G.R. No.

124354 December 29, 1999

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

KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial
consideration to the health and welfare of their patients. If a
doctor fails to live up to this precept, he is made accountable
for his acts. A mistake, through gross negligence or
incompetence or plain human error, may spell the difference
between life and death. In this sense, the doctor plays God on
his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a
surgeon, an anesthesiologist and a hospital should be made
liable for the unfortunate comatose condition of a patient
scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of
Appeals, dated 29 May 1995, which overturned the
decision 4 of the Regional Trial Court, dated 30 January 1992,
finding private respondents liable for damages arising from
negligence in the performance of their professional duties
towards petitioner Erlinda Ramos resulting in her comatose
condition.
The antecedent facts as summarized by the trial court are
reproduced hereunder:
Plaintiff Erlinda Ramos was, until the
afternoon of June 17, 1985, a 47-year old
(Exh. "A") robust woman (TSN, October 19,
1989, p. 10). Except for occasional
complaints of discomfort due to pains
allegedly caused by the presence of a stone
in her gall bladder (TSN, January 13, 1988,
pp. 4-5), she was as normal as any other
woman. Married to Rogelio E. Ramos, an
executive of Philippine Long Distance
Telephone Company, she has three children
whose names are Rommel Ramos, Roy
Roderick Ramos and Ron Raymond Ramos
(TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow
interfered with her normal ways, she sought
professional advice. She was advised to
undergo an operation for the removal of a
stone in her gall bladder (TSN, January 13,
1988, p. 5). She underwent a series of
examinations which included blood and urine
tests (Exhs. "A" and "C") which indicated she
was fit for surgery.
Through the intercession of a mutual friend,
Dr. Buenviaje (TSN, January 13, 1988, p. 7),
she and her husband Rogelio met for
the first time Dr. Orlino Hozaka (should be
Hosaka; see TSN, February 20, 1990, p. 3),
one of the defendants in this case, on June

10, 1985. They agreed that their date at the

operating table at the DLSMC (another
defendant), would be on June 17, 1985 at
9:00 A.M.. Dr. Hosaka decided that she
should undergo a "cholecystectomy"
operation after examining the documents
(findings from the Capitol Medical Center,
FEU Hospital and DLSMC) presented to him.
Rogelio E. Ramos, however, asked Dr.
Hosaka to look for a good anesthesiologist.
Dr. Hosaka, in turn, assured Rogelio that he
will get a good anesthesiologist. Dr. Hosaka
charged a fee of P16,000.00, which was to
include the anesthesiologist's fee and which
was to be paid after the operation (TSN,
October 19, 1989, pp. 14-15, 22-23, 31-33;
TSN, February 27, 1990, p. 13; and TSN,
November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of
operation, she was admitted at one of the
rooms of the DLSMC, located along E.
Rodriguez Avenue, Quezon City (TSN,
October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and
while still in her room, she was prepared for
the operation by the hospital staff. Her sisterin-law, Herminda Cruz, who was the Dean of
the College of Nursing at the Capitol Medical
Center, was also there for moral support.
She reiterated her previous request for
Herminda to be with her even during the
operation. After praying, she was given
injections. Her hands were held by Herminda
as they went down from her room to the
operating room (TSN, January 13, 1988, pp.
9-11). Her husband, Rogelio, was also with
her (TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about two or
three nurses and Dr. Perfecta Gutierrez, the
other defendant, who was to administer
anesthesia. Although not a member of the
hospital staff, Herminda introduced herself
as Dean of the College of Nursing at the
Capitol Medical Center who was to provide
moral support to the patient, to them.
Herminda was allowed to stay inside the
operating room.
At around 9:30 A.M., Dr. Gutierrez reached a
nearby phone to look for Dr. Hosaka who
was not yet in (TSN, January 13, 1988, pp.
11-12). Dr. Gutierrez thereafter informed
Herminda Cruz about the prospect of a delay
in the arrival of Dr. Hosaka. Herminda then
went back to the patient who asked, "Mindy,
wala pa ba ang Doctor"? The former replied,
"Huwag kang mag-alaala, darating na iyon"
(Ibid.).
Thereafter, Herminda went out of the
operating room and informed the patient's
husband, Rogelio, that the doctor was not
yet around (id., p. 13). When she returned to
the operating room, the patient told her,
"Mindy, inip na inip na ako, ikuha mo ako ng
ibang Doctor." So, she went out again and
told Rogelio about what the patient said (id.,
p. 15). Thereafter, she returned to the
operating room.

At around 10:00 A.M., Rogelio E. Ramos

was "already dying [and] waiting for the
arrival of the doctor" even as he did his best
to find somebody who will allow him to pull
out his wife from the operating room (TSN,
October 19, 1989, pp. 19-20). He also
thought of the feeling of his wife, who was
inside the operating room waiting for the
doctor to arrive (ibid.). At almost 12:00 noon,
he met Dr. Garcia who remarked that he (Dr.
Garcia) was also tired of waiting for Dr.
Hosaka to arrive (id., p. 21). While talking to
Dr. Garcia at around 12:10 P.M., he came to
know that Dr. Hosaka arrived as a nurse
remarked, "Nandiyan na si Dr. Hosaka,
dumating na raw." Upon hearing those
words, he went down to the lobby and waited
for the operation to be completed (id., pp. 16,
29-30).
At about 12:15 P.M., Herminda Cruz, who
was inside the operating room with the
patient, heard somebody say that "Dr.
Hosaka is already here." She then saw
people inside the operating room "moving,
doing this and that, [and] preparing the
patient for the operation" (TSN, January 13,
1988, p. 16). As she held the hand of Erlinda
Ramos, she then saw Dr. Gutierrez
intubating the hapless patient. She thereafter
heard Dr. Gutierrez say, "ang hirap maintubate nito, mali yata ang pagkakapasok.
O lumalaki ang tiyan" (id., p. 17). Because of
the remarks of Dra. Gutierrez, she focused
her attention on what Dr. Gutierrez was
doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand
of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka
issue an order for someone to call Dr.
Calderon, another anesthesiologist (id., p.
19). After Dr. Calderon arrived at the
operating room, she saw this
anesthesiologist trying to intubate the
patient. The patient's nailbed became bluish
and the patient was placed in a
trendelenburg position a position where
the head of the patient is placed in a position
lower than her feet which is an indication that
there is a decrease of blood supply to the
patient's brain (Id., pp. 19-20). Immediately
thereafter, she went out of the operating
room, and she told Rogelio E. Ramos "that
something wrong was . . . happening" (Ibid.).
Dr. Calderon was then able to intubate the
patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the
operating room, saw a respiratory machine
being rushed towards the door of the
operating room. He also saw several doctors
rushing towards the operating room. When
informed by Herminda Cruz that something
wrong was happening, he told her
(Herminda) to be back with the patient inside
the operating room (TSN, October 19, 1989,
pp. 25-28).
Herminda Cruz immediately rushed back,
and saw that the patient was still in
trendelenburg position (TSN, January 13,
1988, p. 20). At almost 3:00 P.M. of that

fateful day, she saw the patient taken to the

Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos
was able to talk to Dr. Hosaka. The latter
informed the former that something went
wrong during the intubation. Reacting to
what was told to him, Rogelio reminded the
doctor that the condition of his wife would not
have happened, had he (Dr. Hosaka) looked
for a good anesthesiologist (TSN, October
19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also
asked by the hospital to explain what
happened to the patient. The doctors
explained that the patient had bronchospasm
(TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a
month. About four months thereafter or on
November 15, 1985, the patient was
released from the hospital.
During the whole period of her confinement,
she incurred hospital bills amounting to
P93,542.25 which is the subject of a
promissory note and affidavit of undertaking
executed by Rogelio E. Ramos in favor of
DLSMC. Since that fateful afternoon of June
17, 1985, she has been in a comatose
condition. She cannot do anything. She
cannot move any part of her body. She
cannot see or hear. She is living on
mechanical means. She suffered brain
damage as a result of the absence of oxygen
in her brain for four to five minutes (TSN,
November 9, 1989, pp. 21-22). After being
discharged from the hospital, she has been
staying in their residence, still needing
constant medical attention, with her husband
Rogelio incurring a monthly expense ranging
from P8,000.00 to P10,000.00 (TSN,
October 19, 1989, pp. 32-34). She was also
diagnosed to be suffering from "diffuse
cerebral parenchymal damage" (Exh.
"G"; see also TSN, December 21, 1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for
damages with the Regional Trial Court of Quezon City against
herein private respondents alleging negligence in the
management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the
possible cause of Erlinda's injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to
prove that the sustained by Erlinda was due to lack of oxygen
in her brain caused by the faulty management of her airway by
private respondents during the anesthesia phase. On the other
hand, private respondents primarily relied on the expert
testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect
that the cause of brain damage was Erlinda's allergic reaction
to the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional
Trial Court rendered judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in
the finding of facts set forth earlier, and
applying the aforecited provisions of law and

jurisprudence to the case at bar, this Court

finds and so holds that defendants are liable
to plaintiffs for damages. The defendants
were guilty of, at the very least, negligence in
the performance of their duty to plaintiffpatient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this
Court finds that she omitted to exercise
reasonable care in not only intubating the
patient, but also in not repeating the
administration of atropine (TSN, August 20,
1991, pp. 5-10), without due regard to the
fact that the patient was inside the operating
room for almost three (3) hours. For after
she committed a mistake in intubating [the]
patient, the patient's nailbed became bluish
and the patient, thereafter, was placed in
trendelenburg position, because of the
decrease of blood supply to the patient's
brain. The evidence further shows that the
hapless patient suffered brain damage
because of the absence of oxygen in her
(patient's) brain for approximately four to five
minutes which, in turn, caused the patient to
become comatose.
On the part of Dr. Orlino Hosaka, this Court
finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to
administer anesthesia on the patient as part
of his obligation to provide the patient a good
anesthesiologist', and for arriving for the
scheduled operation almost three (3) hours
late.
On the part of DLSMC (the hospital), this
Court finds that it is liable for the acts of
negligence of the doctors in their "practice of
medicine" in the operating room. Moreover,
the hospital is liable for failing through its
responsible officials, to cancel the scheduled
operation after Dr. Hosaka inexcusably failed
to arrive on time.
In having held thus, this Court rejects the
defense raised by defendants that they have
acted with due care and prudence in
rendering medical services to 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.
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 fifteenday (15) period for filing a motion for reconsideration had
already expired, to wit:
We said in our Resolution on July 25, 1995,
that the filing of a Motion for Reconsideration

cannot be extended; precisely, the Motion for

Extension (Rollo, p. 12) was denied. It is, on
the other hand, admitted in the latter Motion
that plaintiffs/appellees received a copy of
the decision as early as June 9, 1995.
Computation wise, the period to file a Motion
for Reconsideration expired on June 24. The
Motion for Reconsideration, in turn, was
received by the Court of Appeals already on
July 4, necessarily, the 15-day period already
passed. For that alone, the latter should be
denied.
Even assuming admissibility of the Motion
for the Reconsideration, but after considering
the Comment/Opposition, the former, for lack
of merit, is hereby DENIED.
SO ORDERED. 10
A copy of the above resolution was received by Atty. Sillano on
11 April 1996. The next day, or on 12 April 1996, Atty. Sillano
filed before this Court a motion for extension of time to file the
present petition for certiorari under Rule 45. The Court granted
the motion for extension of time and gave petitioners additional
thirty (30) days after the expiration of the fifteen-day (15)
period counted from the receipt of the resolution of the Court of
Appeals within which to submit the petition. The due date fell
on 27 May 1996. The petition was filed on 9 May 1996, well
within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the
following grounds:
I
IN PUTTING MUCH RELIANCE ON THE
TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND DR.
JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF
THE RESPONDENTS DID NOT CAUSE
THE UNFORTUNATE COMATOSE
CONDITION OF PETITIONER ERLINDA
RAMOS;
III
IN NOT APPLYING THE DOCTRINE
OF RES IPSA LOQUITUR. 11
Before we discuss the merits of the case, we shall first dispose
of the procedural issue on the timeliness of the petition in
relation to the motion for reconsideration filed by petitioners
with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition
should not be given due course since the motion for
reconsideration of the petitioners on the decision of the Court
of Appeals was validly dismissed by the appellate court for
having been filed beyond the reglementary period. We do not
agree.
A careful review of the records reveals that the reason behind
the delay in filing the motion for reconsideration is attributable
to the fact that the decision of the Court of Appeals was not
sent to then counsel on record of petitioners, the Coronel Law
Office. In fact, a copy of the decision of the appellate court was

