:
1) P2.2 Million Pesos cost of rehabilitation (repairs, replacements and
renovations) of the Belfranlt building by way of Actual and Compensatory
damages;
2) P14,000.00 per month of unpaid rentals on the third floor of the Belfranlt
building for the period from October 1994 until the end of the two year lease
contract on May 10, 1996 by way of Actual and Compensatory damages;
3) P18,000.00 per month of unpaid rentals on the second floor of the Belfanlt
building for the period from October 1994 until the end of the two year lease
contract on May 10, 1996 by way of Actual or Compensatory damages;
4) P8,400.00 per month as reimbursement of unpaid rentals on the other leased
areas occupied by other tenants for the period from October 1994 until the time
the vacated leased areas were occupied by new tenants;
5) P200,000.00 as moral damages;
6) P200,000.00 as exemplary damages;
7) P50,000.00 plus 20% of Actual damages awarded as reasonable Attorney's
fees; and
8) Costs of suit.
SO ORDERED.11
Petitioners appealed to the CA which, in its February 28, 2002 Decision, modified the RTC
Decision, thus:
388 | P a g e
WHEREFORE, the appealed decision is MODIFIED in that the award of (i) actual and
compensatory damages in the amounts of P2.2 Million as cost of rehabilitation of
Belfranlt Building and P8,400.00 per month as reimbursement of unpaid rentals on the
areas leased by other tenants, (ii) moral damages, (iii) exemplary damages and (iv)
attorney's fees is DELETED, while defendants-appellants are ordered to pay to plaintiffappellee, jointly and severally, the amount of P500,000.00 as temperate damages. The
appealed judgment is AFFIRMED in all other respects.
SO ORDERED.12
Respondent did not appeal from the CA decision.13
Petitioners filed the present petition, questioning the CA decision on the following grounds:
I
The honorable Court of Appeals erred in not holding that the fire that partially burned
respondent's building was a fortuitous event.
II
The honorable Court of Appeals erred in holding that petitioner failed to observe the due
diligence of a good father of a family.
III
The honorable Court of Appeals erred in holding petitioners liable for certain actual
damages despite plaintiffs' failure to prove the damage as alleged.
IV
The honorable Court of Appeals erred in holding petitioners liable for temperate
damages.14
The petition lacks merit.
Article 1667 of the Civil Code, which provides:
The lessee is responsible for the deterioration or loss of the thing leased, unless he proves
that it took place without his fault. This burden of proof on the lessee does not apply
when the destruction is due to earthquake, flood, storm or other natural calamity.
389 | P a g e
creates the presumption that the lessee is liable for the deterioration or loss of a thing leased. To
overcome such legal presumption, the lessee must prove that the deterioration or loss was due to
a fortuitous event which took place without his fault or negligence.15
Article 1174 of the Civil Code defines a fortuitous event as that which could not be foreseen, or
which, though foreseen, was inevitable. Whether an act of god16 or an act of man,17 to constitute a
fortuitous event, it must be shown that: a) the cause of the unforeseen and unexpected occurrence
or of the failure of the obligor to comply with its obligations was independent of human will; b)
it was impossible to foresee the event or, if it could have been foreseen, to avoid it; c) the
occurrence rendered it impossible for the obligor to fulfill its obligations in a normal manner;
and d) said obligor was free from any participation in the aggravation of the injury or loss.18 If
the negligence or fault of the obligor coincided with the occurrence of the fortuitous event, and
caused the loss or damage or the aggravation thereof, the fortuitous event cannot shield the
obligor from liability for his negligence.19
In the present case, it was fire that caused the damage to the units being occupied by petitioners.
The legal presumption therefore is that petitioners were responsible for the damage. Petitioners
insist, however, that they are exempt from liability for the fire was a fortuitous event that took
place without their fault or negligence.20
The RTC saw differently, holding that the proximate cause of the fire was the fault and
negligence of petitioners in using a coffee percolator in the office stockroom on the third floor of
the building and in allowing the electrical device to overheat:
Plaintiff has presented credible and preponderant evidence that the fire was not due to a
fortuitous event but rather was due to an overheated coffee percolator found in the leased
premises occupied by the defendants. The certification issued by the Bureau of Fire
Protection Region 3 dated October 21, 1994 clearly indicated that the cause of the fire
was an overheated coffee percolator. This documentary evidence is credible because it
was issued by a government office which conducted an investigation of the cause and
circumstances surrounding the fire of October 8, 1994. Under Section 4, Rule 131 of the
Revised Rules of Court, there is a legal presumption that official duty has been regularly
performed. The defendants have failed to present countervailing evidence to rebut or
dispute this presumption. The defendants did not present any credible evidence to impute
any wrongdoing or false motives on the part of Fire Department Officials and Arson
investigators in the preparation and finalization of this certification. This Court is
convinced that the Certification is genuine, authentic, valid and issued in the proper
exercise and regular performance of the issuing authority's official duties. The written
certification cannot be considered self-serving to the plaintiff because as clearly indicated
on its face the same was issued not to the plaintiff but to the defendant's representative
Mr. Jesus V. Roig for purposes of filing their insurance claim. This certification was
390 | P a g e
issued by a government office upon the request of the defendant's authorized

representative. The plaintiff also presented preponderant evidence that the fire was
caused by an overheated coffee percolator when plaintiff submitted in evidence not only
photographs of the remnants of a coffee percolator found in the burned premises but the
object evidence itself. Defendants did not dispute the authenticity or veracity of these
evidence. Defendants merely presented negative evidence in the form of denials that
defendants maintained a coffee percolator in the premises testified to by employees of
defendants who cannot be considered totally disinterested.21(Citations omitted)
The CA concurred with the RTC and noted additional evidence of the negligence of petitioners:
The records disclose that the metal base of a heating device which the lower court found
to be the base of a coffee percolator, was retrieved from the stockroom where the fire
originated. The metal base contains the inscription "CAUTION DO NOT OPERATE
WHEN EMPTY", which is a warning against the use of such electrical device when
empty and an indication that it is a water-heating appliance. Its being an instrument for
preparing coffee is demonstrated by its retrieval from the stockroom, particularly beside
broken drinking glasses, Nescafe bottle, metal dish rack and utensils.
Appellants assert that it had an airpot not a coffee percolator - near the Administration
Office on the third floor. For unexplained reasons, however, they did not present the
airpot to disprove the existence of the coffee percolator. The fire did not raze the entire
third floor and the objects therein. Even the stack of highly combustible paper on the
third floor was not totally gutted by the fire. Consequently, it is not farfetched that the
burnt airpot, if any, could have been recovered by appellants from the area where it was
supposedly being kept.
xxxx
The defense that the fire was a fortuitous event is untenable. It is undisputed that the fire
originated from appellants' stockroom located on the third floor leased premises. Said
stockroom was under the control of appellants which, on that fateful day (a Saturday),
conducted a seminar in the training room which was adjoining the stockroom. Absent an
explanation from appellants on the cause of the fire, the doctrine of res ipsa
loquitur applies.22
Petitioners impugn both findings. They claim that the BFP field investigation report (Exh. "P-2")
and the BFP certification (Exh. "P-3") are hearsay evidence because these were presented during
the testimony of Fireman Gerardo Sitchon (Fireman Sitchon) of the Bureau of Fire Protection
(BFP), Angeles City, who admitted to having no participation in the investigation of the fire
incident or personal knowledge about said incident,23 making him incompetent to testify thereon.
391 | P a g e
Petitioners argue that, with Exh. "P-2" and Exh. "P-3" and the testimony of Fireman Sitchon that
are flawed, there is virtually no evidence left that the cause of the fire was an overheated coffee
percolator. Petitioners insist that they own no such percolator.24
We find no cogent reason to disturb the finding of the RTC and CA.
The finding that the negligence of petitioners was the proximate cause of the fire that destroyed
portions of the leased units is a purely factual matter which we cannot pass upon,25 lest we
overstep the restriction that review by certiorari under Rule 45 be limited to errors of law only.26
Moreover, the established rule is that the factual findings of the CA affirming those of the RTC
are conclusive and binding on us.27 We are not wont to review them, save under exceptional
circumstances as: (1) when the inference made is manifestly mistaken, absurd or impossible; (2)
when there is grave abuse of discretion; (3) when the findings are grounded entirely on
speculations, surmises or conjectures; (4) when the judgment of the CA is based on
misapprehension of facts; (5) when the CA, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee; (6) when the
findings of fact are conclusions without citation of specific evidence on which they are based; (7)
when the CA manifestly overlooked certain relevant facts not disputed by the parties and which,
if properly considered, would justify a different conclusion; and (8) when the findings of fact of
the CA are premised on the absence of evidence and are contradicted by the evidence on record.28
The exceptions do not obtain in the present case. In fact, the findings of the RTC and CA are
fully supported by the evidence.
Contrary to petitioners' claim, Fireman Sitchon is competent to identify and testify on Exh. "P-2"
and Exh. "P-3" because, although he did not sign said documents, he personally prepared the
same.29 What Fireman Sitchon did not prepare were the documents which his investigation
witnesses presented.30 However, Fireman Sitchon emphasized that he interviewed said
investigation witnesses namely, Ronald Estanislao, the security guard on duty at the time of fire;
and Dr. Zenaida Arcilla, manager of CAPP, before he prepared Exh. "P-2" and Exh. "P3."31 Hence, while Fireman Sitchon may have had no personal knowledge of the fire incident,
Exh. "P-2" and Exh. "P-3," which he prepared based on the statements of his investigation
witnesses, especially that of Ronald Estanislao whose official duty it was to report on the
incident, are exceptions to the hearsay rule because these are entries in official
records.32 Consequently, his testimony on said documents are competent evidence of the contents
thereof. 33
Furthermore, the petitioners are estopped from contesting the veracity of Exh. "P-3" because, as
the CA correctly pointed out, "the aforesaid certification was used by appellants [petitioners] in
claiming insurance for their office equipment which were destroyed by the fire."34
392 | P a g e
Even without the testimony of Fireman Sitchon and the documents he prepared, the finding of
the RTC and CA on the negligence of petitioners cannot be overturned by petitioners' bare denial.
The CA correctly applied the doctrine of res ipsa loquitur under which expert testimony may be
dispensed with35 to sustain an allegation of negligence if the following requisites obtain: a) the
accident is of a kind which does not ordinarily occur unless someone is negligent; b) the cause of
the injury was under the exclusive control of the person in charge and c) the injury suffered must
not have been due to any voluntary action or contribution on the part of the person injured.36 The
fire that damaged Belfranlt Building was not a spontaneous natural occurrence but the outcome
of a human act or omission. It originated in the store room which petitioners had possession and
control of. Respondent had no hand in the incident. Hence, the convergence of these facts and
circumstances speaks for itself: petitioners alone having knowledge of the cause of the fire or the
best opportunity to ascertain it, and respondent having no means to find out for itself, it is
sufficient for the latter to merely allege that the cause of the fire was the negligence of the former
and to rely on the occurrence of the fire as proof of such negligence.37 It was all up to petitioners
to dispel such inference of negligence, but their bare denial only left the matter unanswered.
The CA therefore correctly affirmed the RTC in holding petitioners liable to respondent for
actual damages consisting of unpaid rentals for the units they leased.
The CA deleted the award of actual damages of P2.2 million which the RTC had granted
respondent to cover costs of building repairs. In lieu of actual damages, temperate damages in
the amount of P500,000.00 were awarded by the CA. We find this in order.38
Temperate or moderate damages may be availed when some pecuniary loss has been suffered but
its amount cannot, from the nature of the case, be proved with certainty.39 The amount thereof is
usually left to the discretion of the courts but the same should be reasonable, bearing in mind that
temperate damages should be more than nominal but less than compensatory.40 Without a doubt,
respondent suffered some form of pecuniary loss for the impairment of the structural integrity of
its building as a result of the fire. However, as correctly pointed out by the CA, because of
respondent's inability to present proof of the exact amount of such pecuniary loss, it may only be
entitled to temperate damages in the amount of P500,000.00,41 which we find reasonable and
just.
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
Ynares-Santiago, Chairperson, Chico-Nazario, Nachura, Reyes, JJ., concur.
393 | P a g e
DIGEST
Facts:
College Assurance Plan Phil Inc. (CAP) leased the second and third floors of its building
to Belfranlt Development Inc. Fire destroyed the parts of the building, including the third floor
units being occupied by Belfranlt. The cause of the fire was identified to be an overheated coffee
percolator located in the leased premises of Belfranlt.
CAP demanded Belfranlt to pay for actual damages caused by the fire. However, the
latter disclaimed liability, alleging that the fire was a fortuitous event for which they could not be
held liable.
Issue:
Whether or not the fire, which destroyed CAPs building, is a fortuitous event.
Held:
Fortuitous events are those events which could not be foreseen or which though foreseen,
were inevitable. In this case, it was the fault and negligence of Belfranlt in using the coffee
percolator that caused the fire. If the negligence or fault of the obligor coincided with the
occurrence of the fortuitous event, and caused the loss or damage or the aggravation thereof, the
fortuitous event cannot shield the obligor from liability for his negligence
394 | P a g e

SUPREME COURT
Baguio City
FIRST DIVISION
G.R. No. 137873
April 20, 2001
D. M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji,
Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report
dated November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila
where he was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de
Yzo[,] at around 2:15 p.m. of the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juego
together with Jessie Jaluag and Delso Destajo [were] performing their work as
carpenter[s] at the elevator core of the 14th floor of the Tower D, Renaissance Tower
395 | P a g e
Building on board a [p]latform made of channel beam (steel) measuring 4.8 meters by 2
meters wide with pinulid plywood flooring and cable wires attached to its four corners
and hooked at the 5 ton chain block, when suddenly, the bolt or pin which was merely
inserted to connect the chain block with the [p]latform, got loose xxx causing the whole
[p]latform assembly and the victim to fall down to the basement of the elevator core,
Tower D of the building under construction thereby crushing the victim of death, save his
two (2) companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was
then on board and performing work, fell. And the falling of the [p]latform was due to the
removal or getting loose of the pin which was merely inserted to the connecting points of
the chain block and [p]latform but without a safety lock.1
On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a
complaint for damages against the deceaseds employer, D.M. Consunji, Inc. The employer
raised, among other defenses, the widows prior availment of the benefits from the State
Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive
portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as
follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juegos earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in
toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:
396 | P a g e
THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE

REPORT WAS ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE
OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE

OF RES IPSA LOQUITOR[sic] IS APPLICABLE TO PROVE NEGLIGENCE
ON THE PART OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS

PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE,
AND
THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS

NOT PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL
CODE.3
Petitioner maintains that the police report reproduced above is hearsay and, therefore,
inadmissible. The CA ruled otherwise. It held that said report, being an entry in official records,
is an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of his
personal knowledge, that is, which are derived from his perception.4 A witness, therefore, may
not testify as what he merely learned from others either because he was told or read or heard the
same. Such testimony is considered hearsay and may not be received as proof of the truth of
what he has learned.5 This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements.6
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of
error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may
be best brought to light and exposed by the test of cross-examiantion.7 The hearsay rule,
therefore, excludes evidence that cannot be tested by cross-examination.8
The Rules of Court allow several exceptions to the rule,9 among which are entries in official
records. Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty made in the performance
of his duty by a public officer of the Philippines, or by a person in the performance of a
duty specially enjoined by law areprima facie evidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran,
enumerated the requisites for admissibility under the above rule:
397 | P a g e
(a) that the entry was made by a public officer or by another person specially enjoined by
law to do so;
(b) that it was made by the public officer in the performance of his duties, or by such
other person in the performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts by him
stated, which must have been acquired by him personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends that the last
requisite is not present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified before the
trial court. InRodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the
officer who signed the fire report also testified before the trial court. This Court held that the
report was inadmissible for the purpose of proving the truth of the statements contained in the
report but admissible insofar as it constitutes part of the testimony of the officer who executed
the report.
x x x. Since Major Enriquez himself took the witness stand and was available for crossexamination, the portions of the report which were of his personal knowledge or which
consisted of his perceptions and conclusions were not hearsay. The rest of the report, such
as the summary of the statements of the parties based on their sworn statements (which
were annexed to the Report) as well as the latter, having been included in the first
purpose of the offer [as part of the testimony of Major Enriquez], may then be considered
as independently relevant statements which were gathered in the course of the
investigation and may thus be admitted as such, but not necessarily to prove the truth
thereof. It has been said that:
"Where regardless of the truth or falsity of a statement, the fact that it has been
made is relevant, the hearsay rule does not apply, but the statement may be
shown. Evidence as to the making of such statement is not secondary but primary,
for the statement itself may constitute a fact in issue, or be circumstantially
relevant as to the existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on his Report and
made himself available for cross-examination by the adverse party, the Report, insofar as
it proved that certain utterances were made (but not their truth), was effectively removed
from the ambit of the aforementioned Section 44 of Rule 130. Properly understood, this
section does away with the testimony in open court of the officer who made the official
record, considers the matter as an exception to the hearsay rule and makes the entries in
398 | P a g e
said official record admissible in evidence as prima facie evidence of the facts therein
stated. The underlying reasons for this exceptionary rule are necessity and
trustworthiness, as explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily needed; the
occasions in which the officials would be summoned from his ordinary duties to
declare as a witness are numberless. The public officers are few in whose daily
work something is not done in which testimony is not needed from official
sources. Were there no exception for official statements, hosts of officials would
be found devoting the greater part of their time to attending as witnesses in court
or delivering deposition before an officer. The work of administration of
government and the interest of the public having business with officials would
alike suffer in consequence. For these reasons, and for many others, a certain
verity is accorded such documents, which is not extended to private documents. (3
Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they
will discharge their several trusts with accuracy and fidelity; and, therefore,
whatever acts they do in discharge of their duty may be given in evidence and
shall be taken to be true under such a degree of caution as to the nature and
circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to
testify on his report. In that case the applicability of Section 44 of Rule 143 would have
been ripe for determination, and this Court would have agreed with the Court of Appeals
that said report was inadmissible since the aforementioned third requisite was not
satisfied. The statements given by the sources of information of Major Enriquez failed to
qualify as "official information," there being no showing that, at the very least, they were
under a duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of
PO3 Villanueva.
In any case, the Court holds that portions of PO3 Villanuevas testimony which were of his
personal knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash.
PO3 Villanueva had seen Juegos remains at the morgue,12 making the latters death beyond
dispute. PO3 Villanueva also conducted an ocular inspection of the premises of the building the
day after the incident13 and saw the platform for himself.14 He observed that the platform was
crushed15 and that it was totally damaged.16 PO3 Villanueva also required Garcia and Fabro to
399 | P a g e
bring the chain block to the police headquarters. Upon inspection, he noticed that the chain was
detached from the lifting machine, without any pin or bolt.17
What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the
fall of the platform was the loosening of the bolt from the chain block. It is claimed that such
portion of the testimony is mere opinion. Subject to certain exceptions,18 the opinion of a witness
is generally not admissible.19
Petitioners contention, however, loses relevance in the face of the application of res ipsa
loquitur by the CA. The effect of the doctrine is to warrant a presumption or inference that the
mere fall of the elevator was a result of the person having charge of the instrumentality was
negligent. As a rule of evidence, the doctrine of res ipsa loquituris peculiar to the law of
negligence which recognizes that prima facie negligence may be established without direct proof
and furnishes a substitute for specific proof of negligence.20
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of
an accident or injury will not generally give rise to an inference or presumption that it
was due to negligence on defendants part, under the doctrine of res ipsa loquitur, which
means, literally, the thing or transaction speaks for itself, or in one jurisdiction, that the
thing or instrumentality speaks for itself, the facts or circumstances accompanying an
injury may be such as to raise a presumption, or at least permit an inference of negligence
on the part of the defendant, or some other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury
complained of was under the control or management of the defendant, and that the
occurrence resulting in the injury was such as in the ordinary course of things would not
happen if those who had its control or management used proper care, there is sufficient
evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation by
the defendant, that the injury arose from or was caused by the defendants want of care.21
One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent
or not available.22
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge
of the instrumentality which causes the injury either knows the cause of the accident or
has the best opportunity of ascertaining it and that the plaintiff has no such knowledge,
and therefore is compelled to allege negligence in general terms and to rely upon the
proof of the happening of the accident in order to establish negligence. The inference
which the doctrine permits is grounded upon the fact that the chief evidence of the true
400 | P a g e
cause, whether culpable or innocent, is practically accessible to the defendant but

inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a
plaintiff, without knowledge of the cause, reaches over to defendant who knows or should
know the cause, for any explanation of care exercised by the defendant in respect of the
matter of which the plaintiff complains. The res ipsa loquitur doctrine, another court has
said, is a rule of necessity, in that it proceeds on the theory that under the peculiar
circumstances in which the doctrine is applicable, it is within the power of the defendant
to show that there was no negligence on his part, and direct proof of defendants
negligence is beyond plaintiffs power. Accordingly, some court add to the three
prerequisites for the application of the res ipsa loquitur doctrine the further requirement
that for the res ipsa loquitur doctrine to apply, it must appear that the injured party had no
knowledge or means of knowledge as to the cause of the accident, or that the party to be
charged with negligence has superior knowledge or opportunity for explanation of the
accident.23
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
There is no dispute that appellees husband fell down from the 14th floor of a building to
the basement while he was working with appellants construction project, resulting to his
death. The construction site is within the exclusive control and management of appellant.
It has a safety engineer, a project superintendent, a carpenter leadman and others who are
in complete control of the situation therein. The circumstances of any accident that would
occur therein are peculiarly within the knowledge of the appellant or its employees. On
the other hand, the appellee is not in a position to know what caused the accident. Res
ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily
available, provided the following requisites are present: (1) the accident was of a kind
which does not ordinarily occur unless someone is negligent; (2) the instrumentality or
agency which caused the injury was under the exclusive control of the person charged
with negligence; and (3) the injury suffered must not have been due to any voluntary
action or contribution on the part of the person injured. x x x.
No worker is going to fall from the 14th floor of a building to the basement while
performing work in a construction site unless someone is negligent[;] thus, the first
requisite for the application of the rule of res ipsa loquitur is present. As explained
earlier, the construction site with all its paraphernalia and human resources that likely
caused the injury is under the exclusive control and management of appellant[;] thus[,]
the second requisite is also present. No contributory negligence was attributed to the
appellees deceased husband[;] thus[,] the last requisite is also present. All the requisites
401 | P a g e
for the application of the rule of res ipsa loquitur are present, thus a reasonable
presumption or inference of appellants negligence arises. x x x.24
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur,
but argues that the presumption or inference that it was negligent did not arise since it "proved
that it exercised due care to avoid the accident which befell respondents husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendants negligence is presumed or inferred25 when the plaintiff establishes the requisites for
the application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the
elements, the burden then shifts to defendant to explain.26 The presumption or inference may be
rebutted or overcome by other evidence and, under appropriate circumstances disputable
presumption, such as that of due care or innocence, may outweigh the inference.27 It is not for the
defendant to explain or prove its defense to prevent the presumption or inference from arising.
Evidence by the defendant of say, due care, comes into play only after the circumstances for the
application of the doctrine has been established.1wphi1.nt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before
the police investigator as evidence of its due care. According to Fabros sworn statement, the
company enacted rules and regulations for the safety and security of its workers. Moreover, the
leadman and the bodegero inspect the chain block before allowing its use.
It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in
arguing that private respondent failed to prove negligence on the part of petitioners employees,
also assails the same statement for being hearsay.
Petitioner is correct. Fabros sworn statement is hearsay and inadmissible. Affidavits are
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand
to testify thereon.28 The inadmissibility of this sort of evidence is based not only on the lack of
opportunity on the part of the adverse party to cross-examine the affiant, but also on the
commonly known fact that, generally, an affidavit is not prepared by the affiant himself but by
another who uses his own language in writing the affiants statements which may either be
omitted or misunderstood by the one writing them.29 Petitioner, therefore, cannot use said
statement as proof of its due care any more than private respondent can use it to prove the cause
of her husbands death. Regrettably, petitioner does not cite any other evidence to rebut the
inference or presumption of negligence arising from the application of res ipsa loquitur, or to
establish any defense relating to the incident.
Next, petitioner argues that private respondent had previously availed of the death benefits
provided under the Labor Code and is, therefore, precluded from claiming from the deceaseds
employer damages under the Civil Code.
402 | P a g e
Article 173 of the Labor Code states:

Article 173. Extent of liability. Unless otherwise provided, the liability of the State
Insurance Fund under this Title shall be exclusive and in place of all other liabilities of
the employer to the employee, his dependents or anyone otherwise entitled to receive
damages on behalf of the employee or his dependents. The payment of compensation
under this Title shall not bar the recovery of benefits as provided for in Section 699 of the
Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as
amended, Republic Act Numbered Six hundred ten, as amended, Republic Act Numbered
Forty-eight hundred sixty-four as amended, and other laws whose benefits are
administered by the System or by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmens Compensation Act,
provided that:
Section 5. Exclusive right to compensation. The rights and remedies granted by this Act
to an employee by reason of a personal injury entitling him to compensation shall exclude
all other rights and remedies accruing to the employee, his personal representatives,
dependents or nearest of kin against the employer under the Civil Code and other laws
because of said injury x x x.
Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act as well
as under the Civil Code used to be the subject of conflicting decisions. The Court finally settled
the matter in Floresca vs.Philex Mining Corporation,30 which involved a cave-in resulting in the
death of the employees of the Philex Mining Corporation. Alleging that the mining corporation,
in violation of government rules and regulations, failed to take the required precautions for the
protection of the employees, the heirs of the deceased employees filed a complaint against Philex
Mining in the Court of First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed
the complaint for lack of jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc,31 following the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative.
WE now come to the query as to whether or not the injured employee or his heirs in case
of death have a right of selection or choice of action between availing themselves of the
workers right under the Workmens Compensation Act and suing in the regular courts
under the Civil Code for higher damages (actual, moral and exemplary) from the
employers by virtue of the negligence or fault of the employers or whether they may avail
themselves cumulatively of both actions, i.e., collect the limited compensation under the
Workmens Compensation Act and sue in addition for damages in the regular courts.
403 | P a g e
In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32
SCRA 442, ruled thatan injured worker has a choice of either to recover from the
employer the fixed amounts set by the Workmens Compensation Act or to prosecute an
ordinary civil action against the tortfeasor for higher damages but he cannot pursue both
courses of action simultaneously. [Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit
under the Civil Code despite having availed of the benefits provided under the Workmens
Compensation Act. The Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss
dated May 14, 1968 before the court a quo, that the heirs of the deceased employees,
namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino
submitted notices and claims for compensation to the Regional Office No. 1 of the then
Department of Labor and all of them have been paid in full as of August 25, 1967, except
Saturnino Martinez whose heirs decided that they be paid in installments x x x. Such
allegation was admitted by herein petitioners in their opposition to the motion to dismiss
dated may 27, 1968 x x x in the lower court, but they set up the defense that the claims
were filed under the Workmens Compensation Act before they learned of the official
report of the committee created to investigate the accident which established the criminal
negligence and violation of law by Philex, and which report was forwarded by the
Director of Mines to then Executive Secretary Rafael Salas in a letter dated October 19,
1967 only x x x.
WE hold that although the other petitioners had received the benefits under the
Workmens Compensation Act, such my not preclude them from bringing an action
before the regular court because they became cognizant of the fact that Philex has been
remiss in its contractual obligations with the deceased miners only after receiving
compensation under the Act. Had petitioners been aware of said violation of government
rules and regulations by Philex, and of its negligence, they would not have sought redress
under the Workmens Compensation Commission which awarded a lesser amount for
compensation. The choice of the first remedy was based on ignorance or a mistake of
fact, which nullifies the choice as it was not an intelligent choice. The case should
therefore be remanded to the lower court for further proceedings. However, should the
petitioners be successful in their bid before the lower court, the payments made under the
Workmens Compensation Act should be deducted from the damages that may be decreed
in their favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael
Maritime Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining
404 | P a g e
Corp. vs. Abeleda.34 In the last case, the Court again recognized that a claimant who had been
paid under the Act could still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the course
of their employment could be filed only under the Workmens Compensation Law, to the
exclusion of all further claims under other laws. In Floresca, this doctrine was abrogated
in favor of the new rule that the claimants may invoke either the Workmens
Compensation Act or the provisions of the Civil Code, subject to the consequence that the
choice of one remedy will exclude the other and that the acceptance of compensation
under the remedy chosen will preclude a claim for additional benefits under the other
remedy. The exception is where a claimant who has already been paid under the
Workmens Compensation Act may still sue for damages under the Civil Code on the
basis of supervening facts or developments occurring after he opted for the first remedy.
(Underscoring supplied.)
Here, the CA held that private respondents case came under the exception because private
respondent was unaware of petitioners negligence when she filed her claim for death benefits
from the State Insurance Fund. Private respondent filed the civil complaint for damages after she
received a copy of the police investigation report and the Prosecutors Memorandum dismissing
the criminal complaint against petitioners personnel. While stating that there was no negligence
attributable to the respondents in the complaint, the prosecutor nevertheless noted in the
Memorandum that, "if at all," the "case is civil in nature." The CA thus applied the exception
in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of appellant
as early as November 25, 1990, the date of the police investigators report. The appellee
merely executed her sworn statement before the police investigator concerning her
personal circumstances, her relation to the victim, and her knowledge of the accident. She
did not file the complaint for "Simple Negligence Resulting to Homicide" against
appellants employees. It was the investigator who recommended the filing of said case
and his supervisor referred the same to the prosecutors office. This is a standard
operating procedure for police investigators which appellee may not have even known.
This may explain why no complainant is mentioned in the preliminary statement of the
public prosecutor in her memorandum dated February 6, 1991, to wit: "Respondent
Ferdinand Fabro x x x are being charged by complainant of "Simple Negligence
Resulting to Homicide." It is also possible that the appellee did not have a chance to
appear before the public prosecutor as can be inferred from the following statement in
said memorandum: "Respondents who were notified pursuant to Law waived their rights
to present controverting evidence," thus there was no reason for the public prosecutor to
summon the appellee. Hence, notice of appellants negligence cannot be imputed on
appellee before she applied for death benefits under ECC or before she received the first
405 | P a g e
payment therefrom. Her using the police investigation report to support her complaint
filed on May 9, 1991 may just be an afterthought after receiving a copy of the February 6,
1991 Memorandum of the Prosecutors Office dismissing the criminal complaint for
insufficiency of evidence, stating therein that: "The death of the victim is not attributable
to any negligence on the part of the respondents. If at all and as shown by the records this
case is civil in nature." (Underscoring supplied.) Considering the foregoing, We are more
inclined to believe appellees allegation that she learned about appellants negligence
only after she applied for and received the benefits under ECC. This is a mistake of fact
that will make this case fall under the exception held in the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts, but of her rights
as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for
her educational attainment; that she did not know what damages could be recovered from
the death of her husband; and that she did not know that she may also recover more from
the Civil Code than from the ECC. x x x.36
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in
her complaint that her application and receipt of benefits from the ECC were attended by
ignorance or mistake of fact. Not being an issue submitted during the trial, the trial court had no
authority to hear or adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts because
as early as November 28, 1990, private respondent was the complainant in a criminal complaint
for "Simple Negligence Resulting to Homicide" against petitioners employees. On February 6,
1991, two months before the filing of the action in the lower court, Prosecutor Lorna Lee issued
a resolution finding that, although there was insufficient evidence against petitioners employees,
the case was "civil in nature." These purportedly show that prior to her receipt of death benefits
from the ECC on January 2, 1991 and every month thereafter, private respondent also knew of
the two choices of remedies available to her and yet she chose to claim and receive the benefits
from the ECC.
When a party having knowledge of the facts makes an election between inconsistent remedies,
the election is final and bars any action, suit, or proceeding inconsistent with the elected remedy,
in the absence of fraud by the other party. The first act of election acts as a bar.37 Equitable in
nature, the doctrine of election of remedies is designed to mitigate possible unfairness to both
parties. It rests on the moral premise that it is fair to hold people responsible for their choices.
The purpose of the doctrine is not to prevent any recourse to any remedy, but to prevent a double
redress for a single wrong.38
406 | P a g e
The choice of a party between inconsistent remedies results in a waiver by election. Hence, the
rule in Florescathat a claimant cannot simultaneously pursue recovery under the Labor Code and
prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of one
remedy, is deemed to have waived the other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a party has knowledge of its rights,
but chooses not to assert them. It must be generally shown by the party claiming a waiver
that the person against whom the waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the partys rights or of all material facts upon which they
depended. Where one lacks knowledge of a right, there is no basis upon which waiver of
it can rest. Ignorance of a material fact negates waiver, and waiver cannot be established
by a consent given under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a right
exists and has adequate knowledge upon which to make an intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an
awareness of its consequences. That a waiver is made knowingly and intelligently must
be illustrated on the record or by the evidence.40
That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the
exception in Floresca.
It is in light of the foregoing principles that we address petitioners contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in
her complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner
to burden private respondent with raising waiver as an issue. On the contrary, it is the defendant
who ought to plead waiver, as petitioner did in pages 2-3 of its Answer;41 otherwise, the defense
is waived. It is, therefore, perplexing for petitioner to now contend that the trial court had no
jurisdiction over the issue when petitioner itself pleaded waiver in the proceedings before the
trial court.
Does the evidence show that private respondent knew of the facts that led to her husbands death
and the rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case,
the "fact" that served as a basis for nullifying the waiver is the negligence of petitioners
employees, of which private respondent purportedly learned only after the prosecutor issued a
resolution stating that there may be civil liability. InFloresca, it was the negligence of the mining
407 | P a g e
corporation and its violation of government rules and regulations. Negligence, or violation of
government rules and regulations, for that matter, however, is not a fact, but aconclusion of law,
over which only the courts have the final say. Such a conclusion binds no one until the courts
have decreed so. It appears, therefore, that the principle that ignorance or mistake of fact nullifies
a waiver has been misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the elevator
crash when on November 15, 1990 she accomplished her application for benefits from the ECC.
The police investigation report is dated November 25, 1990, 10 days after the accomplishment of
the form. Petitioner filed the application in her behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies available to her when the
claim before the ECC was filed. On the contrary, private respondent testified that she was not
aware of her rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no
one from compliance therewith. As judicial decisions applying or interpreting the laws or the
Constitution form part of the Philippine legal system (Article 8, Civil Code), private respondent
cannot claim ignorance of this Courts ruling inFloresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
laws.42 This may be deduced from the language of the provision, which, notwithstanding a
persons ignorance, does not excuse his or her compliance with the laws. The rule
in Floresca allowing private respondent a choice of remedies is neither mandatory nor
prohibitory. Accordingly, her ignorance thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records do not indicate
the total amount private respondent ought to receive from the ECC, although it appears from
Exhibit "K"43 that she received P3,581.85 as initial payment representing the accrued pension
from November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit
"K," was P596.97 and present total monthly pension was P716.40. Whether the total amount she
will eventually receive from the ECC is less than the sum of P644,000.00 in total damages
awarded by the trial court is subject to speculation, and the case is remanded to the trial court for
such determination. Should the trial court find that its award is greater than that of the ECC,
payments already received by private respondent under the Labor Code shall be deducted from
the trial court' award of damages. Consistent with our ruling in Floresca, this adjudication aims
to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine
whether the award decreed in its decision is more than that of the ECC. Should the award
decreed by the trial court be greater than that awarded by the ECC, payments already made to
408 | P a g e
private respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects,
the Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.
DIGEST
FACTS:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji,
Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death. On May 9, 1991, Jose
Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint for damages
against the deceaseds employer, D.M. Consunji, Inc. The employer raised, among other
defenses, the widows prior availment of the benefits from the State Insurance Fund. After trial,
the RTC rendered a decision in favor of the widow Maria Juego.
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in
toto.
D. M. Consunji then sought the reversal of the CA decision.
ISSUES:
1.
2.
Whether or not the petitioner is held liable under the grounds of negligence.
Whether or not the injured employee or his heirs in case of death have a right of selection
or choice of action between availing themselves of the workers right under the Workmens
Compensation Act and suing in the regular courts under the Civil Code for higher damages
(actual, moral and exemplary) from the employers by virtue of the negligence or fault of the
employers or whether they may avail themselves cumulatively of both actions,
RULING:
1.
The doctrine of res ipsa loquitur (the thing or transaction speaks for itself) is peculiar
to the law of negligence which recognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of negligence. It has the
following requisites: (1) the accident was of a kind which does not ordinarily occur unless
someone is negligent; (2) the instrumentality or agency which caused the injury was under the
exclusive control of the person charged with negligence; and (3)the injury suffered must not have
been due to any voluntary action or contribution on the part of the person injured. All the
requisites for the application of the rule of res ipsa loquitur are present in the case at bar, thus a
409 | P a g e
reasonable presumption or inference of appellants negligence arises. Petitioner does not cite any
other evidence to rebut the inference or presumption of negligence arising from the application
of res ipsa loquitur, or to establish any defense relating to the incident.
2.
The claims for damages sustained by workers in the course of their employment could be
filed only under the Workmens Compensation Law, to the exclusion of all further claims under
other laws. In the course of availing the remedies provided under the Workmens Compensation
law, the claimants are deemed to have waived their known right of the remedies provided by
other laws. The Court of Appeals, however, held that the case at bar came under exception
because private respondent was unaware of petitioners negligence when she filed her claim for
death benefits from the State Insurance Fund. Had the claimant been aware, she wouldve opted
to avail of a better remedy than that of which she already had.