instead sent to and received by petitioner Rogelio Ramos on 9

June 1995 wherein he was mistakenly addressed as Atty.
Rogelio Ramos. Based on the other communications received
by petitioner Rogelio Ramos, the appellate court apparently
mistook him for the counsel on record. Thus, no copy of the
decision of the counsel on record. Petitioner, not being a
lawyer and unaware of the prescriptive period for filing a
motion for reconsideration, referred the same to a legal
counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all
notices should be sent to the party's lawyer at his given
address. With a few exceptions, notice to a litigant without
notice to his counsel on record is no notice at all. In the present
case, since a copy of the decision of the appellate court was
not sent to the counsel on record of petitioner, there can be no
sufficient notice to speak of. Hence, the delay in the filing of the
motion for reconsideration cannot be taken against petitioner.
Moreover, since the Court of Appeals already issued a second
Resolution, dated 29 March 1996, which superseded the
earlier resolution issued on 25 July 1995, and denied the
motion for reconsideration of petitioner, we believed that the
receipt of the former should be considered in determining the
timeliness of the filing of the present petition. Based on this,
the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now
look into the merits of the case. For a more logical presentation
of the discussion we shall first consider the issue on the
applicability of the doctrine of res ipsa loquitur to the instant
case. Thereafter, the first two assigned errors shall be tackled
in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the
thing or the transaction speaks for itself." The phrase "res ipsa
loquitur'' is a maxim for the rule that the fact of the occurrence
of an injury, taken with the surrounding circumstances, may
permit an inference or raise a presumption of negligence, or
make out a plaintiff's prima 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;
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 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 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-incharge. Likewise, petitioner Erlinda could not have been guilty
of contributory negligence because she was under the
influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body
(the brain) is injured or destroyed while the patient is
unconscious and under the immediate and exclusive control of
the physicians, we hold that a practical administration of justice
dictates the application of res ipsa loquitur. Upon these facts
and under these circumstances the Court would be able to say,
as a matter of common knowledge and observation, if
negligence attended the management and care of the patient.

Moreover, the liability of the physicians and the hospital in this

case is not predicated upon an alleged failure to secure the
desired results of an operation nor on an alleged lack of skill in
the diagnosis or treatment as in fact no operation or treatment
was ever performed on Erlinda. Thus, upon all these initial
determination a case is made out for the application of the
doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the
present case we are not saying that the doctrine is applicable
in any and all cases where injury occurs to a patient while
under anesthesia, or to any and all anesthesia cases. Each
case must be viewed in its own light and scrutinized in order to
be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine
and the presumption of negligence allowed therein, the Court
now comes to the issue of whether the Court of Appeals erred
in finding that private respondents were not negligent in the
care of Erlinda during the anesthesia phase of the operation
and, if in the affirmative, whether the alleged negligence was
the proximate cause of Erlinda's comatose condition. Corollary
thereto, we shall also determine if the Court of Appeals erred in
relying on the testimonies of the witnesses for the private
respondents.
In sustaining the position of private respondents, the Court of
Appeals relied on the testimonies of Dra. Gutierrez, Dra.
Calderon and Dr. Jamora. In giving weight to the testimony of
Dra. Gutierrez, the Court of Appeals rationalized that she was
candid enough to admit that she experienced some difficulty in
the endotracheal intubation 45 of the patient and thus, cannot
be said to be covering her negligence with falsehood. The
appellate court likewise opined that private respondents were
able to show that the brain damage sustained by Erlinda was
not caused by the alleged faulty intubation but was due to the
allergic reaction of the patient to the drug Thiopental Sodium
(Pentothal), a short-acting barbiturate, as testified on by their
expert witness, Dr. Jamora. On the other hand, the appellate
court rejected the testimony of Dean Herminda Cruz offered in
favor of petitioners that the cause of the brain injury was
traceable to the wrongful insertion of the tube since the latter,
being a nurse, was allegedly not knowledgeable in the process
of intubation. In so holding, the appellate court returned a
verdict in favor of respondents physicians and hospital and
absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold
that private respondents were unable to disprove the
presumption of negligence on their part in the care of Erlinda
and their negligence was the proximate cause of her piteous
condition.
In the instant case, the records are helpful in furnishing not
only the logical scientific evidence of the pathogenesis of the
injury but also in providing the Court the legal nexus upon
which liability is based. As will be shown hereinafter, private
respondents' own testimonies which are reflected in the
transcript of stenographic notes are replete of signposts
indicative of their negligence in the care and management of
Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care
of Erlinda during the anesthesia phase. As borne by the
records, respondent Dra. Gutierrez failed to properly intubate
the patient. This fact was attested to by Prof. Herminda Cruz,
Dean of the Capitol Medical Center School of Nursing and
petitioner's sister-in-law, who was in the operating room right
beside the patient when the tragic event occurred. Witness
Cruz testified to this effect:

ATTY. PAJARES:
Q: In particular, what did
Dra. Perfecta Gutierrez do,
if any on the patient?
A: In particular, I could see
that she was intubating the
patient.
Q: Do you know what
happened to that
intubation process
administered by Dra.
Gutierrez?

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?

ATTY. ALCERA:
A: Yes sir.
She will be incompetent
Your Honor.

Q: What did [s]he do, if

any?

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 maintubate 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.

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

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?

The appellate court, however, disbelieved Dean Cruz's

testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum
in our country will show that intubation is not
taught as part of nursing procedures and
techniques. Indeed, we take judicial notice of
the fact that nurses do not, and cannot,
intubate. Even on the assumption that she is
fully capable of determining whether or not a
patient is properly intubated, witness
Herminda Cruz, admittedly, did not peep into
the throat of the patient. (TSN, July 25, 1991,
p. 13). More importantly, there is no
evidence that she ever auscultated the
patient or that she conducted any type of
examination to check if the endotracheal
tube was in its proper place, and to
determine the condition of the heart, lungs,

and other organs. Thus, witness Cruz's

categorical statements that appellant Dra.
Gutierrez failed to intubate the appellee
Erlinda Ramos and that it was Dra. Calderon
who succeeded in doing so clearly suffer
from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress is
that being a nurse, and considered a layman in the process of
intubation, witness Cruz is not competent to testify on whether
or not the intubation was a success.
We do not agree with the above reasoning of the appellate
court. Although witness Cruz is not an anesthesiologist, she
can very well testify upon matters on which she is capable of
observing such as, the statements and acts of the physician
and surgeon, external appearances, and manifest conditions
which are observable by any one. 48 This is precisely allowed
under the doctrine of res ipsa loquitur where the testimony of
expert witnesses is not required. It is the accepted rule that
expert testimony is not necessary for the proof of negligence in
non-technical matters or those of which an ordinary person
may be expected to have knowledge, or where the lack of skill
or want of care is so obvious as to render expert testimony
unnecessary. 49 We take judicial notice of the fact that
anesthesia procedures have become so common, that even an
ordinary person can tell if it was administered properly. As
such, it would not be too difficult to tell if the tube was properly
inserted. This kind of observation, we believe, does not require
a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced
clinical nurse whose long experience and scholarship led to
her appointment as Dean of the Capitol Medical Center School
at Nursing, was fully capable of determining whether or not the
intubation was a success. She had extensive clinical
experience starting as a staff nurse in Chicago, Illinois; staff
nurse and clinical instructor in a teaching hospital, the FEUNRMF; 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 iintubate," that was the
patient.
Q: So, you found some
difficulty in inserting the
tube?
A: Yes, because of (sic)
my first attempt, I did not
see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made
the haphazard defense that she encountered hardship in the
insertion of the tube in the trachea of Erlinda because it was
positioned more anteriorly (slightly deviated from the normal
anatomy of a person) 52 making it harder to locate and, since
Erlinda is obese and has a short neck and protruding teeth, it
made intubation even more difficult.
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the procedure.
From their testimonies, it appears that the observation was
made only as an afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to lessen
the possibility of anesthetic accidents. Pre-operative evaluation
and preparation for anesthesia begins when the
anesthesiologist reviews the patient's medical records and
visits with the patient, traditionally, the day before elective
surgery. 53 It includes taking the patient's medical history,
review of current drug therapy, physical examination and
interpretation of laboratory data. 54 The physical examination
performed by the anesthesiologist is directed primarily toward
the central nervous system, cardiovascular system, lungs
and upper airway. 55 A thorough analysis of the patient's airway
normally involves investigating the following: cervical spine
mobility, temporomandibular mobility, prominent central
incisors, diseased or artificial teeth, ability to visualize uvula
and the thyromental distance. 56 Thus, physical characteristics
of the patient's upper airway that could make tracheal
intubation difficult should be studied. 57 Where the need arises,
as when initial assessment indicates possible problems (such
as the alleged short neck and protruding teeth of Erlinda) a
thorough examination of the patient's airway would go a long
way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she
saw Erlinda for the first time on the day of the operation itself,
on 17 June 1985. Before this date, no prior consultations with,
or pre-operative evaluation of Erlinda was done by her. Until
the day of the operation, respondent Dra. Gutierrez was
unaware of the physiological make-up and needs of Erlinda.
She was likewise not properly informed of the possible
difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing
her patient for the first time only an hour before the scheduled
operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives
lie at the core of the physician's centuries-old Hippocratic Oath.

Her failure to follow this medical procedure is, therefore, a

clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over
this omission by playing around with the trial court's ignorance
of clinical procedure, hoping that she could get away with it.
Respondent Dra. Gutierrez tried to muddle the difference
between an elective surgery and an emergency surgery just so
her failure to perform the required pre-operative evaluation
would escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree,
Doctor, that it is good
medical practice to see the
patient a day before so
you can introduce yourself
to establish good doctorpatient 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 cardiopulmonary clearance like
that, I usually don't do it
except on emergency and
on cases that have an
abnormalities (sic). 58
However, the exact opposite is true. In an emergency
procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an
anesthesiologist is able to see the patient only a few minutes
before surgery, if at all. Elective procedures, on the other hand,
are operative procedures that can wait for days, weeks or even
months. Hence, in these cases, the anesthesiologist
possesses the luxury of time to be at the patient's beside to do
a proper interview and clinical evaluation. There is ample time
to explain the method of anesthesia, the drugs to be used, and
their possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at least
one day before the intended surgery, when the patient is
relaxed and cooperative.
Erlinda's case was elective and this was known to respondent
Dra. Gutierrez. Thus, she had all the time to make a thorough
evaluation of Erlinda's case prior to the operation and prepare
her for anesthesia. However, she never saw the patient at the
bedside. She herself admitted that she had seen petitioner only
in the operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take advantage of
this important opportunity. As such, her attempt to exculpate
herself must fail.
Having established that respondent Dra. Gutierrez failed to
perform pre-operative evaluation of the patient which, in turn,
resulted to a wrongful intubation, we now determine if the faulty
intubation is truly the proximate cause of Erlinda's comatose
condition.
Private respondents repeatedly hammered the view that the
cerebral anoxia which led to Erlinda's coma was due to
bronchospasm 59 mediated by her allergic response to the

drug, Thiopental Sodium, introduced into her system. Towards

this end, they presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the Philippine
Specialty Board of Internal Medicine, who advanced private
respondents' theory that the oxygen deprivation which led to
anoxic encephalopathy, 60 was due to an unpredictable drug
reaction to the short-acting barbiturate. We find the theory of
private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the
field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he
could not have been capable of properly enlightening the court
about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist and
could not therefore properly advance expert opinion on
allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been capable, as
an expert would, of explaining to the court the pharmacologic
and toxic effects of the supposed culprit, Thiopental Sodium
(Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's
testimony as an expert witness in the anesthetic practice of
Pentothal administration is further supported by his own
admission that he formulated his opinions on the drug not from
the practical experience gained by a specialist or expert in the
administration and use of Sodium Pentothal on patients, but
only from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise
on pulmonology, did you
have any occasion to use
pentothal as a method of
management?
DR. JAMORA:
A: We do it in conjunction
with the anesthesiologist
when they have to intubate
our patient.
Q: But not in particular
when you practice
pulmonology?
A: No.
Q: In other words, your
knowledge about pentothal
is based only on what you
have read from books and
not by your own personal
application of the medicine
pentothal?
A: Based on my personal
experience also on
pentothal.
Q: How many times have
you used pentothal?
A: They used it on me. I
went into bronchospasm
during my appendectomy.

Q: And because they have

used it on you and on
account of your own
personal experience you
feel that you can testify on
pentothal here with
medical authority?
A: No. That is why I used
references to support my
claims. 61
An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of anesthesia,
internal medicine-allergy, and clinical pharmacology. The
resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-mediated
pulmonary diseases are within the expertise of pulmonary
medicine, Dr. Jamora's field, the anesthetic drug-induced,
allergic mediated bronchospasm alleged in this case is within
the disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript, in
which the pulmonologist himself admitted that he could not
testify about the drug with medical authority, it is clear that the
appellate court erred in giving weight to Dr. Jamora's testimony
as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence 62 regarding expert
witnesses states:
Sec. 49. Opinion of expert witness. The
opinion of a witness on a matter requiring
special knowledge, skill, experience or
training which he is shown to possess, may
be received in evidence.
Generally, to qualify as an expert witness, one must have
acquired special knowledge of the subject matter about which
he or she is to testify, either by the study of recognized
authorities on the subject or by practical experience.63 Clearly,
Dr. Jamora does not qualify as an expert witness based on the
above standard since he lacks the necessary knowledge, skill,
and training in the field of anesthesiology. Oddly, apart from
submitting testimony from a specialist in the wrong field,
private respondents' intentionally avoided providing testimony
by competent and independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental Sodium
may have produced Erlinda's coma by triggering an allergic
mediated response, has no support in evidence. No evidence
of stridor, skin reactions, or wheezing some of the more
common accompanying signs of an allergic reaction
appears on record. No laboratory data were ever presented to
the court.
In any case, private respondents themselves admit that
Thiopental induced, allergic-mediated bronchospasm happens
only very rarely. If courts were to accept private respondents'
hypothesis without supporting medical proof, and against the
weight of available evidence, then every anesthetic accident
would be an act of God. Evidently, the Thiopental-allergy
theory vigorously asserted by private respondents was a mere
afterthought. Such an explanation was advanced in order to
advanced in order to absolve them of any and all responsibility
for the patient's condition.
In view of the evidence at hand, we are inclined to believe
petitioners' stand that it was the faulty intubation which was the
proximate cause of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural

and continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without which the
result would not have occurred. 64 An injury or damage is
proximately caused by an act or a failure to act, whenever it
appears from the evidence in the case, that the act or omission
played a substantial part in bringing about or actually causing
the injury or damage; and that the injury or damage was either
a direct result or a reasonably probable consequence of the act
or omission. 65 It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at
hand, faulty intubation is undeniably the proximate cause
which triggered the chain of events leading to Erlinda's brain
damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony
that the first intubation was a failure. This fact was likewise
observed by witness Cruz when she heard respondent Dra.
Gutierrez remarked, "Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz
noticed abdominal distention on the body of Erlinda. The
development of abdominal distention, together with respiratory
embarrassment indicates that the endotracheal tube entered
the esophagus instead of the respiratory tree. In other words,
instead of the intended endotracheal intubation what actually
took place was an esophageal intubation. During intubation,
such distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of the
lungs through the trachea. Entry into the esophagus would
certainly cause some delay in oxygen delivery into the lungs as
the tube which carries oxygen is in the wrong place. That
abdominal distention had been observed during the first
intubation suggests that the length of time utilized in inserting
the endotracheal tube (up to the time the tube was withdrawn
for the second attempt) was fairly significant. Due to the delay
in the delivery of oxygen in her lungs Erlinda showed signs of
cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack
of oxygen became apparent only after he noticed that the
nailbeds of Erlinda were already blue. 67 However, private
respondents contend that a second intubation was executed
on Erlinda and this one was successfully done. We do not think
so. No evidence exists on record, beyond private respondents'
bare claims, which supports the contention that the second
intubation was successful. Assuming that the endotracheal
tube finally found its way into the proper orifice of the trachea,
the same gave no guarantee of oxygen delivery, the hallmark
of a successful intubation. In fact, cyanosis was again
observed immediately after the second intubation. Proceeding
from this event (cyanosis), it could not be claimed, as private
respondents insist, that the second intubation was
accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late.
As aptly explained by the trial court, Erlinda already suffered
brain damage as a result of the inadequate oxygenation of her
brain for about four to five minutes. 68
The above conclusion is not without basis. Scientific studies
point out that intubation problems are responsible for one-third
(1/3) of deaths and serious injuries associated with
anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the
vast majority of difficult intubations may be anticipated by
performing a thorough evaluation of the patient's airway prior to
the operation. 70 As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative protocol
which could have prevented this unfortunate incident. Had
appropriate diligence and reasonable care been used in the
pre-operative evaluation, respondent physician could have
been much more prepared to meet the contingency brought
about by the perceived anatomic variations in the patient's
neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together

with a change in technique. 71 In other words, an experienced

anesthesiologist, adequately alerted by a thorough preoperative evaluation, would have had little difficulty going
around the short neck and protruding teeth. 72 Having failed to
observe common medical standards in pre-operative
management and intubation, respondent Dra. Gutierrez'
negligence resulted in cerebral anoxia and eventual coma of
Erlinda.
We now determine the responsibility of respondent Dr. Orlino
Hosaka as the head of the surgical team. As the so-called
"captain of the ship," 73 it is the surgeon's responsibility to see
to it that those under him perform their task in the proper
manner. Respondent Dr. Hosaka's negligence can be found in
his failure to exercise the proper authority (as the "captain" of
the operative team) in not determining if his anesthesiologist
observed proper anesthesia protocols. In fact, no evidence on
record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient.
Furthermore, it does not escape us that respondent Dr. Hosaka
had scheduled another procedure in a different hospital at the
same time as Erlinda's cholecystectomy, and was in fact over
three hours late for the latter's operation. Because of this, he
had little or no time to confer with his anesthesiologist
regarding the anesthesia delivery. This indicates that he was
remiss in his professional duties towards his patient. Thus, he
shares equal responsibility for the events which resulted in
Erlinda's condition.
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and visiting
"consultants," 74 who are allegedly not hospital employees,
presents problems in apportioning responsibility for negligence
in medical malpractice cases. However, the difficulty is only
more apparent than real.
In the first place, hospitals exercise significant control in the
hiring and firing of consultants and in the conduct of their work
within the hospital premises. Doctors who apply for
"consultant" slots, visiting or attending, are required to submit
proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully
scrutinized by members of the hospital administration or by a
review committee set up by the hospital who either accept or
reject the application. 75 This is particularly true with
respondent hospital.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinicopathological conferences, conduct bedside rounds for clerks,
interns and residents, moderate grand rounds and patient
audits and perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the hospital,
and/or for the privilege of admitting patients into the hospital. In
addition to these, the physician's performance as a specialist is
generally evaluated by a peer review committee on the basis of
mortality and morbidity statistics, and feedback from patients,
nurses, interns and residents. A consultant remiss in his duties,
or a consultant who regularly falls short of the minimum
standards acceptable to the hospital or its peer review
committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting "consultant" staff. While
"consultants" are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the
patient's condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks

of an employer-employee relationship, with the exception of

the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule that for the
purpose of allocating responsibility in medical negligence
cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians.
This being the case, the question now arises as to whether or
not respondent hospital is solidarily liable with respondent
doctors for petitioner's condition. 76
The basis for holding an employer solidarily responsible for the
negligence of its employee is found in Article 2180 of the Civil
Code which considers a person accountable not only for his
own acts but also for those of others based on the former's
responsibility under a relationship of patria potestas. 77 Such
responsibility ceases when the persons or entity concerned
prove that they have observed the diligence of a good father of
the family to prevent damage.78 In other words, while the
burden of proving negligence rests on the plaintiffs, once
negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove that
they observed the diligence of a good father of a family to
prevent damage.
In the instant case, respondent hospital, apart from a general
denial of its responsibility over respondent physicians, failed to
adduce evidence showing that it exercised the diligence of a
good father of a family in the hiring and supervision of the
latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In neglecting
to offer such proof, or proof of a similar nature, respondent
hospital thereby failed to discharge its burden under the last
paragraph of Article 2180. Having failed to do this, respondent
hospital is consequently solidarily responsible with its
physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals
erred in accepting and relying on the testimonies of the
witnesses for the private respondents. Indeed, as shown by the
above discussions, private respondents were unable to rebut
the presumption of negligence. Upon these disquisitions we
hold that private respondents are solidarily liable for damages
under Article 2176 79 of the Civil Code.
We now come to the amount of damages due petitioners. The
trial court awarded a total of P632,000.00 pesos (should be
P616,000.00) in compensatory damages to the plaintiff,
"subject to its being updated" covering the period from 15
November 1985 up to 15 April 1992, based on monthly
expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by
the trial court at the time of its decision would be grossly
inadequate to cover the actual costs of home-based care for a
comatose individual. The calculated amount was not even
arrived at by looking at the actual cost of proper hospice care
for the patient. What it reflected were the actual expenses
incurred and proved by the petitioners after they were forced to
bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital
or be transferred to a hospice specializing in the care of the
chronically ill for the purpose of providing a proper milieu
adequate to meet minimum standards of care. In the instant
case for instance, Erlinda has to be constantly turned from side
to side to prevent bedsores and hypostatic pneumonia.
Feeding is done by nasogastric tube. Food preparation should
be normally made by a dietitian to provide her with the correct
daily caloric requirements and vitamin supplements.
Furthermore, she has to be seen on a regular basis by a

physical therapist to avoid muscle atrophy, and by a pulmonary

therapist to prevent the accumulation of secretions which can
lead to respiratory complications.
Given these considerations, the amount of actual damages
recoverable in suits arising from negligence should at least
reflect the correct minimum cost of proper care, not the cost of
the care the family is usually compelled to undertake at home
to avoid bankruptcy. However, the provisions of the Civil Code
on actual or compensatory damages present us with some
difficulties.
Well-settled is the rule that actual damages which may be
claimed by the plaintiff are those suffered by him as he has
duly proved. The Civil Code provides:
Art. 2199. Except as provided by law or
by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss
suffered by him as he has duly proved. Such
compensation is referred to as actual or
compensatory damages.
Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and
that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible
future complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to the
injury caused, should be one which compensates for pecuniary
loss incurred and proved, up to the time of trial; and one which
would meet pecuniary loss certain to be suffered but which
could not, from the nature of the case, be made with
certainty. 80 In other words, temperate damages can and
should be awarded on top of actual or compensatory damages
in instances where the injury is chronic and continuing. And
because of the unique nature of such cases, no incompatibility
arises when both actual and temperate damages are provided
for. The reason is that these damages cover two distinct
phases.
As it would not be equitable and certainly not in the best
interests of the administration of justice for the victim in such
cases to constantly come before the courts and invoke their aid
in seeking adjustments to the compensatory damages
previously awarded temperate damages are appropriate.
The amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only homebased nursing care for a comatose patient who has remained
in that condition for over a decade. Having premised our award
for compensatory damages on the amount provided by
petitioners at the onset of litigation, it would be now much more
in step with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide optimal
care for their loved one in a facility which generally specializes
in such care. They should not be compelled by dire
circumstances to provide substandard care at home without
the aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable. 81