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 171127
March 11, 2015
NOEL CASUMPANG, RUBY SANGA-MIRANDA and SAN JUAN DEDIOS

HOSPITAL, Petitioners,
410 | P a g e
vs.
x-----------------------x
G.R. No. 171217
DRA. RUBY SANGA-MIRANDA, Petitioner,
vs.
x-----------------------x
G.R. No. 171228
SAN JUAN DEDIOS HOSPITAL, Petitioner,
vs.
DECISION
BRION, J.:
We resolve the three (3) consolidated petitions for review on Certiorari1 involving medical
negligence, commonly assailing the October 29, 2004 decision2 and the January 12, 2006
resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 56400. This CA decision affirmed
en totothe ruling of the Regional Trial Court (RTC), Branch 134, Makati City.
The RTC awarded Nelson Cortejo (respondent) damages in the total amount of P595,000.00, for
the wrongful death of his son allegedly due to the medical negligence of the petitioning doctors
and the hospital.
Factual Antecedents
The common factual antecedents are briefly summarized below.
On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo brought her 11-year old
son, Edmer Cortejo (Edmer), to the Emergency Room of the San Juan de Dios Hospital (SJDH)
because of difficulty in breathing, chest pain, stomach pain, and fever.4
Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined Edmer. In her testimony,
Mrs. Cortejo narrated that in the morning of April 20, 1988, Edmer had developed a slight fever
411 | P a g e
that lasted for one day; a few hours upon discovery, she brought Edmer to their family doctor;
and two hours after administering medications, Edmers fever had subsided.5
After taking Edmers medical history, Dr. Livelo took his vital signs, body temperature, and
blood pressure.6 Based on these initial examinations and the chest x-ray test that followed, Dr.
Livelo diagnosed Edmer with "bronchopneumonia.7 " Edmers blood was also taken for testing,
typing, and for purposes of administering antibiotics. Afterwards, Dr. Livelo gave Edmer an
antibiotic medication to lessen his fever and to loosen his phlegm.
Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care card and was referred
to an accredited Fortune Care coordinator, who was then out of town. She was thereafter
assigned to Dr. Noel Casumpang (Dr. Casumpang), a pediatrician also accredited with Fortune
Care.8
At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time examined Edmer in
his room. Using only a stethoscope, he confirmed the initial diagnosis of "Bronchopneumonia."9
At that moment, Mrs. Cortejo recalled entertaining doubts on the doctors diagnosis. She
immediately advised Dr. Casumpang that Edmer had a high fever, and had no colds or
cough10 but Dr. Casumpang merely told her that her sons "blood pressure is just being
active,"11 and remarked that "thats the usual bronchopneumonia, no colds, no phlegm."12 Dr.
Casumpang next visited and examined Edmer at 9:00 in the morning the following day.13 Still
suspicious about his sons illness, Mrs. Cortejo again called Dr. Casumpangs attention and stated
that Edmer had a fever, throat irritation, as well as chest and stomach pain. Mrs. Cortejo also
alerted Dr. Casumpang about the traces of blood in Edmers sputum. Despite these pieces of
information, however, Dr. Casumpang simply nodded, inquired if Edmer has an asthma, and
reassured Mrs. Cortejo that Edmers illness is bronchopneumonia.14
streak"15 prompting the respondent (Edmers father) to request for a doctor at the nurses
station.16 Forty-five minutes later, Dr. Ruby Miranda-Sanga (Dr. Sanga), one of the resident
physicians of SJDH, arrived. She claimed that although aware that Edmer had vomited "phlegm
with blood streak," she failed to examine the blood specimen because the respondent washed it
away. She then advised the respondent to preserve the specimen for examination.
Thereafter, Dr. Sanga conducted a physical check-up covering Edmers head, eyes, nose, throat,
lungs, skin and abdomen; and found that Edmer had a low-grade non-continuing fever, and
rashes that were not typical of dengue fever.17 Her medical findings state:
412 | P a g e
the patients rapid breathing and then the lung showed sibilant and the patients nose is flaring
which is a sign that the patient is in respiratory distress; the abdomen has negative finding; the
patient has low grade fever and not continuing; and the rashes in the patients skin were not
"Hermans Rash" and not typical of dengue fever.18
At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing Dr. Sanga, the
respondent showed her Edmers blood specimen, and reported that Edmer had complained of
severe stomach pain and difficulty in moving his right leg.19
Dr. Sanga then examined Edmers "sputum with blood" and noted that he was bleeding.
Suspecting that he could be afflicted with dengue, she inserted a plastic tube in his nose, drained
the liquid from his stomach with ice cold normal saline solution, and gave an instruction not to
pull out the tube, or give the patient any oral medication.
Dr. Sanga thereafter conducted a tourniquet test, which turned out to be negative.20 She likewise
ordered the monitoring of the patients blood pressure and some blood tests. Edmers blood
pressure was later found to be normal.21
At 4:40 in the afternoon, Dr. Sanga called up Dr. Casumpang at his clinic and told him about
Edmers condition.22Upon being informed, Dr. Casumpang ordered several procedures done
including: hematocrit, hemoglobin, blood typing, blood transfusion and tourniquet tests.
The blood test results came at about 6:00 in the evening.
Dr. Sanga advised Edmers parents that the blood test results showed that Edmer was suffering
from "Dengue Hemorrhagic Fever." One hour later, Dr. Casumpang arrived at Edmers room and
consented. Since the ICU was then full, Dr. Casumpang suggested to the respondent that they
hire a private nurse. The respondent, however, insisted on transferring his son to Makati Medical
Center.
After the respondent had signed the waiver, Dr. Casumpang, for the last time, checked Edmers
At 12:00 midnight, Edmer, accompanied by his parents and by Dr. Casumpang, was transferred
to Makati Medical Center.
413 | P a g e
Dr. Casumpang immediately gave the attending physician the patients clinical history and
Believing that Edmers death was caused by the negligent and erroneous diagnosis of his doctors,
the respondent instituted an action for damages against SJDH, and its attending physicians: Dr.
Casumpang and Dr. Sanga (collectively referred to as the "petitioners") before the RTC of
Makati City.
In a decision25 dated May 30, 1997, the RTC ruled in favor of the respondent, and awarded actual
and moral damages, plus attorney's fees and costs.
In ruling that the petitioning doctors were negligent, the RTC found untenable the petitioning
doctors contention that Edmers initial symptoms did not indicate dengue fever. It faulted them
for heavily relying on the chest x-ray result and for not considering the other manifestations that
Edmers parents had relayed. It held that in diagnosing and treating an illness, the physicians
conduct should be judged not only by what he/she saw and knew, but also by what he/she could
have reasonably seen and known. It also observed that based on Edmers signs and symptoms,
his medical history and physical examination, and also the information that the petitioning
doctors gathered from his family members, dengue fever was a reasonably foreseeable illness;
yet, the petitioning doctors failed to take a second look, much less, consider these indicators of
dengue.
The trial court also found that aside from their self-serving testimonies, the petitioning doctors
did not present other evidence to prove that they exercised the proper medical attention in
diagnosing and treating the patient, leading it to conclude that they were guilty of negligence.
The RTC also held SJDH solidarily liable with the petitioning doctors for damages based on the
following findings of facts: first, Dr. Casumpang, as consultant, is an ostensible agent of SJDH
because before the hospital engaged his medical services, it scrutinized and determined his
fitness, qualifications, and competence as a medical practitioner; and second, Dr. Sanga, as
resident physician, is an employee of SJDH because like Dr. Casumpang, the hospital, through
its screening committee, scrutinized and determined her qualifications, fitness,and competence
before engaging her services; the hospital also exercised control over her work.
The dispositive portion of the decision reads:
414 | P a g e
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants,
ordering the latter to pay solidarily and severally plaintiff the following:
(1) Moral damages in the amount of P500,000.00;
(2) Costs of burial and funeral in the amount of P45,000.00;
(3) Attorneys fees of P50,000.00; and
(4) Cost of this suit.
SO ORDERED.
The petitioners appealed the decision to the CA.
In its decision dated October 29, 2004, the CA affirmed en toto the RTCs ruling, finding that
SJDH and its attending physicians failed to exercise the minimum medical care, attention, and
treatment expected of an ordinary doctor under like circumstances.
The CA found the petitioning doctors failure to read even the most basic signs of "dengue fever"
expected of an ordinary doctor as medical negligence. The CA also considered the petitioning
doctors testimonies as self-serving, noting that they presented no other evidence to prove that
they exercised due diligence in diagnosing Edmers illness.
The CA likewise found Dr. Rodolfo Jaudians (Dr. Jaudian) testimony admissible. It gave
credence to his opinion26that: (1) given the exhibited symptoms of the patient, dengue fever
should definitely be considered, and bronchopneumonia could be reasonably ruled out; and (2)
dengue fever could have been detected earlier than 7:30 in the evening of April 23, 1988 because
the symptoms were already evident; and agreed with the RTC that the petitioning doctors should
not have solely relied on the chest-x-ray result, as it was not conclusive.
On SJDHs solidary liability, the CA ruled that the hospitals liability is based on Article 2180 of
the Civil Code. The CA opined that the control which the hospital exercises over its consultants,
the hospitals power to hire and terminate their services, all fulfill the employer-employee
relationship requirement under Article 2180.
Lastly, the CA held that SJDH failed to adduce evidence showing that it exercised the diligence
of a good father of a family in the hiring and the supervision of its physicians.
415 | P a g e
The petitioners separately moved to reconsider the CA decision, but the CA denied their motion
in its resolution of January 12, 2006; hence, the present consolidated petitions pursuant to Rule
45 of the Rules of Court.
The Petitions
I. Dr. Casumpangs Position (G.R. No. 171127)
circumstances. He claims that his initial diagnosis of bronchopneumonia was supported by the
chest x-ray result.
Dr. Casumpang also contends that dengue fever occurs only after several days of confinement.
He alleged that when he had suspected that Edmer might be suffering from dengue fever, he
immediately attended and treated him.
Dr. Casumpang likewise raised serious doubts on Dr. Jaudians credibility, arguing that the CA
erred in appreciating his testimony as an expert witness since he lacked the necessary training,
skills, and experience as a specialist in dengue fever cases.
II. Dr. Sangas Position (G.R. No. 171217)
In her petition, Dr. Sanga faults the CA for holding her responsible for Edmers wrong diagnosis,
stressing that the function of making the diagnosis and undertaking the medical treatment
devolved upon Dr. Casumpang, the doctor assigned to Edmer, and who confirmed
"bronchopneumonia."
Dr. Sanga also alleged that she exercised prudence in performing her duties as a physician,
underscoring that it was her professional intervention that led to the correct diagnosis of "Dengue
Hemorrhagic Fever." Furthermore, Edmers Complete Blood Count (CBC) showed leukopenia
and an increase in balance as shown by the differential count, demonstrating that Edmers
infection, more or less, is of bacterial and not viral in nature.
Dr. Sanga as well argued that there is no causal relation between the alleged erroneous diagnosis
and medication for "Bronchopneumonia," and Edmers death due to "Dengue Hemorrhagic
Fever."
Lastly, she claimed that Dr. Jaudianis not a qualified expert witness since he never presented any
evidence of formal residency training and fellowship status in Pediatrics.
III. SJDHs Position (G.R. No. 171228)
416 | P a g e
SJDH, on the other hand, disclaims liability by asserting that Dr. Casumpang and Dr. Sanga are
mere independent contractors and "consultants" (not employees) of the hospital. SJDH alleges
that since it did not exercise control or supervision over the consultants exercise of medical
profession, there is no employer-employee relationship between them, and consequently, Article
2180 of the Civil Code does not apply.
SJDH likewise anchored the absence of employer-employee relationship on the following
circumstances: (1) SJDH does not hire consultants; it only grants them privileges to admit
patients in the hospital through accreditation; (2) SJDH does not pay the consultants wages
similar to an ordinary employee; (3) the consultants earn their own professional fees directly
from their patients; SJDH does not fire or terminate their services; and (4) SJDH does not control
or interfere with the manner and the means the consultants use in the treatment of their patients.
It merely provides them with adequate space in exchange for rental payment.
Furthermore, SJDH claims that the CA erroneously applied the control test when it treated the
hospitals practice of accrediting consultants as an exercise of control. It explained that the
control contemplated by law is that which the employer exercises over the: (i) end result; and the
(ii) manner and means to be used to reach this end, and not any kind of control, however
significant, in accrediting the consultants.
SJDH moreover contends that even if the petitioning doctors are considered employees and not
merely consultants of the hospital, SJDH cannot still be held solidarily liable under Article 2180
of the Civil Code because it observed the diligence of a good father of a family in their selection
and supervision as shown by the following: (1) the adequate measures that the hospital
undertakes to ascertain the petitioning doctors qualifications and medical competence; and (2)
the documentary evidence that the petitioning doctors presented to prove their competence in the
field of pediatrics.27
SJDH likewise faults the CA for ruling that the petitioning doctors are its agents, claiming that
this theory, aside from being inconsistent with the CAs finding of employment relationship, is
unfounded because: first, the petitioning doctors are independent contractors, not agents of
SJDH; and second, as a medical institution, SJDH cannot practice medicine, much more, extend
its personality to physicians to practice medicine on its behalf.
Lastly, SJDH maintains that the petitioning doctors arrived at an intelligently deduced and
correct diagnosis. It claimed that based on Edmer's signs and symptoms at the time of admission
(i.e., one day fever,28 bacterial infection,29 and lack of hemorrhagic manifestations30), there was
no reasonable indication yet that he was suffering from dengue fever, and accordingly, their
failure to diagnose dengue fever, does not constitute negligence on their part.
The Case for the Respondent
417 | P a g e
In his comment, the respondent submits that the issues the petitioners raised are mainly factual in
nature, which a petition for review on certiorari under Rule 45 of the Rules of Courts does not
allow.
In any case, he contends that the petitioning doctors were negligent in conducting their medical
examination and diagnosis based on the following: (1) the petitioning doctors failed to timely
diagnose Edmers correct illness due to their non-observance of the proper and acceptable
standard of medical examination; (2) the petitioning doctors medical examination was not
comprehensive, as they were always in a rush; and (3) the petitioning doctors employed a
guessing game in diagnosing bronchopneumonia.
The respondent also alleges that there is a causal connection between the petitioning doctors
negligence and Edmers untimely death, warranting the claim for damages.
The respondent, too, asserted that SJDH is also negligent because it was not equipped with
proper paging system, has no bronchoscope, and its doctors are not proportionate to the number
of its patients. He also pointed out that out of the seven resident physicians in the hospital, only
two resident physicians were doing rounds at the time of his sons confinement.
The Issues
The case presents to us the following issues:
1. Whether or not the petitioning doctors had committed "inexcusable lack of precaution"
in diagnosing and in treating the patient;
2. Whether or not the petitioner hospital is solidarily liable with the petitioning doctors;
3. Whether or not there is a causal connection between the petitioners negligent
act/omission and the patients resulting death; and
4. Whether or not the lower courts erred in considering Dr. Rodolfo Tabangcora Jaudian
as an expert witness.
Our Ruling
We find the petition partly meritorious.
A Petition for Review on Certiorari
under Rule 45 of the Rules of Court
is Limited to Questions of Law.
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The settled rule is that the Courts jurisdiction in a petition for review on certiorari under Rule 45
of the Rules of Court is limited only to the review of pure questions of law. It is not the Courts
function to inquire on the veracity of the appellate courts factual findings and conclusions; this
Court is not a trier of facts.31
A question of law arises when there is doubt as to what the law is on a certain state of facts,
while there is a question of fact when the doubt arises as to the truth or falsity of the alleged
facts.32
These consolidated petitions before us involve mixed questions of fact and law. As a rule, we do
not resolve questions of fact. However, in determining the legal question of whether the
respondent is entitled to claim damages under Article 2176 of the Civil Code for the petitioners
alleged medical malpractice, the determination of the factual issues i.e., whether the petitioning
doctors were grossly negligent in diagnosing the patients illness, whether there is causal relation
between the petitioners act/omission and the patients resulting death, and whether Dr. Jaudian is
qualified as an expert witness must necessarily be resolved. We resolve these factual questions
solely for the purpose of determining the legal issues raised.
Medical Malpractice Suit as a
Specialized Area of Tort Law
The claim for damages is based on the petitioning doctors negligence in diagnosing and treating
To successfully pursue a medical malpractice suit, the plaintiff (in this case, the deceased
patients heir) must prove that the doctor either failed to do what a reasonably prudent doctor
would have done, or did what a reasonably prudent doctor would not have done; and the act or
omission had caused injury to the patient.34 The patients heir/s bears the burden of proving
his/her cause of action.
causation.
419 | P a g e
Duty refers to the standard of behavior that imposes restrictions on one's conduct.35 It requires
proof of professional relationship between the physician and the patient. Without the professional
relationship, a physician owes no duty to the patient, and cannot therefore incur any liability.
A physician-patient relationship is created when a patient engages the services of a
physician,36 and the latter accepts or agrees to provide care to the patient.37 The establishment of
this relationship is consensual,38 and the acceptance by the physician essential. The mere fact that
an individual approaches a physician and seeks diagnosis, advice or treatment does not create the
duty of care unless the physician agrees.39
The consent needed to create the relationship does not always need to be express.40 In the
absence of an express agreement, a physician-patient relationship may be implied from the
physicians affirmative action to diagnose and/or treat a patient, or in his participation in such
diagnosis and/or treatment.41 The usual illustration would be the case of a patient who goes to a
hospital or a clinic, and is examined and treated by the doctor. In this case, we can infer, based on
the established and customary practice in the medical community that a patient-physician
relationship exists.
Once a physician-patient relationship is established, the legal duty of care follows. The doctor
accordingly becomes duty-bound to use at least the same standard of care that a reasonably
competent doctor would use to treat a medical condition under similar circumstances.
Breach of duty occurs when the doctor fails to comply with, or improperly performs his duties
under professional standards. This determination is both factual and legal, and is specific to each
individual case.42
If the patient, as a result of the breach of duty, is injured in body or in health, actionable
malpractice is committed, entitling the patient to damages.43
To successfully claim damages, the patient must lastly prove the causal relation between the
negligence and the injury. This connection must be direct, natural, and should be unbroken by
any intervening efficient causes. In other words, the negligence must be the proximate cause of
the injury.44 The injury or damage is proximately caused by the physicians negligence when it
appears, based on the evidence and the expert testimony, that the negligence played an integral
part in causing the injury or damage, and that the injury or damage was either a direct result, or a
reasonably probable consequence of the physicians negligence.45
a. The Relationship Between Dr. Casumpang and Edmer
In the present case, the physician-patient relationship between Dr. Casumpang and Edmer was
created when the latters parents sought the medical services of Dr. Casumpang, and the latter
420 | P a g e
knowingly accepted Edmer as a patient. Dr. Casumpangs acceptance is implied from his
affirmative examination, diagnosis and treatment of Edmer. On the other hand, Edmers parents,
on their sons behalf, manifested their consent by availing of the benefits of their health care
plan, and by accepting the hospitals assigned doctor without objections.
b. The Relationship Between Dr. Sanga and Edmer
With respect to Dr. Sanga, her professional relationship with Edmer arose when she assumed the
obligation to provide resident supervision over the latter. As second year resident doctor tasked
to do rounds and assist other physicians, Dr. Sanga is deemed to have agreed to the creation of
physician-patient relationship with the hospitals patients when she participated in the diagnosis
and prescribed a course of treatment for Edmer.
The undisputed evidence shows that Dr. Sanga examined Edmer twice (at around 12:00 and 3:30
in the afternoon of April 23, 1988),and in both instances, she prescribed treatment and
participated in the diagnosis of Edmers medical condition. Her affirmative acts amounted to her
acceptance of the physician-patient relationship, and incidentally, the legal duty of care that went
with it.
In Jarcia, Jr. v. People of the Philippines,46 the Court found the doctors who merely passed by and
were requested to attend to the patient, liable for medical malpractice. It held that a physicianpatient relationship was established when they examined the patient, and later assured the mother
that everything was fine.
In the US case of Mead v. Legacy Health System,47 the Court also considered the rendering of an
opinion in the course of the patients care as the doctors assent to the physician-patient
relationship. It ruled that the relationship was formed because of the doctors affirmative action.
Likewise, in Wax v. Johnson,48 the court found that a physician patient relationship was formed
between a physician who "contracts, agrees, undertakes, or otherwise assumes" the obligation to
provide resident supervision at a teaching hospital, and the patient with whom the doctor had no
direct or indirect contract.
Standard of Care and Breach of Duty
A determination of whether or not the petitioning doctors met the required standard of care
involves a question of mixed fact and law; it is factual as medical negligence cases are highly
technical in nature, requiring the presentation of expert witnesses to provide guidance to the
court on matters clearly falling within the domain of medical science, and legal, insofar as the
Court, after evaluating the expert testimonies, and guided by medical literature, learned treatises,
and its fund of common knowledge, ultimately determines whether breach of duty took place.
Whether or not Dr. Casumpang and Dr. Sanga committed a breach of duty is to be measured by
421 | P a g e
the yardstick of professional standards observed by the other members of the medical profession
in good standing under similar circumstances.49 It is in this aspect of medical malpractice that
expert testimony is essential to establish not only the professional standards observed in the
medical community, but also that the physicians conduct in the treatment of care falls below
such standard.50
In the present case, expert testimony is crucial in determining first, the standard medical
examinations, tests, and procedures that the attending physicians should have undertaken in the
diagnosis and treatment of dengue fever; and second, the dengue fever signs and symptoms that
the attending physicians should have noticed and considered.
Both the RTC and the CA relied largely on Dr. Jaudians expert testimony on dengue diagnosis
and management to support their finding that the petitioning doctors were guilty of breach of
duty of care.
Dr. Jaudian testified that Edmers rapid breathing, chest and stomach pain, fever, and the
presence of blood in his saliva are classic symptoms of dengue fever. According to him, if the
patient was admitted for chest pain, abdominal pain, and difficulty in breathing coupled with
fever, dengue fever should definitely be considered;51 if the patient spits coffee ground with the
presence of blood, and the patients platelet count drops to 47,000, it becomes a clear case of
dengue fever, and bronchopneumonia can be reasonably ruled out.52
Furthermore, the standard of care according to Dr. Jaudian is to administer oxygen inhalation,
analgesic, and fluid infusion or dextrose.53 If the patient had twice vomited fresh blood and
thrombocytopenia has already occurred, the doctor should order blood transfusion, monitoring of
the patient every 30 minutes, hemostatic to stop bleeding, and oxygen if there is difficulty in
breathing.54
We find that Dr. Casumpang, as Edmers attending physician, did not act according to these
standards and, hence, was guilty of breach of duty. We do not find Dr. Sanga liable for the
reasons discussed below.
Dr. Casumpangs Negligence
At the trial, Dr. Casumpang declared that a doctors impression regarding a patients illness is
90% based on the physical examination, the information given by the patient or the latters
parents, and the patients medical history.55 He testified that he did not consider either dengue
fever or dengue hemorrhagic fever because the patients history showed that Edmer had low
breath and voluntary submission, and that he was up and about playing basketball.56 He based his
422 | P a g e
diagnosis of bronchopneumonia on the following observations: "difficulty in breathing, clearing

run nostril, harsh breath sound, tight air, and sivilant sound."57
It will be recalled that during Dr. Casumpangs first and second visits to Edmer, he already had
knowledge of Edmers laboratory test result (CBC), medical history, and symptoms (i.e., fever,
rashes, rapid breathing, chest and stomach pain, throat irritation, difficulty in breathing, and
traces of blood in the sputum). However, these information did not lead Dr. Casumpang to the
possibility that Edmer could be suffering from either dengue fever, or dengue hemorrhagic fever,
as he clung to his diagnosis of broncho pneumonia. This means that given the symptoms
exhibited, Dr. Casumpang already ruled out the possibility of other diseases like dengue.
In other words, it was lost on Dr. Casumpang that the characteristic symptoms of dengue (as Dr.
Jaudian testified) are: patients rapid breathing; chest and stomach pain; fever; and the presence
of blood in his saliva. All these manifestations were present and known to Dr. Casumpang at the
time of his first and second visits to Edmer. While he noted some of these symptoms in
confirming bronchopneumonia, he did not seem to have considered the patients other
manifestations in ruling out dengue fever or dengue hemorrhagic fever.58 To our mind, Dr.
Casumpang selectively appreciated some, and not all of the symptoms; worse, he casually
ignored the pieces of information that could have been material in detecting dengue fever. This is
evident from the testimony of Mrs. Cortejo:
TSN, Mrs. Cortejo, November 27, 1990
Q: Now, when Dr. Casumpang visited your son for the first time at 5:30 p.m., what did he do, if
any?
A: He examined my son by using stethoscope and after that, he confirmed to me that my son was
suffering from broncho pneumonia.
Q: After he confirmed that your son was suffering broncho pneumonia, what did you say if any?
A: Again, I told Dr. Casumpang, how come it was broncho pneumonia when my son has no
cough or colds.
Q: What was the answer of Dr. Casumpang to your statement?
xxxx
A: And then, Dr. Casumpang answered "THATS THE USUAL BRONCHO PNEUMONIA, NO
COLDS, NO PHLEGM."
Q: How long did Dr. Casumpang stay in your sons room?
423 | P a g e
A: He stayed for a minute or 2.