In Valenzuela vs. Court of Appeals, 82 this Court was

confronted with a situation where the injury suffered by the
plaintiff would have led to expenses which were difficult to
estimate because while they would have been a direct result of
the injury (amputation), and were certain to be incurred by the
plaintiff, they were likely to arise only in the future. We awarded
P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes
Valenzuela underwent a traumatic
amputation of her left lower extremity at the
distal left thigh just above the knee. Because
of this, Valenzuela will forever be deprived of
the full ambulatory functions of her left
extremity, even with the use of state of the
art prosthetic technology. Well beyond the
period of hospitalization (which was paid for
by Li), she will be required to undergo
adjustments in her prosthetic devise due to
the shrinkage of the stump from the process
of healing.
These adjustments entail costs, prosthetic
replacements and months of physical and
occupational rehabilitation and therapy.
During the lifetime, the prosthetic devise will
have to be replaced and readjusted to
changes in the size of her lower limb effected
by the biological changes of middle-age,
menopause and aging. Assuming she
reaches menopause, for example, the
prosthetic will have to be adjusted to
respond to the changes in bone resulting
from a precipitate decrease in calcium levels
observed in the bones of all postmenopausal women. In other words, the
damage done to her would not only be
permanent and lasting, it would also be
permanently changing and adjusting to the
physiologic changes which her body would
normally undergo through the years. The
replacements, changes, and adjustments will
require corresponding adjustive physical and
occupational therapy. All of these
adjustments, it has been documented, are
painful.
xxx xxx xxx
A prosthetic devise, however technologically
advanced, will only allow a reasonable
amount of functional restoration of the motor
functions of the lower limb. The sensory
functions are forever lost. The resultant
anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable.83
The injury suffered by Erlinda as a consequence of private
respondents' negligence is certainly much more serious than
the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the
incident occurred. She has been in a comatose state for over
fourteen years now. The burden of care has so far been
heroically shouldered by her husband and children, who, in the
intervening years have been deprived of the love of a wife and
a mother.

Meanwhile, the actual physical, emotional and financial cost of

the care of petitioner would be virtually impossible to quantify.
Even the temperate damages herein awarded would be
inadequate if petitioner's condition remains unchanged for the
next ten years.
We recognized, in Valenzuela that a discussion of the victim's
actual injury would not even scratch the surface of the resulting
moral damage because it would be highly speculative to
estimate the amount of emotional and moral pain,
psychological damage and injury suffered by the victim or
those actually affected by the victim's condition. 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.

G.R. No. 78315 January 2, 1989

COMMERCIAL CREDIT CORPORATION CAGAYAN DE
ORO, petitioner,
vs.

THE COURT OF APPEALS and THE CAGAYAN DE ORO

COLISEUM, INC., respondents.

GANCAYCO, J.:
In this petition for review of a decision of the Court of Appeals
in CA G.R. SP No. 10888 1 the issue is whether or not a
compromise judgment which was found by the Court of
Appeals to be lawful may be modified by the same court.
Sometime in 1978 private respondent Cagayan De Oro
Coliseum, Inc. executed a promissory note in the amount of
P329,852.54 in favor of petitioner Commercial Credit
Corporation of Cagayan de Oro, payable in 36 monthly
installments. The note is secured by a real estate mortgage
duly executed by private respondent in favor of petitioner. As
said respondent defaulted in the payment of the monthly
installments due, petitioner proceeded with the extrajudicial
foreclosure of the real estate mortgage in September, 1979.
Five minority stockholders of private respondent then instituted
Special Civil Action No. 68111 in the then Court of First
Instance (CFI) of Misamis Oriental questioning the power of
the private respondent to execute the real estate mortgage
without the consent of its stockholders. In due course a
compromise agreement was entered into by the parties on the
basis of which a compromise judgment was rendered by the
trial court on March 11, 1980 which reads as follows:
JUDGMENT
The parties in the above-entitled case
assisted by their respective counsel,
submitted for the approval of the Court the
following Compromise Agreement, to wit:
COMES NOW, Parties, Petitioners and
Respondents, represented by their
respective counsels, unto this Honorable
Court, most respectfully submit for approval
the following Compromise Agreement:
1. That, Petitioners herein hereby state that
they ratified and approved the loan and real
estate mortgage entered into and assigned
by the Cagayan de Oro Coliseum, Inc. to the
Commercial Credit Corporation of Cagayan
de Oro and as such therefore, the issue
raised by the herein petitioners in the above
entitled case has become moot and
academic;
2. That, by virtue of the aforementioned, the
Cagayan de Oro Coliseum, Inc. thru its
Board of Directors and represented by its
President, Mr. Johnny Wilson, hereby admits
its total outstanding obligation to herein
Respondent Commercial Credit Corporation
of Cagayan de Oro in the amount of TWO
HUNDRED FORTY NINE THOUSAND TWO
HUNDRED SIXTY THREE & 23/100 PESOS
(P 249,263.23), as of February 15, 1980,
including therein the sum of P 10,000.00
representing attorney's fees for Respondent
Commercial Credit Corporation of Cagayan
de Oro;

3. That the Cagayan de Oro Coliseum, Inc.

has agreed to pay the above obligation plus
interest on diminishing balance computed
yearly at sixteen (16) percent per annum,
thus:

Private respondent then filed a special civil action in the Court

of Appeals to annul said compromise-judgment, alleging that
the trial court acted in serious violation of law and/or in grave
abuse of discretion. In due course, a decision was rendered by
said appellate court on February 13, 1987, the dispositive part
of which reads as follows:

Total Account.................... P 249,263.23

Total Interest...................... P 76,138.60
Total Payable ...................... P 325,401.83
4. That, the Cagayan de Oro Coliseum, Inc.
hereby agrees to pay the aforegoing
obligation in paragraph (3) hereof in equal
monthly installments of P11,000.00, the first
installment shall be payable in February,
1980 and every month thereafter until the
whole account payable as aforementioned is
fully paid;
5. That, failure on the part of Respondent
Cagayan de Oro Coliseum, Inc. to pay any of
the installments as they shall become due,
the whole amount then outstanding and
unpaid shall immediately become due and
payable in its entirety and shall render the
judgment herein to be immediately final,
unappealable and executory; and the
overdue and unpaid installments shall earn a
three (3%) per cent per month penalty
charge until fully paid, plus five percent (5%)
of the outstanding balance as additional
attorney's fee;
6. That, Respondent Commercial Credit
Corporation of Cagayan de Oro hereby
agrees to withdraw its application with
Respondent City Sheriff of Cagayan de Oro
for the extrajudicial foreclosure of the real
estate mortgage subject of this complaint;
7. That, the Parties herein waive in favor of
each other any and all forms of damage
arising out of, connected with and/or as a
result of this action.
WHEREFORE, the Parties respectfully pray
of this Honorable Court that judgment in
accordance with the Compromise Agreement
be rendered. (Pages 25-27, Rollo)
However as private respondent failed to comply with the terms
of the judgment for failure to pay several installments in the
amount of P70,152.65 which matured on July 13, 1982,
petitioner filed an ex-parte motion for the issuance of a writ of
execution on March 4, 1983. The Court granted the said
motion in an order dated March 10, 1983. A notice of auction
sale was issued on March 11, 1983. Private respondent filed a
motion for reconsideration of said order alleging that it had paid
its obligation. The execution of the writ was suspended
pending consideration of said motion. An opposition thereto
was filed by petitioner to which a reply was filed by the private
respondent and, in turn, the comment of the petitioner was also
submitted. On November 26, 1986, the trial court denied said
motion for reconsideration and, accordingly, a writ of execution
was issued on December 4, 1986. The Deputy Provincial
Sheriff set the auction sale for January 23, 1987. However,
said auction sale did not take place as scheduled due to some
internal problems in the office of sheriff.

WHEREFORE, the present petition is

DENIED due course and is hereby
DISMISSED. Effective March 16, 1983, the
overdue and unpaid installments shall earn
one half per cent (1/2%) per month penalty
charge until fully paid, plus two per cent (2%)
of the outstanding balance as additional
attorney's fees. (Page 33, Rollo)
A motion for reconsideration of the decision was filed by
petitioner. On March 23, 1987 a resolution denying the motion
was issued by the respondent appellate court.
On the other hand, private respondent also filed a motion for
reconsideration and comment on the petitioner's motion for
reconsideration. On May 19, 1987, respondent Court issued a
resolution, the dispositive part of which reads as follows:
Acting on the said first part of the petitioner's
motion for reconsideration as well as the
private respondent's comment thereon, the
aforestated grounds for said motion having
been already taken up by this Court in
reaching the said February 13, 1987
decision, and finding no reason to disturb the
same, the said motion as to its said first part,
is DENIED for lack of merit.
As to the said second part of petitioner's motion for
reconsideration, for clarity, the dispositive portion of the
February 13, 1987 decision is re-worded to read as follows:
WHEREFORE, the present petition is
GRANTED in the sense that effective March
16, 1983, the overdue and unpaid
installments shall earn one half per cent
(1/2%) per month penalty charge until fully
paid, plus two per cent (2%) of the
outstanding balance as additional attorney's
fees.
And in view of such disposition.
1) THE JUDGMENT DATED MARCH 11,
1980 AND THE ORDER DATED
NOVEMBER 26, 1986 OF RESPONDENT
DENT COURT ARE HEREBY DECLARED
MODIFIED CONFORMABLY WITH THE
FEBRUARY 13, 1987 DECISION OF THIS
COURT; and
2) THE WRIT OF EXECUTION ISSUED BY
RESPONDENT DENT CLERK OF COURT,
AND THE SHERIFF'S NOTICE OF SALE,
THE PUBLIC AUCTION SALE AND THE
CERTIFICATE OF SALE ARE DECLARED
NULL AND VOID IN SO FAR AS THEY ARE
NOT IN ACCORDANCE WITH AND IN
EXCESS OF THE NOW MODIFIED
JUDGMENT AND MODIFIED ORDER OF
THE RESPONDENT COURT DATED
MARCH 11, 1980 AND NOVEMBER 26,
1986, RESPECTIVELY

(Page 148, Rollo)

ART. 1229. The Judge shall equitably reduce

the penalty when the principal obligation has
been partly or irregularly complied with by
the debtor. Even if there has been no
performance, the penalty may also be
reduced by the courts if it is iniquitous or
unconscionable.

Hence, the herein petition for review on certiorari wherein

petitioner alleges the following reasons as warranting the grant
of the petition:
a) THE HONORABLE COURT OF APPEALS
COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR
IN EXCESS OF JURISDICTION WHEN IT
MODIFIED THE TRIAL COURT'S
COMPROMISE JUDGMENT AFTER IT
DENIED DUE COURSE AND DISMISSED
THE PETITION FOR ANNULMENT OF
RESPONDENT COLISEUM.
b) THE HONORABLE COURT OF APPEALS
COMMITTED GRAVE AND REVERSIBLE
ERROR IN APPLYING ARTICLE 1229 OF
THE CIVIL CODE IN THE CASE AT BAR.
c) THE HONORABLE COURT OF APPEALS
COMMITTED GRAVE AND REVERSIBLE
ERROR WHEN IT MODIFIED THE
EFFECT'S OF THE 3% PENALTY
INTEREST AND ATTORNEY'S FEES,
AFTER IT UPHELD THE LEGALITY OF THE
COMPROMISE JUDGMENT OF THE TRIAL
COURT." (Page 14, Rollo)
The petition is impressed with merit. It is axiomatic that a
compromise judgment is final and immediately executory.
Once a judgment becomes final and executory, the prevailing
party can have it executed as a matter of right and the
execution becomes a ministerial duty on the part of the
court . 2 A judicial compromise has the force and effect of res
judicata. 3

The foregoing provision of the law applies only to obligations or

contract, subject of a litigation, the condition being that the
same has been partly or irregularly complied with by the
debtor. The provision also applies even if there has been no
performance, as long as the penalty is iniquituous or
unconscionable. It cannot apply to a final and executory
judgment.
When the parties entered into the said compromise agreement
and submitted the same for the approval of the trial court, its
terms and conditions must be the primordial consideration why
the parties voluntarily entered into the same. The trial court
approved it because it is lawful, and is not against public policy
or morals. Even the respondent Court of Appeals upheld the
validity of the said compromise agreement. Hence, the
respondent court has no authority to reduce the penalty and
attorney's fees therein stipulated which is the law between the
parties and is res judicata.
WHEREFORE, the petition is GRANTED. The decision of the
respondent Court of Appeals dated February 13, 1987 and its
resolutions dated March 23, 1987 and May 19, 1987 are
hereby SET ASIDE and another judgment is hereby rendered
affirming in toto the compromise judgment of the trial court
dated March 11, 1980, with costs against private respondent.
This decision is immediately executory.
SO ORDERED.
G.R. No. L-25434 July 25, 1975

Such a final and executory judgment cannot be modified or

amended. If an amendment is to be made, it may consist only
of supplying an omission, striking out a superfluity or
interpreting an ambiguous phrase therein in relation to the
body of the decision which gives it life . 4 A compromise
judgment should not be disturbed except for vices in consent
or forgery. 5
In the present case, the compromise agreement was
voluntarily entered into by the parties assisted by their
respective counsel and was duly approved by the trial court.
Indeed, it was confirmed by the respondent appellate court to
be lawful. There was, therefore, no cogent basis for the
respondent appellate court to modify said compromise
agreement by reducing the penalty and attorney's fees
provided for therein.
In spite of the protestation of private respondent that the
penalty and interests provided in the compromise agreement
was violative of the Usury Law, the respondent appellate court,
applying the provisions of Central Bank Circular No. 721, found
no violation thereof as in fact the imposition of the penalty is
sanctioned by Article 1226 of the Civil Code. The respondent
court cited the De Venecia vs. Del Rosario 6 where this Court
held that in the absence of a stipulation to the contrary,
recovery of both the penalty and the interest until full payment
of the debt is allowed under existing laws.
The modification of said compromise judgment by the
respondent appellate court is predicated on the provision of
Article 1229 of the Civil Code which provides as follows:

HONORABLE ARSENIO N. ROLDAN, JR., in his capacity

as Acting Commissioner, Philippine Fisheries
Commission, and THE PHILIPPINE NAVY, petitioners,
vs.
HONORABLE FRANCISCO ARCA, as Presiding Judge of
the Court of First Instance of Manila (Branch 1) and
MORABE, DE GUZMAN & COMPANY, respondents.
Office of the Solicitor General Arturo A. Alafriz and Solicitor
Augusto M. Amores for petitioners.
J. C. Yuseco and A.R. Narvasa for private respondent.

MAKASIAR, J.:
A petition for certiorari and prohibition with preliminary
injunction to restrain respondent Judge from enforcing his
order dated October 18, 1965, and the writ of preliminary
mandatory injunction thereunder issued.
On April 3, 1964, respondent company filed with the Court of
First Instance of Manila a civil case docketed as No. 56701
against petitioner Fisheries Commissioner Arsenio N. Roldan,
Jr., for the recovery of fishing vessel Tony Lex VI (one of two
fishing boats in question) which had been seized and
impounded by petitioner Fisheries Commissioner through the
Philippine Navy.

On April 10, 1964, respondent company prayed for a writ of

preliminary mandatory injunction with respondent court, but
said prayer was, however, denied.
On April 28, 1964, the Court of First Instance of Manila set
aside its order of April 10, 1964 and granted respondent
company's motion for reconsideration praying for preliminary
mandatory injunction. Thus, respondent company took
Possession of the vessel Tony Lex VI from herein petitioners
by virtue of the abovesaid writ.
On December 10, 1964, the Court of First Instance of Manila
dismissed Civil Case No. 56701 for failure of therein petitioner
(respondent company herein) to prosecute as well as for failure
of therein defendants (petitioners herein)to appear on the
scheduled date of hearing. The vessel, Tony Lex VI or Srta.
Winnie however, remained in the possession of respondent
company.
On July 20, 1965, petitioner Fisheries Commissioner requested
the Philippine Navy to apprehend vessels Tony Lex VI and
Tony Lex III, also respectively called Srta. Winnie and Srta.
Agnes, for alleged violations of some provisions of the
Fisheries Act and the rules and regulations promulgated
thereunder.
On August 5 or 6, 1965, the two fishing boats were actually
seized for illegal fishing with dynamite. Fish caught with
dynamite and sticks of dynamite were then found aboard the
two vessels.
On August 18, 1965, the Fisheries Commissioner requested
the Palawan Provincial Fiscal to file criminal charges against
the crew members of the fishing vessels.
On September 30, 1965, there were filed in the court of First
Instance of Palawan a couple of informations, one against the
crew members of Tony Lex III, and another against the crew
members of Tony Lex VI both for violations of Act No. 4003,
as amended by Commonwealth Acts Nos. 462, 659 and 1088,
i.e., for illegal fishing with the use of dynamite. On the same
day, the Fiscal filed an ex parte motion to hold the boats in
custody as instruments and therefore evidence of the crime (p.
54, rec.), and cabled the Fisheries Commissioner to detain the
vessels (p. 56, rec.).
On October 2 and 4, likewise, the Court of First Instance of
Palawan ordered the Philippine Navy to take the boats in
custody.
On October 2, 1965, respondent company filed a complaint
with application for preliminary mandatory injunction, docketed
as Civil Case No. 62799 with the Court of First Instance of
Manila against herein petitioners. Among others, it was alleged
that at the time of the seizure of the fishing boats in issue, the
same were engaged in legitimate fishing operations off the
coast of Palawan; that by virtue of the offer of compromise
dated September 13, 1965 by respondent company to the
Secretary of Agriculture and Natural Resources, the numerous
violations of the Fishery Laws, if any, by the crew members of
the vessels were settled.
On October 9, 1965, petitioners, represented by the Solicitor
General, opposed the above-mentioned complaint, alleging
among others, that: (1) the issuance of the writ would disrupt
the status quo of the parties and would render nugatory any
decision of the respondent court favorable to the defendant; (2)
that the vessels, being instruments of a crime in criminal cases
Nos. 3416 and 3417 filed with the Court of First Instance of
Palawan, the release of the vessels sans the corresponding
order from the above-mentioned court would deprive the same

of its authority to dispose of the vessels in the criminal cases

and the Provincial Fiscal would not be able to utilize said
vessels as evidence in the prosecution of said cases; (3) that
as petitioners herein were in possession of one of the vessels
in point, they cannot now be deprived of the legal custody
thereof by reason of the dismissal of Civil Case No. 56701; (4)
that petitioner Fisheries Commissioner has the power to seize
and detain the vessels pursuant to Section 5 of Republic Act
No. 3215 in relation to Sections 903 and 2210 of the Revised
Tariff and Customs Code; (5) that respondents herein have not
exhausted administrative remedies before coming to court; (6)
that the compromise agreement approved by the Secretary of
Agriculture and Natural Resources and indorsed to the
Fisheries Commissioner is never a bar to the prosecution of
the crime perpetrated by the crew members of the vessels
belonging to respondent company.
And again, on October 15, 1965, herein petitioners filed their
memorandum praying for the denial of the application for
preliminary mandatory injunction. On the same day, October
15, 1965, herein petitioners filed an urgent motion to submit
additional documentary evidence.
On October 18, 1965, herein petitioners, as defendants in said
Civil Case No. 62799, filed their answer to the complaint with
affirmative defenses, reiterating the grounds in their opposition
to the issuance of a writ of preliminary mandatory injunction
and adding that herein private respondent admitted committing
the last violation when it offered in its letter dated September
21, 1965 to the Acting Commissioner of Fisheries, to
compromise said last violation (Exh. 12, pp. 60-61, rec.).
On said day, October 18, 1965, the respondent Judge issued
the challenged order granting the issuance of the writ of
preliminary mandatory injunction and issued the preliminary
writ upon the filing by private respondent of a bond of
P5,000.00 for the release of the two vessels(pp. 95-102, rec.).
On October 19, 1965, herein petitioners filed a motion for
reconsideration of the order issuing the preliminary writ on
October 18, 1965 on the ground, among others, that on
October 18, 1965 the Philippine Navy received from the
Palawan Court of First Instance two orders dated October 2
and 4, 1965 requiring the Philippine Navy to hold the fishing
boats in custody and directing that the said vessels should not
be released until further orders from the Court, and that the
bond of P5,000.00 is grossly insufficient to cover the
Government's losses in case the two vessels, which are worth
P495,000.00, are placed beyond the reach of the Government,
thus frustrating their forfeiture as instruments of the crime (pp.
103-109, rec.).1wph1.t
On November 23, 1965, respondent Judge denied the said
motion for reconsideration (p. 110, rec.).
WE rule that the respondent Judge of the Manila Court of First
Instance acted without jurisdiction and with grave abuse of
discretion when he issued on October 18, 1965 the order
directing the issuance of a writ of preliminary mandatory
injunction and when he refused to reconsider the same.
I
When the respondent Judge issued the challenged order on
October 18, 1965 and the writ of preliminary mandatory
injunction pursuant thereto, the fishing vessels were already
under the jurisdiction of the Court of First Instance of Palawan
by virtue of its orders of October 2 and 4, 1965, upon motion of
the Provincial Fiscal (pp. 54, 55, rec.), directing the Philippine
Navy to detain (pp. 108, 109, rec.) said vessels, which are
subject to forfeiture as instruments of the crime, to be utilized