xxxx
Q: When Dr. Casumpang arrived at 9:00 oclock a.m. on April 23, what did you tell him, if any?
xxxx
A: I told Dr. Casumpang After examining my son using stethoscope and nothing more, I told
Dr. Casumpang about the traces of blood in my sons sputum and I told him what is all about and
he has throat irritation.
Q: What did he tell you?
A: He just nodded his head but he did not take the initiative of looking at the throat of my son.
Q: So what happened after that?
A: I also told Dr. Casumpang about his chest pain and also stomach pain.
Q: So what did Dr. Casumpang do after you have narrated all these complaints of your son?
A: Nothing. He also noticed the rapid breathing of my son and my son was almost moving
because of rapid breathing and he is swaying in the bed.
Q: Do you know what action was taken by Dr. Casumpang when you told him that your son is
experiencing a rapid breathing?
A: No action. He just asked me if my son has an asthma but I said none.
Q: So how long did Dr. Casumpang stay and attended your son on April 23?
A: More or less two (2) minutes then I followed him up to the door and I repeated about the fever
of my son.
Q: What did he tell you, if any, regarding that information you gave him that your son had a
fever?
A: He said, that is broncho pneumonia, Its only being active now. [Emphasis supplied]
We also find it strange why Dr. Casumpang did not even bother to check Edmers throat despite
knowing that as early as 9:00 in the morning of April 23, 1988, Edmer had blood streaks in his
424 | P a g e
sputum. Neither did Dr. Casumpang order confirmatory tests to confirm the source of bleeding.
The Physicians Progress Notes59 stated: "Blood streaks on phlegm can be due to bronchial
irritation or congestion," which clearly showed that Dr. Casumpang merely assumed, without
confirmatory physical examination, that bronchopneumonia caused the bleeding.
Dr. Jaudian likewise opined that Dr. Casumpangs medical examination was not comprehensive
enough to reasonably lead to a correct diagnosis.60 Dr. Casumpang only used a stethoscope in
coming up with the diagnosis that Edmer was suffering from bronchopneumonia; he never
confirmed this finding with the use of a bronchoscope. Furthermore, Dr. Casumpang based his
diagnosis largely on the chest x-ray result that is generally inconclusive.61
Significantly, it was only at around 5:00 in the afternoon of April 23, 1988 (after Edmers third
episode of bleeding) that Dr. Casumpang ordered the conduct of hematocrit, hemoglobin, blood
typing, blood transfusion and tourniquet tests. These tests came too late, as proven by: (1) the
blood test results that came at about 6:00 in the evening, confirming that Edmers illness had
developed to "Dengue Hemorrhagic Fever;" and (2) Dr. Jaudians testimony that "dengue fever
could have been detected earlier than 7:30 in the evening of April 23, 1988 because the
symptoms were already evident."62
In Spouses Flores v. Spouses Pineda,63 a case involving a medical malpractice suit, the Court
ruled that the petitioner doctors were negligent because they failed to immediately order tests to
confirm the patients illness. Despite the doctors suspicion that the patient could be suffering
from diabetes, the former still proceeded to the D&C operation. In that case, expert testimony
showed that tests should have been ordered immediately on admission to the hospital in view of
the symptoms presented. The Court held:
When a patient exhibits symptoms typical of a particular disease, these symptoms should, at the
very least, alert the physician of the possibility that the patient may be afflicted with the
suspected disease.
The Court also ruled that reasonable prudence would have shown that diabetes and its
complications were foreseeable harm. However, the petitioner doctors failed to take this into
consideration and proceeded with the D&C operation. Thus, the Court ruled that they failed to
comply with their duty to observe the standard of care to be given to hyperglycemic/diabetic
patients.
Similarly, in Jarcia,64 involving the negligence of the doctors in failing to exercise reasonable
prudence in ascertaining the extent of the patients injuries, this Court declared that:
In failing to perform an extensive medical examination to determine the extent of Roy Jr.s
injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the medical
425 | P a g e
profession. Assuming for the sake of argument that they did not have the capacity to make such
thorough evaluation at that stage, they should have referred the patient to another doctor with
sufficient training and experience instead of assuring him and his mother that everything was all
right. [Emphasis supplied]
Even assuming that Edmers symptoms completely coincided with the diagnosis of
bronchopneumonia (so that this diagnosis could not be considered "wrong"), we still find Dr.
Casumpang guilty of negligence.
First, we emphasize that we do not decide the correctness of a doctors diagnosis, or the accuracy
of the medical findings and treatment. Our duty in medical malpractice cases is to decide based
on the evidence adduced and expert opinion presented whether a breach of duty took place.
Second, we clarify that a wrong diagnosis is not by itself medical malpractice.65 Physicians are
generally not liable for damages resulting from a bona fide error of judgment. Nonetheless, when
the physicians erroneous diagnosis was the result of negligent conduct (e.g., neglect of medical
history, failure to order the appropriate tests, failure to recognize symptoms), it becomes an
evidence of medical malpractice.
Third, we also note that medicine is not an exact science;66 and doctors, or even specialists, are
not expected to give a 100% accurate diagnosis in treating patients who come to their clinic for
consultations. Error is possible as the exercise of judgment is called for in considering and
reading the exhibited symptoms, the results of tests, and in arriving at definitive conclusions. But
in doing all these, the doctor must have acted according to acceptable medical practice standards.
bronchopneumonia, Dr. Casumpang selectively appreciated some and not all of the symptoms
Dr. Casumpang failed to timely detect dengue fever, which failure, especially when reasonable
Apart from failing to promptly detect dengue fever, Dr. Casumpang also failed to promptly
undertake the proper medical management needed for this disease.
As Dr. Jaudian opined, the standard medical procedure once the patient had exhibited the classic
symptoms of dengue fever should have been: oxygen inhalation, use of analgesic, and infusion of
fluids or dextrose;67 and once the patient had twice vomited fresh blood, the doctor should have
426 | P a g e
ordered: blood transfusion, monitoring of the patient every 30 minutes, hemostatic to stop
bleeding, and oxygen if there is difficulty in breathing.68
Dr. Casumpang failed to measure up to these standards. The evidence strongly suggests that he
ordered a transfusion of platelet concentrate instead of blood transfusion. The tourniquet test was
only conducted after Edmers second episode of bleeding, and the medical management (as
reflected in the records) did not include antibiotic therapy and complete physical examination.
Dr. Casumpangs testimony states:
Q: Now, after entertaining After considering that the patient Edmer Cortero was already
suffering from dengue hemorrhagic fever, what did you do, if any?
A: We ordered close monitoring of the blood pressure, the cardiac rate and respiratory rate of the
patient.
Q: Now, was your instructions carried on?
A: Yes, sir.
Q: What was the blood pressure of the patient?
A: During those times, the blood pressure of the patient was even normal during those times.
Q: How about the respiratory rate?
A: The respiratory rate was fast because the patient in the beginning since admission had
difficulty in breathing.
Q: Then, after that, what did you do with the patient? Doctor?
A: We transfused platelet concentrate and at the same time, we monitor [sic] the patient.
Q: Then, who monitor [sic] the patient?
A: The pediatric resident on duty at that time.
Q: Now, what happened after that?
Q: While monitoring the patient, all his vital signs were _____; his blood pressure was normal so
we continued with the supportive management at that time.
Q: Now, after that?
427 | P a g e
A: In the evening of April 23, 1988, I stayed in the hospital and I was informed by the pediatric
resident on duty at around 11:15 in the evening that the blood pressure of the patient went down
to .60 palpatory.
Q: What did you do upon receipt of that information?
A: I immediately went up to the room of the patient and we changed the IV fluid from the
present fluid which was D5 0.3 sodium chloride to lactated ringers solution.
Q: You mean to say you increased the dengue [sic] of the intervenus [sic] fluid?
A: We changed the IV fluid because lactated ringers was necessary to resume the volume and to
bring back the blood pressure, to increase the blood pressure. [Emphasis supplied]
Although Dr. Casumpang presented the testimonies of Dr. Rodolfo Jagonap and Dr. Ellewelyn
Pasion (Dr. Pasion), Personnel Officer and Medical Director of SJDH, respectively as well as the
testimonies of Dr. Livelo and Dr. Reyes (the radiologist who read Edmers chest x-ray result),
these witnesses failed to dispute the standard of action that Dr. Jaudian established in his expert
opinion. We cannot consider them expert witnesses either for the sole reason that they did not
testify on the standard of care in dengue cases.69
On the whole, after examining the totality of the adduced evidence, we find that the lower courts
correctly did not rely on Dr. Casumpangs claim that he exercised prudence and due diligence in
handling Edmers case. Aside from being self-serving, his claim is not supported by competent
evidence. As the lower courts did, we rely on the uncontroverted fact that he failed, as a medical
professional, to observe the most prudent medical procedure under the circumstances in
diagnosing and treating Edmer.
Dr. Sanga is Not Liable for Negligence
In considering the case of Dr. Sanga, the junior resident physician who was on-duty at the time
of Edmers confinement, we see the need to draw distinctions between the responsibilities and
corresponding liability of Dr. Casumpang, as the attending physician, and that of Dr. Sanga.
In his testimony, Dr. Pasion declared that resident applicants are generally doctors of medicine
licensed to practice in the Philippines and who would like to pursue a particular specialty.70 They
are usually the front line doctors responsible for the first contact with the patient. During the
scope of the residency program,71 resident physicians (or "residents")72 function under the
supervision of attending physicians73 or of the hospitals teaching staff. Under this arrangement,
residents operate merely as subordinates who usually defer to the attending physician on the
decision to be made and on the action to be taken.
428 | P a g e
The attending physician, on the other hand, is primarily responsible for managing the residents
exercise of duties. While attending and resident physicians share the collective responsibility to
deliver safe and appropriate care to the patients,74 it is the attending physician who assumes the
principal responsibility of patient care.75Because he/she exercises a supervisory role over the
resident, and is ultimately responsible for the diagnosis and treatment of the patient, the
standards applicable to and the liability of the resident for medical malpractice is theoretically
less than that of the attending physician. These relative burdens and distinctions, however, do not
translate to immunity from the legal duty of care for residents,76 or from the responsibility arising
from their own negligent act.
In Jenkins v. Clark,77 the Ohio Court of Appeals held that the applicable standard of care in
medical malpractice cases involving first-year residents was that of a reasonably prudent
physician and not that of interns. According to Jenkins:
It is clear that the standard of care required of physicians is not an individualized one but of
physicians in general in the community. In order to establish medical malpractice, it must be
shown by a preponderance of the evidence that a physician did some particular thing or things
that a physician or surgeon of ordinary skill, care and diligence would not have done under like
or similar conditions or circumstances, or that he failed or omitted to do some particular thing or
things that a physician or surgeon of ordinary skill, care and diligence would have done under
like or similar conditions or circumstances, and that the inquiry complained of was the direct
result of such doing or failing to do such thing or things.
We note that the standard of instruction given by the court was indeed a proper one. It clearly
informed the jury that the medical care required is that of reasonably careful physicians or
hospital emergency room operators, not of interns or residents. [Emphasis supplied]
A decade later, Centman v. Cobb,78 affirmed the Jenkins ruling and held that interns and first-year
residents are "practitioners of medicine required to exercise the same standard of care applicable
to physicians with unlimited licenses to practice." The Indiana Court held that although a firstyear resident practices under a temporary medical permit, he/she impliedly contracts that he/she
has the reasonable and ordinary qualifications of her profession and that he/she will exercise
reasonable skill, diligence, and care in treating the patient.
We find that Dr. Sanga was not independently negligent. Although she had greater patient
exposure, and was subject to the same standard of care applicable to attending physicians, we
believe that a finding of negligence should also depend on several competing factors, among
them, her authority to make her own diagnosis, the degree of supervision of the attending
physician over her, and the shared responsibility between her and the attending physicians.
429 | P a g e
In this case, before Dr. Sanga attended to Edmer, both Dr. Livelo and Dr. Casumpang had
diagnosed Edmer with bronchopneumonia. In her testimony, Dr. Sanga admitted that she had
been briefed about Edmers condition, his medical history, and initial diagnosis;79 and based on
these pieces of information, she confirmed the finding of bronchopneumonia.
Dr. Sanga likewise duly reported to Dr. Casumpang, who admitted receiving updates regarding
Edmers condition.80 There is also evidence supporting Dr. Sangas claim that she extended
diligent care to Edmer. In fact, when she suspected during Edmers second episode of
bleeding that Edmer could be suffering from dengue fever, she wasted no time in conducting
the necessary tests, and promptly notified Dr. Casumpang about the incident. Indubitably, her
medical assistance led to the finding of dengue fever.
We note however, that during Edmers second episode of bleeding,81 Dr. Sanga failed to
immediately examine and note the cause of the blood specimen. Like Dr. Casumpang, she
merely assumed that the blood in Edmers phlegm was caused by bronchopneumonia. Her
testimony states:
TSN, June 8, 1993:
Q: Let us get this clear, you said that the father told you the patient cocked [sic] out phlegm.
A: With blood streak.
Q: Now, you stated specimen, were you not able to examine the specimen?
A: No, sir, I did not because according to the father he wash [sic] his hands.
xxxx
Q: Now, from you knowledge, what does that indicate if the patient expels a phlegm and blood
streak?
A: If a patient cocked [sic] out phlegm then the specimen could have come from the lung
alone.82 [Emphasis supplied]
xxxx
TSN, June 17, 1993:
Q: Now, in the first meeting you had, when that was relayed to you by the father that Edmer
Cortejo had coughed out blood, what medical action did you take?
430 | P a g e
A: I examined the patient and I thought that, that coughed out phlegm was a product of broncho
pneumonia.
xxxx
Q: So what examination did you specifically conduct to see that there was no internal bleeding?
A: At that time I did not do anything to determine the cause of coughing of the blood because I
presumed that it was a mucous (sic) produced by broncho pneumonia, And besides the patient
did not even show any signs of any other illness at that time.83
Based on her statements we find that Dr. Sanga was not entirely faultless. Nevertheless, her
failure to discern the import of Edmers second bleeding does not necessarily amount to
negligence as the respondent himself admitted that Dr. Sanga failed to examine the blood
specimen because he wash edit away. In addition, considering the diagnosis previously made by
two doctors, and the uncontroverted fact that the burden of final diagnosis pertains to the
attending physician (in this case, Dr. Casumpang), we believe that Dr. Sangas error was merely
an honest mistake of judgment influenced in no small measure by her status in the hospital
hierarchy; hence, she should not be held liable for medical negligence.
Dr. Jaudians Professional Competence and Credibility
One of the critical issues the petitioners raised in the proceedings before the lower court and
before this Court was Dr. Jaudians competence and credibility as an expert witness. The
petitioners tried to discredit his expert testimony on the ground that he lacked the proper training
and fellowship status in pediatrics.
Criteria in Qualifying as an Expert Witness
The competence of an expert witness is a matter for the trial court to decide upon in the exercise
of its discretion. The test of qualification is necessarily a relative one, depending upon the subject
matter of the investigation, and the fitness of the expert witness.84 In our jurisdiction, the
criterion remains to be the expert witness special knowledge experience and practical training
that qualify him/her to explain highly technical medical matters to the Court.
In Ramos v. Court of Appeals,85 the Court found the expert witness, who is a pulmonologist, not
qualified to testify on the field of anesthesiology. Similarly, in Cereno v. Court of Appeals,86 a
2012 case involving medical negligence, the Court excluded the testimony of an expert witness
whose specialty was anesthesiology, and concluded that an anesthesiologist cannot be considered
an expert in the field of surgery or even in surgical practices and diagnosis.
Interestingly in this case, Dr. Jaudian, the expert witness was admittedly not a pediatrician but a
practicing physician who specializes in pathology.87 He likewise does not possess any formal
431 | P a g e
residency training in pediatrics. Nonetheless, both the lower courts found his knowledge
acquired through study and practical experience sufficient to advance an expert opinion on
dengue-related cases.
We agree with the lower courts.
A close scrutiny of Ramos and Cereno reveals that the Court primarily based the witnesses
disqualification to testify as an expert on their incapacity to shed light on the standard of care
that must be observed by the defendant-physicians. That the expert witnesses specialties do not
match the physicians practice area only constituted, at most, one of the considerations that
should not be taken out of context. After all, the sole function of a medical expert witness,
regardless of his/her specialty, is to afford assistance to the courts on medical matters, and to
explain the medical facts in issue.
Furthermore, there was no reasonable indication in Ramos and Cereno that the expert witnesses
possess a sufficient familiarity with the standard of care applicable to the physicians specialties.
US jurisprudence on medical malpractice demonstrated the trial courts wide latitude of
discretion in allowing a specialist from another field to testify against a defendant specialist.
In Brown v. Sims,88 a neurosurgeon was found competent to give expert testimony regarding a
gynecologist's standard of pre-surgical care. In that case, the court held that since negligence was
not predicated on the gynecologists negligent performance of the operation, but primarily on the
claim that the pre-operative histories and physicals were inadequate, the neurosurgeon was
competent to testify as an expert.
Frost v. Mayo Clinic89 also allowed an orthopedic surgeon to testify against a neurologist in a
medical malpractice action. The court considered that the orthopedic surgeons opinion on the
"immediate need for decompression" need not come from a specialist in neurosurgery. The court
held that:
It is well established that "the testimony of a qualified medical doctor cannot be excluded simply
because he is not a specialist x x x." The matter of "x x x training and specialization of the
witness goes to the weight rather than admissibility x x x."
xxxx
It did not appear to the court that a medical doctor had to be a specialist in neurosurgery to
express the opinions permitted to be expressed by plaintiffs doctors, e.g., the immediate need for
a decompression in the light of certain neurological deficits in a post-laminectomy patient. As
stated above, there was no issue as to the proper execution of the neurosurgery. The medical
testimony supported plaintiffs theory of negligence and causation. (Citations omitted)
432 | P a g e
In another case,90 the court declared that it is the specialists knowledge of the requisite subject
matter, rather than his/her specialty that determines his/her qualification to testify.
Also in Evans v. Ohanesian,91 the court set a guideline in qualifying an expert witness:
To qualify a witness as a medical expert, it must be shown that the witness (1) has the required
professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him
to speak with authority on the subject; and (2) is familiar with the standard required of a
physician under similar circumstances; where a witness has disclosed sufficient knowledge of the
subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes
more to the weight of the evidence than to its admissibility.
xxxx
Nor is it critical whether a medical expert is a general practitioner or a specialist so long as he
exhibits knowledge of the subject. Where a duly licensed and practicing physician has gained
knowledge of the standard of care applicable to a specialty in which he is not directly engaged
but as to which he has an opinion based on education, experience, observation, or association wit
that specialty, his opinion is competent.(Emphasis supplied)
Finally, Brown v. Mladineo92 adhered to the principle that the witness familiarity, and not the
classification by title or specialty, which should control issues regarding the expert witness
qualifications:
The general rule as to expert testimony in medical malpractice actions is that "a specialist in a
particular branch within a profession will not be required." Most courts allow a doctor to testify
if they are satisfied of his familiarity with the standards of a specialty, though he may not
practice the specialty himself. One court explained that "it is the scope of the witness knowledge
and not the artificial classification by title that should govern the threshold question of
admissibility. (Citations omitted)
Application to the Present Case
In the case and the facts before us, we find that Dr. Jaudian is competent to testify on the
standard of care in dengue fever cases.1avvphi1
Although he specializes in pathology, it was established during trial that he had attended not less
than 30 seminars held by the Pediatric Society, had exposure in pediatrics, had been practicing
medicine for 16 years, and had handled not less than 50 dengue related cases.
As a licensed medical practitioner specializing in pathology, who had practical and relevant
exposure in pediatrics and dengue related cases, we are convinced that Dr. Jaudian demonstrated
433 | P a g e
sufficient familiarity with the standard of care to be applied in dengue fever cases. Furthermore,
we agree that he possesses knowledge and experience sufficient to qualify him to speak with
authority on the subject.
The Causation Between Dr. Casumpangs
Negligent Act/Omission, and the Patients
Dr. Jaudians testimony strongly suggests that due to Dr. Casumpangs failure to timely diagnose
Dr. Casumpang had discovered Edmers real illness, he still failed to promptly perform the
As the respondent had pointed out, dengue fever, if left untreated, could be a life threatening
disease. As in any fatal diseases, it requires immediate medical attention.93 With the correct and
timely diagnosis, coupled with the proper medical management, dengue fever is not a life
threatening disease and could easily be cured.94
Furthermore, as Dr. Jaudian testified, with adequate intensive care, the mortality rate of dengue
fever should fall to less than 2%. Hence, the survival of the patient is directly related to early and
proper management of the illness.95
To reiterate, Dr. Casumpang failed to timely diagnose Edmer with dengue fever despite the
presence of its characteristic symptoms; and as a consequence of the delayed diagnosis, he also
failed to promptly manage Edmers illness. Had he immediately conducted confirmatory tests,
(i.e., tourniquet tests and series of blood tests)and promptly administered the proper care and
management needed for dengue fever, the risk of complications or even death, could have been
substantially reduced.
Furthermore, medical literature on dengue shows that early diagnosis and management of dengue
is critical in reducing the risk of complications and avoiding further spread of the virus.96 That
Edmer later died of "Hypovolemic Shock/hemorrhagic shock," "Dengue Hemorrhagic Fever
Stage IV," a severe and fatal form of dengue fever, established the causal link between Dr.
Casumpangs negligence and the injury.
Based on these considerations, we rule that the respondent successfully proved the element of
causation.
Liability of SJDH
We now discuss the liability of the hospital.
434 | P a g e
doctors negligence but also for its own negligence. He claims that SJDH fell short of its duty of
circumstances:
(d) when Edmers oxygen was removed, the medical staff did not immediately provide
him with portable oxygen;
(e) when Edmer was about to be transferred to another hospital, SJDHs was not ready
and had no driver; and
(f) despite Edmers critical condition, there was no doctor attending to him from 5:30
p.m. of April 22, to 9:00 a.m. of April 23, 1988.
We affirm the hospitals liability not on the basis of Article 2180 of the Civil Code, but on the
There is No Employer-Employee Relationship
Between SJDH and the Petitioning Doctors
In determining whether an employer-employee relationship exists between the parties, the
following elements must be present: (1) selection and engagement of services; (2) payment of
wages; (3) the power to hire and fire; and (4) the power to control not only the end to be
achieved, but the means to be used in reaching such an end.97
Control, which is the most crucial among the elements, is not present in this case.
Based on the records, no evidence exists showing that SJDH exercised any degree of control
over the means, methods of procedure and manner by which the petitioning doctors conducted
and performed their medical profession. SJDH did not control their diagnosis and treatment.
Likewise, no evidence was presented to show that SJDH monitored, supervised, or directed the
435 | P a g e
petitioning doctors in the treatment and management of Edmers case. In these lights, the
petitioning doctors were not employees of SJDH, but were mere independent contractors.
SJDH is Solidarily Liable Based
on The Principle of Agency or Doctrine
of Apparent Authority
Despite the absence of employer-employee relationship between SJDH and the petitioning
doctors, SJDH is not free from liability.98
As a rule, hospitals are not liable for the negligence of its independent contractors. However, it
may be found liable if the physician or independent contractor acts as an ostensible agent of the
hospital. This exception is also known as the "doctrine of apparent authority."99
The US case of Gilbert v. Sycamore Municipal Hospital100 abrogated the hospitals immunity to
vicarious liability of independent contractor physicians. In that case, the Illinois Supreme Court
held that under the doctrine of apparent authority, hospitals could be found vicariously liable for
the negligence of an independent contractor:
Therefore, we hold that, under the doctrine of apparent authority, a hospital can be held
vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of
whether the physician is an independent contractor, unless the patient knows, or should have
known, that the physician is an independent contractor. The elements of the action have been set
out as follows:
For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1)
the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that
the individual who was alleged to be negligent was an employee or agent of the hospital; (2)
where the acts of the agent create the appearance of authority, the plaintiff must also prove that
the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance
upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.
(Emphasis supplied)
The doctrine was applied in Nogales v. Capitol Medical Center101 where this Court, through the
ponencia of Associate Justice Antonio T. Carpio, discussed the two factors in determining
hospital liability as follows:
The first factor focuses on the hospitals manifestations and is sometimes described as an inquiry
whether the hospital acted in a manner which would lead a reasonable person to conclude that
the individual who was alleged to be negligent was an employee or agent of the hospital. In this
436 | P a g e
regard, the hospital need not make express representations to the patient that the treating
physician is an employee of the hospital; rather a representation may be general and implied.
xxxx
The second factor focuses on the patient's reliance. It is sometimes characterized as an inquiry on
whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent
with ordinary care and prudence. (Citation omitted)
In sum, a hospital can be held vicariously liable for the negligent acts of a physician (or an
independent contractor) providing care at the hospital if the plaintiff can prove these two factors:
first, the hospitals manifestations; and second, the patients reliance.
a. Hospitals manifestations
It involves an inquiry on whether the hospital acted in a manner that would lead a reasonable
person to conclude that the individual alleged to be negligent was an employee or agent of the
hospital. As pointed out in Nogales, the hospital need not make express representations to the
patient that the physician or independent contractor is an employee of the hospital; representation
may be general and implied.102
In Pamperin v. Trinity Memorial Hospital,103 questions were raised on "what acts by the hospital
or its agent are sufficient to lead a reasonable person to conclude that the individual was an agent
of the hospital." In ruling that the hospitals manifestations can be proven without the express
representation by the hospital, the court relied on several cases from other jurisdictions, and held
that:
(1) the hospital, by providing emergency room care and by failing to advise patients that
they were being treated by the hospitals agent and not its employee, has created the
appearance of agency; and
(2) patients entering the hospital through the emergency room, could properly assume
that the treating doctors and staff of the hospital were acting on its behalf.1wphi1
In this case, the court considered the act of the hospital of holding itself out as provider of
complete medical care, and considered the hospital to have impliedly created the appearance of
authority.
b. Patients reliance
It involves an inquiry on whether the plaintiff acted in reliance on the conduct of the hospital or
its agent, consistent with ordinary care and prudence.104
437 | P a g e
In Pamperin, the court held that the important consideration in determining the patients reliance
is: whether the plaintiff is seeking care from the hospital itself or whether the plaintiff is looking
to the hospital merely as a place for his/her personal physician to provide medical care.105 Thus,
this requirement is deemed satisfied if the plaintiff can prove that he/she relied upon the hospital
to provide care and treatment, rather than upon a specific physician. In this case, we shall limit
the determination of the hospitals apparent authority to Dr. Casumpang, in view of our finding
that Dr. Sanga is not liable for negligence.
SJDH Clothed Dr. Casumpang With Apparent Authority
respondent to believe that he is an employee or agent of the hospital.
Based on the records, the respondent relied on SJDH rather than upon Dr. Casumpang, to care
and treat his son Edmer. His testimony during trial showed that he and his wife did not know any
doctors at SJDH; they also did not know that Dr. Casumpang was an independent contractor.
They brought their son to SJDH for diagnosis because of their family doctors referral. The
referral did not specifically point to Dr. Casumpang or even to Dr. Sanga, but to SJDH.
Significantly, the respondent had relied on SJDHs representation of Dr. Casumpangs authority.
To recall, when Mrs. Cortejo presented her Fortune Care card, she was initially referred to the
Fortune Care coordinator, who was then out of town. She was thereafter referred to Dr.
Casumpang, who is also accredited with Fortune Care. In both instances, SJDH through its agent
failed to advise Mrs. Cortejo that Dr. Casumpang is an independent contractor.
Mrs. Cortejo accepted Dr. Casumpangs services on the reasonable belief that such were being
provided by SJDH or its employees, agents, or servants. By referring Dr. Casumpang to care and
treat for Edmer, SJDH impliedly held out Dr. Casumpang, not only as an accredited member of
Fortune Care, but also as a member of its medical staff. SJDH cannot now disclaim liability since
there is no showing that Mrs. Cortejo or the respondent knew, or should have known, that Dr.
Casumpang is only an independent contractor of the hospital. In this case, estoppel has already
set in.
We also stress that Mrs. Cortejos use of health care plan (Fortune Care) did not affect SJDHs
liability. The only effect of the availment of her Fortune Care card benefits is that her choice of
physician is limited only to physicians who are accredited with Fortune Care. Thus, her use of
health care plan in this case only limited the choice of doctors (or coverage of services, amount
etc.) and not the liability of doctors or the hospital.
WHEREFORE, premises considered, this Court PARTLY GRANTS the consolidated petitions.
The Court finds Dr. Noel Casumpang and San Juan de Dios Hospital solidarily liable for
negligent medical practice. We SET ASIDE the finding of liability as to Dr. Ruby Miranda438 | P a g e
Sanga. The amounts of P45,000.00 as actual damages andP500,000.00 as moral damages should
each earn legal interest at the rate of six percent (6%) per annum computed from the date of the
judgment of the trial court. The Court AFFIRMS the rest of the Decision dated October 29, 2004
and the Resolution dated January 12, 2006 in CA-G.R. CV No. 56400.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
MARTIN S. VILLARAMA, JR.*
Associate Justice
JOSE CATRAL MENDOZA

Associate Justice
MARVIC M.V.F. LEONEN

Associate Justice
AT T E S T AT I O N
case was assigned to the write the opinion of the Court's Division.
ANTONIO T. CARPIO
Associate Justice
Chief Justice
439 | P a g e
DIGEST
FACTS: Mrs.JesusaCortejo brought her 11-year old son, EdmerCortejo (Edmer), to the
Emergency Room of the San Juan de Dios Hospital (SJDH) because of difficulty in breathing,
chest pain, stomach pain, and fever.
Dr Casumpang, the attending physician using only a stethoscope, he confirmed the initial
diagnosis of "Bronchopneumonia."
Mrs.Cortejo recalled entertaining doubts on the doctor's diagnosis. She immediately advised
Dr.Casumpang that Edmer had a high fever, and had no colds or cough10 but Dr.Casumpang
merely told her that her son's "bloodpressure is just being active,"11 and remarked that "that's the
usual bronchopneumonia, no colds, no phlegm."12
Dr.Casumpang next visited and examined Edmer at 9:00 in the morning the following day.13 Still
suspicious about his son's illness, Mrs.Cortejo again called Dr.Casumpang's attention and stated
that Edmer had a fever, throat irritation, as well as chest and stomach pain. Mrs.Cortejo also
alerted Dr.Casumpang about the traces of blood in Edmer's sputum. Dr.Casumpang simply
nodded, inquired if Edmer has an asthma, and reassured Mrs.Cortejo that Edmer's illness is
bronchopneumonia.14
streak"15prompting the respondent (Edmer's father) to request for a doctor at the nurses' station.16
Forty-five minutes later, Dr. Ruby Sanga-Miranda (Dr. Miranda), one of the resident physicians
of SJDH, arrived. She claimed that although aware that Edmer had vomited "phlegm with blood
streak," she failed to examine the blood specimen because the respondent washed it away. She
then advised the respondent to preserve the specimen for examination.
Thereafter, Dr. Miranda conducted a physical check-up covering Edmer's head, eyes, nose,
throat, lungs, skin and abdomen; and found that Edmer had a low-grade non-continuing fever,
and rashes that were not typical of dengue fever.Dr. Miranda then examined Edmer's "sputum
with blood" and noted that he was bleeding.
At 4:40 in the afternoon, Dr. Miranda called up Dr.Casumpang at his clinic and told him about
Edmer's condition.22 Upon being informed, Dr.Casumpang ordered several procedures done
including:hematocrit, hemoglobin, blood typing, blood transfusion and tourniquet tests.
Dr. Miranda advised Edmer's parents that the blood test results showed that Edmer was suffering
from "Dengue Hemorrhagic Fever." One hour later, Dr.Casumpang arrived at Edmer's room and
consented. Since the ICU was then full, Dr.Casumpang suggested to the respondent that they hire
a private nurse. The respondent, however, insisted on transferring his son to Makati Medical
Center.
After the respondent had signed the waiver, Dr.Casumpang, for the last time, checked Edmer's
440 | P a g e
At 12:00 midnight, Edmer, accompanied by his parents and by Dr.Casumpang, was transferred to
Makati Medical Center.
Dr.Casumpang immediately gave the attending physician the patient's clinical history and
Believing that Edmer's death was caused by the negligent and erroneous diagnosis of his doctors,
the respondent instituted an action for damages against SJDH, and its attending physicians:
Dr.Casumpang and Dr. Miranda (collectively referred to as the "petitioners") before the RTC of
Makati City.
1. ISSUE: Whether or not the petitioning doctors had committed "inexcusable lack of
precaution" in diagnosing and in treating the patient;
2. Whether or not the petitioner hospital is solidarity liable with the petitioning doctors;
3. Whether or not there is a causal connection between the petitioners' negligent
act/omission and the patient's resulting death; and
RULING: (1)The doctor committed inexcusable lack of precaution in diagnosing and treating
the patient.
Medical Malpractice Suit as a Specialized Area of Tort Law
The claim for damages is based on the petitioning doctors' negligence in diagnosing and treating
causation.
In the present case, the physician-patient relationship between Dr.Casumpang and Edmer was
created when the latter's parents sought the medical services of Dr.Casumpang, and the latter
knowingly accepted Edmer as a patient. With respect to Dr. Miranda, her professional
relationship with Edmer arose when she assumed the obligation to provide resident supervision
over the latter. Whether or not Dr.Casumpang and Dr. Miranda committed a breach of duty is to
441 | P a g e
be measured by the yardstick of professional standards observed by the other members of the
medical profession in good standing under similar circumstances.49 We find that
Dr.Casumpang, as Edmer's attending physician, did not act according to these standards
and, hence, was guilty of breach of duty. We do not find Dr. Miranda liable for the reasons
discussed below.
Dr.Casumpang's Negligence
At the trial, Dr.Casumpang declared that a doctor's impression regarding a patient's illness is
90% based on the physical examination, the information given by the patient or the latter's
parents, and the patient's medical history. It will be recalled that during Dr.Casumpang's first and
second visits to Edmer, he already had knowledge of Edmer's laboratory test result (CBC),
medical history, and symptoms (i.e., fever, rashes, rapid breathing, chest and stomach pain,
throat irritation, difficulty in breathing, and traces of blood in the sputum). However, these
information did not lead Dr.Casumpang to the possibility that Edmer could be suffering
from either dengue fever, or dengue hemorrhagic fever, as he clung to his diagnosis of
broncho pneumonia. This means that given the symptoms exhibited, Dr.Casumpang already
ruled out the possibility of other diseases like dengue.
bronchopneumonia, Dr.Casumpang selectively appreciated some and not all of the symptoms
Dr.Casumpang failed to timely detect dengue fever, which failure, especially when reasonable
Apart from failing to promptly detect dengue fever, Dr.Casumpang also failed to
promptlyundertake the proper medical management needed for this disease.
Dr. Miranda is Not Liable for Negligence
In considering the case of Dr. Miranda, the junior resident physician who was on-duty at the time
of Edmer's confinement, we see the need to draw distinctions between the responsibilities and
corresponding liability of Dr.Casumpang, as the attending physician, and that of Dr. Miranda. Dr.
Miranda was not entirely faultless. Nevertheless, her failure to discern the import of Edmer's
second bleeding does not necessarily amount to negligence as the respondent himself admitted
that Dr. Miranda failed to examine the blood specimen because he washed it away. In addition,
considering the diagnosis previously made by two doctors, and the uncontroverted fact that the
burden of final diagnosis pertains to the attending physician (in this case, Dr.Casumpang), we
believe that Dr. Miranda's error was merely an honest mistake of judgment influenced in no
small measure by her status in the hospital hierarchy; hence, she should not be held liable for
medical negligence.
442 | P a g e
(2) We now discuss the liability of the hospital.

doctors' negligence but also for its own negligence. He claims that SJDH fell short of its duty of
circumstances:
(d) when Edmer's oxygen was removed, the medical staff did not immediately provide him with
portable oxygen;
(e) when Edmer was about to be transferred to another hospital, SJDH's was not ready and had
no driver; and
(f) despiteEdmer's critical condition, there was no doctor attending to him from 5:30 p.m. of
April 22, to 9:00 a.m. of April 23, 1988.
We affirm the hospital's liability not on the basis of Article 2180 of the Civil Code, but on the
(3) The Causation BetweenDr.Casumpang's Negligent Act/Omission, and the Patient's
Dr.Jaudian's testimony strongly suggests that due to Dr. Casumpang's failure to timely diagnose
Dr. Casumpang had discovered Edmer's real illness, he still failed to promptly perform the

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 159132
December 18, 2008
443 | P a g e
FE CAYAO-LASAM, petitioner,
vs.
SPOUSES CLARO and EDITHA RAMOLETE, respondents.*
DECISION
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed
by Dr. Fe Cayao-Lasam (petitioner) seeking to annul the Decision1 dated July 4, 2003 of the
Court of Appeals (CA) in CA-G.R. SP No. 62206.
The antecedent facts:
On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha) was brought to
the Lorma Medical Center (LMC) in San Fernando, La Union due to vaginal bleeding. Upon
advice of petitioner relayed viatelephone, Editha was admitted to the LMC on the same day. A
pelvic sonogram2 was then conducted on Editha revealing the fetus weak cardiac pulsation.3 The
following day, Edithas repeat pelvic sonogram4 showed that aside from the fetus weak cardiac
pulsation, no fetal movement was also appreciated. Due to persistent and profuse vaginal
bleeding, petitioner advised Editha to undergo a Dilatation and Curettage Procedure (D&C) or
"raspa."
On July 30, 1994, petitioner performed the D&C procedure. Editha was discharged from the
hospital the following day.
On September 16, 1994, Editha was once again brought at the LMC, as she was suffering from
vomiting and severe abdominal pains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor
B. Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly informed Editha that there was a dead
fetus in the latters womb. After, Editha underwent laparotomy,5 she was found to have a massive
intra-abdominal hemorrhage and a ruptured uterus. Thus, Editha had to undergo a procedure for
hysterectomy6 and as a result, she has no more chance to bear a child.
On November 7, 1994, Editha and her husband Claro Ramolete (respondents) filed a
Complaint7 for Gross Negligence and Malpractice against petitioner before the Professional
Regulations Commission (PRC).
Respondents alleged that Edithas hysterectomy was caused by petitioners unmitigated
negligence and professional incompetence in conducting the D&C procedure and the petitioners
failure to remove the fetus inside Edithas womb.8 Among the alleged acts of negligence
were: first, petitioners failure to check up, visit or administer medication on Editha during her
first day of confinement at the LMC;9 second, petitioner recommended that a D&C procedure be
444 | P a g e
performed on Editha without conducting any internal examination prior to the procedure;10 third,
petitioner immediately suggested a D&C procedure instead of closely monitoring the state of
pregnancy of Editha.11
In her Answer,12 petitioner denied the allegations of negligence and incompetence with the
following explanations: upon Edithas confirmation that she would seek admission at the LMC,
petitioner immediately called the hospital to anticipate the arrival of Editha and ordered through
the telephone the medicines Editha needed to take, which the nurses carried out; petitioner
visited Editha on the morning of July 28, 1994 during her rounds; on July 29, 1994, she
performed an internal examination on Editha and she discovered that the latters cervix was
already open, thus, petitioner discussed the possible D&C procedure, should the bleeding
become more profuse; on July 30 1994, she conducted another internal examination on Editha,
which revealed that the latters cervix was still open; Editha persistently complained of her
vaginal bleeding and her passing out of some meaty mass in the process of urination and bowel
movement; thus, petitioner advised Editha to undergo D&C procedure which the respondents
consented to; petitioner was very vocal in the operating room about not being able to see an
abortus;13 taking the words of Editha to mean that she was passing out some meaty mass and
clotted blood, she assumed that the abortus must have been expelled in the process of bleeding; it
was Editha who insisted that she wanted to be discharged; petitioner agreed, but she advised
Editha to return for check-up on August 5, 1994, which the latter failed to do.
Petitioner contended that it was Edithas gross negligence and/or omission in insisting to be
discharged on July 31, 1994 against doctors advice and her unjustified failure to return for
check-up as directed by petitioner that contributed to her life-threatening condition on September
16, 1994; that Edithas hysterectomy was brought about by her very abnormal pregnancy known
as placenta increta, which was an extremely rare and very unusual case of abdominal placental
implantation. Petitioner argued that whether or not a D&C procedure was done by her or any
other doctor, there would be no difference at all because at any stage of gestation before term, the
uterus would rupture just the same.
On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a
Decision,14 exonerating petitioner from the charges filed against her. The Board held:
Based on the findings of the doctors who conducted the laparotomy on Editha, hers is a
case of Ectopic Pregnancy Interstitial. This type of ectopic pregnancy is one that is being
protected by the uterine muscles and manifestations may take later than four (4) months
and only attributes to two percent (2%) of ectopic pregnancy cases.
When complainant Editha was admitted at Lorma Medical Center on July 28, 1994 due to
vaginal bleeding, an ultra-sound was performed upon her and the result of the Sonogram
Test reveals a morbid fetus but did not specify where the fetus was located. Obstetricians
445 | P a g e
will assume that the pregnancy is within the uterus unless so specified by the Sonologist
who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she was not
able to determine that complainant Editha is having an ectopic pregnancy interstitial. The
D&C conducted on Editha is necessary considering that her cervix is already open and so
as to stop the profuse bleeding. Simple curettage cannot remove a fetus if the patient is
having an ectopic pregnancy, since ectopic pregnancy is pregnancy conceived outside the
uterus and curettage is done only within the uterus. Therefore, a more extensive operation
needed in this case of pregnancy in order to remove the fetus.15
Feeling aggrieved, respondents went to the PRC on appeal. On November 22, 2000, the PRC
rendered a Decision16 reversing the findings of the Board and revoking petitioners authority or
license to practice her profession as a physician.17
Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of the Rules of
Court. Petitioner also dubbed her petition as one for certiorari18 under Rule 65 of the Rules of
Court.
In the Decision dated July 4, 2003, the CA held that the Petition for Review under Rule 43 of the
Rules of Court was an improper remedy, as the enumeration of the quasi-judicial agencies in
Rule 43 is exclusive.19 PRC is not among the quasi-judicial bodies whose judgment or final
orders are subject of a petition for review to the CA, thus, the petition for review of the PRC
Decision, filed at the CA, was improper. The CA further held that should the petition be treated
as a petition for certiorari under Rule 65, the same would still be dismissed for being improper
and premature. Citing Section 2620 of Republic Act (R.A.) No. 2382 or the Medical Act of 1959,
the CA held that the plain, speedy and adequate remedy under the ordinary course of law which
petitioner should have availed herself of was to appeal to the Office of the President.21
Hence, herein petition, assailing the decision of the CA on the following grounds:
1. THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING
THAT THE PROFESSIONAL REGULATION[S] COMMISSION (PRC) WAS
EXCLUDED AMONG THE QUASI-JUDICIAL AGENCIES CONTEMPLATED
UNDER RULE 43 OF THE RULES OF CIVIL PROCEDURE;
2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE
PURVIEW OF RULE 43 OF THE RULES OF CIVIL PROCEDURE, THE
PETITIONER WAS NOT PRECLUDED FROM FILING A PETITION FOR
CERTIORARI WHERE THE DECISION WAS ALSO ISSUED IN EXCESS OF OR
WITHOUT JURISDICTION, OR WHERE THE DECISION WAS A PATENT
NULLITY;
446 | P a g e
3. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO APPEAL