as evidence in Criminal Cases Nos. 3416 and 3417 for illegal

fishing pending in said court (pp. 54-55, rec.). The said vessels
were seized while engaging in prohibited fishing within the
territorial waters of Palawan (pp. 45, 48,-53, rec.) and hence
within the jurisdiction of the Court of First Instance of Palawan,
in obedience to the rule that "the place where a criminal
offense was committed not only determines the venue of the
action but is an essential element of jurisdiction"(Lopez vs.
Paras, L-25795, Oct. 29, 1966, 18 SCRA 616, 619). The
jurisdiction over the vessels acquired by the Palawan Court of
First Instance cannot be interfered with by another Court of
First Instance. The orders of October 2 and 4, 1965 by the
Palawan Court of First Instance expressly direct the Philippine
Navy "to hold in custody" the two vessels and that "same
should not be released without prior order or authority from this
Court" (pp. 108, 109, rec.). Only the Palawan court can order
the release of the two vessels. Not even the Secretary of
Agriculture and Natural Resources nor the Fisheries
Commissioner can direct that the fishing boats be turned over
to private respondent without risking contempt of court.
The grave abuse of discretion committed by the respondent
Judge was heightened by the fact that he did not reconsider
his order of October 18, 1965 after he was informed by
petitioners in their motion for reconsideration filed on October
19, 1965 that the Palawan Court of First Instance had already
issued the two orders dated October 2 and 4, 1965 directing
the Philippine Navy to hold in custody the fishing boats until
further orders.
It is basic that one court cannot interfere with the judgments,
orders or decrees of another court of concurrent or coordinate
jurisdiction having equal power to grant the relief sought by
injunction; because if coordinate courts were allowed to
interfere with each other's judgments, decrees or injunctions,
the same would obviously lead to confusion and might
seriously hinder the administration of justice (Ongsinco, etc. vs.
Tan, et al., 97 Phil. 330; PNB vs. Javellana, 92 Phil. 525;
Montesa vs. Manila Cordage Company, 92 Phil. 25; Hubahib
vs. Insular Drug Company, 64 Phil. 119; Hacbang, et al. vs.
The Leyte Auto Bus Company, et al., G.R. No. L-17907, May
30, 1963, 8 SCRA, 103, 107-109; NPC vs. Hon. Jesus de
Vera, G.R. No. L-15763, Dec. 22, 1961, 3 SCRA, 646, 648;
Cabigao vs. del Rosario, 44 Phil. 182; Araneta & Uy vs.
Commonwealth Insurance Company, 55 OG 431; Moran,
Comments on the Rules of Court, Vol. III, 1970 ed., p. 64).
As early as October 2 and 4, 1965, the two boats were already
in custodia legis under the sole control of the Palawan Court of
First Instance. The Manila Court of First Instance cannot
interfere with and change that possession (Hacbang vs. Leyte
Bus Co., Inc., supra; NPC vs. Hon. Jesus de Vera, supra).
It is immaterial that the vessels were then in the Philippine
Navy basin in Manila; for the same in no way impugns the
jurisdiction already vested in the Palawan court, which has
custody thereof through the Philippine Navy. This is analogous
to the situation in Colmenares versus Villar (L-27124, May 29,
1970, 33 SCRA 186, 188-9), wherein We ruled "where the
illegal possession of firearms was committed in the town where
the Court sits, the fact that the firearms were confiscated from
the accused in another town does not affect the jurisdiction of
the Court" (pp. 186, 189).
It is likewise of no moment that the herein respondents were
not notified by the herein petitioners of the seizure of the
questioned vessels by the Philippine Navy, because such
previous notice is not required by law.
II

The dismissal on December 10, 1964 of the first Civil Case No.
56701 by the Court of First Instance of Manila had the
necessary effect of automatically dissolving the writ of
preliminary mandatory injunction issued therein on April 28,
1964, directing the return of fishing vessel Tony Lex VI (pp.
156-157, rec.). Such a preliminary writ, like any other
interlocutory order, cannot survive the main case of which it
was but an incident; because "an ancillary writ of preliminary
injunction loses its force and effect after the dismissal of the
main petition" (National Sugar Workers' Union, etc., vs. La
Carlota Sugar Central, et al., L-23569, May 25, 1972, 45 SCRA
104, 109; Lazaro vs. Mariano, 59 Phil. 6Z7, 631; Saavedra vs.
Ibaez, 56 Phil. 33, 37; Hi Caiji vs. Phil. Sugar Estate and
Development Company, 50 Phil. 592, 594).1wph1.t
Moreover, the writ of preliminary injunction issued on April 28,
1964 in Civil Case No. 56701 was directed against the
detention of the vessel Tony Lex VI for violations committed
prior to August 5, 1965, and therefore cannot and does not
extend to the seizure and detention of said vessel for violations
on August 5 or 6, 1965, which violations were not and could
not possibly be the subject-matter of said Civil Case No. 56701
which was filed on April 3, 1964 (p. 12, rec.).
III
Herein petitioners can validly direct and/or effect the seizure of
the vessels of private respondent for illegal fishing by the use
of dynamite and without the requisite licenses.
Section 4 of Republic Act No. 3512 approved on March 20,
1963 empowers the Fisheries Commissioner to carry out the
provisions of the Fisheries Act, as amended, and all rules and
regulations promulgated thereunder, to make searches and
seizures personally or through his duly authorized
representatives in accordance with the Rules of Court, of
"explosives such as ... dynamites and the like ...; including
fishery products, fishing equipment, tackle and other things
that are subject to seizure under existing fishery laws"; and "to
effectively implement the enforcement of existing fishery laws
on illegal fishing."
Paragraph 5 of Section 4 of the same Republic Act 3512
likewise transferred to and vested in the Philippine Fisheries
Commission "all the powers, functions and duties heretofore
exercised by the Bureau of Customs, Philippine Navy and
Philippine Constabulary over fishing vessels and fishery
matters ..."
Section 12 of the Fisheries Act, otherwise known as Republic
Act No. 4003, as amended, prohibits fishing with dynamites or
other explosives which is penalized by Section 76 thereof "by a
fine of not less than P1,500.00 nor more than
P5,000.00, and by imprisonment for not less than one (1) year
and six (6) months nor more than five (5) years, aside from
the confiscation and forfeiture of all explosives, boats, tackles,
apparel, furniture, and other apparatus used in fishing in
violation of said Section 12 of this Act." Section 78 of the same
Fisheries Law provides that "in case of a second offense, the
vessel, together with its tackle, apparel, furniture and stores
shall be forfeited to the Government."
The second paragraph of Section 12 also provides that "the
possession and/or finding, of dynamite, blasting caps and other
explosives in any fishing boat shall constitute a presumption
that the said dynamite and/or blasting capsand explosives are
being used for fishing purposes in violation of this Section, and
that the possession or discovery in any fishing boat or fish
caught or killed by the use of dynamite or other explosives,
under expert testimony, shall constitute a presumption that the
owner, if present in the fishing boat, or the fishing crew have

been fishing with dynamite or other explosives." (Emphasis

supplied).
Under Section 78 of the Fisheries Act, as amended, any
person, association or corporation fishing in deep sea fishery
without the corresponding license prescribed in Sections 17 to
22 Article V of the Fisheries Act or any other order or regulation
deriving force from its provisions, "shall be punished for each
offense by a fine of not more than P5,000.00, or imprisonment,
for not more than one year, or both, in the discretion of the
Court;Provided, That in case of an association or corporation,
the President or manager shall be directly responsible for the
acts of his employees or laborers if it is proven that the latter
acted with his knowledge; otherwise the responsibility shall
extend only as far as fine is concerned: Provided, further, That
in the absence of a known owner of the vessel, the master,
patron or person in charge of such vessel shall be responsible
for any violation of this Act: and Provided, finally, That in case
of a second offense, the vessel together with its tackle,
apparel, furniture and stores shall be forfeited to the
Government" (Emphasis supplied).
Under Section 13 of Executive Order No. 389 of December 23,
1950, reorganizing the Armed Forces of the Philippines, the
Philippine Navy has the function, among others, "to assist the
proper governmental agencies in the enforcement of laws and
regulations pertaining to ... fishing ..." (46 OG 5905, 5911).
Section 2210 of the Tariff and Customs Code, as amended by
PD No. 34 of October 27, 1972, authorized any official or
person exercising police authority under the provisions of the
Code, to search and seize any vessel or air craft as well as any
trunk, package, bag or envelope on board and to search any
person on board for any breach or violation of the customs and
tariff laws.
When the Philippine Navy, upon request of the Fisheries
Commissioner, apprehended on August 5 or 6, 1965 the fishing
boats Tony Lex III and Tony Lex VI, otherwise known
respectively as Srta. Agnes and Srta. Winnie, these vessels
were found to be without the necessary license in violation of
Section 903 of the Tariff and Customs Code and therefore
subject to seizure under Section 2210 of the same Code, and
illegally fishing with explosives and without fishing license
required by Sections 17 and 18 of the Fisheries Law (pp. 4647, rec.).1wph1.t
The operation of the fishing boat Tony Lex III was suspended
pursuant to the order dated January 28, 1964 issued by the
Commissioner of Fisheries pending the final determination of
the case against it for illegal fishing with explosives on January
21, 1964 (p. 34, rec.) and remained suspended until its
apprehension on August 5 or 6, 1965 (p. 46, rec.).
For illegal fishing with explosives on March 23, 1963, the
renewal of the fishing boat license of Tony Lex VI was
suspended for one year from the time said boat was moored at
Pier 14 at North Harbor, Manila, without prejudice to the
institution of a criminal case against its owner and/or operator,
pursuant to the order dated May 19, 1964 issued by the
Commissioner of Fisheries (pp. 35-36, rec.), the motion for
reconsideration of which order was denied by the
Commissioner of Fisheries in an order dated August 17, 1964
(pp. 41-42, rec.).
For illegal fishing with dynamite on March 28, 1963, the
operation of Tony Lex VI was suspended by the Commissioner
of Fisheries in an order dated April 1, 1963 (p. 62, rec.).
For illegal fishing again with explosives on April 25, 1963, the
fishing boat Tony Lex VI together with its tackle, apparel,

furniture and all other apparatus used in fishing was ordered

confiscated and forfeited in favor of the Government and a fine
in the amount of P5,000.00 was imposed on its ownersoperators, without prejudice to the filing of the necessary
criminal action, pursuant to the order of June 2, 1964 of the
Commissioner of Fisheries(pp. 37-38, rec.).
Again, for comitting the same violation on June 19, 1963, a fine
in the amount of P5,000.00 was imposed on the ownersoperators of fishing boat Tony Lex VI pursuant to the order of
June 4, 1964 issued by the Commissioner of Fisheries (pp. 3940, rec.)..
It appears, therefore, that since January 28, 1964, the fishing
boat Tony Lex III was suspended from operating and was
ordered moored at Pier 14, North Harbor, Manila (pp. 34, 4647, rec.); and that the fishing vessel Tony Lex VI was
suspended for one year from May 24, 1964 and was actually
ordered forfeited to the Government pursuant to the order of
June 2, 1964 for repeated violations of Section 12 of the
Fisheries Act (pp. 37- 38. rec.).1wph1.tAs a matter of fact,
when apprehended on August 5 or 6, 1965, both vessels were
found to be without any license or permit for coastwise trade or
for fishing and unlawfully fishing with explosives, for which
reason their owners and crew were accordingly indicted by the
Provincial Fiscal of Palawan for illegal fishing with dynamite
and without the requisite license (pp. 48-53, rec.).
As heretofore intimated, the two fishing boats were
apprehended on numerous occasions for fishing with dynamite
from March 28, 1963 to March 11, 1964, which violations
private respondent, as owner-operator, sought to compromise
by offering to pay a fine of P21,000.00 for all said prior
violations.
Such previous violations of Sections 12, 17 and 18 of the
Fisheries Act committed by the two fishing boats, Tony Lex III
and Tony Lex VI, from March 28, 1963 until August 5 or 6,
1965, rendered the said vessels subject to forfeiture under
Sections 76 and 78 of the Fisheries Act, as amended.
Search and seizure without search warrant of vessels and air
crafts for violations of the customs laws have been the
traditional exception to the constitutional requirement of a
search warrant, because the vessel can be quickly moved out
of the locality or jurisdiction in which the search warrant must
be sought before such warrant could be secured; hence it is
not practicable to require a search warrant before such search
or seizure can be constitutionally effected (Papa vs. Mago, L27360, Feb. 28, 1968, 22 SCRA 857, 871-74; Magoncia vs.
Palacio, 80 Phil. 770, 774; Caroll vs. U.S. 267, pp. 132, 149,
158; Justice Fernando, The Bill of Rights, 1972 ed., p. 225;
Gonzales, Philippine Constitutional Law, 1966 ed., p. 300).
The same exception should apply to seizures of fishing vessels
breaching our fishery laws. They are usually equipped with
powerful motors that enable them to elude pursuing ships of
the Philippine Navy or Coast Guard.
Another exception to the constitutional requirement of a search
warrant for a valid search and seizure, is a search or seizure
as an incident to a lawful arrest (Alvero vs. Dizon, 76 Phil. 637;
Justice Fernando, The Bill of Rights, 1972 ed., p. 224). Under
our Rules of Court, a police officer or a private individual may,
without a warrant, arrest a person (a) who has committed, is
actually committing or is about to commit an offense in his
presence; (b) who is reasonably believed to have committed
an offense which has been actually committed; or (c) who is a
prisoner who has escaped from confinement while serving a
final judgment or from temporary detention during the
pendency of his case or while being transferred from one

confinement to another (Sec. 6, Rule 113, Revised Rules of

Court). In the case at bar, the members of the crew of the two
vessels were caught in flagrante illegally fishing with dynamite
and without the requisite license. Thus their apprehension
without a warrant of arrest while committing a crime is lawful.
Consequently, the seizure of the vessel, its equipment and
dynamites therein was equally valid as an incident to a lawful
arrest.
The alleged compromise approved by the Secretary of
Agriculture and Natural Resources on September 13, 1965
(pp. 63-64, 158-159, rec.) cannot be invoked by the
respondents because the said compromise referred to about
thirty violations of the fisheries law committed by the private
respondent from March 28, 1963 to March 11, 1964. The
violations by the two vessels of private respondent by reason
of which these vessels were apprehended and detained by the
Philippine Navy upon request of the Commissioner of
Fisheries, were committed on August 5 or 6, 1965.
Moreover, the power to compromise would exist only before a
criminal prosecution is instituted; otherwise the Department
Secretary or any of his sub-alterns can render criminal
prosecutions for violations of the fisheries law a mere mockery.
It is not in the public interest nor is it good policy to sustain the
viewpoint that the Department Secretary can compromise
criminal cases involving public, not private, offenses after the
indictment had been instituted in court. The fishing vessels
together with all their equipment and the dynamites found
therein are not only evidence of the crime of illegal fishing but
also subject to forfeiture in favor of the Government as
instruments of the crime (Art. 45, Revised Penal Code, Sec.
78, Act No. 4003, as amended). Section 80(j) of Act No. 4003,
as amended, precludes such a compromise the moment the
Fisheries Commissioner decides to prosecute the criminal
action in accordance with Sections 76 and 78 of the other
penal provisions of the fisheries law. Furthermore, any
compromise shall be upon the recommendation of the
Fisheries Commission (Section 80[i], Act No. 4003), which did
not recommend such a compromise for the violation on August
5 or 6, 1965 of Section 12 in relation to Sections 76 and 78 of
Act No. 4003, as amended. On the contrary, the Fisheries
Commissioner requested the Provincial Fiscal to institute the
criminal cases (pp. 43-45, rec.) and the Provincial Fiscal filed
the corresponding informations docketed as Criminal Cases
Nos. 3416 and 3417 on September 30, 1965 against the
owners and the members of the crew of the vessels (pp. 48-53,
rec.).
It should be noted that in the first indorsement dated
September 13, 1965 of the Secretary of Agriculture and Natural
Resources approving the compromise fine of P21,000.00 for
the various violations committed previous to August 5 or 6,
1965 (pp. 34-42, 47, 58-64, 149-155, 158-159, rec.), the
Department Secretary "believes that the offer made by the
company was an implied admission of violations of said
provisions of the Fisheries Law and regulations, ..." (pp. 63,
158, rec.). The said approval was granted after the private
respondent filed a motion for reconsideration of the
indorsement dated March 5, 1965 of the Secretary of
Agriculture and Natural Resources disapproving the offer by
private respondent to pay the fine by way of compromise.
There can be no dispute that the term fishing boat (employed
in the second paragraph of Section 12 of the Fisheries Act
applies to the vessels Tony Lex III and Tony Lex VI. Even
private respondent refers to said fishing boats as fishing
vessels "engaged in fishing operations" or "in commercial
fishing" in paragraph IV of its complaint in Civil Case No.
62799 (p. 18, rec.), as well as in its various communications to
the Fisheries Commissioner (pp. 60-61, 65, 82,
rec.).1wph1.t The two fishing vessels Tony Lex III and

Tony Lex VI likewise fall under the term vessel used in

Sections 17, 76 and 78, as well as the term boats utilized in the
second paragraph of Section 76 of the Fisheries Act. They can
also fall under the term fishing equipment employed in Section
4 of Republic Act No. 3512; because a fishing equipment is
never complete and cannot be effectively used in off-shore or
deep-sea fishing without the fishing boat or fishing vessel itself.
And these two vessels of private respondent certainly come
under the term fishing vessels employed in paragraph 5 of
Section 4 of the same Republic Act 3512 creating the Fisheries
Commission.
Hence, no useful purpose can be served in trying to distinguish
between boat and vessel with reference to Tony Lex III and
Tony Lex VI. As a matter of fact, the accepted definition
of vessel includes "every description of water craft, large or
small, used or capable of being used as a means of
transportation on water" (Cope versus Vallete, etc., 199 U.S.
625; U.S. vs. Holmes, 104 Fed. 884; Charles Barnes Co. vs.
One Dredge Boat, 169 Fed. 895; and Yu Con vs. Ipil, 41 Phil.
780).
The word boat in its ordinary sense, means any water craft
(Monongahela River Construction, etc. vs. Hardsaw, 77 NE
363, 365). The fishing boats Tony Lex III and Tony Lex VI are
likewise vessels within the meaning of the term vessel used in
Sections 903 and 2210 of the Tariff and Customs Code.
WHEREFORE, THE PETITION IS HEREBY GRANTED AND
THE ORDER OF RESPONDENT JUDGE DATED OCTOBER
18, 1965, THE WRIT OF PRELIMINARY MANDATORY
INJUNCTION ISSUED THEREUNDER AND THE ORDER
DATED NOVEMBER 23, 1965, ARE HEREBY SET ASIDE AS
NULL AND VOID, WITH COSTS AGAINST PRIVATE
RESPONDENT.

G.R. No. L-25999

February 9, 1967

ASSOCIATED LABOR UNION, petitioner,

vs.
JUDGE AMADOR E. GOMEZ, JUDGE JOSE C. BORROMEO
and SUPERIOR GAS AND EQUIPMENT CO., OF CEBU,
INC., respondents.
Sino, Mendoza, Ruiz & Associates for petitioner.
Parades, Poblador, Cruz & Nazareno for respondents.
SANCHEZ, J.:
Following are the facts that spawned the present proceedings:
On January 1, 1965, Associated Labor Union1 and Superior
Gas and Equipment Co. of Cebu, Inc.,2 entered into a
collective bargaining contract. It was to expire on January 1,
1966. Prior to the contract's expiry, Union and employer started
negotiations for its renewal. Late in February, 1966, while
bargaining was in progress, 12 of Sugeco's employees
resigned from the Union. Negotiations were broken. On March
1, 1966, the Union wrote Sugeco. There, request was made
that unless the 12 resigned employees3 could produce a
clearance from the Union, they be not allowed in the meantime
to report for work. On the same day, Sugeco's attorney
rejected the request. The reasons given are that irreparable
injury would ensue, that the bargaining contract had lapsed,
and that the Company could no longer demand from its
employees the requested clearance. Sugeco made it
understood that after the 12 men would have returned into the
Union fold, said company would then be "in a position to
negotiate again for the renewal of the collective bargaining

contract." Also on the same day, March 1, the Union wrote

Sugeco, charged the latter with bargaining in bad faith, and its
supervisors with "campaigning for the resignation of members
of this Union". The Union there served notice "that unless the
aforementioned unfair labor practice acts will immediately be
stopped and a collective bargaining agreement be signed
between your company and this union immediately after
receipt of this letter, this union will declare a strike against your
management and correspondingly establish picket lines in any
place where your business may be found". On March 3, 1966,
counsel for Sugeco wrote the Union stating that with the
resignation of Union members aforesaid, the Union was no
longer the representative of the majority of the employees "for
purposes of negotiation and recognition".
On March 4, the Union struck, picketed the Basak (Mandawe)
plant of Sugeco.
The next day, March 5, 1966, Sugeco went to the Court of First
Instance of Cebu (Case No. R-9221, entitled "Superior Gas
and Equipment Co. of Cebu, Inc., petitioner, vs. Associated
Labor Union, respondent"), praying that the Union be
restrained from alleged illegal picketing activities at its Basak
plant, and also from, picketing Sugeco's offices at Juan Luna
street, Cebu City, and its other offices located elsewhere in the
Philippines.
On the same date, March 5, 1966, upon a bond of P5,000.00,
respondent Judge Amador E. Gomez, purportedly upon the
authority of the Rules of Court,4 issued ex parte the writ of
preliminary injunction prayed for. The Union moved to
reconsider. Ground, inter alia, is that the court of first instance
had no jurisdiction over the subject-matter unfair labor
practice. It was the turn of the other respondent, Judge Jose C.
Borromeo, to refuse reconsideration.
Meanwhile, on March 5, 1966 on the same day the Court of
First Instance complaint was filed by Sugeco against the Union
the latter lodged with the Court of Industrial Relations (CIR,
for short) a charge for unfair labor practice against Sugeco, its
general manager, Concepelon Y. Lua, and its two supervisors,
Nestor Yu and Mariano Nulla. The Union there averred that
said respondents coerced and exerted pressure upon the
union members to resign, as they did resign, from the Union;
and that such resignations were seized upon by Sugeco to
refuse further negotiations with the Union. Offshoot is the
complaint for unfair labor practice registered in the CIR on April
29, 1966 by its Acting Prosecutor.5
On May 9, 1966, the Union came to this Court on certiorari and
prohibition. The Union here prays that respondent judges of
the Court of First Instance of Cebu be declared without
jurisdiction over the subject matter of the petition in Civil Case
No. R-9221 aforesaid; that the writ of preliminary injunction
therein issued be annulled; and that said judges be directed to
dismiss said case. The Union also asks that pendente lite the
respondent judges be stopped from further proceeding with the
case just adverted to.
This Court on May 16, 1966, issued the solicited cease-anddesist order.1wph1.t
The quintessence of this case is jurisdiction.
First, we go to the background facts. We take stock of
Sugeco's petition against the Union in the Court of First
Instance of Cebu (Case No. R-9221). Read as it should be,
Sugeco in paragraph 10 thereof charges the Union with
"coercing the resigned employees to rejoin" the same. And
this, obviously to neutralize the Union claim that Sugeco was
coercing and cajoling its members to separate therefrom.6