FROM THE DECISION OF THE BOARD OF MEDICINE TO THE PROFESSIONAL
REGULATION[S] COMMISSION;
4. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN
DENYING FOR IMPROPER FORUM THE PETITION FOR REVIEW/PETITION
FOR CERTIORARI WITHOUT GOING OVER THE MERITS OF THE GROUNDS
RELIED UPON BY THE PETITIONER;
5. PRCS GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE TO
BE HEARD ON APPEAL IS A CLEAR VIOLATION OF HER CONSTITUTIONAL
RIGHT TO DUE PROCESS AND HAS THE EFFECT OF RENDERING THE
JUDGMENT NULL AND VOID;
6. COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN
ACCEPTING AND CONSIDERING THE MEMORANDUM ON APPEAL WITHOUT
PROOF OF SERVICE TO HEREIN PETITIONER, AND IN VIOLATION OF ART. IV,
SEC. 35 OF THE RULES AND REGULATIONS GOVERNING THE REGULATION
AND PRACTICE OF PROFESSIONALS;
7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING
PETITIONERS LICENSE TO PRACTICE MEDICINE WITHOUT AN EXPERT
TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF
RESPONDENT EDITHAT [SIC] RAMOLETES INJURY;
8. PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN TOTALLY
DISREGARDING THE FINDING OF THE BOARD OF MEDICINE, WHICH HAD
THE NECESSARY COMPETENCE AND EXPERTISE TO ESTABLISH THE CAUSE
OF RESPONDENT EDITHAS INJURY, AS WELL AS THE TESTIMONY OF THE
EXPERT WITNESS AUGUSTO MANALO, M.D. ;[and]
9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING
CONCLUSIONS OF FACTS THAT WERE NOT ONLY UNSUPPORTED BY
EVIDENCE BUT WERE ACTUALLY CONTRARY TO EVIDENCE ON RECORD.22
The Court will first deal with the procedural issues.
Petitioner claims that the law does not allow complainants to appeal to the PRC from the
decision of the Board. She invokes Article IV, Section 35 of the Rules and Regulations
Governing the Regulation and Practice of Professionals, which provides:
447 | P a g e
Sec. 35. The respondent may appeal the decision of the Board within thirty days from
receipt thereof to the Commission whose decision shall be final. Complainant, when
allowed by law, may interpose an appeal from the Decision of the Board within the
same period. (Emphasis supplied)
Petitioner asserts that a careful reading of the above law indicates that while the respondent, as a
matter of right, may appeal the Decision of the Board to the Commission, the complainant may
interpose an appeal from the decision of the Board only when so allowed by law.23 Petitioner
cited Section 26 of Republic Act No. 2382 or "The Medical Act of 1959," to wit:
Section 26. Appeal from judgment. The decision of the Board of Medical Examiners (now
Medical Board) shall automatically become final thirty days after the date of its
promulgation unless the respondent, during the same period, has appealed to the
Commissioner of Civil Service (now Professional Regulations Commission) and later to
the Office of the President of the Philippines. If the final decision is not satisfactory, the
respondent may ask for a review of the case, or may file in court a petition for certiorari.
Petitioner posits that the reason why the Medical Act of 1959 allows only the respondent in an
administrative case to file an appeal with the Commission while the complainant is not allowed
to do so is double jeopardy. Petitioner is of the belief that the revocation of license to practice a
profession is penal in nature.24
The Court does not agree.
For one, the principle of double jeopardy finds no application in administrative cases. Double
jeopardy attaches only: (1) upon a valid indictment; (2) before a competent court; (3) after
arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or
convicted, or the case was dismissed or otherwise terminated without the express consent of the
accused.25 These elements were not present in the proceedings before the Board of Medicine, as
the proceedings involved in the instant case were administrative and not criminal in nature. The
Court has already held that double jeopardy does not lie in administrative cases.26
Moreover, Section 35 of the Rules and Regulations Governing the Regulation and Practice of
Professionals cited by petitioner was subsequently amended to read:
Sec. 35. The complainant/respondent may appeal the order, the resolution or the
decision of the Board within thirty (30) days from receipt thereof to the Commission
whose decision shall be final and executory. Interlocutory order shall not be appealable to
the Commission. (Amended by Res. 174, Series of 1990).27(Emphasis supplied)
448 | P a g e
Whatever doubt was created by the previous provision was settled with said amendment. It is
axiomatic that the right to appeal is not a natural right or a part of due process, but a mere
statutory privilege that may be exercised only in the manner prescribed by law.28 In this case, the
clear intent of the amendment is to render the right to appeal from a decision of the Board
available to both complainants and respondents.
Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution No. 06-342(A),
or the New Rules of Procedure in Administrative Investigations in the Professional Regulations
Commission and the Professional Regulatory Boards, which provides for the method of appeal,
to wit:
Sec. 1. Appeal; Period Non-Extendible.- The decision, order or resolution of the Board
shall be final and executory after the lapse of fifteen (15) days from receipt of the
decision, order or resolution without an appeal being perfected or taken by either the
respondent or the complainant. A party aggrieved by the decision, order or resolution
may file a notice of appeal from the decision, order or resolution of the Board to the
Commission within fifteen (15) days from receipt thereof, and serving upon the
adverse party a notice of appeal together with the appellants brief or memorandum on
appeal, and paying the appeal and legal research fees. x x x29
The above-stated provision does not qualify whether only the complainant or respondent may
file an appeal; rather, the new rules provide that "a party aggrieved" may file a notice of appeal.
Thus, either the complainant or the respondent who has been aggrieved by the decision, order or
resolution of the Board may appeal to the Commission. It is an elementary rule that when the law
speaks in clear and categorical language, there is no need, in the absence of legislative intent to
the contrary, for any interpretation.30 Words and phrases used in the statute should be given their
plain, ordinary, and common usage or meaning.31
Petitioner also submits that appeals from the decisions of the PRC should be with the CA, as
Rule 4332 of the Rules of Court was precisely formulated and adopted to provide for a uniform
rule of appellate procedure for quasi-judicial agencies.33 Petitioner further contends that a quasijudicial body is not excluded from the purview of Rule 43 just because it is not mentioned
therein.34
On this point, the Court agrees with the petitioner.
Sec. 1, Rule 43 of the Rules of Court provides:
Section 1. Scope. - This Rule shall apply to appeals from judgments or final orders of
the Court of Tax Appeals, and from awards, judgments, final orders or resolutions of
or authorized by any quasi-judicial agency in the exercise of its quasi-judicial
449 | P a g e
functions. Among these agencies are the Civil Service Commission, Central Board of
Assessment Appeals, Securities and Exchange Commission, Office of the President, Land
Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of
Patents, Trademarks and Technology Transfer, National Electrification Administration,
Energy Regulatory Board, National Telecommunications Commission, Department of
Agrarian Reform under Republic Act No. 6657, Government Service Insurance System,
Employees Compensation Commission, Agricultural Inventions Board, Insurance
Commission, Philippine Atomic Energy Commission, Board of Investments,
Construction Industry Arbitration Commission, and voluntary arbitrators authorized by
law. (Emphasis supplied)
Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly
enumerated under Section 1, Rule 43 of the Rules of Court. However, its absence from the
enumeration does not, by this fact alone, imply its exclusion from the coverage of said
Rule.35 The Rule expressly provides that it should be applied to appeals from awards, judgments
final orders or resolutions of any quasi-judicial agency in the exercise of its quasi-judicial
functions. The phrase "among these agencies" confirms that the enumeration made in the Rule is
not exclusive to the agencies therein listed.36
Specifically, the Court, in Yang v. Court of Appeals,37 ruled
that Batas Pambansa (B.P.) Blg. 12938 conferred upon the CA exclusive appellate jurisdiction
over appeals from decisions of the PRC. The Court held:
The law has since been changed, however, at least in the matter of the particular court to
which appeals from the Commission should be taken. On August 14, 1981, Batas
Pambansa Bilang 129 became effective and in its Section 29, conferred on the Court of
Appeals "exclusive appellate jurisdiction over all final judgments, decisions, resolutions,
orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities,
boards or commissions except those falling under the appellate jurisdiction of the
Supreme Court. x x x." In virtue of BP 129, appeals from the Professional Regulations
Commission are now exclusively cognizable by the Court of Appeals. 39 (Emphasis
supplied)
Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil
Procedure,40 lodged with the CA such jurisdiction over the appeals of decisions made by the
PRC.
Anent the substantive merits of the case, petitioner questions the PRC decision for being without
an expert testimony to support its conclusion and to establish the cause of Edithas injury.
Petitioner avers that in cases of medical malpractice, expert testimony is necessary to support the
conclusion as to the cause of the injury.41
450 | P a g e
Medical malpractice is a particular form of negligence which consists in the failure of a

physician or surgeon to apply to his practice of medicine that degree of care and skill which is
ordinarily employed by the profession generally, under similar conditions, and in like
surrounding circumstances.42 In order to successfully pursue such a claim, a patient must prove
that the physician or surgeon either failed to do something which a reasonably prudent physician
or surgeon would not have done, and that the failure or action caused injury to the patient.43
There are four elements involved in medical negligence cases: duty, breach, injury and proximate
causation.44
A physician-patient relationship was created when Editha employed the services of the petitioner.
As Edithas physician, petitioner was duty-bound to use at least the same level of care that any
reasonably competent doctor would use to treat a condition under the same circumstances.45 The
breach of these professional duties of skill and care, or their improper performance by a
physician surgeon, whereby the patient is injured in body or in health, constitutes actionable
malpractice.46 As to this aspect of medical malpractice, the determination of the reasonable level
of care and the breach thereof, expert testimony is essential.47 Further, inasmuch as the causes of
the injuries involved in malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually necessary to support the
conclusion as to causation.48
In the present case, respondents did not present any expert testimony to support their claim that
petitioner failed to do something which a reasonably prudent physician or surgeon would have
done.
Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who was
clearly an expert on the subject.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the
subject matter about which he or she is to testify, either by the study of recognized authorities on
the subject or by practical experience.49
Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored various
publications on the subject, and is a professor at the University of the Philippines.50 According to
him, his diagnosis of Edithas case was "Ectopic Pregnancy Interstitial (also referred to as
Cornual), Ruptured."51 In stating that the D&C procedure was not the proximate cause of the
rupture of Edithas uterus resulting in her hysterectomy, Dr. Manalo testified as follows:
Atty. Hidalgo:
451 | P a g e
Q: Doctor, we want to be clarified on this matter. The complainant had testified here
that the D&C was the proximate cause of the rupture of the uterus. The condition which
she found herself in on the second admission. Will you please tell us whether that is true
or not?
A: Yah, I do not think so for two reasons. One, as I have said earlier, the instrument
cannot reach the site of the pregnancy, for it to further push the pregnancy outside the
uterus. And, No. 2, I was thinking a while ago about another reason- well, why I dont
think so, because it is the triggering factor for the rupture, it could havethe rupture could
have occurred much earlier, right after the D&C or a few days after the D&C.
Q: In this particular case, doctor, the rupture occurred to have happened minutes prior
to the hysterectomy or right upon admission on September 15, 1994 which is about 1
months after the patient was discharged, after the D&C was conducted. Would you tell us
whether there is any relation at all of the D&C and the rupture in this particular instance?
A: I dont think so for the two reasons that I have just mentioned- that it would
not be possible for the instrument to reach the site of pregnancy. And, No. 2, if it is
because of the D&C that rupture could have occurred earlier.52 (Emphases supplied)
Clearly, from the testimony of the expert witness and the reasons given by him, it is evident that
the D&C procedure was not the proximate cause of the rupture of Edithas uterus.
During his cross-examination, Dr. Manalo testified on how he would have addressed Edithas
condition should he be placed in a similar circumstance as the petitioner. He stated:
Atty. Ragonton:
Q: Doctor, as a practicing OB-Gyne, when do you consider that you have done a good,
correct and ideal dilatation and curettage procedure?
A: Well, if the patient recovers. If the patient gets well. Because even after the
procedure, even after the procedure you may feel that you have scraped everything, the
patient stops bleeding, she feels well, I think you should still have some reservations, and
wait a little more time.
Q: If you were the OB-Gyne who performed the procedure on patient Editha Ramolete,
would it be your standard practice to check the fetal parts or fetal tissues that were
allegedly removed?
452 | P a g e
A: From what I have removed, yes. But in this particular case, I think it was assumed
that it was part of the meaty mass which was expelled at the time she was urinating and
flushed in the toilet. So theres no way.
Q:
There was [sic] some portions of the fetal parts that were removed?
A:
No, it was described as scanty scraping if I remember it rightscanty.
Q: And you would not mind checking those scant or those little parts that were
removed?
A: Well, the fact that it was described means, I assume that it was checked, no. It
was described as scanty and the color also, I think was described. Because it would be
very unusual, even improbable that it would not be examined, because when you
scrape, the specimens are right there before your eyes. Its in front of you. You can
touch it. In fact, some of them will stick to the instrument and therefore to peel it off
from the instrument, you have to touch them. So, automatically they are examined
closely.
Q: As a matter of fact, doctor, you also give telephone orders to your patients through
telephone?
A: Yes, yes, we do that, especially here in Manila because you know, sometimes a
doctor can also be tied-up somewhere and if you have to wait until he arrive at a certain
place before you give the order, then it would be a lot of time wasted. Because if you
know your patient, if you have handled your patient, some of the symptoms you can
interpret that comes with practice. And, I see no reason for not allowing telephone
orders unless it is the first time that you will be encountering the patient. That you
have no idea what the problem is.
Q:
But, doctor, do you discharge patients without seeing them?
A: Sometimes yes, depending on how familiar I am with the patient. We are on the
question of telephone orders. I am not saying that that is the idle [sic] thing to do, but I
think the reality of present day practice somehow justifies telephone orders. I have
patients whom I have justified and then all of a sudden, late in the afternoon or late in the
evening, would suddenly call they have decided that they will go home inasmuch as they
anticipated that I will discharge them the following day. So, I just call and ask our
resident on duty or the nurse to allow them to go because I have seen that patient and I
think I have full grasp of her problems. So, thats when I make this telephone orders.
And, of course before giving that order I ask about how she feels.53 (Emphases supplied)
453 | P a g e
From the foregoing testimony, it is clear that the D&C procedure was conducted in accordance
with the standard practice, with the same level of care that any reasonably competent doctor
would use to treat a condition under the same circumstances, and that there was nothing irregular
in the way the petitioner dealt with Editha.
Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under
Article 217654 of the Civil Code. The defenses in an action for damages, provided for under
Article 2179 of the Civil Code are:
Art. 2179. When the plaintiffs own negligence was the immediate and proximate
cause of his injury, he cannot recover damages. But if his negligence was only
contributory, the immediate and proximate cause of the injury being the defendants lack
of due care, the plaintiff may recover damages, but the courts shall mitigate the damages
to be awarded.
Proximate cause has been defined as that which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces injury, and without which the result would not have
occurred.55 An injury or damage is proximately caused by an act or a failure to act, whenever it
appears from the evidence in the case that the act or omission played a substantial part in
bringing about or actually causing the injury or damage; and that the injury or damage was either
a direct result or a reasonably probable consequence of the act or omission.56
In the present case, the Court notes the findings of the Board of Medicine:
When complainant was discharged on July 31, 1994, herein respondent advised her to
return on August 4, 1994 or four (4) days after the D&C. This advise was clear in
complainants Discharge Sheet. However, complainant failed to do so. This being the
case, the chain of continuity as required in order that the doctrine of proximate cause can
be validly invoked was interrupted. Had she returned, the respondent could have
examined her thoroughly.57 x x x (Emphases supplied)
Also, in the testimony of Dr. Manalo, he stated further that assuming that there was in fact a
misdiagnosis, the same would have been rectified if Editha followed the petitioners order to
return for a check-up on August 4, 1994. Dr. Manalo stated:
Granting that the obstetrician-gynecologist has been misled (justifiably) up to thus
point that there would have been ample opportunity to rectify the misdiagnosis, had
the patient returned, as instructed for her follow-up evaluation. It was one and a
half months later that the patient sought consultation with another doctor. The
continued growth of an ectopic pregnancy, until its eventual rupture, is a dynamic
454 | P a g e
process. Much change in physical findings could be expected in 1 months, including

the emergence of suggestive ones.58
It is undisputed that Editha did not return for a follow-up evaluation, in defiance of the
petitioners advise. Editha omitted the diligence required by the circumstances which could have
avoided the injury. The omission in not returning for a follow-up evaluation played a substantial
part in bringing about Edithas own injury. Had Editha returned, petitioner could have conducted
the proper medical tests and procedure necessary to determine Edithas health condition and
applied the corresponding treatment which could have prevented the rupture of Edithas uterus.
The D&C procedure having been conducted in accordance with the standard medical practice, it
is clear that Edithas omission was the proximate cause of her own injury and not merely a
contributory negligence on her part.
Contributory negligence is the act or omission amounting to want of ordinary care on the part of
the person injured, which, concurring with the defendants negligence, is the proximate cause of
the injury.59 Difficulty seems to be apprehended in deciding which acts of the injured party shall
be considered immediate causes of the accident.60 Where the immediate cause of an accident
resulting in an injury is the plaintiffs own act, which contributed to the principal occurrence as
one of its determining factors, he cannot recover damages for the injury.61 Again, based on the
evidence presented in the present case under review, in which no negligence can be
attributed to the petitioner, the immediate cause of the accident resulting in Edithas injury
was her own omission when she did not return for a follow-up check up, in defiance of
petitioners orders. The immediate cause of Edithas injury was her own act; thus, she
cannot recover damages from the injury.
Lastly, petitioner asserts that her right to due process was violated because she was never
informed by either respondents or by the PRC that an appeal was pending before the
PRC.62 Petitioner claims that a verification with the records section of the PRC revealed that on
April 15, 1999, respondents filed a Memorandum on Appeal before the PRC, which did not
attach the actual registry receipt but was merely indicated therein.63
Respondents, on the other hand avers that if the original registry receipt was not attached to the
Memorandum on Appeal, PRC would not have entertained the appeal or accepted such pleading
for lack of notice or proof of service on the other party.64 Also, the registry receipt could not be
appended to the copy furnished to petitioners former counsel, because the registry receipt was
already appended to the original copy of the Memorandum of Appeal filed with PRC.65
It is a well-settled rule that when service of notice is an issue, the rule is that the person alleging
that the notice was served must prove the fact of service. The burden of proving notice rests upon
the party asserting its existence.66 In the present case, respondents did not present any proof that
petitioner was served a copy of the Memorandum on Appeal. Thus, respondents were not able to
455 | P a g e
satisfy the burden of proving that they had in fact informed the petitioner of the appeal
proceedings before the PRC.
In EDI-Staffbuilders International, Inc. v. National Labor Relations Commission,67 in which the
National Labor Relations Commission failed to order the private respondent to furnish the
petitioner a copy of the Appeal Memorandum, the Court held that said failure deprived the
petitioner of procedural due process guaranteed by the Constitution, which could have served as
basis for the nullification of the proceedings in the appeal. The same holds true in the case at bar.
The Court finds that the failure of the respondents to furnish the petitioner a copy of the
Memorandum of Appeal submitted to the PRC constitutes a violation of due process. Thus, the
proceedings before the PRC were null and void.
All told, doctors are protected by a special rule of law. They are not guarantors of care. They are
not insurers against mishaps or unusual consequences68 specially so if the patient herself did not
exercise the proper diligence required to avoid the injury.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals
dated July 4, 2003 in CA-GR SP No. 62206 is hereby REVERSED and SET ASIDE. The
Decision of the Board of Medicine dated March 4, 1999 exonerating petitioner is AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
Associate Justice
WE CONCUR:
Associate Justice
Chairperson
Associate Justice

Associate Justice
RUBEN T. REYES
456 | P a g e
Associate Justice
ATT E S TAT I O N
Associate Justice
Chairperson
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons
REYNATO S. PUNO
Chief Justice
DIGEST
Facts:
On July 28, 1994, respondent 3 months pregnant Editha Ramolete was brought to Lorma
Medical Center (LMC) in San Fernando, La Union due to vaginal bleeding upon advise of
petitioner related via telephone, Editha was admitted to the LMC on the same day. A pelvic
sonogram was then conducted on Editha revealing the fetus weak cardiac pulsation. The
following day, Editha repeat pelvic sonogram showed that aside from the fetus weak cardiac
pulsation, no fetal movement was also appreciated. Due to persistent and profuse vaginal
bleeding, petitioner advised her to undergo a D&C procedure. She was discharged the following
day. On September 16, 1994, Editha was once gain brought at the LMC, as she was suffering
from vomiting ans severe abdominal pains. Editha was attended by Drs. Dela Cruz, Mayo and
Komiya. Dr. Mayo allegedly informed Editha that there was a dead fetus in the latters womb,
after Editha went laparectomy, she was found to have massive intra abdominal hemorrhage and
ruptured uterus. Thus, she had to go hysterectomy and as a result no more chance to bear a child.
Issue: Whether or not petitioner is liable for medical malpractice.
457 | P a g e
Held: No. Medical malpractice is a particular form of negligence which consists in the failure of
a physician or surgeon to apply to his practice of medicine that degree of care and skill which is
ordinarily employed by the profession generally under similar conditions, and in like
surrounding circumstances. In order to successfully pursue such a claim, a patient must prove
that the physician or surgeon either failed to do something which a reasonably prudent physician
or surgeon would not have done, and that the failure or action caused injury to the patient.
There are four elements involved in medical negligence cases: duty, breach, injury, and
proximate cause.
A physician-patient relationship was created when Editha employed the services of the petitioner.
As Edithas physician, petitioner was duty-bound to use at least the same level of care that any
reasonably competent doctor would use to treat a condition under the same circumstances. The
breach of these professional duties of skill and care, or their improper performance by a
physician surgeon, whereby the patients injured in body or in health, constitutes actionable
malpractice, as to this aspect of medical malpractice, the determination of the reasonable level of
care and the breach thereof, expert testimony is essential. Further, in as much as the causes of the
injuries involved in malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually necessary to suspect the
conclusion as to causation.
It is undisputed that Editha did not return for follow-up evaluation, in defiance of the petitioners
advice. This is as found out is the proximate cause of the injury she sustained.
458 | P a g e

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 178763
April 21, 2009
PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL LUCAS

AND GILLIAN LUCAS,Petitioners,
vs.
DR. PROSPERO MA. C. TUAO, Respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari1 under Rule 45 of the Revised Rules of Court, petitioners
Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek the
reversal of the 27 September 2006 Decision2 and 3 July 2007 Resolution,3 both of the Court of
Appeals in CA-G.R. CV No. 68666, entitled "Peter Paul Patrick Lucas, Fatima Gladys Lucas,
Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao."
In the questioned decision and resolution, the Court of Appeals affirmed the 14 July 2000
Decision of the Regional Trial Court (RTC), Branch 150, Makati City, dismissing the complaint
filed by petitioners in a civil case entitled, "Peter Paul Patrick Lucas, Fatima Gladys Lucas,
Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao," docketed as Civil Case No. 922482.
From the record of the case, the established factual antecedents of the present petition are:
Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted "sore eyes" in
his right eye.
459 | P a g e
On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made use of his
health care insurance issued by Philamcare Health Systems, Inc. (Philamcare), for a possible
consult. The Philamcare Coordinator, Dr. Edwin Oca, M.D., referred Peter to respondent, Dr.
Prospero Ma. C. Tuao, M.D. (Dr. Tuao), an ophthalmologist at St. Lukes Medical Center, for
an eye consult.
Upon consultation with Dr. Tuao, Peter narrated that it had been nine (9) days since the problem
with his right eye began; and that he was already taking Maxitrol to address the problem in his
eye. According to Dr. Tuao, he performed "ocular routine examination" on Peters eyes,
wherein: (1) a gross examination of Peters eyes and their surrounding area was made; (2) Peters
visual acuity were taken; (3) Peters eyes were palpated to check the intraocular pressure of each;
(4) the motility of Peters eyes was observed; and (5) the ophthalmoscopy4 on Peters eyes was
used. On that particular consultation, Dr. Tuao diagnosed that Peter was suffering from
conjunctivitis5 or "sore eyes." Dr. Tuao then prescribed Spersacet-C6 eye drops for Peter and
told the latter to return for follow-up after one week.
As instructed, Peter went back to Dr. Tuao on 9 September 1988. Upon examination, Dr. Tuao
told Peter that the "sore eyes" in the latters right eye had already cleared up and he could
discontinue the Spersacet-C. However, the same eye developed Epidemic Kerato Conjunctivitis
(EKC),7 a viral infection. To address the new problem with Peters right eye, Dr. Tuao
prescribed to the former a steroid-based eye drop called Maxitrol,8 a dosage of six (6) drops per
day.9 To recall, Peter had already been using Maxitrol prior to his consult with Dr. Tuao.
On 21 September 1988, Peter saw Dr. Tuao for a follow-up consultation. After examining both
of Peters eyes, Dr. Tuao instructed the former to taper down10 the dosage of Maxitrol, because
the EKC in his right eye had already resolved. Dr. Tuao specifically cautioned Peter that, being
a steroid, Maxitrol had to be withdrawn gradually; otherwise, the EKC might recur.11
Complaining of feeling as if there was something in his eyes, Peter returned to Dr. Tuao for
another check-up on 6 October 1988. Dr. Tuao examined Peters eyes and found that the right
eye had once more developed EKC. So, Dr. Tuao instructed Peter to resume the use of Maxitrol
at six (6) drops per day.
On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock.
Consequently, Peter was told by Dr. Tuano to take, instead, Blephamide12 another steroid-based
medication, but with a lower concentration, as substitute for the unavailable Maxitrol, to be used
three (3) times a day for five (5) days; two (2) times a day for five (5) days; and then just once a
day.13
Several days later, on 18 October 1988, Peter went to see Dr. Tuao at his clinic, alleging severe
eye pain, feeling as if his eyes were about to "pop-out," a headache and blurred vision. Dr. Tuao
460 | P a g e
examined Peters eyes and discovered that the EKC was again present in his right eye. As a
result, Dr. Tuao told Peter to resume the maximum dosage of Blephamide.
Dr. Tuao saw Peter once more at the formers clinic on 4 November 1988. Dr. Tuaos
examination showed that only the periphery of Peters right eye was positive for EKC; hence, Dr.
Tuao prescribed a lower dosage of Blephamide.
It was also about this time that Fatima Gladys Lucas (Fatima), Peters spouse, read the
accompanying literature of Maxitrol and found therein the following warning against the
prolonged use of such steroids:
WARNING:
Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual acuity
and fields of vision, and posterior, subcapsular cataract formation. Prolonged use may suppress
the host response and thus increase the hazard of secondary ocular infractions, in those diseases
causing thinning of the cornea or sclera, perforations have been known to occur with the use of
topical steroids. In acute purulent conditions of the eye, steroids may mask infection or enhance
existing infection. If these products are used for 10 days or longer, intraocular pressure should be
routinely monitored even though it may be difficult in children and uncooperative patients.
Employment of steroid medication in the treatment of herpes simplex requires great caution.
xxxx
ADVERSE REACTIONS:
Adverse reactions have occurred with steroid/anti-infective combination drugs which can be
attributed to the steroid component, the anti-infective component, or the combination. Exact
incidence figures are not available since no denominator of treated patients is available.
Reactions occurring most often from the presence of the anti-infective ingredients are allergic
sensitizations. The reactions due to the steroid component in decreasing order to frequency are
elevation of intra-ocular pressure (IOP) with possible development of glaucoma, infrequent optic
nerve damage; posterior subcapsular cataract formation; and delayed wound healing.
Secondary infection: The development of secondary has occurred after use of combination
containing steroids and antimicrobials. Fungal infections of the correa are particularly prone to
develop coincidentally with long-term applications of steroid. The possibility of fungal invasion
must be considered in any persistent corneal ulceration where steroid treatment has been used.
Secondary bacterial ocular infection following suppression of host responses also occurs.
461 | P a g e
On 26 November 1988, Peter returned to Dr. Tuaos clinic, complaining of "feeling worse."14 It
appeared that the EKC had spread to the whole of Peters right eye yet again. Thus, Dr. Tuao
instructed Peter to resume the use of Maxitrol. Petitioners averred that Peter already made
mention to Dr. Tuao during said visit of the above-quoted warning against the prolonged use of
steroids, but Dr. Tuao supposedly brushed aside Peters concern as mere paranoia, even
assuring him that the former was taking care of him (Peter).
Petitioners further alleged that after Peters 26 November 1988 visit to Dr. Tuao, Peter
continued to suffer pain in his right eye, which seemed to "progress," with the ache intensifying
and becoming more frequent.
Upon waking in the morning of 13 December 1988, Peter had no vision in his right eye. Fatima
observed that Peters right eye appeared to be bloody and swollen.15 Thus, spouses Peter and
Fatima rushed to the clinic of Dr. Tuao. Peter reported to Dr. Tuao that he had been suffering
from constant headache in the afternoon and blurring of vision.
Upon examination, Dr. Tuao noted the hardness of Peters right eye. With the use of a
tonometer16 to verify the exact intraocular pressure17 (IOP) of Peters eyes, Dr. Tuao discovered
that the tension in Peters right eye was39.0 Hg, while that of his left was 17.0 Hg.18 Since the
tension in Peters right eye was way over the normal IOP, which merely ranged from 10.0 Hg
to 21.0 Hg,19 Dr. Tuao ordered20 him to immediately discontinue the use of Maxitrol and
prescribed to the latter Diamox21 and Normoglaucon, instead.22 Dr. Tuao also required Peter to
go for daily check-up in order for the former to closely monitor the pressure of the latters eyes.
On 15 December 1988, the tonometer reading of Peters right eye yielded a high normal
level, i.e., 21.0 Hg. Hence, Dr. Tuao told Peter to continue using Diamox and Normoglaucon.
But upon Peters complaint of "stomach pains and tingling sensation in his fingers,"23 Dr. Tuao
discontinued Peters use of Diamox.24
Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr. Batungbacal), on 21
December 1988, who allegedly conducted a complete ophthalmological examination of Peters
eyes. Dr. Batungbacals diagnosis was Glaucoma25 O.D.26 He recommended Laser
Trabeculoplasty27 for Peters right eye.
When Peter returned to Dr. Tuao on 23 December 1988,28 the tonometer measured the IOP of
Peters right eye to be 41.0 Hg,29 again, way above normal. Dr. Tuao addressed the problem by
advising Peter to resume taking Diamox along with Normoglaucon.
During the Christmas holidays, Peter supposedly stayed in bed most of the time and was not able
to celebrate the season with his family because of the debilitating effects of Diamox.30
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On 28 December 1988, during one of Peters regular follow-ups with Dr. Tuao, the doctor
conducted another ocular routine examination of Peters eyes. Dr. Tuao noted the recurrence of
EKC in Peters right eye. Considering, however, that the IOP of Peters right eye was still quite
high at 41.0 Hg, Dr. Tuao was at a loss as to how to balance the treatment of Peters EKC vis-vis the presence of glaucoma in the same eye. Dr. Tuao, thus, referred Peter to Dr. Manuel B.
Agulto, M.D. (Dr. Agulto), another ophthalmologist specializing in the treatment of
glaucoma.31 Dr. Tuaos letter of referral to Dr. Agulto stated that:
Referring to you Mr. Peter Lucas for evaluation & possible management. I initially saw him
Sept. 2, 1988 because of conjunctivitis. The latter resolved and he developed EKC for which I
gave Maxitrol. The EKC was recurrent after stopping steroid drops. Around 1 month of steroid
treatment, he noted blurring of vision & pain on the R. however, I continued the steroids for the
sake of the EKC. A month ago, I noted iris atrophy, so I took the IOP and it was definitely
elevated. I stopped the steroids immediately and has (sic) been treating him medically.
It seems that the IOP can be controlled only with oral Diamox, and at the moment, the EKC has
recurred and Im in a fix whether to resume the steroid or not considering that the IOP is still
uncontrolled.32
On 29 December 1988, Peter went to see Dr. Agulto at the latters clinic. Several tests were
conducted thereat to evaluate the extent of Peters condition. Dr. Agulto wrote Dr. Tuao a letter
containing the following findings and recommendations:
Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and 20/20L.
Tension curve 19 R and 15 L at 1210 H while on Normoglaucon BID OD & Diamox tab every
6h po.
Slit lamp evaluation33 disclosed subepithelial corneal defect outer OD. There was circumferential
peripheral iris atrophy, OD. The lenses were clear.
Funduscopy34 showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L.
Zeiss gonioscopy35 revealed basically open angles both eyes with occasional PAS,36 OD.
Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I suggest that we
do a baseline visual fields and push medication to lowest possible levels. If I may suggest
further, I think we should prescribe Timolol37 BID38 OD in lieu of Normoglaucon. If the IOP is
still inadequate, we may try Depifrin39 BID OD (despite low PAS). Im in favor of retaining
Diamox or similar CAI.40
If fields show further loss in say 3 mos. then we should consider trabeculoplasty.
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I trust that this approach will prove reasonable for you and Peter.41
Peter went to see Dr. Tuao on 31 December 1988, bearing Dr. Agultos aforementioned letter.
Though Peters right and left eyes then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr.
Tuao still gave him a prescription for Timolol B.I.D. so Peter could immediately start using said
medication. Regrettably, Timolol B.I.D. was out of stock, so Dr. Tuao instructed Peter to just
continue using Diamox and Normoglaucon in the meantime.
Just two days later, on 2 January 1989, the IOP of Peters right eye remained elevated at 21.0
Hg,42 as he had been without Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuao conducted a visual field study43 of Peters eyes, which revealed
that the latter had tubular vision44 in his right eye, while that of his left eye remained normal. Dr.
Tuao directed Peter to religiously use the Diamox and Normoglaucon, as the tension of the
latters right eye went up even further to 41.0 Hg in just a matter of two (2) days, in the
meantime that Timolol B.I.D. and Depifrin were still not available in the market. Again, Dr.
Tuao advised Peter to come for regular check-up so his IOP could be monitored.
Obediently, Peter went to see Dr. Tuao on the 7th, 13th, 16th and 20th of January 1989 for
check-up and IOP monitoring.
In the interregnum, however, Peter was prodded by his friends to seek a second medical opinion.
On 13 January 1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist,
who, in turn, referred Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino), another ophthalmologist
who specializes in the treatment of glaucoma and who could undertake the long term care of
Peters eyes.
According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peters eyes, the
said doctor informed Peter that his eyes were relatively normal, though the right one sometimes
manifested maximum borderline tension. Dr. Aquino also confirmed Dr. Tuaos diagnosis of
tubular vision in Peters right eye. Petitioners claimed that Dr. Aquino essentially told Peter that
the latters condition would require lifetime medication and follow-ups.
In May 1990 and June 1991, Peter underwent two (2) procedures of laser trabeculoplasty to
attempt to control the high IOP of his right eye.
Claiming to have steroid-induced glaucoma45 and blaming Dr. Tuao for the same, Peter, joined
by: (1) Fatima, his spouse46; (2) Abbeygail, his natural child47; and (3) Gillian, his legitimate
child48 with Fatima, instituted on 1 September 1992, a civil complaint for damages against Dr.
Tuao, before the RTC, Branch 150, Quezon City. The case was docketed as Civil Case No. 922482.
464 | P a g e
In their Complaint, petitioners specifically averred that as the "direct consequence of [Peters]
prolonged use of Maxitrol, [he] suffered from steroid induced glaucoma which caused the
elevation of his intra-ocular pressure. The elevation of the intra-ocular pressure of [Peters right
eye] caused the impairment of his vision which impairment is not curable and may even lead to
total blindness."49
Petitioners additionally alleged that the visual impairment of Peters right eye caused him and his
family so much grief. Because of his present condition, Peter now needed close medical
supervision forever; he had already undergone two (2) laser surgeries, with the possibility that
more surgeries were still needed in the future; his career in sports casting had suffered and was
continuing to suffer;50 his anticipated income had been greatly reduced as a result of his "limited"
capacity; he continually suffered from "headaches, nausea, dizziness, heart palpitations, rashes,
chronic rhinitis, sinusitis,"51 etc.; Peters relationships with his spouse and children continued to
be strained, as his condition made him highly irritable and sensitive; his mobility and social life
had suffered; his spouse, Fatima, became the breadwinner in the family;52 and his two children
had been deprived of the opportunity for a better life and educational prospects. Collectively,
petitioners lived in constant fear of Peter becoming completely blind.53
In the end, petitioners sought pecuniary award for their supposed pain and suffering, which were
ultimately brought about by Dr. Tuaos grossly negligent conduct in prescribing to Peter the
medicine Maxitrol for a period of three (3) months, without monitoring Peters IOP, as required
in cases of prolonged use of said medicine, and notwithstanding Peters constant complaint of
intense eye pain while using the same. Petitioners particularly prayed that Dr. Tuao be adjudged
liable for the following amounts:
1. The amount of P2,000,000.00 to plaintiff Peter Lucas as and by way of compensation
for his impaired vision.
2. The amount of P300,000.00 to spouses Lucas as and by way of actual damages plus
such additional amounts that may be proven during trial.
3. The amount of P1,000,000.00 as and by way of moral damages.
4. The amount of P500,000.00 as and by way of exemplary damages.
5. The amount of P200,000.00 as and by way of attorneys fees plus costs of suit.54
In rebutting petitioners complaint, Dr. Tuao asserted that the "treatment made by [him] more
than three years ago has no causal connection to [Peters] present glaucoma or condition."55 Dr.
Tuao explained that "[d]rug-induced glaucoma is temporary and curable, steroids have the side
effect of increasing intraocular pressure. Steroids are prescribed to treat Epidemic Kerato
465 | P a g e
Conjunctivitis or EKC which is an infiltration of the cornea as a result of conjunctivitis or sore