This charge and countercharge require us to focus attention on

the Industrial Peace Act.7 Section 4(a) and (b) thereof recite, as
follows:
(a) It shall be unfair labor practice for an employer:
(1) To interfere with, restrain or coerce employees in
the exercise of their rights guaranteed in section
three;
xxx

xxx

xxx

(b) It shall be unfair labor practice for a labor

organization or its agents:
(1) To restrain or coerce employees in the exercise of
their rights under section three ....
And Section 3 referred to in Section 4(a) and (b) provides:
... Employees shall have the right to self-organization
and to form, join or assist labor organizations of their
own choosing for the purpose of collective bargaining
through representatives of their own choosing and to
engage in concerted activities for the purpose of
collective bargaining and other mutual aid or
protection. ....
The broad sweep of the law suggests that the coercion or
cajolery of employees heretofore described, by management
or union, is unfair labor practice.8 Therefore, the alleged act of
coercing or instigating union members to resign therefrom is
clearly within the coverage of the prescription. It is aimed at
crippling the Union, throwing it off balance, destroying its
bargaining authority. It is an attack against the Magna Carta of
Labor. By the same token, the charge levelled by Sugeco
against the Union that the latter "is coercing
the resigned employees to rejoin the Union" is no less an unfair
labor practice.
Jurisdiction then is exclusively vested in the Court of Industrial
Relations. For, explicit in Section 5(a) of the Industrial Peace
Act is the precept that
The Court shall have jurisdiction over the prevention
of unfair labor practices and is empowered to prevent
any person from engaging in any unfair labor practice.
This power shall be exclusive and shall not be
affected by any other means of adjustment or
prevention that has been or may be established by an
agreement, code, law or otherwise. [Emphasis
supplied]
Nor will Sugeco's averment below that it suffers damages, by
reason of the strike, work to defeat the CIR's jurisdiction to
hear the unfair labor practice charge. Reason for this is that the
right to damages "would still have to depend on the evidence in
the unfair labor practice case" in the CIR.9 To hold otherwise
is to sanction split jurisdiction which is obnoxious to the
orderly administration of justice.10
The stance that the ULP case initiated by the Union in the CIR
was an afterthought, will not carry the day for Sugeco. That
case was filed on the very same day Sugeco went to the Court
of First Instance which, anyway, is without jurisdiction over
the subject-matter. The Union struck precisely because of the
unfair labor practice allegedly indulged in by Sugeco. So that,
the ULP case was not calculated merely to divest the Cebu
court of first instance of jurisdiction which it did not possess.11

A rule buttressed upon statute and reason that frequently

reiterated in jurisprudence is that labor cases involving unfair
labor practice are within the exclusive jurisdiction of the ClR.
By now, this rule has ripened into dogma. It thus commands
adherence not breach.12 This Court once pointedly remarked
that "[t]he policy of social justice guaranteed by the
Constitution demands that when cases appear to involve labor
disputes courts should take care in the exercise of their
prerogatives and discretion".13

restraining order dated January 27, 1972,

the clarificatory restraining order dated
February 11, 1972 and the Order of April 6,
1972.
(b) And after due proceedings, to render
judgment declaring void the Orders dated
January 27, 1972, February 11, 1972 and
April 6, 1972, respectively, with costs against
the respondent herein, except the Judge.

The Court of First Instance of Cebu, we rule, is without

jurisdiction over the subject-matter of Case No. R-9221. Its
judges, therefore, did not have the authority to provide for an
ancillary remedy in that case. Hence, the injunction below
complained of was issued coram non judice. It is void.

(c) Petitioners likewise pray this Honorable

Court for such other or further relief as may
be deemed just and equitable in the
premises.

For the reasons given:

Manila, Philippines, April 17, 1972, 1

(1) the petition herein for a writ of certiorari and prohibition is

hereby granted, and the writ of preliminary injunction we issued
on May 13, 1966 is declared permanent;
(2) the writ of preliminary injunction issued by the Court of First
Instance of Cebu in Case No. L-9221, entitled "Superior Gas
and Equipment Co. of Cebu, Inc., petitioner, vs. Associated
Labor Union, respondent" is hereby declared null and void; and
(3) the respondent judges, or whoever shall take their place,
are hereby directed to dismiss the said Case No. L-9221.
Costs against respondent Superior Gas and Equipment Co. of
Cebu, Inc. So ordered.

In a Resolution of April 27, 1972, this Court resolved, without

giving due course to the petition, to require the respondents to
comment thereon, within ten (10) days from notice thereof and
to issue a temporary restraining order. 2
The temporary restraining order enjoined the respondent
Judge and his agents from implementing or enforcing his
orders dated January 27, 1972, February 11, 1972 and April 6,
1972, all issued in Civil Case No. 644 entitledDiosamer
Development Corporation, Plaintiff versus Chief of Staff, AFP,
et al., Defendants" of the Court of First Instance of Nueva
Ecija, Branch V, Gapan and enjoined the respondent
Corporation and its successors, from carrying out, executing
and/or enforcing the abovementioned orders. 3
In a resolution of June 5, 1972, this Court gave due course to
the petition. 4

G.R. No. L-35007 December 29, 1980

THE CHIEF OF STAFF, AFP; COMMANDING GENERAL,
FIRST INFANTRY DIVISION, PA; and COMMANDING
OFFICER, TASK FORCE "PRESERVE", petitioners,
vs.
HON. TEOFILO GUADIZ, JR., as Judge of the Court of First
Instance (Fifth Branch) of Nueva Ecija; and DIOSAMER
DEVELOPMENT CORPORATION, represented by its
General Manager, Minor B. Bote,respondents.

FERNANDEZ, J.:
This is a petition for certiorari and prohibition with a prayer for
the issuance of preliminary injunction filed on April 26, 1972 by
the Chief of Staff, AFP; Commanding General First Infantry
Division, PA; and Commanding Officer, Task Force "Preserve"
against Hon. Teofilo Guadiz, Jr., as Judge of the Court of First
Instance (Fifth Branch) of Nueva Ecija; and Diosamer
Development Corporation, represented by its General
Manager, Minor B. Bote, seeking the following reliefs:
WHEREFORE, petitioners respectfully pray
the Honorable Supreme Court that:
(a) Pending consideration of this petition on
its merits, it issue a writ of preliminary
injunction, ex-parte and without bond
restraining respondent Judge Teofilo Guadiz,
Jr., his successor in office or any one acting
in his place and any other Judge or Court
inferior to the Supreme Court, from
executing, enforcing or implementing the

The respondent, Diosamer Development Corporation, filed a

complaint dated January 24, 1972 docketed as Civil Case No.
644 in the Court of First Instance of Nueva Ecija, Branch V,
Gapan against the Chief of Staff, AFP; the Commanding
General, First Infantry Division, PA; and Commanding Officer,
Task Force "Preserve", seeking the following relief:
WHEREFORE, it is respectfully prayed that:
1. Pending hearing of the petition for the
issuance of a preliminary injunction in this
case, a temporary restraining order be
issued by this Honorable Court enjoining the
defendants, their agents, representatives
and all persons claiming and/or working
under them from stopping, preventing,
molesting, driving, or threatening to stop,
prevent, molest or drive the plaintiff, its
agents, laborers, equipment's, trucks, and
men from passing through the Bignay and
Sumandig-Alulag roads for its logging
operations or allied activities even if said
roads may, in some points, traverse the Fort
Magsaysay Military Reservation;
2. After due hearing of the petition for the
issuance of a preliminary injunction and
upon the filing of a bond in such amount as
may be fixed and approved by this
Honorable Court, to issue a preliminary
injunction in this case of the tenor mentioned
in paragraph No. 1 of these prayers;

3. After hearing on the merits, to make the

preliminary injunction permanent and/or
ordering the defendants to issue the road
right-of-way to the plaintiff, with or without
indemnity as the case may be; plaintiff is
willing to pay indemnity if it will so be
required;
4. Such further and other reliefs just and
equitable are likewise prayed for.
5. Plus costs against the defendants.
Mandaluyong, Rizal, for Gapan, Nueva Ecija,
January 24, 1972. 5
The respondent Judge issued an order dated January 27,
1972, the dispositive portion of which reads:
WHEREFORE, for all the foregoing
considerations, the petition for preliminary
injunction is hereby set for hearing on
February 9, 1972, at 9:00 o'clock in the
morning, with notice to all parties. In the
meantime, and upon posting by the plaintiff
of a surety bond in the amount of TEN
THOUSAND (P10,000.00) PESOS, which
shall be answerable for whatever damage or
injury which the defendants may sustain as a
consequence of this order, the defendants
and their agents, representatives, and all
other persons acting in their behalf, are
hereby temporarily restrained from
preventing, stopping, molesting, or otherwise
thwarting the plaintiff and its agents,
representatives, laborers or workers, from
cutting and removing the amount of logs
authorized to be cut and removed from its
licensed logging area, and from passing or
otherwise using the Bignay and SumandigAlulag roads for the purpose.

That the restraining order dated January 27,

1972 shall continue to have force and effect
until further order from the Court;
That the area where the plaintiff shall be
allowed to cut and remove logs is that
licensed area (Annex "E") covered by the
sketch, Annex 'B-l' of the Complaint as
further described in the technical description,
Annex 'B-2' of the complaint, notwithstanding
the respective conflicting claims of the
defendants and the plaintiff that said area is
inside or outside the Fort Magsaysay Military
reservation as the case may be.
IT IS SO ORDERED.
Gapan, Nueva Ecija, February 11, 1972. 8
The petitioners' motion for reconsideration of the restraining
order and the clarificatory order was denied in an order dated
April 6, 1972 which also directed the issuance of a writ of
preliminary injunction as prayed for in the verified complaint.
Hence this petition for certiorari and prohibition.
The records shows that the principal relief sought by Diosamer
Development Corporation in Civil Case No. 644 was for a roadright-of-way through the Fort Magsaysay Military Reservation
so that the plaintiff, and its laborers, equipments and trucks
could pass through the Bignay and "Sumandig-Alulag" roads
for its logging operation or allied activities even if said roads
may, in some points, traverse the reservation. It appears that
the respondent Judge issued the restraining order as well as
the order clarifying said restraining order ex-parte without
giving the petitioners a chance to oppose the applications
therefor.

The respondent Judge acted with grave abuse of discretion

amounting to lack of jurisdiction in clarifying the restraining
order in the sense that the plaintiff, Diosamer Development
Corporation, was allowed to cut and remove logs in its licensed
Let summons be issued and let the same
area "notwithstanding the respective conflicting claims of the
and this order be served upon the
defendants and the plaintiff that said area is inside or outside
defendants by Deputy Sheriff Benedicto P.
the Fort Magsaysay Military reservation as the case may be".
Mateo of this Court.
As a result, the Diosamer Development Corporation was
allegedly able to cut timber within portions of the Fort
IT IS SO ORDERED.
Magsaysay Military Reservation. The clarificatory order went
beyond what was prayed for in the complaint. All that the
plaintiff was asking was to be allowed to pass through the
Gapan, Nueva Ecija, January 27, 1972.
areas of Fort Magsaysay Military Reservation traversed by the
Bignay and
"Sumandig-Alulag" roads. Indeed the clarificatory
(SGD) TEOFILO
GUADIZ,
order
has
prejudged
the conflict between the Diosamer
JR. Judge
Development Corporation and the petitioners on whether or not
the licensed area of the said corporation included portions of
The plaintiff in Civil Case No. 644, Diosamer Development
the Fort Magsaysay Military Reservation. This amounted to a
Corporation, private respondent herein, filed an urgent motion
decision of the case on the merits in favor of Diosamer
dated February 11, 1972 asking for the clarification of the
Development Corporation. Sound discretion is no license to
restraining order. 7 On the same date, the respondent Judge
frustrate the law by defeating its objectives. 9
issued the following order:
Acting upon the urgent motion dated
February 11, 1972 filed by the plaintiff asking
for a clarification about the duration of the
effectivity of the temporary restraining order
dated January 27, 1972 and of the area
where the plaintiff shall be allowed to
conduct its logging operations and for the
reasons stated therein which appear to be
well founded, the Court hereby grants the
same and so orders;

The order of April 6, 1972 perpetuated the grave abuse of

discretion by denying the motion to set aside the order of
January 27, 1972 and the order of February 11, 1972.
WHEREFORE, the petition for certiorari and prohibition is
hereby GRANTED and the restraining order dated January 27,
1972, the clarificatory restraining order dated February 11,
1972 and the order dated April 6, 1972 are set aside, without
pronouncement as to costs.

SO ORDERED.