eyes."56 Dr. Tuao also clarified that (1) "[c]ontrary to [petitioners] fallacious claim, [he] did
NOT continually prescribe the drug Maxitrol which contained steroids for any prolonged
period"57 and "[t]he truth was the Maxitrol was discontinued x x x as soon as EKC disappeared
and was resumed only when EKC reappeared"58; (2) the entire time he was treating Peter, he
"continually monitored the intraocular pressure of [Peters eyes] by palpating the eyes and by
putting pressure on the eyeballs," and no hardening of the same could be detected, which meant
that there was no increase in the tension or IOP, a possible side reaction to the use of steroid
medications; and (3) it was only on 13 December 1988 that Peter complained of a headache and
blurred vision in his right eye, and upon measuring the IOP of said eye, it was determined for the
first time that the IOP of the right eye had an elevated value.
But granting for the sake of argument that the "steroid treatment of [Peters] EKC caused the
steroid induced glaucoma,"59 Dr. Tuao argued that:
[S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the intake of
steroids is discontinued, the intraocular pressure automatically is reduced. Thus, [Peters]
glaucoma can only be due to other causes not attributable to steroids, certainly not attributable to
[his] treatment of more than three years ago x x x.
From a medical point of view, as revealed by more current examination of [Peter], the latters
glaucoma can only be long standing glaucoma, open angle glaucoma, because of the large C:D
ratio. The steroids provoked the latest glaucoma to be revealed earlier as [Peter] remained
asymptomatic prior to steroid application. Hence, the steroid treatment was in fact beneficial to
[Peter] as it revealed the incipient open angle glaucoma of [Peter] to allow earlier treatment of
the same.60
In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 "for insufficiency
of evidence."61The decretal part of said Decision reads:
Wherefore, premises considered, the instant complaint is dismissed for insufficiency of evidence.
The counter claim (sic) is likewise dismissed in the absence of bad faith or malice on the part of
plaintiff in filing the suit.62
The RTC opined that petitioners failed to prove by preponderance of evidence that Dr. Tuao
was negligent in his treatment of Peters condition. In particular, the record of the case was bereft
of any evidence to establish that the steroid medication and its dosage, as prescribed by Dr.
Tuao, caused Peters glaucoma. The trial court reasoned that the "recognized standards of the
medical community has not been established in this case, much less has causation been
established to render [Tuao] liable."63 According to the RTC:
466 | P a g e
[Petitioners] failed to establish the duty required of a medical practitioner against which Peter
Pauls treatment by defendant can be compared with. They did not present any medical expert or
even a medical doctor to convince and expertly explain to the court the established norm or duty
required of a physician treating a patient, or whether the non taking (sic) by Dr. Tuao of Peter
Pauls pressure a deviation from the norm or his non-discovery of the glaucoma in the course of
treatment constitutes negligence. It is important and indispensable to establish such a standard
because once it is established, a medical practitioner who departed thereof breaches his duty and
commits negligence rendering him liable. Without such testimony or enlightenment from an
expert, the court is at a loss as to what is then the established norm of duty of a physician against
which defendants conduct can be compared with to determine negligence.64
The RTC added that in the absence of "any medical evidence to the contrary, this court cannot
accept [petitioners] claim that the use of steroid is the proximate cause of the damage sustained
by [Peters] eye."65
Correspondingly, the RTC accepted Dr. Tuaos medical opinion that "Peter Paul must have been
suffering from normal tension glaucoma, meaning, optic nerve damage was happening but no
elevation of the eye pressure is manifested, that the steroid treatment actually unmasked the
condition that resulted in the earlier treatment of the glaucoma. There is nothing in the record to
contradict such testimony. In fact, plaintiffs Exhibit S even tends to support them."
Undaunted, petitioners appealed the foregoing RTC decision to the Court of Appeals. Their
appeal was docketed as CA-G.R. CV No. 68666.
On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No. 68666
denying petitioners recourse and affirming the appealed RTC Decision. The fallo of the
judgment of the appellate court states:
WHEREFORE, the Decision appealed from is AFFIRMED.66
The Court of Appeals faulted petitioners because they
[D]id not present any medical expert to testify that Dr. Tuanos prescription of Maxitrol and
Blephamide for the treatment of EKC on Peters right eye was not proper and that his palpation
of Peters right eye was not enough to detect adverse reaction to steroid. Peter testified that Dr.
Manuel Agulto told him that he should not have used steroid for the treatment of EKC or that he
should have used it only for two (2) weeks, as EKC is only a viral infection which will cure by
itself. However, Dr. Agulto was not presented by [petitioners] as a witness to confirm what he
allegedly told Peter and, therefore, the latters testimony is hearsay. Under Rule 130, Section 36
of the Rules of Court, a witness can testify only to those facts which he knows of his own
467 | P a g e
personal knowledge, x x x. Familiar and fundamental is the rule that hearsay testimony is
inadmissible as evidence.67
Like the RTC, the Court of Appeals gave great weight to Dr. Tuaos medical judgment,
specifically the latters explanation that:
[W]hen a doctor sees a patient, he cannot determine whether or not the latter would react
adversely to the use of steroids, that it was only on December 13, 1989, when Peter complained
for the first time of headache and blurred vision that he observed that the pressure of the eye of
Peter was elevated, and it was only then that he suspected that Peter belongs to the 5% of the
population who reacts adversely to steroids.68
Petitioners Motion for Reconsideration was denied by the Court of Appeals in a Resolution
dated 3 July 2007.
Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court
premised on the following assignment of errors:
I.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING
THE DECISION OF THE TRIAL COURT DISMISSING THE PETITIONERS COMPLAINT
FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND OF INSUFFICIENCY
OF EVIDENCE;
II.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING
THE PETITIONERS COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON
THE GROUND THAT NO MEDICAL EXPERT WAS PRESENTED BY THE PETITIONERS
TO PROVE THEIR CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE RESPONDENT;
AND
III.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT
FINDING THE RESPONDENT LIABLE TO THE PETITIONERS FOR ACTUAL, MORAL
AND EXEMPLARY DAMAGES, ASIDE FROM ATTORNEYS FEES, COSTS OF SUIT, AS
A RESULT OF HIS GROSS NEGLIGENCE.69
A reading of the afore-quoted reversible errors supposedly committed by the Court of Appeals in
its Decision and Resolution would reveal that petitioners are fundamentally assailing the finding
468 | P a g e
of the Court of Appeals that the evidence on record is insufficient to establish petitioners
entitlement to any kind of damage. Therefore, it could be said that the sole issue for our
resolution in the Petition at bar is whether the Court of Appeals committed reversible error in
affirming the judgment of the RTC that petitioners failed to prove, by preponderance of
evidence, their claim for damages against Dr. Tuao.
Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the factual
findings of the Court of Appeals, as well as of the RTC. In effect, petitioners would have us sift
through the evidence on record and pass upon whether there is sufficient basis to establish Dr.
Tuaos negligence in his treatment of Peters eye condition. This question clearly involves a
factual inquiry, the determination of which is not within the ambit of this Courts power of
review under Rule 45 of the 1997 Rules Civil Procedure, as amended.70
Elementary is the principle that this Court is not a trier of facts; only errors of law are generally
reviewed in petitions for review on certiorari criticizing decisions of the Court of Appeals.
Questions of fact are not entertained.71
Nonetheless, the general rule that only questions of law may be raised on appeal in a petition for
review under Rule 45 of the Rules of Court admits of certain exceptions, including the
circumstance when the finding of fact of the Court of Appeals is premised on the supposed
absence of evidence, but is contradicted by the evidence on record. Although petitioners may not
explicitly invoke said exception, it may be gleaned from their allegations and arguments in the
instant Petition.1avvphi1.zw+
Petitioners contend, that "[c]ontrary to the findings of the Honorable Court of Appeals, [they]
were more than able to establish that: Dr. Tuao ignored the standard medical procedure for
ophthalmologists, administered medication with recklessness, and exhibited an absence of
competence and skills expected from him."72Petitioners reject the necessity of presenting expert
and/or medical testimony to establish (1) the standard of care respecting the treatment of the
disorder affecting Peters eye; and (2) whether or not negligence attended Dr. Tuaos treatment
of Peter, because, in their words
That Dr. Tuao was grossly negligent in the treatment of Peters simple eye ailment is a simple
case of cause and effect. With mere documentary evidence and based on the facts presented by
the petitioners, respondent can readily be held liable for damages even without any expert
testimony. In any case, however, and contrary to the finding of the trial court and the Court of
Appeals, there was a medical expert presented by the petitioner showing the recklessness
committed by [Dr. Tuao] Dr. Tuao himself. [Emphasis supplied.]
They insist that Dr. Tuao himself gave sufficient evidence to establish his gross negligence that
ultimately caused the impairment of the vision of Peters right eye,73 i.e., that "[d]espite [Dr.
469 | P a g e
Tuaos] knowledge that 5% of the population reacts adversely to Maxitrol, [he] had no qualms
whatsoever in prescribing said steroid to Peter without first determining whether or not the (sic)
Peter belongs to the 5%."74
We are not convinced. The judgments of both the Court of Appeals and the RTC are in accord
with the evidence on record, and we are accordingly bound by the findings of fact made therein.
Petitioners position, in sum, is that Peters glaucoma is the direct result of Dr. Tuaos
negligence in his improper administration of the drug Maxitrol; "thus, [the latter] should be liable
for all the damages suffered and to be suffered by [petitioners]."75 Clearly, the present
controversy is a classic illustration of a medical negligence case against a physician based on the
latters professional negligence. In this type of suit, the patient or his heirs, in order to prevail, is
required to prove by preponderance of evidence that the physician failed to exercise that degree
of skill, care, and learning possessed by other persons in the same profession; and that as a
proximate result of such failure, the patient or his heirs suffered damages.
For lack of a specific law geared towards the type of negligence committed by members of the
medical profession, such claim for damages is almost always anchored on the alleged violation
of Article 2176 of the Civil Code, which states that:
ART. 2176. Whoever by act or omission causes damage to another, there being fault or
In medical negligence cases, also called medical malpractice suits, there exist a physician-patient
relationship between the doctor and the victim. But just like any other proceeding for damages,
four essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate
causation,76 must be established by the plaintiff/s. All the four (4) elements must co-exist in order
to find the physician negligent and, thus, liable for damages.
When a patient engages the services of a physician, a physician-patient relationship is generated.
And in accepting a case, the physician, for all intents and purposes, represents that he has the
needed training and skill possessed by physicians and surgeons practicing in the same field; and
that he will employ such training, care, and skill in the treatment of the patient.77 Thus, in treating
his patient, a physician is under a duty to [the former] to exercise that degree of care, skill and
diligence which physicians in the same general neighborhood and in the same general line of
practice ordinarily possess and exercise in like cases.78 Stated otherwise, the physician has the
duty to use at least the same level of care that any other reasonably competent physician would
use to treat the condition under similar circumstances.
470 | P a g e
This standard level of care, skill and diligence is a matter best addressed by expert medical
testimony, because the standard of care in a medical malpractice case is a matter peculiarly
within the knowledge of experts in the field.79
There is breach of duty of care, skill and diligence, or the improper performance of such duty, by
the attending physician when the patient is injured in body or in health [and this] constitutes the
actionable malpractice.80 Proof of such breach must likewise rest upon the testimony of an expert
witness that the treatment accorded to the patient failed to meet the standard level of care, skill
and diligence which physicians in the same general neighborhood and in the same general line of
practice ordinarily possess and exercise in like cases.
Even so, proof of breach of duty on the part of the attending physician is insufficient, for there
must be a causal connection between said breach and the resulting injury sustained by the
patient. Put in another way, in order that there may be a recovery for an injury, it must be shown
that the "injury for which recovery is sought must be the legitimate consequence of the wrong
done; the connection between the negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient causes";81 that is, the negligence must be
the proximate cause of the injury. And the proximate cause of an injury is that cause, which, in
the natural and continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred.82
Just as with the elements of duty and breach of the same, in order to establish the proximate
cause [of the injury] by a preponderance of the evidence in a medical malpractice action, [the
patient] must similarly use expert testimony, because the question of whether the alleged
professional negligence caused [the patients] injury is generally one for specialized expert
knowledge beyond the ken of the average layperson; using the specialized knowledge and
training of his field, the experts role is to present to the [court] a realistic assessment of the
likelihood that [the physicians] alleged negligence caused [the patients] injury.83
From the foregoing, it is apparent that medical negligence cases are best proved by opinions of
expert witnesses belonging in the same general neighborhood and in the same general line of
practice as defendant physician or surgeon. The deference of courts to the expert opinion of
qualified physicians [or surgeons] stems from the formers realization that the latter possess
unusual technical skills which laymen in most instances are incapable of intelligently
evaluating;84 hence, the indispensability of expert testimonies.
In the case at bar, there is no question that a physician-patient relationship developed between
Dr. Tuao and Peter when Peter went to see the doctor on 2 September 1988, seeking a consult
for the treatment of his sore eyes. Admittedly, Dr. Tuao, an ophthalmologist, prescribed
Maxitrol when Peter developed and had recurrent EKC. Maxitrol or neomycin/polymyxin B
sulfates/dexamethasone ophthalmic ointment is a multiple-dose anti-infective steroid
471 | P a g e
combination in sterile form for topical application.85 It is the drug which petitioners claim to have
caused Peters glaucoma.
However, as correctly pointed out by the Court of Appeals, "[t]he onus probandi was on the
patient to establish before the trial court that the physicians ignored standard medical procedure,
prescribed and administered medication with recklessness and exhibited an absence of the
competence and skills expected of general practitioners similarly situated."86 Unfortunately, in
this case, there was absolute failure on the part of petitioners to present any expert testimony to
establish: (1) the standard of care to be implemented by competent physicians in treating the
same condition as Peters under similar circumstances; (2) that, in his treatment of Peter, Dr.
Tuao failed in his duty to exercise said standard of care that any other competent physician
would use in treating the same condition as Peters under similar circumstances; and (3) that the
injury or damage to Peters right eye, i.e., his glaucoma, was the result of his use of Maxitrol, as
prescribed by Dr. Tuao. Petitioners failure to prove the first element alone is already fatal to
their cause.
Petitioners maintain that Dr. Tuao failed to follow in Peters case the required procedure for the
prolonged use of Maxitrol. But what is actually the required procedure in situations such as in
the case at bar? To be precise, what is the standard operating procedure when ophthalmologists
prescribe steroid medications which, admittedly, carry some modicum of risk?
Absent a definitive standard of care or diligence required of Dr. Tuao under the circumstances,
we have no means to determine whether he was able to comply with the same in his diagnosis
and treatment of Peter. This Court has no yardstick upon which to evaluate or weigh the
attendant facts of this case to be able to state with confidence that the acts complained of, indeed,
constituted negligence and, thus, should be the subject of pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao should have determined first
whether Peter was a "steroid responder."87 Yet again, petitioners did not present any convincing
proof that such determination is actually part of the standard operating procedure which
ophthalmologists should unerringly follow prior to prescribing steroid medications.
In contrast, Dr. Tuao was able to clearly explain that what is only required of ophthalmologists,
in cases such as Peters, is the conduct of standard tests/procedures known as "ocular routine
examination,"88 composed of five (5) tests/procedures specifically, gross examination of the
eyes and the surrounding area; taking of the visual acuity of the patient; checking the intraocular
pressure of the patient; checking the motility of the eyes; and using ophthalmoscopy on the
patients eye and he did all those tests/procedures every time Peter went to see him for followup consultation and/or check-up.
472 | P a g e
We cannot but agree with Dr. Tuaos assertion that when a doctor sees a patient, he cannot
determine immediately whether the latter would react adversely to the use of steroids; all the
doctor can do is map out a course of treatment recognized as correct by the standards of the
medical profession. It must be remembered that a physician is not an insurer of the good result of
treatment. The mere fact that the patient does not get well or that a bad result occurs does not in
itself indicate failure to exercise due care.89 The result is not determinative of the performance
[of the physician] and he is not required to be infallible.90
Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter was justified by the fact that the
latter was already using the same medication when he first came to see Dr. Tuao on 2
September 1988 and had exhibited no previous untoward reaction to that particular drug. 91
Also, Dr. Tuao categorically denied petitioners claim that he never monitored the tension of
Peters eyes while the latter was on Maxitrol. Dr. Tuao testified that he palpated Peters eyes
every time the latter came for a check-up as part of the doctors ocular routine examination, a
fact which petitioners failed to rebut. Dr. Tuaos regular conduct of examinations and tests to
ascertain the state of Peters eyes negate the very basis of petitioners complaint for damages. As
to whether Dr. Tuaos actuations conformed to the standard of care and diligence required in
like circumstances, it is presumed to have so conformed in the absence of evidence to the
contrary.
Even if we are to assume that Dr. Tuao committed negligent acts in his treatment of Peters
condition, the causal connection between Dr. Tuaos supposed negligence and Peters injury
still needed to be established. The critical and clinching factor in a medical negligence case is
proof of the causal connection between the negligence which the evidence established and the
plaintiffs injuries.92 The plaintiff must plead and prove not only that he has been injured and
defendant has been at fault, but also that the defendants fault caused the injury. A verdict in a
malpractice action cannot be based on speculation or conjecture. Causation must be proven
within a reasonable medical probability based upon competent expert testimony.93
The causation between the physicians negligence and the patients injury may only be
established by the presentation of proof that Peters glaucoma would not have occurred but for
Dr. Tuaos supposed negligent conduct. Once more, petitioners failed in this regard.
Dr. Tuao does not deny that the use of Maxitrol involves the risk of increasing a patients IOP.
In fact, this was the reason why he made it a point to palpate Peters eyes every time the latter
went to see him -- so he could monitor the tension of Peters eyes. But to say that said
medication conclusively caused Peters glaucoma is purely speculative. Peter was diagnosed
with open-angle glaucoma. This kind of glaucoma is characterized by an almost complete
absence of symptoms and a chronic, insidious course.94 In open-angle glaucoma, halos around
lights and blurring of vision do not occur unless there has been a sudden increase in the
473 | P a g e
intraocular vision.95Visual acuity remains good until late in the course of the disease.96 Hence, Dr.
Tuao claims that Peters glaucoma "can only be long standing x x x because of the large
C:D97 ratio," and that "[t]he steroids provoked the latest glaucoma to be revealed earlier" was a
blessing in disguise "as [Peter] remained asymptomatic prior to steroid application."
Who between petitioners and Dr. Tuao is in a better position to determine and evaluate the
necessity of using Maxitrol to cure Peters EKC vis--vis the attendant risks of using the same?
That Dr. Tuao has the necessary training and skill to practice his chosen field is beyond cavil.
Petitioners do not dispute Dr. Tuaos qualifications that he has been a physician for close to a
decade and a half at the time Peter first came to see him; that he has had various medical
training; that he has authored numerous papers in the field of ophthalmology, here and abroad;
that he is a Diplomate of the Philippine Board of Ophthalmology; that he occupies various
teaching posts (at the time of the filing of the present complaint, he was the Chair of the
Department of Ophthalmology and an Associate Professor at the University of the PhilippinesPhilippine General Hospital and St. Lukes Medical Center, respectively); and that he held an
assortment of positions in numerous medical organizations like the Philippine Medical
Association, Philippine Academy of Ophthalmology, Philippine Board of Ophthalmology,
Philippine Society of Ophthalmic Plastic and Reconstructive Surgery, Philippine Journal of
Ophthalmology, Association of Philippine Ophthalmology Professors, et al.
It must be remembered that when the qualifications of a physician are admitted, as in the instant
case, there is an inevitable presumption that in proper cases, he takes the necessary precaution
and employs the best of his knowledge and skill in attending to his clients, unless the contrary is
sufficiently established.98 In making the judgment call of treating Peters EKC with Maxitrol, Dr.
Tuao took the necessary precaution by palpating Peters eyes to monitor their IOP every time
the latter went for a check-up, and he employed the best of his knowledge and skill earned from
years of training and practice.
In contrast, without supporting expert medical opinions, petitioners bare assertions of negligence
on Dr. Tuaos part, which resulted in Peters glaucoma, deserve scant credit.
Our disposition of the present controversy might have been vastly different had petitioners
presented a medical expert to establish their theory respecting Dr. Tuaos so-called negligence.
In fact, the record of the case reveals that petitioners counsel recognized the necessity of
presenting such evidence. Petitioners even gave an undertaking to the RTC judge that Dr. Agulto
or Dr. Aquino would be presented. Alas, no follow-through on said undertaking was
made.1avvphi1
The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue.
However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his
474 | P a g e
favor, the duty or the burden of evidence shifts to defendant to controvert plaintiffs prima facie
case; otherwise, a verdict must be returned in favor of plaintiff.99 The party having the burden of
proof must establish his case by a preponderance of evidence.100 The concept of "preponderance
of evidence" refers to evidence which is of greater weight or more convincing than that which is
offered in opposition to it;101 in the last analysis, it means probability of truth. It is evidence
which is more convincing to the court as worthy of belief than that which is offered in opposition
thereto.102 Rule 133, Section 1 of the Revised Rules of Court provides the guidelines for
determining preponderance of evidence, thus:
In civil cases, the party having the burden of proof must establish his case by a preponderance of
evidence. In determining where the preponderance or superior weight of evidence on the issues
involved lies the court may consider all the facts and circumstances of the case, the witnesses
manner of testifying, their intelligence, their means and opportunity of knowing the facts to
which they are testifying, the nature of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of interest, and also their personal
credibility so far as the same legitimately appear upon the trial. The court may also consider the
number of witnesses, though the preponderance is not necessarily with the greater number.
Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower court, to
establish their case by a preponderance of evidence showing a reasonable connection between
Dr. Tuaos alleged breach of duty and the damage sustained by Peters right eye. This, they did
not do. In reality, petitioners complaint for damages is merely anchored on a statement in the
literature of Maxitrol identifying the risks of its use, and the purported comment of Dr. Agulto
another doctor not presented as witness before the RTC concerning the prolonged use of
Maxitrol for the treatment of EKC.
It seems basic that what constitutes proper medical treatment is a medical question that should
have been presented to experts. If no standard is established through expert medical witnesses,
then courts have no standard by which to gauge the basic issue of breach thereof by the physician
or surgeon. The RTC and Court of Appeals, and even this Court, could not be expected to
determine on its own what medical technique should have been utilized for a certain disease or
injury. Absent expert medical opinion, the courts would be dangerously engaging in speculations.
All told, we are hard pressed to find Dr. Tuao liable for any medical negligence or malpractice
where there is no evidence, in the nature of expert testimony, to establish that in treating Peter,
Dr. Tuao failed to exercise reasonable care, diligence and skill generally required in medical
practice. Dr. Tuaos testimony, that his treatment of Peter conformed in all respects to standard
medical practice in this locality, stands unrefuted. Consequently, the RTC and the Court of
Appeals correctly held that they had no basis at all to rule that petitioners were deserving of the
various damages prayed for in their Complaint.
475 | P a g e
WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The
assailed Decision dated 27 September 2006 and Resolution dated 3 July 2007, both of the Court
of Appeals in CA-G.R. CV No. 68666, are hereby AFFIRMED. No cost.
SO ORDERED.
Associate Justice
WE CONCUR:
Associate Justice
Chairperson
Associate Justice

Associate Justice
DIOSDADO M. PERALTA
Associate Justice
AT T E S T AT I O N
Associate Justice
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairmans Attestation,
it is hereby certified that the conclusions in the above Decision were reached in consultation
REYNATO S. PUNO
Chief Justice
476 | P a g e
DIGEST
DOCTRINES:
In a medical negligence suit, the patient or his heirs, in order to prevail, is required to prove by
preponderance of evidence that the physician failed to exercise that degree of skill, care, and
learning possessed by other persons in the same profession; and that as a proximate result of such
failure, the patient or his heirs suffered damages.
the attending physician when the patient is injured in body or in health constitutes the actionable
malpractice.
FACTS:
Herein petitioner, Peter Lucas, first consulted respondent, Dr. Tuao, on a complaint of soreness
and redness on his right eye. The respondent, after a series of examinations, found that the
former was suffering from conjunctivitis or sore eyes and prescribed the use of the SpersacetC. However, after the petitioners condition seemed to have worsened, he sought for the
respondents second finding wherein the latter said that his condition had progressed to Epidemic
Kerato Conjunctivitis (EKC), a viral infection. The respondent then prescribed the use of
Maxitrol, a steroid-based eye drop. The petitioners condition worsened overtime, yet he
obediently complied with all the prescriptions and orders of the respondent.
Four months later and after the petitioner suffered from significant swelling of his right eyeball,
headaches, nausea and blindness on this right eye, he sought for the opinion of another doctor,
Dr. Aquino. Dr. Aquino found that the petitioner had been suffering from glaucoma and needed
to undergo laser surgery, lest he might suffer from total blindness.
After reading the literature on the use of the medicine Maxitrol, Fatima, one of the petitioners
herein and Peter Lucas wife, read that one of the adverse effects of prolonged use of steroidbased eye drops could possibly be glaucoma. Peter, Fatima, and their two children instituted a
civil case for damages against herein respondent for medical malpractice.
ISSUE:
Whether or not the petitioners amply proved that Dr. Tuao failed to exercise diligence in the
performance of his duty as petitioner Peter Lucas physician.
RULING:
No. Absent a definitive standard of care or diligence required of Dr. Tuao under the
circumstances, the Court has no yardstick upon which to evaluate the attendant facts of the case
477 | P a g e
at hand to be able to state with confidence that the acts complained of, indeed, constituted
negligence and, thus, should be the subject of pecuniary reparation.
In medical negligence cases, also called medical malpractice suits, there exist a physician-patient
relationship between the doctor and the victim. But just like any other proceeding for damages,
four essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate causation, must
be established by the plaintiff/s. All the four (4) elements must co-exist in order to find the
physician negligent and, thus, liable for damages.
As the physician has the duty to use at least the same level of care as that of any other reasonably
competent physician would use in the treatment of his patient, said standard level of care, skill
and diligence must likewise be proven by expert medical testimony, because the standard of care
in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field.
The same is outside the ken of the average layperson.
the attending physician when the patient is injured in body or in health [and this] constitutes the
actionable malpractice. Hence, proof of breach of duty on the part of the attending physician is
insufficient. Rather, the negligence of the physician must be the proximate cause of the injury.

SUPREME COURT
Manila
FIRST DIVISION
478 | P a g e
G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural
guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON
RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA
and DRA. PERFECTA GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health and
welfare of their patients. If a doctor fails to live up to this precept, he is made accountable for his
acts. A mistake, through gross negligence or incompetence or plain human error, may spell the
difference between life and death. In this sense, the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a
hospital should be made liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which
overturned the decision 4 of the Regional Trial Court, dated 30 January 1992, finding private
respondents liable for damages arising from negligence in the performance of their professional
duties towards petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old
(Exh. "A") robust woman (TSN, October 19, 1989, p. 10). Except for occasional
complaints of discomfort due to pains allegedly caused by the presence of a stone
in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any
other woman. Married to Rogelio E. Ramos, an executive of Philippine Long
Distance Telephone Company, she has three children whose names are Rommel
Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989,
pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation for the removal of a
stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of
examinations which included blood and urine tests (Exhs. "A" and "C") which
indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13,
1988, p. 7), she and her husband Rogelio met for the first time Dr. Orlino Hozaka
479 | P a g e
(should be Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in
this case, on June 10, 1985. They agreed that their date at the operating table at
the DLSMC (another defendant), would be on June 17, 1985 at 9:00 A.M.. Dr.
Hosaka decided that she should undergo a "cholecystectomy" operation after
examining the documents (findings from the Capitol Medical Center, FEU
Hospital and DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr.
Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio
that he will get a good anesthesiologist. Dr. Hosaka charged a fee of P16,000.00,
which was to include the anesthesiologist's fee and which was to be paid after the
operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27,
1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the
rooms of the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN,
October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was
prepared for the operation by the hospital staff. Her sister-in-law, Herminda Cruz,
who was the Dean of the College of Nursing at the Capitol Medical Center, was
also there for moral support. She reiterated her previous request for Herminda to
be with her even during the operation. After praying, she was given injections.
Her hands were held by Herminda as they went down from her room to the
operating room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was
also with her (TSN, October 19, 1989, p. 18). At the operating room, Herminda
saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant,
who was to administer anesthesia. Although not a member of the hospital staff,
Herminda introduced herself as Dean of the College of Nursing at the Capitol
Medical Center who was to provide moral support to the patient, to them.
Herminda was allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr.
Hosaka who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez
thereafter informed Herminda Cruz about the prospect of a delay in the arrival of
Dr. Hosaka. Herminda then went back to the patient who asked, "Mindy, wala pa
ba ang Doctor"? The former replied, "Huwag kang mag-alaala, darating na iyon"
(Ibid.).
Thereafter, Herminda went out of the operating room and informed the patient's
husband, Rogelio, that the doctor was not yet around (id., p. 13). When she
returned to the operating room, the patient told her, "Mindy, inip na inip na ako,
ikuha mo ako ng ibang Doctor." So, she went out again and told Rogelio about
what the patient said (id., p. 15). Thereafter, she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for
the arrival of the doctor" even as he did his best to find somebody who will allow
him to pull out his wife from the operating room (TSN, October 19, 1989, pp. 19480 | P a g e
20). He also thought of the feeling of his wife, who was inside the operating room
waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia
who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to
arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to
know that Dr. Hosaka arrived as a nurse remarked, "Nandiyan na si Dr. Hosaka,
dumating na raw." Upon hearing those words, he went down to the lobby and
waited for the operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the
patient, heard somebody say that "Dr. Hosaka is already here." She then saw
people inside the operating room "moving, doing this and that, [and] preparing the
patient for the operation" (TSN, January 13, 1988, p. 16). As she held the hand of
Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She
thereafter heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the remarks of Dra.
Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She
thereafter noticed bluish discoloration of the nailbeds of the left hand of the
hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka
issue an order for someone to call Dr. Calderon, another anesthesiologist (id., p.
19). After Dr. Calderon arrived at the operating room, she saw this
anesthesiologist trying to intubate the patient. The patient's nailbed became bluish
and the patient was placed in a trendelenburg position a position where the
head of the patient is placed in a position lower than her feet which is an
indication that there is a decrease of blood supply to the patient's brain (Id., pp.
19-20). Immediately thereafter, she went out of the operating room, and she told
Rogelio E. Ramos "that something wrong was . . . happening" (Ibid.). Dr.
Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory
machine being rushed towards the door of the operating room. He also saw
several doctors rushing towards the operating room. When informed by Herminda
Cruz that something wrong was happening, he told her (Herminda) to be back
with the patient inside the operating room (TSN, October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that
fateful day, she saw the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The
latter informed the former that something went wrong during the intubation.
Reacting to what was told to him, Rogelio reminded the doctor that the condition
of his wife would not have happened, had he (Dr. Hosaka) looked for a good
anesthesiologist (TSN, October 19, 1989, p. 31).
481 | P a g e
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what
happened to the patient. The doctors explained that the patient had bronchospasm
(TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on
November 15, 1985, the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting
to P93,542.25 which is the subject of a promissory note and affidavit of
undertaking executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a comatose condition. She cannot do
anything. She cannot move any part of her body. She cannot see or hear. She is
living on mechanical means. She suffered brain damage as a result of the absence
of oxygen in her brain for four to five minutes (TSN, November 9, 1989, pp. 2122). After being discharged from the hospital, she has been staying in their
residence, still needing constant medical attention, with her husband Rogelio
incurring a monthly expense ranging from P8,000.00 to P10,000.00 (TSN,
October 19, 1989, pp. 32-34). She was also diagnosed to be suffering from
"diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21,
1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial
Court of Quezon City against herein private respondents alleging negligence in the management
and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of Erlinda's injury.
Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that
the sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty management
of her airway by private respondents during the anesthesia phase. On the other hand, private
respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to
the effect that the cause of brain damage was Erlinda's allergic reaction to the anesthetic agent,
Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment in
favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and
applying the aforecited provisions of law and jurisprudence to the case at bar, this
Court finds and so holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the performance of their
duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise
reasonable care in not only intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard
482 | P a g e
to the fact that the patient was inside the operating room for almost three (3)
hours. For after she committed a mistake in intubating [the] patient, the patient's
nailbed became bluish and the patient, thereafter, was placed in trendelenburg
position, because of the decrease of blood supply to the patient's brain. The
evidence further shows that the hapless patient suffered brain damage because of
the absence of oxygen in her (patient's) brain for approximately four to five
minutes which, in turn, caused the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of
Dr. Perfecta Gutierrez whom he had chosen to administer anesthesia on the
patient as part of his obligation to provide the patient a good anesthesiologist', and
for arriving for the scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts
of negligence of the doctors in their "practice of medicine" in the operating room.
Moreover, the hospital is liable for failing through its responsible officials, to
cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on
time.
In having held thus, this Court rejects the defense raised by defendants that they
have acted with due care and prudence in rendering medical services to plaintiffpatient. For if the patient was properly intubated as claimed by them, the patient
would not have become comatose. And, the fact that another anesthesiologist was
called to try to intubate the patient after her (the patient's) nailbed turned bluish,
belie their claim. Furthermore, the defendants should have rescheduled the
operation to a later date. This, they should have done, if defendants acted with due
care and prudence as the patient's case was an elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the
plaintiffs and against the defendants. Accordingly, the latter are ordered to pay,
jointly and severally, the former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the
plaintiff Erlinda Ramos reckoned from November 15, 1985 or in
the total sum of P632,000.00 as of April 15, 1992, subject to its
being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the
further sum of P200,000,00 by way of exemplary damages; and,
4) the costs of the suit.
483 | P a g e
SO ORDERED. 7
Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court
rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal
portion of the decision of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby
REVERSED, and the complaint below against the appellants is hereby ordered
DISMISSED. The counterclaim of appellant De Los Santos Medical Center is
GRANTED but only insofar as appellees are hereby ordered to pay the unpaid
hospital bills amounting to P93,542.25, plus legal interest for justice must be
tempered with mercy.
SO ORDERED. 8
The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos
who was mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was
sent nor received by the Coronel Law Office, then counsel on record of petitioners. Rogelio
referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995,
or four (4) days before the expiration of the reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for
extension of time to file a motion for reconsideration. The motion for reconsideration was
submitted on 4 July 1995. However, the appellate court denied the motion for extension of time
in its Resolution dated 25 July 1995. 9Meanwhile, petitioners engaged the services of another
counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the appropriate pleading
on the assailed decision had not yet commenced to run as the Division Clerk of Court of the
Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this
explanation, the appellate court still denied the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day
(15) period for filing a motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for
Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo,
p. 12) was denied. It is, on the other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for Reconsideration expired on
June 24. The Motion for Reconsideration, in turn, was received by the Court of
Appeals already on July 4, necessarily, the 15-day period already passed. For that
alone, the latter should be denied.
Even assuming admissibility of the Motion for the Reconsideration, but after
considering the Comment/Opposition, the former, for lack of merit, is hereby
DENIED.
SO ORDERED. 10
484 | P a g e
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or
on 12 April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the
present petition for certiorari under Rule 45. The Court granted the motion for extension of time
and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period
counted from the receipt of the resolution of the Court of Appeals within which to submit the
petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within
the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF
RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT
CAUSE THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER
ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11
Before we discuss the merits of the case, we shall first dispose of the procedural issue on the
timeliness of the petition in relation to the motion for reconsideration filed by petitioners with the
Court of Appeals. In their
Comment, 12 private respondents contend that the petition should not be given due course since
the motion for reconsideration of the petitioners on the decision of the Court of Appeals was
validly dismissed by the appellate court for having been filed beyond the reglementary period.
We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to
then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of
the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995
wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the appellate court apparently mistook
him for the counsel on record. Thus, no copy of the decision of the counsel on record. Petitioner,
not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration,
referred the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent to the
party's lawyer at his given address. With a few exceptions, notice to a litigant without notice to
his counsel on record is no notice at all. In the present case, since a copy of the decision of the
485 | P a g e
appellate court was not sent to the counsel on record of petitioner, there can be no sufficient
notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be
taken against petitioner. Moreover, since the Court of Appeals already issued a second
Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July
1995, and denied the motion for reconsideration of petitioner, we believed that the receipt of the
former should be considered in determining the timeliness of the filing of the present petition.
Based on this, the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For
a more logical presentation of the discussion we shall first consider the issue on the applicability
of the doctrine of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors
shall be tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for
itself." The phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may permit an inference or raise a presumption
of negligence, or make out a plaintiff's prima faciecase, and present a question of fact for
defendant to meet with an explanation. 13 Where the thing which caused the injury complained of
is shown to be under the management of the defendant or his servants and the accident is such as
in ordinary course of things does not happen if those who have its management or control use
proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that
the accident arose from or was caused by the defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of
common knowledge and experience, the very nature of certain types of occurrences may justify
an inference of negligence on the part of the person who controls the instrumentality causing the
injury in the absence of some explanation by the defendant who is charged with negligence. 15 It
is grounded in the superior logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be deduced from the mere occurrence of the
accident itself. 16 Hence, res ipsa loquitur is applied in conjunction with the doctrine of common
knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such,
does not create or constitute an independent or separate ground of liability. 17 Instead, it is
considered as merely evidentiary or in the nature of a procedural rule. 18 It is regarded as a mode
of proof, or a mere procedural of convenience since it furnishes a substitute for, and relieves a
plaintiff of, the burden of producing specific proof of negligence. 19 In other words, mere
invocation and application of the doctrine does not dispense with the requirement of proof of
negligence. It is simply a step in the process of such proof, permitting the plaintiff to present
along with the proof of the accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence, and to thereby place on the
defendant the burden of going forward with the proof. 20 Still, before resort to the doctrine may
be allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the
absence of someone's negligence;
486 | P a g e
2. It is caused by an instrumentality within the exclusive control of

the defendant or defendants; and
3. The possibility of contributing conduct which would make the
plaintiff responsible is eliminated. 21
In the above requisites, the fundamental element is the "control of instrumentality" which caused
the damage. 22Such element of control must be shown to be within the dominion of the
defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or
damage, must show a situation where it is applicable, and must establish that the essential
elements of the doctrine were present in a particular incident. 23
Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa
loquitur has been applied when the circumstances attendant upon the harm are themselves of
such a character as to justify an inference of negligence as the cause of that harm. 25 The
application of res ipsa loquitur in medical negligence cases presents a question of law since it is
a judicial function to determine whether a certain set of circumstances does, as a matter of law,
permit a given inference. 26
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure,
when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the proof of negligence. 27 The
reason is that the general rule on the necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone familiar with the facts. 28 Ordinarily,
only physicians and surgeons of skill and experience are competent to testify as to whether a
patient has been treated or operated upon with a reasonable degree of skill and care. However,
testimony as to the statements and acts of physicians and surgeons, external appearances, and
manifest conditions which are observable by any one may be given by non-expert
witnesses. 29 Hence, in cases where theres ipsa loquitur is applicable, the court is permitted to
find a physician negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the proper
standard of care. 30 Where common knowledge and experience teach that a resulting injury would
not have occurred to the patient if due care had been exercised, an inference of negligence may
be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what occurred but how and why it
occurred. 31 When the doctrine is appropriate, all that the patient must do is prove a nexus
between the particular act or omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other
way, under usual and ordinary conditions, by which the patient can obtain redress for injury
suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving
of a foreign object in the body of the patient after an operation, 32 injuries sustained on a healthy
487 | P a g e
part of the body which was not under, or in the area, of treatment, 33 removal of the wrong part of
the body when another part was intended, 34 knocking out a tooth while a patient's jaw was under
anesthetic for the removal of his tonsils, 35 and loss of an eye while the patient plaintiff was under
the influence of anesthetic, during or following an operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it
does not automatically apply to all cases of medical negligence as to mechanically shift the
burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res
ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a matter of common knowledge
and observation, that the consequences of professional care were not as such as would ordinarily
have followed if due care had been
exercised. 37 A distinction must be made between the failure to secure results, and the occurrence
of something more unusual and not ordinarily found if the service or treatment rendered followed
the usual procedure of those skilled in that particular practice. It must be conceded that the
doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon
which involves the merits of a diagnosis or of a scientific treatment. 38 The physician or surgeon
is not required at his peril to explain why any particular diagnosis was not correct, or why any
particular scientific treatment did not produce the desired result. 39 Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the desired result of an operation or
treatment was not accomplished. 40 The real question, therefore, is whether or not in the process
of the operation any extraordinary incident or unusual event outside of the routine performance
occurred which is beyond the regular scope of customary professional activity in such
operations, which, if unexplained would themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence. 41 If there was such extraneous
interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to
explain the matter, by evidence of exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be
explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder
operation presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme
Court in applying theres ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and delivered his
person over to the care, custody and control of his physician who had complete
and exclusive control over him, but the operation was never performed. At the
time of submission he was neurologically sound and physically fit in mind and
body, but he suffered irreparable damage and injury rendering him decerebrate
and totally incapacitated. The injury was one which does not ordinarily occur in
the process of a mastoid operation or in the absence of negligence in the
administration of an anesthetic, and in the use and employment of an
endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered
decerebrate as a consequence of administering such anesthesia in the absence of
488 | P a g e
negligence. Upon these facts and under these circumstances a layman would be
able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have
followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because
he was under the influence of anesthetics and unconscious, and the circumstances
are such that the true explanation of event is more accessible to the defendants
than to the plaintiff for they had the exclusive control of the instrumentalities of
anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that
a cause of action is stated under the doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the
present case, Erlinda submitted herself for cholecystectomy and expected a routine general
surgery to be performed on her gall bladder. On that fateful day she delivered her person over to
the care, custody and control of private respondents who exercised complete and exclusive
control over her. At the time of submission, Erlinda was neurologically sound and, except for a
few minor discomforts, was likewise physically fit in mind and body. However, during the
administration of anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating
room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in the process of a gall bladder operation.
In fact, this kind of situation does not in the absence of negligence of someone in the
administration of anesthesia and in the use of endotracheal tube. Normally, a person being put
under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if
the proper procedure was followed. Furthermore, the instruments used in the administration of
anesthesia, including the endotracheal tube, were all under the exclusive control of private
respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could not have been
guilty of contributory negligence because she was under the influence of anesthetics which
rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed
while the patient is unconscious and under the immediate and exclusive control of the
physicians, we hold that a practical administration of justice dictates the application of res ipsa
loquitur. Upon these facts and under these circumstances the Court would be able to say, as a
matter of common knowledge and observation, if negligence attended the management and care
of the patient. Moreover, the liability of the physicians and the hospital in this case is not
predicated upon an alleged failure to secure the desired results of an operation nor on an alleged
lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed
on Erlinda. Thus, upon all these initial determination a case is made out for the application of the
doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying
that the doctrine is applicable in any and all cases where injury occurs to a patient while under
489 | P a g e
anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light and
scrutinized in order to be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of
negligence allowed therein, the Court now comes to the issue of whether the Court of Appeals
erred in finding that private respondents were not negligent in the care of Erlinda during the
anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was
the proximate cause of Erlinda's comatose condition. Corollary thereto, we shall also determine
if the Court of Appeals erred in relying on the testimonies of the witnesses for the private
respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the testimonies
of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra.
Gutierrez, the Court of Appeals rationalized that she was candid enough to admit that she
experienced some difficulty in the endotracheal intubation 45 of the patient and thus, cannot be
said to be covering her negligence with falsehood. The appellate court likewise opined that
private respondents were able to show that the brain damage sustained by Erlinda was not caused
by the alleged faulty intubation but was due to the allergic reaction of the patient to the drug
Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert witness,
Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz
offered in favor of petitioners that the cause of the brain injury was traceable to the wrongful
insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in the
process of intubation. In so holding, the appellate court returned a verdict in favor of respondents
physicians and hospital and absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold that private respondents were
unable to disprove the presumption of negligence on their part in the care of Erlinda and their
negligence was the proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of
the pathogenesis of the injury but also in providing the Court the legal nexus upon which liability
is based. As will be shown hereinafter, private respondents' own testimonies which are reflected
in the transcript of stenographic notes are replete of signposts indicative of their negligence in
the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia
phase. As borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient.
This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of
Nursing and petitioner's sister-in-law, who was in the operating room right beside the patient
when the tragic event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the
patient?
490 | P a g e
A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process
administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient, I was beside the stretcher
holding the left hand of the patient and all of a sudden heard some
remarks coming from Dra. Perfecta Gutierrez herself. She was
saying "Ang hirap ma-intubate nito, mali yata ang pagkakapasok.
O lumalaki ang tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki ang tiyan," what did you
notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the
left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of
Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating
room?
491 | P a g e
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while
the patient's nailbed became bluish and I saw the patient was
placed in trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the patient was placed in that
trendelenburg position?
A: As far as I know, when a patient is in that position, there is a
decrease of blood supply to the brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring
that:
A perusal of the standard nursing curriculum in our country will show that
intubation is not taught as part of nursing procedures and techniques. Indeed, we
take judicial notice of the fact that nurses do not, and cannot, intubate. Even on
the assumption that she is fully capable of determining whether or not a patient is
properly intubated, witness Herminda Cruz, admittedly, did not peep into the
throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is no
evidence that she ever auscultated the patient or that she conducted any type of
examination to check if the endotracheal tube was in its proper place, and to
determine the condition of the heart, lungs, and other organs. Thus, witness Cruz's
categorical statements that appellant Dra. Gutierrez failed to intubate the appellee
Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so clearly
suffer from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress is that being a nurse, and
considered a layman in the process of intubation, witness Cruz is not competent to testify on
whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing
such as, the statements and acts of the physician and surgeon, external appearances, and manifest
conditions which are observable by any one. 48 This is precisely allowed under the doctrine of res
492 | P a g e
ipsa loquitur where the testimony of expert witnesses is not required. It is the accepted rule that
expert testimony is not necessary for the proof of negligence in non-technical matters or those of
which an ordinary person may be expected to have knowledge, or where the lack of skill or want
of care is so obvious as to render expert testimony unnecessary. 49 We take judicial notice of the
fact that anesthesia procedures have become so common, that even an ordinary person can tell if
it was administered properly. As such, it would not be too difficult to tell if the tube was properly
inserted. This kind of observation, we believe, does not require a medical degree to be
acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long
experience and scholarship led to her appointment as Dean of the Capitol Medical Center School
at Nursing, was fully capable of determining whether or not the intubation was a success. She
had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and
clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of
Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of
Nursing. 50Reviewing witness Cruz' statements, we find that the same were delivered in a
straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would
have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied
that she was able to demonstrate through her testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted
that she experienced difficulty in inserting the tube into Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at
your first attempt (sic), you did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito," what were you referring to?
A: "Mahirap yata itong i-intubate," that was the patient.
Q: So, you found some difficulty in inserting the tube?
493 | P a g e
A: Yes, because of (sic) my first attempt, I did not see right

away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the trachea of Erlinda because it was
positioned more anteriorly (slightly deviated from the normal anatomy of a person) 52 making it
harder to locate and, since Erlinda is obese and has a short neck and protruding teeth, it made
intubation even more difficult.
The argument does not convince us. If this was indeed observed, private respondents adduced no
evidence demonstrating that they proceeded to make a thorough assessment of Erlinda's airway,
prior to the induction of anesthesia, even if this would mean postponing the procedure. From
their testimonies, it appears that the observation was made only as an afterthought, as a means of
defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is universally
observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation and
preparation for anesthesia begins when the anesthesiologist reviews the patient's medical records
and visits with the patient, traditionally, the day before elective surgery. 53 It includes taking the
patient's medical history, review of current drug therapy, physical examination and interpretation
of laboratory data. 54 The physical examination performed by the anesthesiologist is directed
primarily toward the central nervous system, cardiovascular system, lungs and upper airway. 55 A
thorough analysis of the patient's airway normally involves investigating the following: cervical
spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial
teeth, ability to visualize uvula and the thyromental distance. 56 Thus, physical characteristics of
the patient's upper airway that could make tracheal intubation difficult should be
studied. 57 Where the need arises, as when initial assessment indicates possible problems (such as
the alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient's
airway would go a long way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on
the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or
pre-operative evaluation of Erlinda was done by her. Until the day of the operation, respondent
Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was
likewise not properly informed of the possible difficulties she would face during the
administration of anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her patient for
the first time only an hour before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the physician's centuries-old Hippocratic
Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around
with the trial court's ignorance of clinical procedure, hoping that she could get away with it.
Respondent Dra. Gutierrez tried to muddle the difference between an elective surgery and an
emergency surgery just so her failure to perform the required pre-operative evaluation would
escape unnoticed. In her testimony she asserted:
494 | P a g e
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see
the patient a day before so you can introduce yourself to establish
good doctor-patient relationship and gain the trust and confidence
of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative
procedure of the anesthesiologist and in my case, with elective
cases and normal cardio-pulmonary clearance like that, I usually
don't do it except on emergency and on cases that have an
abnormalities (sic). 58
However, the exact opposite is true. In an emergency procedure, there is hardly enough time
available for the fastidious demands of pre-operative procedure so that an anesthesiologist is able
to see the patient only a few minutes before surgery, if at all. Elective procedures, on the other
hand, are operative procedures that can wait for days, weeks or even months. Hence, in these
cases, the anesthesiologist possesses the luxury of time to be at the patient's beside to do a proper
interview and clinical evaluation. There is ample time to explain the method of anesthesia, the
drugs to be used, and their possible hazards for purposes of informed consent. Usually, the preoperative assessment is conducted at least one day before the intended surgery, when the patient
is relaxed and cooperative.
Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all
the time to make a thorough evaluation of Erlinda's case prior to the operation and prepare her
for anesthesia. However, she never saw the patient at the bedside. She herself admitted that she
had seen petitioner only in the operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take advantage of this important opportunity. As such,
her attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of
the patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty
intubation is truly the proximate cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's
coma was due to bronchospasm 59 mediated by her allergic response to the drug, Thiopental
Sodium, introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of
the Philippine College of Physicians and Diplomate of the Philippine Specialty Board of Internal
Medicine, who advanced private respondents' theory that the oxygen deprivation which led to
anoxic encephalopathy, 60 was due to an unpredictable drug reaction to the short-acting
barbiturate. We find the theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply
because he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have
495 | P a g e
been capable of properly enlightening the court about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist and could not therefore properly
advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in
the anesthetic practice of Pentothal administration is further supported by his own admission that
he formulated his opinions on the drug not from the practical experience gained by a specialist or
expert in the administration and use of Sodium Pentothal on patients, but only from reading
certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any
occasion to use pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they
have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only
on what you have read from books and not by your own personal
application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my
appendectomy.
Q: And because they have used it on you and on account of your
own personal experience you feel that you can testify on pentothal
here with medical authority?
A: No. That is why I used references to support my claims. 61
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the
fields of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic
encephalopathy belongs to the field of neurology. While admittedly, many bronchospastic496 | P a g e
mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr. Jamora's field,
the anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within the
disciplines of anesthesiology, allergology and pharmacology. On the basis of the foregoing
transcript, in which the pulmonologist himself admitted that he could not testify about the drug
with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamora's
testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence 62 regarding expert witnesses states:
Sec. 49. Opinion of expert witness. The opinion of a witness on a matter
requiring special knowledge, skill, experience or training which he is shown to
possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the
subject matter about which he or she is to testify, either by the study of recognized authorities on
the subject or by practical experience.63 Clearly, Dr. Jamora does not qualify as an expert witness
based on the above standard since he lacks the necessary knowledge, skill, and training in the
field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong
field, private respondents' intentionally avoided providing testimony by competent and
independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's
coma by triggering an allergic mediated response, has no support in evidence. No evidence of
stridor, skin reactions, or wheezing some of the more common accompanying signs of an
allergic reaction appears on record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis
without supporting medical proof, and against the weight of available evidence, then every
anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously
asserted by private respondents was a mere afterthought. Such an explanation was advanced in
order to advanced in order to absolve them of any and all responsibility for the patient's
condition.
In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty
intubation which was the proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces injury, and without which the result would not have
occurred. 64 An injury or damage is proximately caused by an act or a failure to act, whenever it
appears from the evidence in the case, that the act or omission played a substantial part in
bringing about or actually causing the injury or damage; and that the injury or damage was either
a direct result or a reasonably probable consequence of the act or omission. 65 It is the dominant,
moving or producing cause.
497 | P a g e
Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably
the proximate cause which triggered the chain of events leading to Erlinda's brain damage and,
ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was a failure.
This fact was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez
remarked, "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan."
Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The development
of abdominal distention, together with respiratory embarrassment indicates that the endotracheal
tube entered the esophagus instead of the respiratory tree. In other words, instead of the intended
endotracheal intubation what actually took place was an esophageal intubation. During
intubation, such distention indicates that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly
cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the
wrong place. That abdominal distention had been observed during the first intubation suggests
that the length of time utilized in inserting the endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of
oxygen in her lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony of Dr.
Hosaka, the lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda
were already blue. 67 However, private respondents contend that a second intubation was
executed on Erlinda and this one was successfully done. We do not think so. No evidence exists
on record, beyond private respondents' bare claims, which supports the contention that the
second intubation was successful. Assuming that the endotracheal tube finally found its way into
the proper orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of
a successful intubation. In fact, cyanosis was again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents
insist, that the second intubation was accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late. As aptly explained by the trial
court, Erlinda already suffered brain damage as a result of the inadequate oxygenation of her
brain for about four to five minutes. 68
The above conclusion is not without basis. Scientific studies point out that intubation problems
are responsible for one-third (1/3) of deaths and serious injuries associated with
anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the vast majority of difficult
intubations may be anticipated by performing a thorough evaluation of the patient's airway prior
to the operation. 70 As stated beforehand, respondent Dra. Gutierrez failed to observe the proper
pre-operative protocol which could have prevented this unfortunate incident. Had appropriate
diligence and reasonable care been used in the pre-operative evaluation, respondent physician
could have been much more prepared to meet the contingency brought about by the perceived
anatomic variations in the patient's neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together with a change in technique. 71 In
other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative
evaluation, would have had little difficulty going around the short neck and protruding
teeth. 72 Having failed to observe common medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and eventual coma
of Erlinda.
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We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical
team. As the so-called "captain of the ship," 73 it is the surgeon's responsibility to see to it that
those under him perform their task in the proper manner. Respondent Dr. Hosaka's negligence
can be found in his failure to exercise the proper authority (as the "captain" of the operative
team) in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no
evidence on record exists to show that respondent Dr. Hosaka verified if respondent Dra.
Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent Dr.
Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda's
cholecystectomy, and was in fact over three hours late for the latter's operation. Because of this,
he had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties towards his patient. Thus, he shares equal
responsibility for the events which resulted in Erlinda's condition.
We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting
"consultants," 74 who are allegedly not hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases. However, the difficulty is only more
apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and
in the conduct of their work within the hospital premises. Doctors who apply for "consultant"
slots, visiting or attending, are required to submit proof of completion of residency, their
educational qualifications; generally, evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or by a review committee set up
by the hospital who either accept or reject the application. 75 This is particularly true with
respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally required
to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and
residents, moderate grand rounds and patient audits and perform other tasks and responsibilities,
for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of
admitting patients into the hospital. In addition to these, the physician's performance as a
specialist is generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and
visiting "consultant" staff. While "consultants" are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the patient's condition, the control
exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of
an employer-employee relationship, with the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between hospitals and their
499 | P a g e
attending and visiting physicians. This being the case, the question now arises as to whether or
not respondent hospital is solidarily liable with respondent doctors for petitioner's condition. 76
The basis for holding an employer solidarily responsible for the negligence of its employee is
found in Article 2180 of the Civil Code which considers a person accountable not only for his
own acts but also for those of others based on the former's responsibility under a relationship
of patria potestas. 77 Such responsibility ceases when the persons or entity concerned prove that
they have observed the diligence of a good father of the family to prevent damage.78 In other
words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown,
the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove
that they observed the diligence of a good father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility over
respondent physicians, failed to adduce evidence showing that it exercised the diligence of a
good father of a family in the hiring and supervision of the latter. It failed to adduce evidence
with regard to the degree of supervision which it exercised over its physicians. In neglecting to
offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its
burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above
discussions, private respondents were unable to rebut the presumption of negligence. Upon these
disquisitions we hold that private respondents are solidarily liable for damages under Article
2176 79 of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total of
P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to
its being updated" covering the period from 15 November 1985 up to 15 April 1992, based on
monthly expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time of its
decision would be grossly inadequate to cover the actual costs of home-based care for a
comatose individual. The calculated amount was not even arrived at by looking at the actual cost
of proper hospice care for the patient. What it reflected were the actual expenses incurred and
proved by the petitioners after they were forced to bring home the patient to avoid mounting
hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice
specializing in the care of the chronically ill for the purpose of providing a proper milieu
adequate to meet minimum standards of care. In the instant case for instance, Erlinda has to be
constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is
done by nasogastric tube. Food preparation should be normally made by a dietitian to provide her
with the correct daily caloric requirements and vitamin supplements. Furthermore, she has to be
seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary
therapist to prevent the accumulation of secretions which can lead to respiratory complications.
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Given these considerations, the amount of actual damages recoverable in suits arising from
negligence should at least reflect the correct minimum cost of proper care, not the cost of the
care the family is usually compelled to undertake at home to avoid bankruptcy. However, the
provisions of the Civil Code on actual or compensatory damages present us with some
difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are those
suffered by him as he has duly proved. The Civil Code provides:
Art. 2199. Except as provided by law or by stipulation, one is entitled to an
adequate compensation only for such pecuniary loss suffered by him as he has
duly proved. Such compensation is referred to as actual or compensatory
damages.
Our rules on actual or compensatory damages generally assume that at the time of litigation, the
injury suffered as a consequence of an act of negligence has been completed and that the cost can
be liquidated. However, these provisions neglect to take into account those situations, as in this
case, where the resulting injury might be continuing and possible future complications directly
arising from the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and
correctly respond to the injury caused, should be one which compensates for pecuniary loss
incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to
be suffered but which could not, from the nature of the case, be made with certainty. 80 In other
words, temperate damages can and should be awarded on top of actual or compensatory damages
in instances where the injury is chronic and continuing. And because of the unique nature of such
cases, no incompatibility arises when both actual and temperate damages are provided for. The
reason is that these damages cover two distinct phases.
As it would not be equitable and certainly not in the best interests of the administration of
justice for the victim in such cases to constantly come before the courts and invoke their aid
in seeking adjustments to the compensatory damages previously awarded temperate damages
are appropriate. The amount given as temperate damages, though to a certain extent speculative,
should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a comatose
patient who has remained in that condition for over a decade. Having premised our award for
compensatory damages on the amount provided by petitioners at the onset of litigation, it would
be now much more in step with the interests of justice if the value awarded for temperate
damages would allow petitioners to provide optimal care for their loved one in a facility which
generally specializes in such care. They should not be compelled by dire circumstances to
provide substandard care at home without the aid of professionals, for anything less would be
grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages
would therefore be reasonable. 81
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In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury
suffered by the plaintiff would have led to expenses which were difficult to estimate because
while they would have been a direct result of the injury (amputation), and were certain to be
incurred by the plaintiff, they were likely to arise only in the future. We awarded P1,000,000.00
in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic
amputation of her left lower extremity at the distal left thigh just above the knee.
Because of this, Valenzuela will forever be deprived of the full ambulatory
functions of her left extremity, even with the use of state of the art prosthetic
technology. Well beyond the period of hospitalization (which was paid for by Li),
she will be required to undergo adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical
and occupational rehabilitation and therapy. During the lifetime, the prosthetic
devise will have to be replaced and readjusted to changes in the size of her lower
limb effected by the biological changes of middle-age, menopause and aging.
Assuming she reaches menopause, for example, the prosthetic will have to be
adjusted to respond to the changes in bone resulting from a precipitate decrease in
calcium levels observed in the bones of all post-menopausal women. In other
words, the damage done to her would not only be permanent and lasting, it would
also be permanently changing and adjusting to the physiologic changes which her
body would normally undergo through the years. The replacements, changes, and
adjustments will require corresponding adjustive physical and occupational
therapy. All of these adjustments, it has been documented, are painful.
xxx xxx xxx
A prosthetic devise, however technologically advanced, will only allow a
reasonable amount of functional restoration of the motor functions of the lower
limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness,
psychological injury, mental and physical pain are inestimable.83
The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly
much more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a
comatose state for over fourteen years now. The burden of care has so far been heroically
shouldered by her husband and children, who, in the intervening years have been deprived of the
love of a wife and a mother.
502 | P a g e
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be
virtually impossible to quantify. Even the temperate damages herein awarded would be
inadequate if petitioner's condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's actual injury would not even
scratch the surface of the resulting moral damage because it would be highly speculative to
estimate the amount of emotional and moral pain, psychological damage and injury suffered by
the victim or those actually affected by the victim's condition. 84The husband and the children, all
petitioners in this case, will have to live with the day to day uncertainty of the patient's illness,
knowing any hope of recovery is close to nil. They have fashioned their daily lives around the
nursing care of petitioner, altering their long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged with the moral responsibility of the care
of the victim. The family's moral injury and suffering in this case is clearly a real one. For the
foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby
awarded. Considering the length and nature of the instant suit we are of the opinion that
attorney's fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because physicians
are not insurers of life and, they rarely set out to intentionally cause injury or death to their
patients. However, intent is immaterial in negligence cases because where negligence exists and
is proven, the same automatically gives the injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are devised for the purpose
of preventing complications. A physician's experience with his patients would sometimes tempt
him to deviate from established community practices, and he may end a distinguished career
using unorthodox methods without incident. However, when failure to follow established
procedure results in the evil precisely sought to be averted by observance of the procedure and a
nexus is made between the deviation and the injury or damage, the physician would necessarily
be called to account for it. In the case at bar, the failure to observe pre-operative assessment
protocol which would have influenced the intubation in a salutary way was fatal to private
respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby
modified so as to award in favor of petitioners, and solidarily against private respondents the
following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this
decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos
expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and attorney's fees; and, 5) the
costs of the suit.
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
503 | P a g e
DIGEST
FACTS:
Erlinda Ramos underwent a surgical procedure to remove stone from her gall bladder
(cholecystectomy). They hired Dr. Hosaka, a surgeon, to conduct the surgery at the De Los
Santos Medical Center (DLSMC). Hosaka assured them that he would find a good
anesthesiologist. But the operation did not go as planned, Dr. Hosaka arrived 3 hours late for the
operation, Dra. Gutierrez, the anesthesiologist botched the administration of the anesthesia
causing Erlinda to go into a coma and suffer brain damage. The botched operation was witnessed
by Herminda Cruz, sister in law of Erlinda and Dean of College of Nursing of Capitol Medical
Center.
The family of Ramos (petitioners) sued the hospital, the surgeon and the anesthesiologist for
damages. The petitioners showed expert testimony showing that Erlinda's condition was caused
by the anesthesiologist in not exercising reasonable care in intubating Erlinda. Eyewitnesses
heard the anesthesiologist saying Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan.
Diagnostic tests prior to surgery showed that Erlinda was robust and fit to undergo surgery.
The RTC held that the anesthesiologist ommitted to exercise due care in intubating the patient,
the surgeon was remiss in his obligation to provide a good anesthesiologist and for arriving 3
hours late and the hospital is liable for the negligence of the doctors and for not cancelling the
operation after the surgeon failed to arrive on time. The surgeon, anesthesiologist and the
DLSMC were all held jointly and severally liable for damages to petitioners. The CA reversed
the decision of the Trial Court.
ISSUES: Whether or not the private respondents were negligent and thereby caused the
comatose condition of Ramos.
HELD:
Yes, private respondents were all negligent and are solidarily liable for the damages.
RATIO:
Res ipsa loquitur a procedural or evidentiary rule which means the thing or the transaction
speaks for itself. It is a maxim for the rule that the fact of the occurrence of an injury, taken with
the surrounding circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with
an explanation, where ordinarily in a medical malpractice case, the complaining party must
present expert testimony to prove that the attending physician was negligent.
This doctrine finds application in this case. On the day of the operation, Erlinda Ramos already
surrendered her person to the private respondents who had complete and exclusive control over
504 | P a g e
her. Apart from the gallstone problem, she was neurologically sound and fit. Then, after the
procedure, she was comatose and brain damagedres ipsa loquitur!the thing speaks for itself!
Negligence Private respondents were not able to disprove the presumption of negligence on
their part in the care of Erlinda and their negligence was the proximate cause of her condition.
One need not be an anesthesiologist in order to tell whether or not the intubation was a success.
[res ipsa loquitur applies here]. The Supreme Court also found that the anesthesiologist only saw
Erlinda for the first time on the day of the operation which indicates unfamiliarity with the
patient and which is an act of negligence and irresponsibility.
The head surgeon, Dr. Hosaka was also negligent. He failed to exercise the proper authority as
the captain of the ship in determining if the anesthesiologist observed the proper protocols.
Also, because he was late, he did not have time to confer with the anesthesiologist regarding the
anesthesia delivery.
The hospital failed to adduce evidence showing that it exercised the diligence of a good father of
the family in hiring and supervision of its doctors (Art. 2180). The hospital was negligent since
they are the one in control of the hiring and firing of their consultants. While these consultants
are not employees, hospitals still exert significant controls on the selection and termination of
doctors who work there which is one of the hallmarks of an employer-employee reationship.
Thus, the hospital was allocated a share in the liability.
Damages temperate damages can and should be awarded on top of actual or compensatory
damages in instances where the injury is chronic and continuing.

SUPREME COURT
Manila
SECOND DIVISION
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G.R. No. 204095
June 15, 2015
DR. JAIME T. CRUZ, Petitioner,

vs.
FELICISIMO V. AGAS, JR., Respondent.
DECISION
MENDOZA, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court assails the May 22,
2012 Decision1 and October 18, 2012 Resolution2 of the Court of Appeals (CA), in CA-G.R. SP
No. 111910, which affirmed the March 2, 20073 and September 23, 20094 Resolutions of the
Secretary of Justice. The said resolutions let stand the February 16, 2004 Resolution of the Office
of the Prosecutor of Quezon City, dismissing the complaint of petitioner Dr. Jaime T. Cruz (Dr.
Cruz) for Serious Physical Injuries through Reckless Imprudence and Medical Malpractice
against respondent, Dr. Felicisimo V. Agas, Jr. (Dr. Agas).
The Antecedents
In his Complaint-Affidavit5 for Serious Physical Injuries through Reckless Imprudence and
Medical Malpractice against Dr. Agas, Dr. Cruz alleged, among others, that sometime in May
2003, he engaged the services of St. Lukes Medical Center (SLMC)for a medical check-up; that
after being admitted in SLMC on May 28, 2003,he underwent stool, urine, blood, and other body
fluid tests conducted by the employees and doctors of the said hospital; that on May 29, 2003, he
was sent to the Gastro-Enterology Department for a scheduled gastroscopy and colonoscopy; that
because the specialist assigned to perform the procedure was nowhere to be found, he gave the
colonoscopy results to the attending female anesthesiologist for the information and
consideration of the assigned specialist; that, thereafter, he was sedated and the endoscopic
examination was carried out; that when he regained consciousness, he felt that something went
wrong during the procedure because he felt dizzy, had cold clammy perspiration and experienced
breathing difficulty; that he could not stand or sit upright because he felt so exhausted and so
much pain in his abdomen; that when he was about to urinate in the comfort room, he collapsed;
that he tried to consult the specialist who performed the colonoscopy but he was nowhere to be
found; and that his cardiologist, Dra. Agnes Del Rosario, was able to observe his critical
condition and immediately referred him to the surgical department which suspected that he had
hemorrhage in his abdomen and advised him to undergo an emergency surgical operation.
Dr. Cruz further averred that he agreed to the operation and upon waking up at the ICU on May
30, 2003, he found out that the doctors did an exploratory laparatomy because of the internal
bleeding; that he learned that the doctors cut a portion of the left side of his colon measuring 6-8
506 | P a g e
inches because it had a partial tear of the colonic wall which caused the internal bleeding; that
despite the painkillers, he was under tremendous pain in the incision area during his recovery
period in the ICU and had fever; and that he had intravenous tubes attached to his arms,
subclavian artery on the left part of his chest and a nasogastric tube through his nose.
Dr. Cruz claimed that Dr. Agas admitted that he was the one who performed the colonoscopy
procedure but the latter insisted that nothing went wrong. On June 7, 2003,he was discharged
from SLMC. Nevertheless, he complained that he had a hard time digesting his food; that he was
frequently fed every two hours because he easily got full; that he had fresh blood stools every
time he moved his bowel; that he had lost his appetite and had gastric acidity; that he slept most
of the day; and that he was in good physical condition before the colonoscopy procedure. He
asserted that at the time of the filing of the complaint, he was still weak, tired and in pain.
Defense of Dr. Agas
Dr. Agas, on the other hand, countered that Dr. Cruz failed to prove the basic elements of
reckless imprudence or negligence. He averred that Dr. Cruz unfairly made it appear that he did
not know that he would perform the procedure. He explained that before the start of the
colonoscopy procedure, he was able to confer with Dr. Cruz and review his medical history
which was taken earlier by a fellow gastrointestinal physician. He claimed that the gastroscopy
and colonoscopy procedures conducted on Dr. Cruz were completely successful considering that
the latter did not manifest any significant adverse reaction or body resistance during the
procedures and that his vital signs were normal throughout the procedure.6
Dr. Agas added that certifications and sworn statements were submitted by the Assistant Medical
Director for Professional Services, the Director of the Institute of Digestive Diseases, the
anesthesiologist, and the hospital nurse attesting to the fact that the intraperitonial bleeding
which developed after the colonoscopy procedure, was immediately recognized, evaluated,
carefully managed, and corrected; that he provided an adequate and reasonable standard of care
to Dr. Cruz; that the endoscopist followed all precautionary measures; that the colonoscopy
procedure was done properly; that he was not negligent or reckless in conducting the
colonoscopy procedure; that he did not deviate from any standard medical norm, practice or
procedure; and that he exercised competence and diligence in rendering medical services to Dr.
Cruz.7
Antecedents at the Prosecution Level
On February 16, 2004, the Office of the City Prosecutor (OCP) issued a resolution dismissing the
complaint for Serious Physical Injuries through Reckless Imprudence and Medical Malpractice.
Aggrieved, Dr. Cruz filed a petition for review with the Department of Justice (DOJ)but the same
507 | P a g e
was dismissed in its March 2, 2007 Resolution. Dr. Cruz filed a motion for reconsideration but it
was denied by the DOJ in its September 23, 2009 Resolution.8
At the Court of Appeals
Not satisfied, Dr. Cruz filed a petition for certiorari before the CA questioning the unfavorable
DOJ resolutions. On May 22, 2012, the CA rendered a decision affirming the said DOJ
resolutions. The CA explained that, as a matter of sound judicial policy, courts would not
interfere with the public prosecutors wide discretion of determining probable cause in a
preliminary investigation unless such executive determination was tainted with manifest error or
grave abuse of discretion. It stated that the public prosecutors finding of lack of probable cause
against Dr. Agas was in accordance with law and that his alleged negligence was not adequately
established by Dr. Cruz.
The CA also declared that Dr. Cruz failed to state in his Complaint-Affidavit the specific
procedures that Dr. Agas failed to do which a reasonable prudent doctor would have done, or
specific norms he failed to observe which a reasonably prudent doctor would have complied
with. The CA pointed out that Dr. Agas was able to satisfactorily explain in his Counter-Affidavit
that the complications suffered by Dr. Cruz was not caused by his negligence or was the result of
medical malpractice. Dr. Agas explained as follows:
That the complication was due to the abnormal condition and configuration of the digestive
system, colon in particular, of the complainant and not from any negligent act in connection with
the conduct of colonoscopy. The surgical findings (xxx) revealed marked adhesions in the
sigmoid colon which is not and never within my control. That the tear in the serosa (the
outermost layer of the colonic wall which has 4 layers) happened likely because of the marked
interloop adhesions and tortuousity of the sigmoid segment of the colon. These adhesions that
connect the serosa to the peritoneal lining of each loop detached from the serosa during the
procedure. It is not possible to detect the presence of marked adhesions prior to the endoscopic
procedure because no clinical findings, laboratory tests or diagnostic imaging such as x-ray,
ultrasound or computed tomography (CT scan) of the abdomen can diagnose these conditions.
This can only be detected by surgically opening up the abdomen. Moreover, marked adhesions
and serosal tear, in particular, cannot likewise be detected by colonoscopy because they are in the
outer wall of the colon and only the inner lining of the colon is within the view of the
colonoscope (camera).9
The CA further wrote that the counter-affidavit of Dr. Agas was supported by the sworn affidavit
of Dr. Jennifel S. Bustos, an anesthesiologist at the SLMC and the affidavit of Evelyn E. Daulat,
a nurse at SLMC, both swearing under oath that Dr. Agas was not negligent in conducting a
gastroscopy and colonoscopy procedure on Dr. Cruz and the certification issued by the Hospital
Ethics Committee which stated that Dr. Cruz was given an adequate and reasonable standard of
508 | P a g e
care; that Dr. Agas followed all precautionary measures in safeguarding Dr. Cruz from any
possible complications; and that the colonoscopy was done properly.
ISSUE
WHETHER OR NOT THE CA WAS CORRECT IN AFFIRMING THE DECISION OF THE
DOJ THAT NO PROBABLE CAUSE EXISTS FOR FILING AN INFORMATION AGAINST
THE RESPONDENT, THAT THE RESPONDENT WAS NOT NEGLIGENT AND THAT
THERE WAS NO DENIAL OF DUE PROCESS.
Non-interference with Executive
Determination of Probable Cause
in Preliminary Investigations
Under the doctrine of separation of powers, courts have no right to directly decide on matters
over which full discretionary authority has been delegated to the Executive Branch of the
Government, or to substitute their own judgment for that of the Executive Branch, represented in
this case by the Department of Justice. The settled policy is that the courts will not interfere with
the executive determination of probable cause for the purpose of filing an Information, in the
absence of grave abuse of discretion. That abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or
to act at all in contemplation of law, such as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.
Medical Negligence and
Malpractice Not Established
In the case at bench, Dr. Cruz failed to show that the DOJ gravely abused its discretion in finding
that there was lack of probable cause and dismissing the complaint against Dr. Agas for Serious
Physical Injuries through Reckless Imprudence and Medical Malpractice.
A medical negligence case can prosper if the patient can present solid proof that the doctor, like
in this case, either failed to do something which a reasonably prudent doctor would have done, or
that he did something that a reasonably prudent doctor would not have done, and such failure or
action caused injury to the patient.
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
509 | P a g e
or action caused injury to the patient. Simply put, the elements are duty, breach, injury and
proximate causation.10
In this case, Dr. Cruz has the burden of showing the negligence or recklessness of Dr. Agas.
Although there is no dispute that Dr. Cruz sustained internal hemorrhage due to a tear in the
serosa of his sigmoid colon, he failed to show that it was caused by Dr. Agass negligent and
reckless conduct of the colonoscopy procedure. In other words, Dr. Cruz failed to show and
explain that particular negligent or reckless act or omission committed by Dr. Agas. Stated
differently, Dr. Cruz did not demonstrate that there was "inexcusable lack of precaution" on the
part of Dr. Agas.
Res Ipsa Loquitur Doctrine
Not Applicable Against Respondent
Literally, res ipsa loquitur means the thing speaks for itself. It is the rule that the fact of the
question of fact for defendant to meet with an explanation.11
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.12
In this case, the Court agrees with Dr. Agas that his purported negligence in performing the
colonoscopy on Dr. Cruz was not immediately apparent to a layman to justify the application of
res ipsa loquitur doctrine.
Dr. Agas was able to establish that the internal bleeding sustained by Dr. Cruz was due to the
abnormal condition and configuration of his sigmoid colon which was beyond his control
considering that the said condition could not be detected before a colonoscopic procedure. Dr.
Agas adequately explained that no clinical findings, laboratory tests, or diagnostic imaging, such
as x-rays, ultrasound or computed tomography (CT) scan of the abdomen, could have detected
this condition prior to an endoscopic procedure. Specifically, Dr. Agas wrote:
On the other hand, in the present case, the correlation between petitioners injury, i.e., tear in the
serosa of sigmoid colon, and the colonoscopy conducted by respondent to the petitioner clearly
requires the presentation of an expert opinion considering that no perforation of the sigmoid
510 | P a g e
colon was ever noted during the laparotomy. It cannot be overemphasized that the colonoscope
inserted by the respondent only passed through the inside of petitioners sigmoid colon while the
damaged tissue, i.e., serosa, which caused the bleeding, is located in the outermost layer of the
colon. It is therefore impossible for the colonoscope to touch, scratch, or even tear the serosa
since the said membrane is beyond reach of the colonoscope in the absence of perforation on the
colon.13
Dr. Cruz failed to rebut this.
WHEREFORE, the petition is DENIED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
ARTURO D. BRION
Associate Justice

Associate Justice
FRANCIS H. JARDELRZA*
Associate Justice
AT T E S T AT I O N
case was assigned to the writer of the opinion of the Court's Division.
ANTONIO T. CARPIO
Associate Justice
511 | P a g e

Chief Justice
DIGEST
The Facts:
On May 28, 2003, Dr. Jaime Cruz underwent a check up at the St. Lukes Medical Center
(SMLC); thereat, he underwent stool, urine, blood and there body fluid tests conducted by the
employees of SMLC. On May 29, 2003, underwent colonoscopy at the hospital; he was sedated
and the endoscopic examination carried out. When he woke up, he felt that something was
wrong as he felt dizzy, had cold clammy perspiration and experienced breathing difficulty; he
could not stand or sit upright, and collapsed when he was about to urinate in the comfort room.
He tried to consult the specialist but he was nowhere to be found. His cardiologist, able to
observe his situation, immediately referred him to the surgical department, which suspected that
he had haemorrhage in his abdomen. He agreed to the operation. The next day, he learned that
the doctors cut a portion of the left side of his colon because it had a partial tear of the colonic
wall which caused the internal bleeding. It was Dr. Felicisimo Agas who performed the
colonoscopy procedure, but the latter denied that something went wrong. As a result, he had a
hard time digesting his food; that he was frequently fed because he got full easily he lost his
appetite and had gastric acidity, slept most of the day and had fresh blood stool every time he
moved his bowel. He was in good physical condition before the colonoscopy procedure, but at
the time of the filing of the complaint, he was weak, tired and in pain. He thus filed a case for
Serious Physical Injuries through Reckless Imprudence and Medical Malpractice before the
Office of the City Prosecutor.
In his defense, Dr. Agas averred that Dr. Cruz failed to prove the basic elements of reckless
imprudence or negligence. Dr. Cruz made it appear that he did not know of the colonoscopy
procedure when the latter conferred with him and discussed his medical history prior to the
operation. The colonoscopy procedure was successful, as Dr. Cruz did not manifest any
significant adverse reaction or body resistance during the procedure and his vital signs were
normal throughout. In support of his counter-affidavit, Dr. Agas presented the certifications and
sworn statements submitted by the Assistant Medical Director for Professional Services, the
anaesthesiologist, the hospital nurse and the Director of the Institute of Digestive Diseases, all
attesting to fact that the ntraperitonial bleeding which developed after the colonoscopy
procedure, was immediately recognized, evaluated, carefully managed, and corrected; that he
provided an adequate and reasonable standard of care to Dr. Cruz; that the endoscopist followed
all precautionary measures; that the colonoscopy procedure was done properly; that he was not
negligent or reckless in conducting the colonoscopy procedure; that he did not deviate from any
standard medical norm, practice or procedure; and that he exercised competence and diligence in
rendering medical services to Dr. Cruz.
The Office of the City Prosecutor dismissed the complaint. Dr. Cruz filed a Petition for Review
with the DOJ, but it was also dismissed. He then filed a petition for certiorari with the Court of
Appeals to assail the adverse rulings against him. Again, the Court of Appeals dismissed the
512 | P a g e
case. The appellate court ruled that as a matter of sound judicial policy, courts would not
interfere with the public prosecutors wide discretion of determining probable cause in a
preliminary investigation unless such executive determination was tainted with manifest error or
grave abuse of discretion. The CA favourably adopted the defense of Dr. Agas that the
complication was due to the abnormal condition and configuration of the digestive system, colon
in particular, of the complainant and not from any negligent act in connection with the conduct of
colonoscopy. The surgical findings (xxx) revealed marked adhesions in the sigmoid colon which
is not and never within my control. That the tear in the serosa (the outermost layer of the colonic
wall which has 4 layers) happened likely because of the marked interloop adhesions and
tortuousity of the sigmoid segment of the colon. These adhesions that connect the serosa to the
peritoneal lining of each loop detached from the serosa during the procedure. It is not possible to
detect the presence of marked adhesions prior to the endoscopic procedure because no clinical
findings, laboratory tests or diagnostic imaging such as x-ray, ultrasound or computed
tomography (CT scan) of the abdomen can diagnose these conditions. This can only be detected
by surgically opening up the abdomen. Moreover, marked adhesions and serosal tear, in
particular, cannot likewise be detected by colonoscopy because they are in the outer wall of the
colon and only the inner lining of the colon is within the view of the colonoscope (camera),
which assertions were supported by other witnesses.
Dr. Cruz appealed to the court of last resort.
The Issue:
Whether or not probable cause exists to charge Dr. Agas with Serious Physical Injuries through
Reckless Imprudence and Medical Malpractice.
The Ruling:
Non-interference with Executive Determination of Probable Cause in Preliminary Investigations
Under the doctrine of separation of powers, courts have no right to directly decide on matters
over which full discretionary authority has been delegated to the Executive Branch of the
Government, or to substitute their own judgment for that of the Executive Branch, represented in
this case by the Department of Justice. The settled policy is that the courts will not interfere with
the executive determination of probable cause for the purpose of filing an Information, in the
absence of grave abuse of discretion. That abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or
to act at all in contemplation of law, such as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.
Medical Negligence and Malpractice Not Established
513 | P a g e
In the case at bench, Dr. Cruz failed to show that the DOJ gravely abused its discretion in finding
that there was lack of probable cause and dismissing the complaint against Dr. Agas for Serious
Physical Injuries through Reckless Imprudence and Medical Malpractice.
A medical negligence case can prosper if the patient can present solid proof that the doctor, like
in this case, either failed to do something which a reasonably prudent doctor would have done, or
that he did something that a reasonably prudent doctor would not have done, and such failure or
action caused injury to the patient.
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. Simply put, the elements are duty, breach, injury and
proximate causation.1
In this case, Dr. Cruz has the burden of showing the negligence or recklessness of Dr. Agas.
Although there is no dispute that Dr. Cruz sustained internal hemorrhage due to a tear in the
serosa of his sigmoid colon, he failed to show that it was caused by Dr. Agass negligent and
reckless conduct of the colonoscopy procedure. In other words, Dr. Cruz failed to show and
explain that particular negligent or reckless act or omission committed by Dr. Agas. Stated
differently, Dr. Cruz did not demonstrate that there was inexcusable lack of precaution on the
part of Dr. Agas.
Res Ipsa Loquitur Doctrine
Not Applicable Against Respondent
Literally, res ipsa loquitur means the thing speaks for itself. It is the rule that the fact of the
question of fact for defendant to meet with an explanation.2
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.3
In this case, the Court agrees with Dr. Agas that his purported negligence in performing the
colonoscopy on Dr. Cruz was not immediately apparent to a layman to justify the application
of res ipsa loquitur doctrine.
Dr. Agas was able to establish that the internal bleeding sustained by Dr. Cruz was due to the
abnormal condition and configuration of his sigmoid colon which was beyond his control
considering that the said condition could not be detected before a colonoscopic procedure. Dr.
Agas adequately explained that no clinical findings, laboratory tests, or diagnostic imaging, such
as x-rays, ultrasound or computed tomography (CT) scan of the abdomen, could have detected
this condition prior to an endoscopic procedure. Specifically, Dr. Agas wrote:
On the other hand, in the present case, the correlation between petitioners injury, i.e., tear in the
serosa of sigmoid colon, and the colonoscopy conducted by respondent to the petitioner clearly
514 | P a g e
requires the presentation of an expert opinion considering that no perforation of the sigmoid
colon was ever noted during the laparotomy. It cannot be overemphasized that the colonoscope
inserted by the respondent only passed through the inside of petitioners sigmoid colon while the
damaged tissue, i.e., serosa, which caused the bleeding, is located in the outermost layer of the
colon. It is therefore impossible for the colonoscope to touch, scratch, or even tear the serosa
since the said membrane is beyond reach of the colonoscope in the absence of perforation on the
colon.
Dr. Cruz failed to rebut this.
WHEREFORE, the petition is DENIED.
MENDOZA, J.:
Carpio, (Chairperson), Brion, Del Castillo, and Jardeleza,* JJ., concur.
THIRD DIVISION
G.R. No. 210445, December 07, 2015
NILO B. ROSIT, Petitioner, v. DAVAO DOCTORS HOSPITAL AND DR. ROLANDO G.
GESTUVO,Respondent.
DECISION
VELASCO JR., J.:
The Case
This is a petition filed under Rule 45 of the Rules of Court assailing the Decision and Resolution
dated January 22, 20131 and November 7, 2013,2 respectively, of the Court of Appeals, Cagayan
De Oro City (CA), in CA-G.R. CV No. 00911-MIN. The CA Decision reversed the Decision
dated September 14, 20043 of the Regional Trial Court, Branch 33 in Davao City-(RTC) in Civil
515 | P a g e
Case No. 27,354-99, a suit for damages thereat which Nilo B. Rosit (Rosit) commenced against
Dr. Rolando Gestuvo (Dr. Gestuvo).
Factual Antecedents
On January 15, 1999, Rosit figured in a motorcycle accident. The X-ray soon taken the next day
at the Davao Doctors Hospital (DDH) showed that he fractured his jaw. Rosit was then referred
to Dr. Gestuvo, a specialist in mandibular injuries,4 who, on January 19, 1999, operated on Rosit.
During the operation, Dr. Gestuvo used a metal plate fastened to the jaw with metal screws to
immobilize the mandible. As the operation required the smallest screws available, Dr. Gestuvo
cut the screws on hand to make them smaller. Dr. Gestuvo knew that there were smaller titanium
screws available in Manila, but did not so inform Rosit supposing that the latter would not be
able to afford the same.5
Following the procedure, Rosit could not properly open and close his mouth and was in pain. Xrays done on Rosit two (2) days after the operation showed that the fracture in his jaw was
aligned but the screws used on him touched his molar. Given the X-ray results, Dr. Gestuvo
referred Rosit to a dentist. The dentist who checked Rosit, Dr. Pangan, opined that another
operation is necessary and that it is to be performed in Cebu.6
Alleging that the dentist told him that the operation conducted on his mandible was improperly
done, Rosit went back to Dr. Gestuvo to demand a loan to defray the cost of the additional
operation as well as the expenses of the trip to Cebu. Dr. Gestuvo gave Rosit P4,500.
Rosit went to Cebu on February 19, 1999, still suffering from pain and could hardly open his
mouth.
In Cebu, Dr. Pangan removed the plate and screws thus installed by Dr. Gestuvo and replaced
them with smaller titanium plate and screws. Dr. Pangan also extracted Rosit's molar that was hit
with a screw and some bone fragments. Three days after the operation, Rosit was able to eat and
speak well and could open and close his mouth normally.7
On his return to Davao, Rosit demanded that Dr. Gestuvo reimburse him for the cost of the
operation and the expenses he incurred in Cebu amounting to P140,000, as well as for the
P50,000 that Rosit would have to spend for the removal of the plate and screws that Dr. Pangan
installed. Dr. Gestuvo refused to pay.8
Thus, Rosit filed a civil case for damages and attorney's fees with the RTC against Dr. Gestuvo
and DDH, the suit docketed as Civil Case No. 27,354-99.
The RTC freed DDH from liability on the ground that it exercised the proper diligence in the
selection and supervision of Dr. Gestuvo, but adjudged Dr. Gestuvo negligent and ruled, thus:
FOR ALL THE FOREGOING, finding the plaintiff Nilo B. Rosit to have preponderantly
established his cause of action in the complaint against defendant Dr. Rolando G. Gestuvo only,
516 | P a g e
judgment is hereby rendered for the plaintiff and against said defendant, ordering the defendant
DR. ROLANDO G. GESTUVO to pay unto plaintiff NILO B. ROSIT the
following:chanRoblesvirtualLawlibrary
a)
the sum of ONE HUNDRED FORTY THOUSAND ONE HUNDRED NINETY NINE
PESOS and 13/100 (P140,199.13) representing reimbursement of actual expenses
incurred by plaintiff in the operation and re-operation of his mandible;
b)
the sum of TWENTY NINE THOUSAND AND SIXTY EIGHT PESOS (P29,068.00)
representing reimbursement of the filing fees and appearance fees;
c)
the sum of ONE HUNDRED FIFTY THOUSAND PESOS (P150,000.00) as and for
attorney's fees;
d)
the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages;
e)
the amount of TEN THOUSAND PESOS (P10,000.00) as exemplary damages; and
f)
the costs of the suit.
For lack of merit, the complaint against defendant DAVAO DOCTORS HOSPITAL and the
defendants' counterclaims are hereby ordered DISMISSED.
Cost against Dr. Rolando G. Gestuvo.
SO ORDERED.
In so ruling, the trial court applied the res ipsa loquitur principle holding that "the need for
expert, medical testimony may be dispensed with because the injury itself provides the proof of
negligence."
Therefrom, both parties appealed to the CA.
In its January 22, 2013 Decision, the CA modified the appealed judgment by deleting the awards
made by the trial court, disposing as follows:
WHEREFORE, the appeal filed by Gestuvo is GRANTED. The Decision dated September 14,
2004 of the Regional Trial Court, Branch 33, Davao City, rendered in Civil Case No. 27,354-99
is hereby MODIFIED. The monetary awards adjudged in favor of Nilo B. Rosit are hereby
DELETED for lack of basis.
517 | P a g e
SO ORDERED.
Unlike the RTC, the CA ruled that the res ipsa loquitur principle is not applicable and that the
testimony of an expert witness is necessary for a finding of negligence. The appellate court also
gave credence to Dr. Pangan's letter stating the opinion that Dr. Gestuvo did not commit gross
negligence in his emergency management of Rosit's fractured mandible.
Rosit's motion for reconsideration was denied in the CA's November 7, 2013 Resolution.
Hence, the instant appeal.
The Issue
The ultimate issue for our resolution is whether the appellate court correctly absolved Dr.
Gestuvo from liability.
The Court's Ruling
The petition is impressed with merit.
In Flores v. Pineda,9 the Court explained the concept of a medical negligence case and the
elements required for its prosecution, viz:chanRoblesvirtualLawlibrary
A medical negligence case is a type of claim to redress a wrong committed by a medical
professional, that has caused bodily harm to or the death of a patient. There are four elements
involved in a medical negligence case, namely: duty, breach, injury, and proximate
causation.
Duty refers to the standard of behavior which imposes restrictions on one's conduct. The
standard in turn refers to the amount of competence associated with the proper discharge of the
profession. A physician is expected to use at least the same level of care that any other
reasonably competent doctor would use under the same circumstances. Breach of duty occurs
when the physician fails to comply with these professional standards. If injury results to the
patient as a result of this breach, the physician is answerable for negligence. (Emphasis supplied)
An expert witness is not necessary as the res ipsa loquitur doctrine is applicable
To establish medical negligence, this Court has held that an expert testimony is generally
required to define the standard of behavior by which the court may determine whether the
physician has properly performed the requisite duty toward the patient. This is so considering
that the requisite degree of skill and care in the treatment of a patient is usually a matter of expert
opinion.10
Solidum v. People of the Philippines11 provides an exception. There, the Court explained that
518 | P a g e
where the application of the principle of res ipsa loquitur is warranted, an expert testimony may
be dispensed with in medical negligence cases:
Although generally, expert medical testimony is relied upon in malpractice suits to prove
that a physician has done a negligent act or that he has deviated from the standard medical
procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for
expert medical testimony is dispensed with because the injury itself provides the proof of
negligence. The reason is that the general rule on the necessity of expert testimony applies only
to such matters clearly within the domain of medical science, and not to matters that are within
the common knowledge of mankind which may be testified to by anyone familiar with the facts.
xxx
of a foreign object in the body of the patient after an operation, injuries sustained on a healthy
part of the body which was not under, or in the area, of treatment, removal of the wrong part of
the body when another part was intended, knocking out a tooth while a patient's jaw was under
anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under
the influence of anesthetic, during or following an operation for appendicitis, among others.
We have further held that resort to the doctrine of res ipsa loquitur as an exception to the
requirement of an expert testimony in medical negligence cases may be availed of if the
following essential requisites are satisfied: (1) the accident was of a kind that does not ordinarily
occur unless someone is negligent; (2) the instrumentality or agency that caused the injury was
under the exclusive control of the person charged; and (3) the injury suffered must not have been
due to any voluntary action or contribution of the person injured.12
In its assailed Decision, the CA refused to acknowledge the application of the res ipsa
loquiturdoctrine on the ground that the foregoing elements are absent. In particular, the appellate
court is of the position that post-operative pain is not unusual after surgery and that there is no
proof that the molar Dr. Pangan removed is the same molar that was hit by the screw installed by
Dr. Gestuvo in Rosit's mandible. Further, a second operation was conducted within the 5-week
usual healing period of the mandibular fracture so that the second element cannot be considered
present. Lastly, the CA pointed out that the X-ray examination conducted on Rosit prior to his
first surgery suggests that he had "chronic inflammatory lung disease compatible," implying that
the injury may have been due to Rosit's peculiar condition, thus effectively negating the presence
of the third element.13
After careful consideration, this Court cannot accede to the CA's findings as it is at once apparent
from the records that the essential requisites for the application of the doctrine of res ipsa
loquiturare present.
The first element was sufficiently established when Rosit proved that one of the screws installed
by Dr. Gestuvo struck his molar. It was for this issue that Dr. Gestuvo himself referred Rosit to
Dr. Pangan. In fact, the affidavit of Dr. Pangan presented by Dr. Gestuvo himself before the trial
court narrated that the same molar struck with the screw installed by Dr. Gestuvo was examined
and eventually operated on by Dr. Pangan. Dr. Gestuvo cannot now go back and say that Dr.
Pangan treated a molar different from that which was affected by the first operation.
519 | P a g e
Clearly, had Dr. Gestuvo used the proper size and length of screws and placed the same in the
proper locations, these would not have struck Rosit's teeth causing him pain and requiring him to
undergo a corrective surgery.
Dr. Gestuvo knew that the screws he used on Rosit were too large as, in fact, he cut the same
with a saw.14 He also stated during trial that common sense dictated that the smallest screws
available should be used. More importantly, he also knew that these screws were available
locally at the time of the operation.15 Yet, he did not avail of such items and went ahead with the
larger screws and merely sawed them off. Even assuming that the screws were already at the
proper length after Dr. Gestuvo cut the same, it is apparent that he negligently placed one of the
screws in the wrong area thereby striking one of Rosit's teeth.
In any event, whether the screw hit Rosit's molar because it was too long or improperly placed,
both facts are the product of Dr. Gestuvo's negligence. An average man of common intelligence
would know that striking a tooth with any foreign object much less a screw would cause severe
pain. Thus, the first essential requisite is present in this case.
Anent the second element for the res ipsa loquitur doctrine application, it is sufficient that the
operation which resulted in the screw hitting Rosit's molar was, indeed, performed by Dr.
Gestuvo. No other doctor caused such fact.
The CA finds that Rosit is guilty of contributory negligence in having Dr. Pangan operate on him
during the healing period of his fractured mandible. What the CA overlooked is that it was Dr.
Gestuvo himself who referred Rosit to Dr. Pangan. Nevertheless, Dr. Pangan's participation
could not have contributed to the reality that the screw that Dr. Gestuvo installed hit Rosit's
molar.
Lastly, the third element that the injury suffered must not have been due to any voluntary action
or contribution of the person injured was satisfied in this case. It was not shown that Rosit's lung
disease could have contributed to the pain. What is clear is that he suffered because one of the
screws that Dr. Gestuvo installed hit Rosit's molar.
Clearly then, the res ipsa loquitur doctrine finds application in the instant case and no expert
testimony is required to establish the negligence of defendant Dr. Gestuvo.
Petitioner was deprived of the opportunity to make an "informed consent"
What is more damning for Dr. Gestuvo is his failure to inform Rosit that such smaller screws
were available in Manila, albeit at a higher price.16 As testified to by Dr. Gestuvo himself:
Court
This titanium materials according to you were already available in the Philippines
Alright. since the time of Rosit's accident?
Witness
Yes, your Honor.
520 | P a g e
xxxx
Court
Did you inform Rosit about the existence of titanium screws and plates which
according to you is the screws and plates of choice?
Witness
No, your Honor.

xxxx
Witness
The reason I did not inform him anymore Judge because what I thought he was
already hard up with the down payment. And if I will further introduce him this
screws, the more he will not be able to afford the operation.
xxxx
Court
This titanium screws and plates were available then it is up to Rosit to decide
whether to use it or not because after all the material you are using is paid by the
patient himscll, is it not?
Witness Yes, that is true.

Li v. Soliman17 made the following disquisition on the relevant Doctrine of Informed Consent in
relation to medical negligence cases, to wit:
The doctrine of informed consent within the context of physician-patient relationships goes far
back into English common law. x x x From a purely ethical norm, informed consent evolved
into a general principle of law that a physician has a duty to disclose what a reasonably
prudent physician in the medical community in the exercise of reasonable care would
disclose to his patient as to whatever grave risks of injury might be incurred from a
proposed course of treatment, so that a patient, exercising ordinary care for his own
welfare, and faced with a choice of undergoing the proposed treatment, or alternative
treatment, or none at all, may intelligently exercise his judgment by reasonably balancing
the probable risks against the probable benefits.
xxxx
There are four essential elements a plaintiff must prove in a malpractice action based upon
the doctrine of informed consent: "(1) the physician had a duty to disclose material risks;
(2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate
result of the failure to disclose, the patient consented to treatment she otherwise would not
521 | P a g e
have consented to; and (4) plaintiff was injured by the proposed treatment." The gravamen
in an informed consent case requires the plaintiff to "point to significant undisclosed information
relating to the treatment which would have altered her decision to undergo it." (Emphasis
supplied)
The four adverted essential elements above are present here.
First, Dr. Gestuvo clearly had the duty of disclosing to Rosit the risks of using the larger screws
for the operation. This was his obligation as the physician undertaking the operation.
Second, Dr. Gestuvo failed to disclose these risks to Rosit, deciding by himself that Rosit could
not afford to get the more expensive titanium screws.
Third, had Rosit been informed that there was a risk that the larger screws are not appropriate for
the operation and that an additional operation replacing the screws might be required to replace
the same, as what happened in this case, Rosit would not have agreed to the operation. It bears
pointing out that Rosit was, in fact, able to afford the use of the smaller titanium screws that were
later used by Dr. Pangan to replace the screws that were used by Dr. Gestuvo.
Fourth, as a result of using the larger screws, Rosit experienced pain and could not heal properly
because one of the screws hit his molar. This was evident from the fact that just three (3) days
after Dr. Pangan repeated the operation conducted by Dr. Gestuvo, Rosit was pain-free and could
already speak. This is compared to the one (1) month that Rosit suffered pain and could not use
his mouth after the operation conducted by Dr. Gestuvo until the operation of Dr. Pangan.
Without a doubt, Dr. Gestuvo is guilty of withholding material information which would have
been vital in the decision of Rosit in going through with the operation with the materials at hand.
Thus, Dr. Gestuvo is also guilty of negligence on this ground.
Dr. Pangan's Affidavit is not admissible
The appellate court's Decision absolving Dr. Gestuvo of negligence was also anchored on a letter
signed by Dr. Pangan who stated the opinion that Dr. Gestuvo did not commit gross negligence
in his emergency management of Mr. Rosit's fractured mandible.18 Clearly, the appellate court
overlooked the elementary principle against hearsay evidence.
In Dantis v. Maghinang, Jr.,19 the Court reiterated the oft-repeated rule that "an affidavit is
merely hearsay evidence where its affiant/maker did not take the witness stand." Here, Dr.
Pangan never took the witness stand to affirm the contents of his affidavit. Thus, the affidavit is
inadmissible and cannot be given any weight. The CA, therefore, erred when it considered the
affidavit of Dr. Pangan, mpreso for considering the same as expert testimony.
Moreover, even if such affidavit is considered as admissible and the testimony of an expert
witness, the Court is not bound by such testimony. As ruled in Ilao-Quianay v. Mapile:20
Indeed, courts are not bound by expert testimonies. They may place whatever weight they choose
upon such testimonies in accordance with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within the province of the trial court to decide,
522 | P a g e
considering the ability and character of the witness, his actions upon the witness stand, the
weight and process of the reasoning by which he has supported his opinion, his possible bias in
favor of the side for whom he testifies, and any other matters which serve to illuminate his
statements. The opinion of an expert should be considered by the court in view of all the facts
and circumstances of the case. The problem of the evaluation of expert testimony is left to the
discretion of the trial court whose ruling thereupon is not revicwable in the absence of an abuse
of that discretion.
Thus, the belief of Dr. Pangan whether Dr. Gestuvo is guilty of negligence or not will not bind
the Court. The Court must weigh and examine such testimony and decide for itself the merits
thereof.
As discussed above, Dr. Gestuvo's negligence is clearly demonstrable by the doctrines of res
ipsa loquitur and informed consent.
Damages
For the foregoing, the trial court properly awarded Rosit actual damages after he was able to
prove the actual expenses that he incurred due to the negligence of Dr. Gestuvo. In Mendoza v.
Spouses Gomez,21 the Court explained that a claimant is entitled to actual damages when the
damage he sustained is the natural and probable consequences of the negligent act and he
adequately proved the amount of such damage.
Rosit is also entitled to moral damages as provided under Article 2217 of the Civil Code,22 given
the unnecessary physical suffering he endured as a consequence of defendant's negligence.
To recall, from the time he was negligently operated upon by Dr. Gestuvo until three (3) days
from the corrective surgery performed by Dr. Pangan, or for a period of one (1) month, Rosit
suffered pain and could not properly use his jaw to speak or eat.
The trial court also properly awarded attorney's fees and costs of suit under Article 2208 of the
Civil Code,23 since Rosit was compelled to litigate due to Dr. Gestuvo's refusal to pay for Rosit's
damages.
As to the award of exemplary damages, the same too has to be affirmed. In Mendoza,24 the Court
enumerated the requisites for the award of exemplary damages:
Our jurisprudence sets certain conditions when exemplary damages may be awarded: First, they
may be imposed by way of example or correction only in addition, among others, to
compensatory damages, and cannot be recovered as a matter of right, their determination
depending upon the amount of compensatory damages that may be awarded to the claimant.
Second, the claimant must first establish his right to moral, temperate, liquidated or
compensatory damages. Third, the wrongful act must be accompanied by bad faith, and the
award would be allowed only if the guilty party acted in a wanton, fraudulent, reckless,
oppressive or malevolent manner.
The three (3) requisites are met. Dr. Gestuvo's actions are clearly negligent. Likewise, Dr.
Gestuvo acted in bad faith or in a wanton, fraudulent, reckless, oppressive manner when he was
in breach of the doctrine of informed consent. Dr. Gestuvo had the duty to fully explain to Rosit
523 | P a g e
the risks of using large screws for the operation. More importantly, he concealed the correct
medical procedure of using the smaller titanium screws mainly because of his erroneous belief
that Rosit cannot afford to buy the expensive titanium screws. Such concealment is clearly a
valid basis for an award of exemplary damages.
WHEREFORE, the instant petition is GRANTED. The CA Decision dated January 22, 2013
and Resolution dated November 7, 2013 in CA-G.R. CV No. 00911-MIN are
hereby REVERSED and SET ASIDE. Further, the Decision dated September 14, 2004 of the
Regional Trial Court, Branch 33 in Davao City in Civil Case No. 27,345-99 is
hereby REINSTATED and AFFIRMED.
SO ORDERED.chanroblesvirtuallawlibrary
Peralta, Villarama, Jr., Reyes, and Jardeleza, JJ., concur.
NO CASE DIGEST

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 192123
March 10, 2014
524 | P a g e
DR. FERNANDO P. SOLIDUM, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of reckless
imprudence resulting in serious physical injuries by the Regional Trial Court (RTC) and the
Court of Appeals (CA). He had been part of the team of anesthesiologists during the surgical
pull-through operation conducted on a three-year old patient born with an imperforate anus.1
The antecedents are as follows:
Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an imperforate anus. Two days
after his birth, Gerald underwent colostomy, a surgical procedure to bring one end of the large
intestine out through the abdominal wall,3 enabling him to excrete through a colostomy bag
attached to the side of his body.4
On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a
pull-through operation.5 Dr. Leandro Resurreccion headed the surgical team, and was assisted by
Dr. Joselito Luceo, Dr. Donatella Valea and Dr. Joseph Tibio. The anesthesiologists included
Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr.
Solidum).6 During the operation, Gerald experienced bradycardia,7 and went into a coma.8 His
coma lasted for two weeks,9 but he regained consciousness only after a month.10 He could no
longer see, hear or move.11
Agitated by her sons helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a
complaint for reckless imprudence resulting in serious physical injuries with the City
Prosecutors Office of Manila against the attending physicians.12
Upon a finding of probable cause, the City Prosecutors Office filed an information solely
against Dr. Solidum,13alleging:
That on or about May 17, 1995, in the City of Manila, Philippines, the said accused, being then
an anesthesiologist at the Ospital ng Maynila, Malate, this City, and as such was tasked to
administer the anesthesia on three-year old baby boy GERALD ALBERT GERCAYO,
represented by his mother, MA. LUZ GERCAYO, the former having been born with an
imperforate anus [no anal opening] and was to undergo an operation for anal opening [pull
through operation], did then and there willfully, unlawfully and feloniously fail and neglect to
use the care and diligence as the best of his judgment would dictate under said circumstance, by
525 | P a g e
failing to monitor and regulate properly the levels of anesthesia administered to said GERALD
ALBERT GERCAYO and using 100% halothane and other anesthetic medications, causing as a
consequence of his said carelessness and negligence, said GERALD ALBERT GERCAYO
suffered a cardiac arrest and consequently a defect called hypoxic encephalopathy meaning
insufficient oxygen supply in the brain, thereby rendering said GERALD ALBERT GERCAYO
incapable of moving his body, seeing, speaking or hearing, to his damage and prejudice.
Contrary to law.14
The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred to the
RTC pursuant to Section 5 of Republic Act No. 8369 (The Family Courts Act of 1997),15 where it
was docketed as Criminal Case No. 01-190889.
Judgment of the RTC
On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond reasonable
doubt of reckless imprudence resulting to serious physical injuries,16 decreeing:
WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM
GUILTY beyond reasonable doubt as principal of the crime charged and is hereby sentenced to
suffer the indeterminate penalty of TWO (2) MONTHS and ONE (1) DAY of arresto mayor as
minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision correccional as
maximum and to indemnify, jointly and severally with the Ospital ng Maynila, Dr. Anita So and
Dr. Marichu Abella, private complainant Luz Gercayo, the amount of P500,000.00 as moral
damages and P100,000.00 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is hereby CANCELLED.
SO ORDERED.17
Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary liability,18 the
RTC excluded them from solidary liability as to the damages, modifying its decision as follows:
WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty
beyond reasonable doubt as principal of the crime charged and is hereby sentenced to suffer the
indeterminate penalty of two (2) months and one (1) day of arresto mayor as minimum to one (1)
year, one (1) month and ten (10) days of prision correccional as maximum and to indemnify
jointly and severally with Ospital ng Maynila, private complainant Luz Gercayo the amount
of P500,000.00 as moral damages and P100,000 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is hereby cancelled.19
526 | P a g e
Decision of the CA
On January 20, 2010, the CA affirmed the conviction of Dr. Solidum,20 pertinently stating and
ruling:
The case appears to be a textbook example of res ipsa loquitur.
xxxx
x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major operation.
As noted by the OSG, the accused himself testified that pre-operation tests were conducted to
ensure that the child could withstand the surgery. Except for his imperforate anus, the child was
healthy. The tests and other procedures failed to reveal that he was suffering from any known
ailment or disability that could turn into a significant risk. There was not a hint that the nature of
the operation itself was a causative factor in the events that finally led to hypoxia.
In short, the lower court has been left with no reasonable hypothesis except to attribute the
accident to a failure in the proper administration of anesthesia, the gravamen of the charge in this
case. The High Court elucidates in Ramos vs. Court of Appeals 321 SCRA 584
In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient, without the aid of expert testimony, where
the court from its fund of common knowledge can determine the proper standard of care.
Where common knowledge and experience teach that a resulting injury would not have occurred
to the patient if due care had been exercised, an inference of negligence may be drawn giving
rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but how and why it occurred. When the
doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or
omission complained of and the injury sustained while under the custody and management of the
defendant without need to produce expert medical testimony to establish the standard of care.
Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary
conditions, by which the patient can obtain redress for injury suffered by him.
The lower court has found that such a nexus exists between the act complained of and the injury
sustained, and in line with the hornbook rules on evidence, we will afford the factual findings of
a trial court the respect they deserve in the absence of a showing of arbitrariness or disregard of
material facts that might affect the disposition of the case. People v. Paraiso 349 SCRA 335.
The res ipsa loquitur test has been known to be applied in criminal cases. Although it creates a
presumption of negligence, it need not offend due process, as long as the accused is afforded the
527 | P a g e
opportunity to go forward with his own evidence and prove that he has no criminal intent. It is in
this light not inconsistent with the constitutional presumption of innocence of an accused.
IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.
SO ORDERED.21
Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010.22
Hence, this appeal.
Issues
Dr. Solidum avers that:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION
OF THE LOWER COURT IN UPHOLDING THE PETITIONERS CONVICTION FOR
THE CRIME CHARGED BASED ON THE TRIAL COURTS OPINION, AND NOT
ON THE BASIS OF THE FACTS ESTABLISHED DURING THE TRIAL. ALSO,
THERE IS A CLEAR MISAPPREHENSION OF FACTS WHICH IF CORRECTED,
WILL RESULT TO THE ACQUITTAL OF THE PETITIONER. FURTHER, THE
HONORABLE COURT ERRED IN AFFIRMING THE SAID DECISION OF THE
LOWER COURT, AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT
THE PROSECUTION MUST PROVE THE ALLEGATIONS OF THE INFORMATION
BEYOND REASONABLE DOUBT, AND NOT ON THE BASIS OF ITS
PRESUMPTIVE CONCLUSION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE
OF RES IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE TO PROVE
THAT THERE IS NO NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO
OVERDOSING IN THE APPLICATION OF THE ANESTHETIC AGENT BECAUSE
THERE WAS NO 100% HALOTHANE ADMINISTERED TO THE CHILD, BUT
ONLY ONE (1%) PERCENT AND THE APPLICATION THEREOF, WAS
REGULATED BY AN ANESTHESIA MACHINE. THUS, THE APPLICATION OF
THE PRINCIPLE OF RES IPSA LOQUITOR (sic) CONTRADICTED THE
ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE CASE.
III.
528 | P a g e
THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT

JUSTIFIED THERE BEING NO NEGLIGENCE ON THE PART OF THE
PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL
CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL ASSISTANCE,
BECAUSE THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF
ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE, AND NO
FACTUAL AND LEGAL BASIS.23
To simplify, the following are the issues for resolution, namely: (a) whether or not the doctrine of
res ipsa loquitur was applicable herein; and (b) whether or not Dr. Solidum was liable for
criminal negligence.
Ruling
The appeal is meritorious.
Applicability of the Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself." The
doctrine res ipsa loquitur means that "where the thing which causes injury is shown to be under
the management of the defendant, and the accident is such as in the ordinary course of things
does not happen if those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the accident arose from want of
care."24 It is simply "a recognition of the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may justify an inference of negligence
on the part of the person who controls the instrumentality causing the injury in the absence of
some explanation by the defendant who is charged with negligence. It is grounded in the superior
logic of ordinary human experience and on the basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge."25
Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law, but merely
a mode of proof or a mere procedural convenience. The doctrine, when applicable to the facts
and circumstances of a given case, is not meant to and does not dispense with the requirement of
proof of culpable negligence against the party charged. It merely determines and regulates what
shall be prima facie evidence thereof, and helps the plaintiff in proving a breach of the duty. The
doctrine can be invoked when and only when, under the circumstances involved, direct evidence
is absent and not readily available.27
529 | P a g e
The applicability of the doctrine of res ipsa loquitur in medical negligence cases was
significantly and exhaustively explained in Ramos v. Court of Appeals,28 where the Court said
Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur
has been applied when the circumstances attendant upon the harm are themselves of such a
character as to justify an inference of negligence as the cause of that harm. The application of res
ipsa loquitur in medical negligence cases presents a question of law since it is a judicial function
to determine whether a certain set of circumstances does, as a matter of law, permit a given
inference.
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure,
when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the proof of negligence. The reason
is that the general rule on the necessity of expert testimony applies only to such matters clearly
within the domain of medical science, and not to matters that are within the common knowledge
of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only
physicians and surgeons of skill and experience are competent to testify as to whether a patient
has been treated or operated upon with a reasonable degree of skill and care. However, testimony
as to the statements and acts of physicians and surgeons, external appearances, and manifest
conditions which are observable by any one may be given by non-expert witnesses. Hence, in
cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent
upon proper proof of injury to the patient, without the aid of expert testimony, where the court
from its fund of common knowledge can determine the proper standard of care. Where common
knowledge and experience teach that a resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular act or omission
complained of and the injury sustained while under the custody and management of the
defendant without need to produce expert medical testimony to establish the standard of care.
Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary
conditions, by which the patient can obtain redress for injury suffered by him.
of a foreign object in the body of the patient after an operation, injuries sustained on a healthy
part of the body which was not under, or in the area, of treatment, removal of the wrong part of
the body when another part was intended, knocking out a tooth while a patients jaw was under
anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under
the influence of anesthetic, during or following an operation for appendicitis, among others.
530 | P a g e
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it
burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa
loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not as such as would ordinarily
have followed if due care had been exercised. A distinction must be made between the failure to
secure results, and the occurrence of something more unusual and not ordinarily found if the
service or treatment rendered followed the usual procedure of those skilled in that particular
practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a
suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific
treatment. The physician or surgeon is not required at his peril to explain why any particular
diagnosis was not correct, or why any particular scientific treatment did not produce the desired
result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the
desired result of an operation or treatment was not accomplished. The real question, therefore, is
whether or not in the process of the operation any extraordinary incident or unusual event outside
of the routine performance occurred which is beyond the regular scope of customary professional
activity in such operations, which, if unexplained would themselves reasonably speak to the
average man as the negligent cause or causes of the untoward consequence. If there was such
extraneous intervention, the doctrine of res ipsa loquitur may be utilized and the defendant is
called upon to explain the matter, by evidence of exculpation, if he could.
In order to allow resort to the doctrine, therefore, the following essential requisites must first be
satisfied, to wit: (1) the accident was of a kind that does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency that caused the injury was under the exclusive
control of the person charged; and (3) the injury suffered must not have been due to any
voluntary action or contribution of the person injured.29
The Court considers the application here of the doctrine of res ipsa loquitur inappropriate.
Although it should be conceded without difficulty that the second and third elements were
present, considering that the anesthetic agent and the instruments were exclusively within the
control of Dr. Solidum, and that the patient, being then unconscious during the operation, could
not have been guilty of contributory negligence, the first element was undeniably wanting. Luz
delivered Gerald to the care, custody and control of his physicians for a pull-through operation.
Except for the imperforate anus, Gerald was then of sound body and mind at the time of his
submission to the physicians. Yet, he experienced bradycardia during the operation, causing loss
of his senses and rendering him immobile. Hypoxia, or the insufficiency of oxygen supply to the
brain that caused the slowing of the heart rate, scientifically termed as bradycardia, would not
ordinarily occur in the process of a pull-through operation, or during the administration of
anesthesia to the patient, but such fact alone did not prove that the negligence of any of his
531 | P a g e
attending physicians, including the anesthesiologists, had caused the injury. In fact, the
anesthesiologists attending to him had sensed in the course of the operation that the lack of
oxygen could have been triggered by the vago-vagal reflex, prompting them to administer
atropine to the patient.30
This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham,31 relevant
portions of the decision therein being as follows:
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for the
treatment of infectious mononucleosis. The patient's symptoms had included a swollen throat and
some breathing difficulty. Early in the morning of January 9 the patient was restless, and at 1:30
a.m. Dr. Brigham examined the patient. His inspection of the patient's air passage revealed that it
was in satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone call from the
hospital, advising him that the patient was having respiratory difficulty. The doctor ordered that
oxygen be administered and he prepared to leave for the hospital. Ten minutes later, 4:25 a.m.,
the hospital called a second time to advise the doctor that the patient was not responding. The
doctor ordered that a medicine be administered, and he departed for the hospital. When he
arrived, the physician who had been on call at the hospital had begun attempts to revive the
patient. Dr. Brigham joined him in the effort, but the patient died.
The doctor who performed the autopsy concluded that the patient died between 4:25 a.m. and
4:30 a.m. of asphyxia, as a result of a sudden, acute closing of the air passage. He also found that
the air passage had been adequate to maintain life up to 2 or 3 minutes prior to death. He did not
know what caused the air passage to suddenly close.
xxxx
It is a rare occurrence when someone admitted to a hospital for the treatment of infectious
mononucleosis dies of asphyxiation. But that is not sufficient to invoke res ipsa loquitur. The fact
that the injury rarely occurs does not in itself prove that the injury was probably caused by
someone's negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad
result by itself enough to warrant the application of the doctrine. Nelson v. Murphy, 42 Wn.2d
737, 258 P.2d 472 (1953). See 2 S. Speiser, The Negligence Case Res Ipsa Loquitur 24:10
(1972). The evidence presented is insufficient to establish the first element necessary for
application of res ipsa loquitur doctrine. The acute closing of the patients air passage and his
resultant asphyxiation took place over a very short period of time. Under these circumstances it
would not be reasonable to infer that the physician was negligent. There was no palpably
negligent act. The common experience of mankind does not suggest that death would not be
expected without negligence. And there is no expert medical testimony to create an inference that
negligence caused the injury.
532 | P a g e
Negligence of Dr. Solidum

In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines
whether the CA correctly affirmed the conviction of Dr. Solidum for criminal negligence.
Negligence is defined as the failure to observe for the protection of the interests of another
person that degree of care, precaution, and vigilance that the circumstances justly demand,
whereby such other person suffers injury.32Reckless imprudence, on the other hand, consists of
voluntarily doing or failing to do, without malice, an act from which material damage results by
reason of an inexcusable lack of precaution on the part of the person performing or failing to
perform such act.33
Dr. Solidums conviction by the RTC was primarily based on his failure to monitor and properly
regulate the level of anesthetic agent administered on Gerald by overdosing at 100% halothane.
In affirming the conviction, the CA observed:
On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the findings and
conclusions in his report except for an observation which, to all intents and purposes, has
become the storm center of this dispute. He wanted to correct one piece of information regarding
the dosage of the anesthetic agent administered to the child. He declared that he made a mistake
in reporting a 100% halothane and said that based on the records it should have been 100%
oxygen.
The records he was relying on, as he explains, are the following:
(a) the anesthesia record A portion of the chart in the record was marked as Exhibit 1-A
and 1-B to indicate the administration at intervals of the anesthetic agent.
(b) the clinical abstract A portion of this record that reads as follows was marked
Exhibit 3A. 3B Approximately 1 hour and 45 minutes through the operation, patient
was noted to have bradycardia (CR = 70) and ATSO4 0.2 mg was immediately
administered. However, the bradycardia persisted, the inhalational agent was shut off, and
the patient was ventilated with 100% oxygen and another dose of ATSO4 0.2 mg was
given. However, the patient did not respond until no cardiac rate can be auscultated and
the surgeons were immediately told to stop the operation. The patient was put on a supine
position and CPR was initiated. Patient was given 1 amp of epinephrine initially while
continuously doing cardiac massage still with no cardiac rate appreciated; another
ampule of epinephrine was given and after 45 secs, patients vital signs returned to
normal. The entire resuscitation lasted approximately 3-5 mins. The surgeons were then
told to proceed to the closure and the childs vital signs throughout and until the end of
533 | P a g e
surgery were: BP = 110/70; CR = 116/min and RR = 20-22 cycles/min (on assisted

ventilation).
Dr. Vertido points to the crucial passage in the clinical abstract that the patient was ventilated
with 100% oxygen and another dose of ATSO4 when the bradycardia persisted, but for one
reason or another, he read it as 100% halothane. He was asked to read the anesthesia record on
the percentage of the dosage indicated, but he could only sheepishly note I cant understand the
number. There are no clues in the clinical abstract on the quantity of the anesthetic agent used. It
only contains the information that the anesthetic plan was to put the patient under general
anesthesia using a nonrebreathing system with halothane as the sole anesthetic agent and that 1
hour and 45 minutes after the operation began, bradycardia occurred after which the inhalational
agent was shut off and the patient administered with 100% oxygen. It would be apparent that the
100% oxygen that Dr. Vertido said should be read in lieu of 100% halothane was the pure oxygen
introduced after something went amiss in the operation and the halothane itself was reduced or
shut off.
The key question remains what was the quantity of halothane used before bradycardia set in?
The implication of Dr. Vertidos admission is that there was no overdose of the anesthetic agent,
and the accused Dr. Solidum stakes his liberty and reputation on this conclusion. He made the
assurance that he gave his patient the utmost medical care, never leaving the operating room
except for a few minutes to answer the call of nature but leaving behind the other members of his
team Drs. Abella and Razon to monitor the operation. He insisted that he administered only a
point 1% not 100% halothane, receiving corroboration from Dr. Abella whose initial MA in the
record should be enough to show that she assisted in the operation and was therefore conversant
of the things that happened. She revealed that they were using a machine that closely monitored
the concentration of the agent during the operation.
But most compelling is Dr. Solidums interpretation of the anesthesia record itself, as he takes
the bull by the horns, so to speak. In his affidavit, he says, reading from the record, that the
quantity of halothane used in the operation is one percent (1%) delivered at time intervals of 15
minutes. He studiedly mentions the concentration of halothane as reflected in the anesthesia
record (Annex D of the complaint-affidavit) is only one percent (1%) The numbers indicated in
15 minute increments for halothane is an indication that only 1% halothane is being delivered to
the patient Gerard Gercayo for his entire operation; The amount of halothane delivered in this
case which is only one percent cannot be summated because halothane is constantly being
rapidly eliminated by the body during the entire operation.
xxxx
534 | P a g e
In finding the accused guilty, despite these explanations, the RTC argued that the volte-face of
Dr. Vertido on the question of the dosage of the anesthetic used on the child would not really
validate the non-guilt of the anesthesiologist. Led to agree that the halothane used was not 100%
as initially believed, he was nonetheless unaware of the implications of the change in his
testimony. The court observed that Dr. Vertido had described the condition of the child as
hypoxia which is deprivation of oxygen, a diagnosis supported by the results of the CT Scan. All
the symptoms attributed to a failing central nervous system such as stupor, loss of consciousness,
decrease in heart rate, loss of usual acuity and abnormal motor function, are manifestations of
this condition or syndrome. But why would there be deprivation of oxygen if 100% oxygen to
1% halothane was used? Ultimately, to the court, whether oxygen or halothane was the object of
mistake, the detrimental effects of the operation are incontestable, and they can only be led to
one conclusion if the application of anesthesia was really closely monitored, the event could
not have happened.34
The Prosecution did not prove the elements of reckless imprudence beyond reasonable doubt
because the circumstances cited by the CA were insufficient to establish that Dr. Solidum had
been guilty of inexcusable lack of precaution in monitoring the administration of the anesthetic
agent to Gerald. The Court aptly explained in Cruz v. Court of Appeals35 that:
Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of
his patient is to be determined according to the standard of care observed by other members of
the profession in good standing under similar circumstances bearing in mind the advanced state
of the profession at the time of treatment or the present state of medical science. In the recent
case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in accepting a
case, a doctor in effect represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will employ such training, care and skill
in the treatment of his patients. He therefore has a duty to use at least the same level of care that
any other reasonably competent doctor would use to treat a condition under the same
circumstances. It is in this aspect of medical malpractice that expert testimony is essential to
establish not only the standard of care of the profession but also that the physician's conduct in
the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries
involved in malpractice actions are determinable only in the light of scientific knowledge, it has
been recognized that expert testimony is usually necessary to support the conclusion as to
causation.
xxxx
appellant's negligence and for a reasonable conclusion of negligence, there must be proof of
breach of duty on the part of the surgeon as well as a causal connection of such breach and the
resulting death of his patient. In Chan Lugay v. St Luke's Hospital, Inc., where the attending
535 | P a g e
physician was absolved of liability for the death of the complainants wife and newborn baby,
this Court held that:
"In order that there may be a recovery for an injury, however, it must be shown that the injury
for which recovery is sought must be the legitimate consequence of the wrong done; the
connection between the negligence and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes. In other words, the negligence must be the
proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a
right of action unless it is the proximate cause of the injury complained of. And the proximate
cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result would not have
occurred."
An action upon medical negligence whether criminal, civil or administrative calls for the
plaintiff to prove by competent evidence each of the following four elements, namely: (a) the
duty owed by the physician to the patient, as created by the physician-patient relationship, to act
in accordance with the specific norms or standards established by his profession; (b) the breach
of the duty by the physicians failing to act in accordance with the applicable standard of care;
(3) the causation, i.e., there must be a reasonably close and causal connection between the
negligent act or omission and the resulting injury; and (4) the damages suffered by the patient.36
In the medical profession, specific norms or standards to protect the patient against unreasonable
risk, commonly referred to as standards of care, set the duty of the physician to act in respect of
the patient. Unfortunately, no clear definition of the duty of a particular physician in a particular
case exists. Because most medical malpractice cases are highly technical, witnesses with special
medical qualifications must provide guidance by giving the knowledge necessary to render a fair
and just verdict. As a result, the standard of medical care of a prudent physician must be
determined from expert testimony in most cases; and in the case of a specialist (like an
anesthesiologist), the standard of care by which the specialist is judged is the care and skill
commonly possessed and exercised by similar specialists under similar circumstances. The
specialty standard of care may be higher than that required of the general practitioner.37
The standard of care is an objective standard by which the conduct of a physician sued for
negligence or malpractice may be measured, and it does not depend, therefore, on any individual
physicians own knowledge either. In attempting to fix a standard by which a court may
determine whether the physician has properly performed the requisite duty toward the patient,
expert medical testimony from both plaintiff and defense experts is required. The judge, as the
trier of fact, ultimately determines the standard of care, after listening to the testimony of all
medical experts.38
536 | P a g e
Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to
provide guidance to the trial court on what standard of care was applicable. It would
consequently be truly difficult, if not impossible, to determine whether the first three elements of
a negligence and malpractice action were attendant.
Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who
served as the Chairman of the Committee on Ethics and Malpractice of the Philippine Society of
Anesthesiologists that investigated the complaint against Dr. Solidum, his testimony mainly
focused on how his Committee had conducted the investigation.39 Even then, the report of his
Committee was favorable to Dr. Solidum,40 to wit:
Presented for review by this committee is the case of a 3 year old male who underwent a pullthru operation and was administered general anesthesia by a team of anesthesia residents. The
patient, at the time when the surgeons was manipulating the recto-sigmoid and pulling it down in
preparation for the anastomosis, had bradycardia. The anesthesiologists, sensing that the cause
thereof was the triggering of the vago-vagal reflex, administered atropine to block it but despite
the administration of the drug in two doses, cardiac arrest ensued. As the records show, prompt
resuscitative measures were administered and spontaneous cardiac function re-established in less
than five (5) minutes and that oxygen was continuously being administered throughout,
unfortunately, as later become manifest, patient suffered permanent irreversible brain damage.
In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the
committee find that the same were all in accordance with the universally accepted standards of
medical care and there is no evidence of any fault or negligence on the part of the
anaesthesiologists.
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of Investigation, was
also presented as a Prosecution witness, but his testimony concentrated on the results of the
physical examination he had conducted on Gerald, as borne out by the following portions of his
direct examination, to wit:
FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?
WITNESS General Anesthetic Agent is a substance used in the conduction of Anesthesia and in
this case, halothane was used as a sole anesthetic agent.
xxxx
Q Now under paragraph two of page 1 of your report you mentioned that after one hour and 45
minutes after the operation, the patient experienced a bradycardia or slowing of heart rate, now
537 | P a g e
as a doctor, would you be able to tell this Honorable Court as to what cause of the slowing of
heart rate as to Gerald Gercayo?
WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia of time
because is some reason one way or another that might caused bradycardia.
FISCAL CABARON What could be the possible reason?
A Well bradycardia can be caused by anesthetic agent itself and that is a possibility, were talking
about possibility here.
Q What other possibility do you have in mind, doctor?
A Well, because it was an operation, anything can happen within that situation.
FISCAL CABARON Now, this representation would like to ask you about the slowing of heart
rate, now what is the immediate cause of the slowing of the heart rate of a person?
WITNESS Well, one of the more practical reason why there is slowing of the heart rate is when
you do a vagal reflex in the neck wherein the vagal receptors are located at the lateral part of the
neck, when you press that, you produce the slowing of the heart rate that produce bradycardia.
Q I am pro[p]ounding to you another question doctor, what about the deficiency in the supply of
oxygen by the patient, would that also cause the slowing of the heart rate?
A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a hypoxia or
there is a low oxygen level in the blood, the normal thing for the heart is to pump or to do not a
bradycardia but a to counter act the Hypoxia that is being experienced by the patient
(sic).
xxxx
Q Now, you made mention also doctor that the use of general anesthesia using 100% halothane
and other anesthetic medications probably were contributory to the production of hypoxia.
A Yes, sir in general sir.41
On cross-examination, Dr. Vertido expounded more specifically on his interpretation of the
anesthesia record and the factors that could have caused Gerald to experience bradycardia, viz:
538 | P a g e
ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read to this
Honorable court your last paragraph and if you will affirm that as if it is correct?
A "The use of General Anesthesia, that is using 100% Halothane probably will be contributory to
the production of Hypoxia and - - - -"
ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?
WITNESS Based on the records, I know the - - Q 100%?
A 100% based on the records.
Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you kindly
look at this and tell me where is 100%, the word "one hundred" or 1-0-0, will you kindly look at
this Doctor, this Xerox copy if you can show to this Honorable Court and even to this
representation the word "one hundred" or 1-0-0 and then call me.
xxxx
ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is, you just
call me and even the attention of the Presiding Judge of this Court. Okay, you read one by one.
WITNESS Well, are you only asking 100%, sir?
ATTY. COMIA Im asking you, just answer my question, did you see there 100% and 100
figures, tell me, yes or no?
WITNESS Im trying to look at the 100%, there is no 100% there sir.
ATTY. COMIA Okay, that was good, so you Honor please, may we request also temporarily,
because this is just a xerox copy presented by the fiscal, that the percentage here that the
Halothane administered by Dr. Solidum to the patient is 1% only so may we request that this
portion, temporarily your Honor, we are marking this anesthesia record as our Exhibit 1 and then
this 1% Halothane also be bracketed and the same be marked as our Exhibit "1-A".
xxxx
ATTY. COMIA Doctor, my attention was called also when you said that there are so many
factors that contributed to Hypoxia is that correct?
539 | P a g e
WITNESS Yes, sir.

Q I remember doctor, according to you there are so many factors that contributed to what you
call hypoxia and according to you, when this Gerald suffered hypoxia, there are other factors that
might lead to this Hypoxia at the time of this operation is that correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of such other, some or it might be due to
operations being conducted by the doctor at the time when the operation is being done might also
contribute to that hypoxia is that correct?
A That is a possibility also.
xxxx
ATTY. COMIA How will you classify now the operation conducted to this Gerald, Doctor?
WITNESS Well, that is a major operation sir.
Q In other words, when you say major operation conducted to this Gerald, there is a possibility
that this Gerald might [be] exposed to some risk is that correct?
A That is a possibility sir.
Q And which according to you that Gerald suffered hypoxia is that correct?
A Yes, sir.
Q And that is one of the risk of that major operation is that correct?
A That is the risk sir.42
At the continuation of his cross-examination, Dr. Vertido maintained that Geralds operation for
his imperforate anus, considered a major operation, had exposed him to the risk of suffering the
same condition.43 He then corrected his earlier finding that 100% halothane had been
administered on Gerald by saying that it should be 100% oxygen.44
Dr. Solidum was criminally charged for "failing to monitor and regulate properly the levels of
anesthesia administered to said Gerald Albert Gercayo and using 100% halothane and other
anesthetic medications."45However, the foregoing circumstances, taken together, did not prove
beyond reasonable doubt that Dr. Solidum had been recklessly imprudent in administering the
540 | P a g e
anesthetic agent to Gerald. Indeed, Dr. Vertidos findings did not preclude the probability that
other factors related to Geralds major operation, which could or could not necessarily be
attributed to the administration of the anesthesia, had caused the hypoxia and had then led Gerald
to experience bradycardia. Dr. Vertido revealingly concluded in his report, instead, that "although
the anesthesiologist followed the normal routine and precautionary procedures, still hypoxia and
its corresponding side effects did occur."46
The existence of the probability about other factors causing the hypoxia has engendered in the
mind of the Court a reasonable doubt as to Dr. Solidums guilt, and moves us to acquit him of the
crime of reckless imprudence resulting to serious physical injuries. "A reasonable doubt of guilt,"
according to United States v. Youthsey:47
x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt;
not a doubt engendered merely by sympathy for the unfortunate position of the defendant, or a
dislike to accept the responsibility of convicting a fellow man. If, having weighed the evidence
on both sides, you reach the conclusion that the defendant is guilty, to that degree of certainty as
would lead you to act on the faith of it in the most important and crucial affairs of your life, you
may properly convict him. Proof beyond reasonable doubt is not proof to a mathematical
demonstration. It is not proof beyond the possibility of mistake.
We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from
civil liability.1wphi1 But we cannot now find and declare him civilly liable because the
circumstances that have been established here do not present the factual and legal bases for
validly doing so. His acquittal did not derive only from reasonable doubt. There was really no
firm and competent showing how the injury to Gerard had been caused. That meant that the
manner of administration of the anesthesia by Dr. Solidum was not necessarily the cause of the
hypoxia that caused the bradycardia experienced by Gerard. Consequently, to adjudge Dr.
Solidum civilly liable would be to speculate on the cause of the hypoxia. We are not allowed to
do so, for civil liability must not rest on speculation but on competent evidence.
Liability of Ospital ng Maynila
Although the result now reached has resolved the issue of civil liability, we have to address the
unusual decree of the RTC, as affirmed by the CA, of expressly holding Ospital ng Maynila
civilly liable jointly and severally with Dr. Solidum. The decree was flawed in logic and in law.
In criminal prosecutions, the civil action for the recovery of civil liability that is deemed
instituted with the criminal action refers only to that arising from the offense charged.48 It is
puzzling, therefore, how the RTC and the CA could have adjudged Ospital ng Maynila jointly
and severally liable with Dr. Solidum for the damages despite the obvious fact that Ospital ng
Maynila, being an artificial entity, had not been charged along with Dr. Solidum. The lower
541 | P a g e
courts thereby acted capriciously and whimsically, which rendered their judgment against Ospital
ng Maynila void as the product of grave abuse of discretion amounting to lack of jurisdiction.
Not surprisingly, the flawed decree raises other material concerns that the RTC and the CA
overlooked. We deem it important, then, to express the following observations for the instruction
of the Bench and Bar.
For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental
right to be heard was not respected from the outset. The R TC and the CA should have been alert
to this fundamental defect. Verily, no person can be prejudiced by a ruling rendered in an action
or proceeding in which he was not made a party. Such a rule would enforce the constitutional
guarantee of due process of law.
Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would
be properly enforceable pursuant to Article 103 of the Revised Penal Code. But the subsidiary
liability seems far-fetched here. The conditions for subsidiary liability to attach to Ospital ng
Maynila should first be complied with. Firstly, pursuant to Article 103 of the Revised Penal
Code, Ospital ng Maynila must be shown to be a corporation "engaged in any kind of industry."
The term industry means any department or branch of art, occupation or business, especially one
that employs labor and capital, and is engaged in industry.49 However, Ospital ng Maynila, being
a public hospital, was not engaged in industry conducted for profit but purely in charitable and
humanitarian work.50Secondly, assuming that Ospital ng Maynila was engaged in industry for
profit, Dr. Solidum must be shown to be an employee of Ospital ng Maynila acting in the
discharge of his duties during the operation on Gerald. Yet, he definitely was not such employee
but a consultant of the hospital. And, thirdly, assuming that civil liability was adjudged against
Dr. Solidum as an employee (which did not happen here), the execution against him was
unsatisfied due to his being insolvent.
WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND
SETS ASIDE the decision promulgated on January 20, 2010; ACQUITS Dr. Fernando P.
Solidum of the crime of reckless imprudence resulting to serious physical injuries; and MAKES
no pronouncement on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
542 | P a g e

Chief Justice
TERESITA J. LEONARDO-DE
CASTRO
Associate Justice
MARTIN S. VILLARAMA, JR.

Associate Justice
BIENVENIDO L. REYES
Associate Justice
Decision had been reached in consultation before the case was assigned to the writer of the
Chief Justice
DIGEST
Facts:
Gerald Albert Gercayo was born on June 2, 1992 with an imperforate anus. Two days after his
birth, Gerald under went colostomy, a surgical procedure to bring one end of the large intestine
out through the abdominal walls, enabling him to excrete through a colostomy bag attached to
the side of his body. On May 17, 1995, Gerald was admitted at the Ospital ng Maynila for a pullthrough operation. Dr. Leandro Resurreccionheaded the surgical team, and was assisted by Dr.
Joselito Lucerio, Dr.Donatella Valeria and Dr. Joseph Tibio. The anesthesiologist included Drs.
Abella, Razon and Solidum. During the operation, Gerald experienced bradycardia and went into
a coma. His coma lasted for two weeks , but he regained consciousness only after a month. He
could no longer see, hear, or move. A complaint for reckless imprudence resulting in serious
physical injuries were filed by Geralds parents against the team of doctors alleging that there
was failure in monitoring the anesthesia administered to Gerald.
Issues:
Whether or not petitioner is liable for medical negligence.
Whether or not res ipsa liquitor can be resorted to in medical negligence cases.
Held:
No. Negligence is defined as the failure to observe for the protection of the interests of another
person that degree of care, precaution, and vigilance that the circumstances justly demand,
whereby such other person suffers injury. Reckless imprudence, on the other hand, consists of
voluntarily doing or failing to do, without malice, an act from which material damage results by
543 | P a g e
reason of an inexcusable lack of precaution on the part of the person to perform or failing to
perform such act.
The negligence must be the proximate cause of the injury. For, negligence no matter in what it
consists, cannot create a right of action unless it is the proximate cause of the injury complained
of. And the proximate cause of an injury is that cause, which, in natural and continuous sequence
and unbroken by any efficient intervening cause, produces the injury, and without which the
result would not have occurred.
An action upon medical negligence whether criminal, civil or administrative calls for the
plaintiff to prove by competent evidence each of the following four elements namely: a.) the duty
owed by the physician to the patient, as created by the physician-patient relationship, to act in
accordance with the specific norms or standards established by his profession; b.) the breach of
the duty by the physicians failing to act in accordance with the applicable standard of care; c.)
the causation, is, there must be a reasonably close and casual connection between the negligent
act or omission and the resulting injury; and d.) the damages suffered by the patient.
In the medical profession, specific norms on standard of care to protect the patient against
unreasonable risk, commonly referred to as standards of care, set the duty of the physician in
respect of the patient. The standard of care is an objective standard which conduct of a physician
sued for negligence or malpractice may be measured, and it does not depend therefore, on any
individuals physicians own knowledge either. In attempting to fix a standard by which a court
may determine whether the physician has properly performed the requisite duty toward the
patient, expert medical testimony from both plaintiff and defense experts is required.
The doctrine of res ipsa liquitor means that where the thing which causes injury is shown to be
under the management of the defendant, and the accident is such as in ordinary course of things
does not happen if those who have management use proper care, it affords reasonable evidence,
in the absence of an explanation by defendant that the accident arose from want of care.
Nevertheless, despite the fact that the scope of res ipsa liquitor has been measurably enlarged, it
burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res
ipsa liquitor is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not as such as would ordinarily
have followed if due care had been exercised. A distinction must be made between the failure to
secure results, and the occurrence of something more unusual and not ordinarily found if the
service or treatment rendered followed the usual procedure of those skilled in that particular
practice. It must be conceded that the doctrine of res ipsa liquitor can have no application in a
suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific
treatment. The physician or surgeon is not required at his peril to explain why any particular
diagnosis was not correct, or why any particular scientific treatment did not produce the desired
results. Thus, res ipsa liquitor is not available in a malpractice suit if the only showing is that the
desired result of an operation or treatment was not accomplished. The real question, therefore, is
whether or not in the process of the operation any extraordinary incident or unusual event outside
the routine performance occurred which is beyond the regular scope of customary professional
activity in such operations, which if unexplained would themselves reasonably speak to the
average man as the negligent case or causes of the untoward consequence. If there was such
544 | P a g e
extraneous intervention, the doctrine of res ipsa liquitor may be utilized and the dependent is
called upon to explain the matter, by evidence of exculpation, if he could.
545 | P a g e

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Republic of the Philippines

ROBERTO C. SICAM and AGENCIA de R.C. SICAM, INC., petitioners,

THE COURT OF APPEALS ERRED, AND WHEN IT DID, IT OPENED ITSELF TO

Q. Do you have security guards in your pawnshop?

The Decision of the CA is AFFIRMED.

Article 1174 of the Civil Code provides:

Republic of the Philippines

G.R. No. 130068 October 1, 1998

I. G.R. No. 130068

xxx xxx xxx

A No sir, it was a usual docking.

Q Did you know that the 2 shackles were dropped?

Q And whatever sound the captain . . . Capt. Gavino would hear

A In that case, I should t,ke him away from his command or

But in this instance of docking of the MV Pavlodar, do you

A Including the reduced areas and other reductions.

xxx xxx xxx

Republic of the Philippines

PHILIPPINE NATIONAL RAILWAYS, Petitioner,

MA. ALICIA AUSTRIA-MARTINEZ

G.R. No. 157658

October 15, 2007

PHILIPPINE NATIONAL RAILWAYS and VIRGILIO J. BORJA, Petitioners,

Republic of the Philippines

May 24, 1954

ELENA AMEDO, plaintiff-appellant,

27 May 1949 11:30am During the course of Managuit's employment and

ISSUE/S & RATIO:

Nava vs. Inchausti Co.: indemnity granted the heirs in a criminal

notorious negligence = gross negligence

conscious indifference to consequences

utter disregard of consequences

October 11, 2007

CONCEPCION ILAO-ORETA, Petitioner,

PRESBITERO J. VELASCO, JR.

Republic of the Philippines

March 15, 1918

AMADO PICART, plaintiff-appellant,

Republic of the Philippines

ROBERTO C. SICAM and AGENCIA de R.C. SICAM, INC., petitioners,

THE COURT OF APPEALS ERRED AND WHEN IT DID, IT OPENED ITSELF TO

x x x The defendant Roberto Sicam, Jr likewise denies liability as far as he is concerned

Article 1174 of the Civil Code provides:

Republic of the Philippines

June 27, 2008

CORINTHIAN GARDENS ASSOCIATION, INC., petitioner,

A. Rules and Regulations

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

Manual of Rules and Regulations of Corinthian (MRRC). Unfortunately, after

Republic of the Philippines

October 20, 2004

JONAS AONUEVO, Petitioner.

Republic of the Philippines

THE HEIRS OF REDENTOR COMPLETO and ELPIDIO ABIAD, Petitioners,

Hence, this petition.

of employees, employers should formulate standard operating procedures, monitor their

JOSE CATRAL MENDOZA

Republic of the Philippines

February 25, 2010

ALFREDO P. PACIS and CLEOPATRA D. PACIS, Petitioners,

(3) P100,000.00 as compensatory damages;

Granting arguendo that an employer-employee relationship existed between Aristedes Matibag

OF BAGUIO CITY SHOWING PETITIONERS CLEAR RIGHTS TO THE AWARD OF

Republic of the Philippines